Easy terms. Great service.

When I Work, Inc. is a workforce management SaaS solution that offers various types of services, such as shift scheduling and time and attendance by means of a hosted workforce management platform and software made available by WIW via web-based and/or mobile applications (collectively the “Service”); therefore, When I Work’s Terms of Service are separated into a set of terms for the organizations scheduling shift workers (“Workplace Terms of Service”) and a set of terms for individual shift workers (“User Terms of Service”). 

Read and accept the Terms of Service that apply to your organization as a Workplace or to you, individually, as a shift worker:

Workplace Terms of Service
FOR EMPLOYERS, COMPANIES, BUSINESSES, ORGANIZATIONS, AND OTHER ENTITIES WITH SHIFT WORKERS (each a “Workplace”) that purchase a subscription to the Service or have been provided with a no-charge or trial subscription for the Service.

User Terms of Service
FOR INDIVIDUAL WORKERS OF A WORKPLACE (each a “User”), such as shift workers, admins, managers. supervisors, employees, volunteers, agents, or contractors, who have been asked or invited to register with a Workplace and to access and use the Service on behalf of that Workplace.

PLEASE NOTE: 

• By creating a Workplace account or a registering as a User with a Workplace, by accessing or using the Service, or by clicking “I Accept”, “Continue”, “Finish”, or “Purchase” or “Sign Up for Free” or similar language affirming your intent to be bound by When I Work’s Terms of Service, you signify that you have read, understood, and agree to be bound by the applicable terms. 

• You agree to the collection and use of your information as set forth in the When I Work Privacy Policy, whether or not you fully create an account or become a registered User of our Service.

• BOTH THE WORKPLACE TERMS OF SERVICE AND THE USER TERMS OF SERVICE CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE CERTAIN DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

Workplace Terms of Service

FOR EMPLOYERS, COMPANIES, ORGANIZATIONS, AND OTHER ENTITIES WITH SHIFT WORKERS.

IF YOU ARE AN INDIVIDUAL WHO HAS BEEN ASKED OR INVITED TO ACCESS AND USE THE SERVICE BY A WORKPLACE AS A SHIFT WORKER*, ADMIN, MANAGER, SUPERVISOR, EMPLOYEE, VOLUNTEER, AGENT, OR CONTRACTOR OF A WORKPLACE, THE SEPARATE USER TERMS OF SERVICE (“User ToS“) APPLY TO YOU. THESE WORKPLACE ToS DO NOT APPLY TO YOU AS AN INDIVIDUAL.NOTE REGARDING SHIFT WORKER CLASSIFICATION IN THE SERVICE*Shift workers, including employees, independent contractors, and volunteers of a Workplace (“Users”) are often referred to within the Service as “Employees”. Within the Service, certain Employees may be designated as Managers or Supervisors by the Workplace.       Naming conventions within the Service are for convenience only and are not intended to be a determination of any individual’s worker status or worker classification for any purpose, including for purposes of federal employment taxes, unemployment taxes, etc. Likewise, When I Work does not assist in the determination of whether a shift worker is exempt or nonexempt under the Fair Labor Standards Act.   Workplaces assume all liability for the proper classification of their shift workers based on applicable legal guidelines and for complying with all other employment laws, such as wage and hour laws.

INTRODUCTION

• A. Applicability to Workplaces. These Workplace Terms of Service (“Workplace ToS”) apply to employers, companies, organizations, and other entities that create an account with When I Work, Inc. (“When I Work,” “WIW,” “we,” or “us” or “our”) to access and use the hosted workforce management platform and software made available by WIW via web-based and/or mobile applications (collectively the “Service”). These terms and conditions, together with any additional terms set forth in a WIW-issued quote or other type of WIW-approved order form that references these Workplace ToS, (collectively this “Agreement”), govern the acquisition and use of the specific software applications and features of the Service you have requested– e.g. Scheduling, Time & Attendance, Payroll Services.

The terms “Workplace,” “Account Holder,” “Customer,” “you,” and “your” in these Workplace ToS, refer to the employer, company, organization, or other entity creating a Workplace account with WIW. 

PLEASE READ THESE WORKPLACE ToS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION BEFORE ACCEPTING THIS AGREEMENT OR PROCEEDING WITH ANY USE OF OUR SERVICE. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICE. ADDITIONALLY, IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR WORKPLACE TO THIS AGREEMENT, YOU MAY NOT CREATE A WORKPLACE ACCOUNT WITH WIW OR ACCESS OR USE OUR SERVICE.

• B. Mandatory Arbitration. UNLESS YOU OPT OUT OF ARBITRATION PURSUANT TO THE INSTRUCTIONS IN SECTION 25.2(b) OF THESE WORKPLACE ToS, THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 25.3 THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE CERTAIN DISPUTES, RATHER THAN THE USE OF JURY TRIALS OR CLASS ACTIONS, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTIONS OR PROCEEDINGS. 

• C. Purchasing through Authorized Resellers. If your Workplace purchased a subscription to the Service from a third party authorized by WIW to sell such subscriptions (“Reseller”), then in addition to any terms and conditions related to your use of the Service pursuant to any agreement between you and the Reseller, these Workplace ToS contain the terms and conditions that govern your access to and use of the Service. You expressly acknowledge and agree that (a) WIW shall have the right to enforce these Workplace ToS against you; and (b) with respect to your access to and use of the Service, these Workplace ToS supersede any and all agreements between you and the Reseller.

• D. Accepting this Agreement.
  This Agreement may be accepted in one or more of the following ways: 
  
  • Clicking “I Accept”, “Continue”, “Finish”, “Purchase” or “Sign Up for Free” or similar language indicating you agree to abide by this Agreement provided you have the authority to bind the Workplace to these Workplace ToS (See Section (E) below for further information regarding eligibility); 
  • Executing a WIW-issued quote or other type of WIW-approved order form that references these Workplace ToS; 
  • Issuing a purchase order based on a WIW quote or other type of WIW-approved order form; or
  • Accessing and using the Service, even if such access began before publication of these Workplace ToS. Your continued use of the Service after any such change constitutes your acceptance of the new Workplace ToS. If you do not agree to current Workplace ToS or any updates to them, do not use or access (or continue to access and use) the Service.

• E. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:
  • (i) If you are an individual entering into this Agreement on behalf of a Workplace then (a) you agree that these Workplace ToS are an agreement between WIW and the Workplace; (b) you represent and warrant that you have the authority to bind the Workplace to these Workplace ToS (and if you do not have that authority, you may not create a Workplace account with WIW or access or use our Service); (c) your acceptance of these Workplace ToS will bind such Workplace to these terms. 
    • You acknowledge and agree that if you are creating a Workplace account or otherwise using the Service as or on behalf of a Workplace, your shift workers, employees, supervisors, managers, independent contractors, volunteers, or other individuals who register with your Workplace as a User must each separately agree to be bound by the User ToS.  Workplaces are responsible for each of its Users’ compliance with the User ToS.
  • (ii) If you are registering, creating, accessing, or using a Workplace account with WIW, you meet all the eligibility requirements found in Section 1.1.
  • (iii) You are not a competitor of When I Work, and you will not provide any information gained from your use of or access to the Services to a competitor of When I Work.
  • (iv) You are accessing the Service for the purpose of using the Service as intended and not for the purpose of monitoring availability, performance, functionality, or any other benchmarking or competitive purposes.
  • (v) This Agreement is a contract with When I Work. You must use the Service in compliance with this Agreement and with all applicable local, state, national, and international laws, rules, and regulations.
  • (vi) When I Work may change the Service or add, modify, or remove certain features of the Service. Notice requirements, if any, before When I Work changes the Service or adds, modifies, or remove certain features of the Service are set forth in the Agreement. (See Section 3.3 for more information)
  • (vii) If you, as a Workplace have a free trial, free subscription, or paid subscription for the Service, When I Work may permanently or temporarily terminate, suspend, or limit your access to and use of the Service (or one or more of your Users access and use of the Service) if, in our sole determination, you (or your Users) violate any provision of this Agreement. Notice requirements, if any, before When I Work terminates, suspends, or limits your (or your Users’) access to and use of the Service are set forth in the Agreement.
  • (viii) If the Service is provided to you on a free subscription or a free trial subscription, When I Work may permanently or temporarily terminate, suspend, or limit your access to and use of the Service without notice. (See Sections 10.1 and 10.2 for more information). If the Service is provided to you on a paid subscription plan, the termination or suspension of your account is as set forth in Section 12.2.
  • (ix) Workplace accounts that have been cancelled by you and not reactivated within thirty (30) days and no-charge accounts or trial subscriptions that have been inactive for more than thirty (30) days may also be removed from the Service at When I Work’s discretion and without further notice.  
  • (x) When I Work reserves the right to make unilateral changes to these Workplace ToS so you should periodically review the Workplace Terms of Service page and the Privacy Policy page. WIW will provide notice of such changes as described in Section 26.3 below. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to these Workplace ToS.

Your continued use of the Service after any such change means you accept and agree to new terms. If you do not agree to any of these terms or any future terms in either the Workplace ToS or Privacy Policy, do not access or use (or continue to access and use) the Service. 

IF YOU DO NOT OR CANNOT ACCEPT THESE WORKPLACE ToS, PLEASE EXIT THE WEBSITE OR MOBILE APP AND DO NOT ACCESS OR USE THE SERVICE. AS STATED ABOVE, IF YOU ACCESS AND USE THE SERVICE, YOU ARE CONSENTING TO BE BOUND BY AND BECOMING A PARTY TO THIS AGREEMENT.  

IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, CONTACT US AT: support@wheniwork.com.

1. USE OF OUR SERVICE

1.1 Eligibility

• (a) Eligibility Requirements. You and your Users must meet all the following eligibility requirements, or you may not access or use the Service. 
  • (i) Any use or access to the Service by anyone under 13 years of age is strictly prohibited and in violation of this Agreement.
  • (ii) Without limiting the prohibition in subsection (i) above, any use of or access to the Service by anyone under 18 years of age is only permitted with the express written permission of such individual’s parent or legal guardian, and, if necessary, you represent and warrant that you have received such permission. Since the Service is not designed for use by or in connection with anyone under the age of 18, you accept all responsibility that may arise from your use of the Service in connection with any minors.
  • (iii) The Service is available only to persons who can form a legally binding contract with When I Work (and on behalf of your Workplace, as applicable). 
  • (iv) The Service is not available to any Workplaces or Users previously removed from the Service by When I Work for violation of WIW’s Terms of Service. 
  • (v) The Service shall not be accessed or used by or on behalf of any individual or entity that is (1) listed on the List of Specially Designated Nationals and Blocked Persons or on any other list of sanctioned, prohibited, or restricted parties administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), the U.S State Department’s International Traffic in Arms Regulations or by any other governmental entity; or (2) located in, a national or resident of, or a segment of the government of, any country or territory for which the United States maintains trade or economic sanctions or embargoes or that has been designated by the U.S. Government as a “terrorist supporting” region. 
  • (vi) You may not use the Service if you are legally prohibited from receiving or using the Service under the laws of the country in which you are resident or from which you access or use the Service.

1.2 Scope of License; License to Use the Service; Geographical Restrictions

• (a) Scope of License. The Service is licensed on a subscription basis with various plan levels, which may be purchased by you online or by executing a WIW-issued quote or other type of WIW-approved order form. 
  
  The subscription plan you purchase or that is provided free of charge (as applicable) or under a free trial determines the software applications and features of the Service available to you, including optional Third-Party Service(s), the number of Users authorized to access and use the Service, including any Third-Party Service(s), on your behalf, fees, and length of the subscription term (“Scope of License”) Features may vary by the plan selected, by Workplace, and by  the type of access privileges and roles a Workplace grants to a User (Admin, Supervisor, Manager,  or Employee).
  
  “Third-Party Service” means any software, Software as a Service, data source, or other product or service owned or licensed by a third party (“Third-Party Service Provider”) that complements your use of the Service and is integrated or otherwise accessible through the Service; however, Third-Party Services are not part of, and are not included in, the definition of the “Service”. Customer may import and export Customer’s data between the Service and Third Party Service(s) through integrations.**
  
  ** NOTE REGARDING INTEGRATIONS: Workato is a Third-Party Service-Provider with a hosted platform embedded into the Service (“Workato Embedded Software”) designed to connect applications and automate workflows. If Customer chooses to access and use the Workato  Embedded Software for integrations to the Service, Customer agrees to be legally bound by Workato’s Embedded Software Supplemental Terms located at https://www.workato.com/legal/embedded-software-supplemental-terms.

• (b) License to Use the Service. Subject to the terms and conditions of these Workplace ToS, you and your Affiliates (defined below) are hereby granted a non-exclusive, limited, non-transferable (except as otherwise provided herein) license to permit your Users to access and use the Service, including, if applicable, the services and products of Third-Party Service Providers, for your own business purposes, in accordance with your Scope of License and the associated documentation we provide as part of the Service.  “Affiliate” means any legal entity in which you, directly or indirectly, holds or controls fifty percent (50%) or more of the shares or voting rights.  Any such legal entity shall be considered an Affiliate for only such time as such interest is maintained.
  
  We reserve all rights not expressly granted herein in the Service and the WIW Content (as defined in Section 5 below).

• (c) Geographical Restrictions on Use. The Service is designed for use by Workplaces and individuals in the United States. When I Work makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable laws and regulations, including but not limited to export and import regulations. 
  
  Unless otherwise explicitly stated, all materials found in the Service are directed to Workplaces and Users located in the United States, including spelling conventions and all fees being stated in United States Dollars ($USD). 

1.3 Payroll Services and On-Demand Pay

• (a) Payroll. Payroll processing and management services (“Payroll Services”) are a Third-Party Service powered by our Third-Party Service Provider, Check Technologies, and are available to Customers who also license WIW’s scheduling and time and attendance features of the Service.   If Payroll Services are selected as an additional feature by you to be used by your Workplace in connection with the Service, then the following applies:
  • (i) In addition to these Workplace ToS, the creation of a Workplace Payroll Account and the access and use of the Payroll Services offered through WIW are subject to the Payroll Terms of Service- Workplaces (“Payroll ToS”), attached as Schedule A and incorporated herein by reference; and   
  • (ii) Each of your Users who create a User Payroll Account for use with your Workplace(s) must separately agree to be bound by the Payroll User Terms of Service (“Payroll User ToS”), attached here to as Schedule B.
    
    Payroll Services are currently available only to Workplaces in the United States and only to Users who are Workplace employees and receive a W-2, federal wage and tax statement from you.
• (b) On-Demand Pay. On-Demand Pay (“ODP”) is a Third-Party Service available to certain U.S.-based Workplaces and certain Users through our Third-Party Service Provider, Clair. ODP allows your eligible Users on-demand access to a portion of the wages they have earned ahead of payday. This feature is available at no cost to US-based Workplaces that license the Time & Attendance feature of the Service and that opt-in to ODP.
  
  Terms specific to WIW’s On-Demand Pay provider, Clair:    
  • If you are a Workplace that chooses to offer its Users the option to use Clair for ODP, you may not charge your Users any fees to use the service provided by Clair.
  • If you are a Workplace that chooses to offer its Users the option to use Clair for ODP and later chooses to opt-out or disable this feature, it is your responsibility to notify your Users of this change. 
  • To provide ODP, WIW must share certain data with Clair and Clair’s third-party service providers (such as its banking services provider).  Therefore, if you opt-in for the OPD feature, you authorize When I Work to use and to share with Clair and Clair’s third-party service providers information about Users associated with your Workplace, such as number of hours worked, hourly rate, and information regarding paid and unpaid breaks.
  • Users who choose to access and use ODP must each separately agree to be bound to separate terms, including Clair’s Privacy Policy, all of which may be found at Clair Legal Information.

2. When I Work’s Obligations

2.1 Provision of the Service. WIW will (a) make the licensed software applications of the Service available to you pursuant to the terms of this Agreement and the applicable WIW-issued quote or other type of WIW approved-order form; and (b) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (i) scheduled maintenance (See Section 2.2 for more information); and (ii) any unavailability caused by circumstances beyond WIW’s (or its third party hosting provider’s) reasonable control, including the following:

• (A) Emergency maintenance, including application of hotfixes, security related maintenance, or other time sensitive issues necessary to protect the performance, availability, stability, or security of the Core Services;
• (B) Unavailability caused by Customer’s equipment (or its individual Users’ equipment), Customer’s or User’s network unavailability, or Customer Data;
• (C) Customer making excessive requests to When I Work’s API;
• (D) Unavailability caused by issues with internet access including DNS issues outside of When I Work’s control, Denial-of-Service attacks; or 
• (E) Events of Force Majeure.

2.2 Maintenance & Support Services. WIW’s standard maintenance and support (“Maintenance & Support”) is included in the Service to Customer at no additional charge. For all questions that do not involve Payroll Services, Maintenance & Support is currently provided to Customers with a subscription license to the When I Work Service are as follows:

• (a) Support Hours. When I Work’s Customer Care team provides support via live chat and support tickets during the following hours:        
  Monday – Friday:
  Tickets:    7am-10pm, U.S. Central Standard Time (UCTC -6) or U.S. Central Daylight Time (UTC -5)
  Live chat: 7am-7pm, U.S. Central Standard Time (UCTC -6) or U.S. Central Daylight Time (UTC -5)
  Saturday-Sunday:
  Tickets and live chat: 9am -4:30pm, U.S. Central Standard Time (UCTC -6) or U.S. Central Daylight Time (UTC -5)
  Holidays:    
  Tickets and live chat: 8 A.M. to 5 P.M. Central Standard Time (UTC -6:00).  Closed December 24 and December 25 
  Support hours are also posted in the WIW Help Center.
  Web-based user help is available 24×7, subject to maintenance and other downtime, including a WIW Help Center with FAQs, product news, and updates. 
  Payroll Support Hours are set forth in the Payroll ToS.

• (b) Scheduled Maintenance. Scheduled maintenance may affect the availability of the Service or certain applications and features of the Service. WIW shall endeavor to give advance electronic notice on the When I Work status page.  When I Work shall use commercially reasonable efforts to ensure that the status page is always kept up to date with information related to WIW’s web application and scheduler, WIW’s application APIs and services, and login for WIW’s frontend and API login servers. Customer should subscribe to receive email notifications via the “Subscribe to Updates” button on the status page.

To keep pace with different technologies and offerings within the Service, When I Work reserves the right to modify the terms and conditions of maintenance & support.  WIW will endeavor to post the modified maintenance & support terms to the Help Center at least 30 days in advance. 

3. When I Work Workplace Account; Service Rules and Regulations

• 2.0 Use of Your When I Work Workplace Account 
  • (a) Your Workplace account gives you access to the software applications and functionality within the Service, plus any Third Party Services, that you license and that we establish and maintain in accordance with this Agreement.
  • (b) By connecting to When I Work with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
  • (c) You understand that your Workplace account is solely for use with your Workplace, and you will not share your Workplace account or account login credentials with anyone. 
  • (d) When creating your Workplace account, you must provide accurate and complete information, and you must keep this information up to date. 
  • (e) You are solely responsible for the activity that occurs on your Workplace account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers, and symbols) with your Workplace account. 
  • (f) You must notify When I Work immediately of any known or suspected breach of security or unauthorized use of your Workplace account. When I Work will not be liable for any losses caused by any unauthorized use of your account.

You may control your account and how you interact with the Service by changing the settings on your Profile Settings page. By providing When I Work with your email address and/or mobile number, you consent to our using the email address and/or mobile number to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address and/or mobile number to send you other messages, such as changes to features of the Service and special offers. 

NOTE: You can change your communications preferences in your account or in the app.

3.2 Service Rules and Restrictions

You agree not to engage in any of the following prohibited activities:

• (a) copying, reproducing, duplicating, renting, leasing, selling, loaning, transferring, assigning, sublicensing, reselling, distributing, modifying, altering, or creating derivative works of or otherwise exploiting any portion of the Service without the express written permission by When I Work; 
• (b) using any scraper, data mining tool, data gathering or extraction tool or any other automated or non-automated means to collect, copy or record any part of our Service; 
• (c) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the When I Work servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that When I Work grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from wheniwork.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
• (d) uploading, posting, hosting, or transmitting spam, chain letters, SMSs, or other unsolicited email or messages;
• (e) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service;
• (f) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; 
• (g) uploading invalid data, viruses, worms, or other software agents or any code of a destructive nature through the Service; 
• (h) collecting or harvesting any personally identifiable information, including account names, from the Service;
• (i) using the Service for any commercial solicitation purposes;
• (j) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding, or attempting to hide your identity;
• (k) interfering with the proper working of the Service;
• (l) accessing any content on the Service through any technology or means other than those provided or authorized by the Service;
• (m) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein;
• (n) engaging in verbal, physical, or other abuse (including threats of abuse or retribution) of any other User or any When I Work customer, employee, member, or officer;
• (o) disassembling, reverse engineering, decoding, or decompiling any part of our Service, or deleting any copyright or other proprietary rights notices included on any part of Service.

BY USING THE SERVICE, YOU REPRESENT, WARRANT, AND COVENANT THAT (I) YOU DO NOT WORK FOR A COMPETITOR OF WHEN I WORK; AND (II) YOU WILL NOT PROVIDE ANY INFORMATION GAINED FROM YOUR USE OF OR ACCESS TO THE SERVICE TO A COMPETITOR OF WHEN I WORK.

You are solely responsible for your interactions with individual Users. We reserve the right, but have no obligation, to monitor disputes between you and Users. We shall have no liability for your interactions with other Users, or for the Workplace’s or User’s action or inaction.

3.3 Changes to the Service.  We may, without prior notice, change the Service, create usage limits for the Service, or add, modify, or remove applications and/or features of the Service; however, WIW will not materially downgrade or remove any element of the Core Functionality (as defined below) of the Service without at least thirty (30) days’ notice before any such change. This notice may be provided at any time by posting these change(s) to the WIW website or the Service itself. If a material change is made to the Core Functionality of the Service that, in Customer’s reasonable discretion, significantly changes the functionality of the Service in a way that is detrimental to Customer, Customer may within sixty (60) days following the date the notice was posted, as its sole and exclusive remedy, seek to terminate a part of the license granted to it or seek to terminate this Agreement per Section 12.1.

For the purposes of this section, “Core Functionality” of the Service includes the Service login, web application, APIs, and scheduler. Ancillary services such as WorkChat, Notifications, Tasks, Tags, Labor Forecast, and Help Site are not part of the Core Functionality.

4. Customer Data

4.1. Ownership and Uses. Any information, records, and files that you or anyone on your behalf, including your Users, provide, submit, post, display, or otherwise make available on or through the Service, including profile information, images, audio, comments, questions, and other content is collectively “Customer Data”. We claim no ownership rights over your Customer Data and the Customer Data remains yours; however, by providing or making available Customer Data on or through the Service, you hereby grant and you represent and warrant that you have all rights necessary to grant, to When I Work and its affiliated companies, a royalty-free, sublicensable, transferable, non-exclusive, worldwide license to use, reproduce, modify, store, publish, translate, distribute, display, archive, and make derivative works of all such Customer Data for use in solely connection with providing and improving the Service and the interoperability with any Third Party Services as set forth in this Agreement. 

When I Work may also (i) compile statistical and other information related to the performance, operation, and use of the Service, and (ii) use Customer Data from the Service in aggregated form for research and development purposes, to generate statistical reports, and to present it in a summarized format. (Clauses (i) and (ii) are collectively referred to as “Service Analyses”). While WIW may make Service Analyses publicly available, it will not incorporate Customer Data in a form that could serve to identify Customer or any individual and will not be linked to any information that is personally identifiable.  WIW retains all Intellectual Property Rights in Service Analyses.

Additionally, by providing or sharing Customer Data on or through the Service, you agree to allow others in your Workplace to view, edit, and/or share your Customer Data in accordance with your account or profile settings and this Agreement. Your Customer Data may also be viewed or shared with others in accordance with the WIW Privacy Policy. 

For the purposes of these Workplace ToS, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.

4.2 Additional Obligations regarding Customer Data.  In connection with your Customer Data, you affirm, represent, and warrant the following:

• (a) You have the consent of each identifiable natural person in the Customer Data, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement and you are compliant with applicable privacy laws with respect to any personal information (a/k/a personal data) to be processed by WIW on your behalf;
• (b) You have obtained and are solely responsible for providing all notices and/or obtaining all consents as may be required by law (i) to post any Customer Data relating to third parties; and (ii) to ensure that your Users have authorized you to disclose their data, including personal information (a/k/a personal data) to WIW and its contractors, subcontractors, subprocessors, and Third-Party Service Providers in accordance with this Agreement.
• (c) Your Customer Data and When I Work’s use thereof as contemplated by this Agreement does not and will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights;
• (d) Except as otherwise required pursuant to the Payroll ToS, you will not use the Service to collect, store, or process bank account information, credit or debit card information, social security numbers, driver’s license numbers, or health or medical information, nor will you direct Users associated with your Workplace account to provide such information via the Service. This restriction does not apply to bank account information or credit or debit card information that you provide to us through the Account & Billing pages of the Service to pay for the Service. You can find the “Account & Billing” link from the gear icon located in the navigation bar at the top right of the screen in the When I Work web app.
• (e) Your Customer Data does not and will not include any “protected health information” subject to the Health Insurance Portability & Accountability Act of 1996, P.L. 104-191, as amended from time to time, together with any implementing regulations promulgated thereunder and under the Health Information Technology for Economic and Clinical Health Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009, by the U.S. Department of Health and Human Services, including, but not limited to, the Privacy Rule, the Security Rule and the Breach Notification Rule, as amended from time to time (collectively, “HIPAA”). To the extent applicable, you acknowledge and agree that you are solely and exclusively liable for compliance with HIPAA and that When I Work shall not be liable for breaches of HIPAA or failures to comply with HIPAA by you, your employees or other Users associated with your Workplace account;
• (f) Your Customer Data does not and will not contain any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable or illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets or other proprietary information); 
• (g) Your Customer Data does not and will not contain any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships, that you know is not correct and current, or that violates any Workplace policy; 
• (h) To the best of your knowledge, all your Customer Data and other information that you provide to us is accurate, complete, and timely (See Section 4.3 below); and
• (i) You will direct your Users only to provide such information, including User profile information, images, audio, comments, questions, and other content to When I Work that is needed to use the Service as intended and is in accordance with this Agreement. 

When I Work reserves the right, but is not obligated, to reject and/or remove any Customer Data that When I Work believes, in its sole discretion, violates any of these provisions or is otherwise objectionable. Whether notice is provided to you in advance depends on the severity of the circumstances as determined solely by WIW.  It is your responsibility to maintain appropriate alternate backup of all Customer Data.

When I Work takes no responsibility and assumes no liability for any Customer Data that you, your Users, or third parties post, send, or otherwise make available over the Service. As between you and WIW, you are solely responsible for any and all Customer Data you provide and/or cause to be provided to the Service, and the consequences of providing, posting, publishing, sharing, transmitting or otherwise making such Customer Data available on the Service. You agree that we are only acting as a passive conduit for your online distribution and publication of Customer Data. You understand and agree that you may be exposed to content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that When I Work shall not be liable for any damages you allege to incur as a result of or relating to any such content.

4.3 Accuracy of Customer Data.  The Service, including Third-Party Services, is based upon the Customer Data provided to WIW by you or on your behalf, by your Users, or by third party services from which you may elect to import your information. You acknowledge that WIW is entitled to fully rely on all Customer Data and WIW does not have any obligation to verify, correct, or otherwise ensure the accuracy or quality of the Customer Data. You further acknowledge that WIW and its Third-Party Service Providers bear no responsibility and shall not have any liability for errors, omissions, or any other losses incurred that result from inaccurate, incomplete, or untimely Customer Data.

4.4 Obligations as a Controller of Customer Data.  As the owner and controller of Customer Data, you have many choices over that Customer Data. For example, you may enable or disable the integrations with Third-Party Services, manage access privileges and User roles, and request that WIW share information regarding its Users with a third party, and these choices and instructions may result in the access, use, disclosure, modification, or deletion of certain or all Customer Data. 

IN PROVIDING THE SERVICE, WIW AND ITS THIRD-PARTY SERVICE PROVIDERS ACT AS AN INTERMEDIARY BETWEEN YOU AND YOUR USERS. THEREFORE, YOU AGREE THAT BETWEEN WIW AND YOUR USERS,  IT IS SOLELY YOUR  RESPONSIBILITY  TO (A) INFORM USERS OF ANY RELEVANT WORKPLACE POLICIES AND PRACTICES AND ANY SETTINGS IN THE SERVICE THAT MAY IMPACT THE PROCESSING OF CUSTOMER DATA; (B) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOUR USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF CUSTOMER DATA AND THE OPERATION OF THE SERVICE; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF CUSTOMER DATA UNDER THE AGREEMENT IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE  BETWEEN YOU AND YOUR USERS RELATING TO OR BASED ON CUSTOMER DATA. WIW IS NOT LIABLE FOR YOUR FAILURE TO FULFILL THESE OBLIGATIONS. 

5. WIW Proprietary Rights; Feedback

      5.1 WIW Content. Except for Customer Data, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and content belonging to individual Users (collectively the “WIW Content”), and all Intellectual Property Rights related thereto, are the exclusive property of When I Work and its licensors (including Users who post content to the Service). Except as explicitly provided herein, nothing in these Workplace ToS shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any WIW Content. Use of the WIW Content for any purpose not expressly permitted by these Workplace ToS is strictly prohibited. We reserve all rights in the WIW Content not expressly granted herein.

       5.2 Feedback. From time to time, you may submit ideas, comments, suggestions, recommendations, opinions, bug reports, and enhancement requests relating to the Service (collectively, “Feedback”) to WIW.   WIW may freely use or exploit this Feedback in connection with the Service (or with any WIW product or service) without any obligations to you or your Users, including any fiduciary obligations. By submitting any Feedback, you agree that WIW is free to use it without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone.  If for any reason it is further needed, you hereby grant WIW a perpetual, non-revocable, royalty-free, assignable, sub-licensable, worldwide license to use and/or incorporate such Feedback into the Service (or into any WIW product or service) at any time at the sole discretion of WIW.

6. API Terms; Third Party Software

The Workplace may access the Service and its account data via an Application Program Interface (“API”) and the Service may include access to certain third party software (“Third Party Software”). Any use of the API and Third Party Software, including use of the API through a third-party product that accesses When I Work, is subject to these Workplace ToS, including, without limitation, the following specific terms:

• (a) You expressly understand and agree that When I Work shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if When I Work has been advised of the possibility of such damages), resulting from your use of the API or third-party products that access data via the API or Third Party Software.

• (b) You shall not, and shall not permit any third party to: (a) modify or create any derivative work of any part of the API or Third Party Software; (b) process or permit to be processed the data of any other party unless in connection with your authorized use of the API or Third Party Software; or (c) market, sell, license, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign or otherwise transfer to a third party the API, Third Party Software or any copy thereof, in whole or in part. You acknowledge and agree that you have no rights to any source code for the API or Third Party Software. You acknowledge and agree that, except to the extent permitted by law, you shall not cause or permit the disassembly, decompilation, or reverse engineering of the API or Third Party Software or otherwise attempt to gain access to the source code to the API or Third Party Software (or the underlying ideas, algorithms, structure or organization of the object code in the API or Third Party Software).

• (c) Abuse or excessively frequent requests to When I Work via the API may result in the temporary or permanent suspension of your Workplace account’s access to the API. When I Work, in its sole discretion, will determine abuse or excessive usage of the API. When I Work will make a reasonable attempt via email to warn the Account Holder prior to suspension but shall not be required to do so.
• (d) When I Work reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API or Third Party Software (or any part thereof) with or without notice.

Third-Party Software and the API may be subject to additional terms and conditions. To the extent there is a conflict between the terms and conditions applicable to any such Third-Party Software and these Workplace ToS, the Third-Party Software terms and conditions shall control. WE DO NOT WARRANT OR PROVIDE DIRECT SUPPORT FOR ANY THIRD-PARTY SOFTWARE OR THE API. IF YOU USE ANY THIRD-PARTY SOFTWARE OR THE API OR SHARE YOUR ACCOUNT DATA ON OR THROUGH ANY THIRD-PARTY SOFTWARE OR THE API, YOU DO SO AT YOUR OWN RISK. YOU EXPRESSLY RELIEVE US FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY SOFTWARE OR THE API.

7. Mobile Apps

 7.1 Mobile Software We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software, you must have a mobile device that is compatible with the Mobile Software. When I Work does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. When I Work hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one When I Work account on one mobile device owned or leased solely by you, and solely in accordance with these Workplace ToS, and the features made available to you. You acknowledge that When I Work may from time to time issue upgraded versions of the Mobile Software and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions of these Workplace ToS, will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and When I Work or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Workplace ToS, is void. When I Work our third-party partners or suppliers reserves all rights not expressly granted under these Workplace ToS. 

7.2 Mobile Software provided from App Store by Apple.  The following applies to any Mobile Software you acquire from the App Store (“App Store-Sourced Software”): You acknowledge and agree that these Workplace ToS are solely between you and When I Work, not Apple, and that Apple has no responsibility for the App Store-Sourced Software or content thereof. Your use of the App Store-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Software. In the event of any failure of the App Store-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Workplace ToS and any law applicable to When I Work as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App Store-Sourced Software or your possession and/or use of the App Store-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Workplace ToS and any law applicable to When I Work as provider of the software. You acknowledge that, in the event of any third-party claim that the App Store-Sourced Software or your possession and use of that App Store-Sourced Software infringes that third party’s intellectual property rights, When I Work, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Workplace ToS,. You and When I Work acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Workplace ToS as relates to your license of the App Store-Sourced Software, and that, upon your acceptance of the terms and conditions of these Workplace ToS, Apple will have the right (and will be deemed to have accepted the right) to enforce these Workplace ToS, as relates to your license of the App Store-Sourced Software against you as a third-party beneficiary thereof.

7.3 Mobile Software provided from Google Play Store. The following applies to any Mobile Software you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Workplace ToS are between you and When I Work only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) When I Work, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Workplace ToS; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Workplace ToS as relates to When I Work’s Google-Sourced Software.

8. Confidentiality 

You (and your Affiliates) and WIW (and its Affiliates) each agree not to use the Confidential Information of the other for any purpose other than strictly for the purpose of performing its obligations under this Agreement, exercising its rights under this Agreement, or for furthering a business relationship with one another (the “Purpose”). Additionally, except as authorized below, each party agrees to maintain in confidence and not disclose any Confidential Information acquired directly or indirectly from the other party.  Each party shall protect and safeguard the Confidential Information using the same degree of care, but no less than a reasonable degree of care, as the party uses to protect its own Confidential Information of a similar nature.  In the event that the receiving party becomes aware of any use, loss or disclosure not consistent with the Purpose of this Agreement, the receiving party shall immediately notify the disclosing party.

      “Confidential information” shall include matters of a technical, financial, commercial, business, or other proprietary nature that is not generally disclosed by the disclosing party to the public and which, if disclosed to others, might be competitively detrimental to the disclosing party.  Confidential information is that information either identified as confidential or proprietary by the disclosing party or should be reasonably understood by the receiving party to be confidential or proprietary to the disclosing party. 

      The receiving party may disclose Confidential Information to its or its Affiliates’ Users, officers, directors, employees, agents, consultants, and/or contractors (“Representatives”) who need to know such information for the sole purpose of evaluating, negotiating, or advising the receiving party with respect to the Purpose and who have been informed of the receiving party’s obligations of confidence and have agreed in writing to preserve the confidentiality of such information by terms substantially similar to those set forth in this Agreement. The receiving party agrees to ensure that each of its Representatives complies with the confidentiality obligations of this Agreement and further agrees to be solely responsible and liable to the disclosing party for any act, omission, or other failure to comply with the terms of the agreement by any of its Representatives.

Additionally, WIW may disclose your Confidential Information, including Customer Data, to WIW’s contractors, subcontractors, subprocessors, and Third-Party Service Providers who need to know said information to the extent necessary to perform WIW’s obligations under this Agreement and who have contractual obligations with WIW that prohibit any disclosure and use of the Workplace’s Confidential Information by terms substantially similar to those set forth in this Agreement. WIW shall be responsible to the Workplace for any unauthorized disclosure or use of the Workplace’s Confidential Information by WIW’s contractors, subcontractors, subprocessors, or Third-Party Service Providers.

      If Confidential Information is required to be disclosed by the receiving party pursuant to a requirement or request of a government agency, subpoena, or other legal proceeding, then, if legally permissible, the receiving party shall provide prompt written notice of such requirement prior to such disclosure to allow the disclosing party time to seek a protective order or other remedy. If the protective order or other remedy is not obtained, or if the disclosing party waives compliance with the provisions hereof, the receiving party agrees to furnish only that portion of the Confidential Information that is legally required to be furnished. Any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure. 

     Confidential information does not include any information which (a) is or becomes publicly known other than through a breach of this Agreement by the receiving party;  (b) is already known to the receiving party at the time of disclosure as evidenced by the receiving party’s written documentation, provided that it was not previously obtained directly or indirectly by the receiving party from the disclosing party; (c) Is lawfully received by the receiving party from a third party having no obligation of confidentiality with respect thereto; or (d) is proven by receiving party to have been independently developed by the receiving party without reference to or reliance upon the Confidential Information, as proven by then- contemporaneous written records. 

All Confidential Information shall remain the sole property of the disclosing party and the receiving party shall have no right, title, or interest in or to the Confidential Information.

9. Beta Program Participation

From time-to-time, we may offer you early access to and use of new or modified services, features, or functions within the Service (“Beta Program”). You may choose to participate in a Beta Program in your sole discretion. It will be made available to you at no charge in exchange for feedback and reports regarding the performance and quality of the new or modified services, features, or functions being offered. Unless otherwise stated or communicated to you, any Beta Program period will expire upon the date that a version of the Beta Program becomes generally available without the applicable designation as a Beta Program (or as a pilot, limited release, non-production, early access, evaluation, or similar description). WIW may discontinue a Beta Program at any time in its sole discretion and may never make it generally available. Beta Programs are provided on an “AS IS” and “AS AVAILABLE” basis. WIW will have no liability for any harm or damage arising out of or in connection with a Beta Program.

10. Free Subscriptions

10.1 Free Trial Subscription. If you register on WIW’s website to license a free trial subscription,  then subject to the terms  and conditions of this Agreement, WIW will make the applicable Service available to you on a trial basis at no charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service, or (b) the start date of any paid or free subscription plan ordered by the Workplace for such Service, or (c) termination of the free trial by WIW in its sole discretion, which termination may be without notice.  The free trial subscription may be used only for your own business purposes, in accordance with your Scope of License and the associated documentation we provide as part of the Service. Additional trial terms and conditions may appear on the free trial registration web page. Any such additional terms and conditions are incorporated into these Workplace ToS by reference and are legally binding.  Any content or information, including Customer Data, that was entered into the Service for processing during the free trial period, and any customizations made to the Service during your free trial period may be permanently lost to the Workplace unless you purchase a subscription to the same Services as those covered by the free trial or you export such data, before the end of the trial period.  Free Trial Subscriptions are provided on an “AS IS” and “AS AVAILABLE” basis. WIW will have no liability for any harm or damage arising out of or in connection with a free trial subscription.

10.2 Free Subscription Plan.  If WIW grants you a subscription license and provides you with access and use the Service free of charge, your access and use of the Service is subject to the terms and conditions of this Agreement. Free subscription plans may be subject to certain use limits or additional terms and conditions as determined by WIW in its sole discretion. Any such additional terms and conditions are incorporated into these Workplace ToS by reference and are legally binding. The free subscription may be used only for your own business purposes, in accordance with your Scope of License and the associated documentation we provide as part of the Service.   Any usage over these limits requires you to purchase a paid subscription plan. You agree that When I Work, in its sole discretion and for any or no reason, may modify or terminate your access to and use of the Service (or any part thereof) provided under a free subscription plan. Termination of your access and use of the Service (or any part thereof) provided under a free subscription plan may be without prior notice and you agree that WIW will not be liable to you or any third party for such termination. You are solely responsible for exporting your Customer Data from the Service prior to termination of your access to the Service for any reason, provided that if WIW terminates your account, except as may be required by law, WIW will provide you with at least ten (10) days from the date of termination to allow you to retrieve your Customer Data. After the ten (10) day-period following the date of termination, any content or information, including Customer Data, that was entered into the Service for processing during the free subscription period, and any customizations made to the Service during your free trial period may be permanently lost to the Workplace.  Free subscriptions are provided on an “AS IS” and “AS AVAILABLE” basis. WIW will have no liability for any harm or damage arising out of or in connection with a free subscription.

11.Paid Subscription Plans

11.1 Billing Policies.  The Service may be licensed monthly or annually (the “Term”) on a paid subscription basis with various plans, features, applications, and fees. You select the number of User seats needed for your Workplace(s).  The paid subscription may be used only for your own business purposes, in accordance with your Scope of License and the associated documentation we provide as part of the Service.

Billing periods align with the length of the Term you selected –i.e.  for monthly subscription Terms, fees shall be paid monthly in advance and for annual subscription Terms, fees shall be paid annually in advance. Subscription plans may be purchased by you online or by executing a WIW-issued quote or other type of WIW-approved order form.

When you purchase your subscription plan online, a valid credit card is required for paying the applicable fees for the initial subscription Term of the plan you selected for your Workplace(s) For any renewal or extension of the initial subscription plan Term, you authorize WIW to charge your credit card for those fees. 

You agree to pay the fees for the Service in accordance with the subscription plan, features, number of User seats, and billing period you selected. Once you have purchased your initial online subscription plan with a monthly or annual Term, you agree to the pricing and payment terms, located at the Account & Billing pages of the Service as we may update them from time to time. You can find the “Account & Billing” link from the gear icon located in the navigation bar at the top right of the screen in the When I Work web app.

When you purchase your subscription plan by executing a WIW-issued quote or other type of WIW-approved order form, it will describe your selected subscription plan, number of Users, fees, and payment terms. If the WIW-issued quote or other type of WIW-approved order form specifies that payment for an annual term will be by a method other than a credit card, WIW will invoice in accordance with the relevant WIW-issued quote or other type of WIW-approved order form. Invoiced fees shall be made in U.S. Dollars ($USD) upon receipt of invoice unless otherwise stated by WIW in writing.

The terms and conditions of any Purchase Order issued with respect to this purchase are superseded by this Agreement, including the Privacy Policy.

Customer is responsible for providing complete and accurate billing and contact information to WIW and notifying WIW of any changes to such information.  WIW does not invoice for subscription plans with Terms of less than one year.

Unlike Payroll Services fees, which are paid in arrears per the terms of the Payroll ToS, fees for the Service are billed in advance on a monthly or annual basis.     

NOTE:  The email message feature within the Service, known as “WorkChat” or “Message Staff”, is included with all paid subscription plans; however, the team messaging feature, known as “TeamTxt™” requires the purchase of credits through the Service in order to send customized text messages to your Users.

Rules and restrictions regarding use of WorkChat / Message Staff and TeamTxt may be found in the WIW Help Center.

When I Work may add new features and applications to the Service for additional fees and charges, and/or it may add or amend fees and charges for plans, features, and applications, at any time in its sole discretion, including, but not limited to, changing the monthly or annual subscription plan fees for the Service. When I Work shall provide at least thirty (30) days’ notice before any change to our pricing or payment terms. Such notice may be provided at any time by posting the changes to the When I Work website or the Service itself.

11.2 Upgrades or Downgrades 
You commit to the Scope of License you ordered – i.e.  you will maintain the same application licenses and number of Users and associated fees – for the duration of each Term. While the number of Users cannot be decreased during a subscription Term, you may reallocate any unused User seats to different or new Users. Unless otherwise agreed by WIW, subscriptions for additional licenses and User seats may be added during a Term at the then-current pricing, prorated for the portion of that Term remaining at the time the subscriptions are added, and any added subscriptions, including User seats, will terminate on the same date as the underlying subscription Term.

• (a) Free Subscription Plans and Free Trial Subscriptions.   Any upgrade from a free subscription plan or free trial subscription to any paid subscription plan will end your free plan subscription or free trial. Immediately upon upgrading, you will be billed for your first month (on a prorated basis with all subsequent months billed in advance of the next month for the full monthly fee (or first year if you so choose).

• (b) Subscription Plans Paid via Credit Card. For any upgrade in your subscription plan, the credit card that you provided will be charged a prorated amount and then automatically be charged the new rate on your next billing cycle.

• (c) Subscription Plans Paid following Invoice. For any upgrade in your subscription plan, you will be invoiced and charged a prorated amount and then automatically be charged the new rate on your next billing cycle.

Downgrading your subscription plan to the Service may cause the loss of content, Customer Data, features, or capacity of your Workplace account. We do not accept any liability for such loss.

11.3 No Refunds. You may cancel your Workplace account at any time; however, there are no refunds for cancellation or for early termination of your subscription plan. Unless otherwise expressly stated in this Agreement, the fees for the Service are billed in advance on a monthly or annual basis and are non-refundable. Specifically, there will be no refunds or credits for partial months of service, upgrade/downgrade refunds, credit balances, or refunds for any unused remainder of your Term, whether the initial Term or a renewal Term. In the event that When I Work suspends or terminates your account or these Workplace ToS, you understand and agree that you shall receive no refund, credit, or exchange for any other service offered by WIW, any unused time remaining on a subscription plan, any license or subscription fees for any portion of the Service, any content or data associated with your account, or for anything else. TeamTxt™ text messaging credits purchased through the Service are non-refundable and non-transferable. If you have unused credits when you cancel your account, those credits are not refundable or transferable.

11.4 Payment Information; Taxes. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible and pay any applicable taxes, levies, or duties, if any, relating to any such purchases, transactions, or other monetary transaction interactions. If your Workplace is tax exempt, please provide WIW with a copy of your exemption form.

11.5 Payments. Payment shall be in the form you select when you register for the Service, or as subsequently updated as permitted by the Service. We reserve the right to withhold payment or charge back to your account any amounts otherwise due to us under these Workplace ToS or amounts due to any breach by you of these Workplace ToS by you, pending When I Work’s reasonable investigation of such breach. We also reserve the right to withhold payment or charge back to your account any amounts subject to dispute, such as in the case of credit card charge backs, pending successful resolution of the dispute. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account, which includes without limitation applicable tax information. If we believe that we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your payments until you provide this information or otherwise satisfy us that you are not a person or entity from whom we are required to obtain tax information. Any third-party fees related to returned or cancelled payments due to a contact or payment information error or omission may be deducted from the newly issued payment. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Service.

If you dispute any payment made hereunder, you must notify us in writing within thirty (30) days of such payment or from when you purport such payment would have been due, whichever is earlier. Failure to so notify When I Work shall result in the waiver by you of any claim relating to such disputed payment. Payment shall be calculated solely based on records maintained by When I Work. No other measurements or statistics of any kind shall be accepted by When I Work or have any effect under these Workplace ToS, and you shall have no audit rights hereunder. We may withhold any taxes or other amounts from payments due to you as required by law.

12. Cancellation, Suspension, and Termination; Effect of Termination

12.1 By You at Your Discretion.  In the Service, you can cancel your Workplace account at any time by clicking on the “Account & Billing” link from the gear icon located in the navigation bar at the top right of the screen in the When I Work web app. You are solely responsible for properly canceling your Workplace account. An email or phone request to cancel your account is not considered cancellation.

Once you cancel your Workplace account or the Service, you will no longer have any access to your Workplace account or your Customer Data or other account information.  If you want to retain data, such as schedules and timesheets, make sure you export it before you cancel your Workplace account.

Customer Data may be retained by WIW after cancellation unless and until we receive a deletion request. We may not be able to delete all information that has been shared with Users. Additionally, we may retain certain Customer Data for legal, regulatory, safety, compliance, and other necessary purposes.

If you cancel the Service before the end of your current paid up month or year, your cancellation will take effect immediately and you will not be charged again.

12.2 By When I Work. WIW may terminate this Agreement and the license granted to you if you are past due in payments of undisputed fees or are in material default of any other provision of this Agreement and such default has not been cured within thirty (30) days after WIW gives you written notice via email describing the default.  

Notwithstanding the foregoing, WIW may, immediately and without notice and liability, permanently terminate or temporarily suspend your access to  and use of the Service, if in our sole determination you  are in violation  of the following sections of this Agreement:  Section 1 (Use of our Service), Section 3.1 (Use of Your When I Work Workplace Account), Section 3.2(Service Rules and Restrictions), Section 5.1 (WIW Content), Sections 6(b) or 6(c)(API Terms), or Section 8 (Confidentiality).

12.3 Effect of Termination. Cancellation or termination of this Agreement, including letting the Term of your subscription plan expire without renewing, will result in the deactivation or deletion of your Workplace account and you will no longer be able to access your account, your Customer Data, or other account information.   Other than data we must retain for legal, regulatory, safety, compliance, and other necessary purposes after this Agreement is terminated, WIW shall, within a reasonable amount of time after such termination or expiration, obfuscate, delete, or remove all Customer Data from its servers.

Upon expiration, cancellation of or termination of this Agreement, the following Sections shall survive and remain in effect: Section 4 (Customer Data), Section 5 (WIW Proprietary Rights: Feedback); Section 6 (API Terms; Third Party Software), Section 8 (Confidentiality), Section 11 (Paid Subscription Plans), Section 12.3 (Effect of Termination), Section 15 (Text Messages and Consent to Add Users), Section 16 (Privacy), Section 19 (Third-Party Links, Third-Party Services, and Third Party Information) Section 21 (Indemnity),  Section 22 (No Warranty), Section 23 (Limitation of Liability), Section 24 (Export Compliance), Section 25 (Governing Law, Arbitration, and Class Action/Jury Trial Waiver), and Section 26 (General) and any other sections that should, by their nature survive expiration, cancellation, or termination of this Agreement.

If you license Payroll Services, additional terms regarding the termination, revocation, suspension, or expiration of Payroll Services and the effect thereof as set forth in Payroll ToS.

13.  Trademarks; Account Names, Site Name Squatting

We reserve the right to reclaim site names or subdomains on behalf of businesses or individuals that hold legal claim or trademark on those names, or otherwise have an interest in such names. 

Accounts using business names and/or logos that that we determine, in our sole discretion, mislead or could mislead others, are unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable will be subject to suspension at our discretion.

You may not engage in site name squatting. Accounts that are inactive for more than thirty (30) days may also be removed at When I Work’s discretion and without further notice.

14. No Professional Advice

If the Service or any Third-Party Service provides professional information (for example, medical, legal, or financial), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.

15. Text Messaging and Consent

15.1 Consent to Add Users. When I Work makes it easy for you to add Users to your account so that you can manage your Workplace’s schedule and exchange messages with Users. YOU REPRESENT AND WARRANT TO US THAT EACH USER YOU ADD TO YOUR WORKPLACE ACCOUNT HAS CONSENTED TO BE ADDED TO THE ACCOUNT AND TO RECEIVE ADMINISTRATIVE MESSAGES FROM WHEN I WORK AND TEXT MESSAGES FROM YOU AND ANYONE ELSE ASSOCIATED WITH THE ACCOUNT.

15.2 Compliance with Laws. You represent and warrant that all communications you cause to be sent through the Service shall at all times comply with all applicable state and federal laws and regulations, including, but not limited to, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act, and all other laws and regulations concerning privacy, telemarketing, and the sending of SMS text messages.

15.3 Consent to Receive Periodic Messages from When I Work. As part of the Service, When I Work sometimes causes administrative messages to be sent to the Workplace and to Users. For example, upon adding a new User to the Workplace’s account, the new User will receive a welcome message, instructions on how to register for the Service, and a link with more information about the service. When I Work may send other administrative messages as well. BY SIGNING UP FOR THE SERVICE, YOU AGREE THAT YOU AND USERS ASSOCIATED WITH YOUR WORKPLACE WILL RECEIVE TEXT MESSAGES FROM US.

15.4 Stopping Text Messages. To stop receiving text messages from When I Work, reply STOP to any When I Work message. You can also adjust your settings through your account.

15.5 Text Messaging Fees. You may sign up to receive certain When I Work notifications or information via text messaging. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Please be aware that texting charges can fluctuate internationally. Text messaging rates can normally be found by asking your service provider.

16. Privacy 

You understand that by using the Service you consent to the collection, use,  and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, transferred to and processed in the United States and Canada.  The Service is controlled and operated from facilities in the United States with ancillary services, such as support and product engineering, provided in Canada.

To the extent that we process any personal data on your behalf and (i) that personal data relates to individuals located in the EEA or UK; or (ii) you are established in the EEA or UK, you agree that we do so as primarily as data processor, and the parties agree to comply with the provisions of the Data Processing Addendum. 

You understand and agree that if you opt to license a Third-Party Service, such as ODP or Payroll Services, then Third-Party Service Provider(s) and WIW may share data with one another to facilitate your use of the Service and the Third-Party Service.  Data that WIW receives from Third-Party Service Providers will be subject to and governed by the When I Work Privacy Policy. Data that a Third-Party Service Provider receives from WIW will be subject to and governed by each Third Party Service Provider’s privacy policy.

17. Publicity

Both parties have the right to disclose the relationship between Customer and WIW.  Customer grants WIW the right to reference Customer’s name and to add its corporate logo to WIW’s customer lists, marketing materials, presentations, and website.

18. Security

When I Work utilizes physical, managerial, and technical safeguards designed to preserve the integrity and security of your personal information and implement your privacy settings. However, you acknowledge that we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. For more information about When I Work’s security practices, visit the Security Page.  For detailed insights into our security practices, we invite you to explore our Trust Center.

19. Third-Party Links, Third-Party Services, and Third Party Information

The Service may contain links to third-party materials and options to use the products or services of Third-Party Service Providers that are not owned or controlled by When I Work. When I Work does not endorse or assume any responsibility for any such Third-Party Service Provider’s sites, information, materials, products, or services. If you access a third-party website or service from the Service or share your Customer Data on or through any Third-Party Service Provider’s website or service, you do so at your own risk, and you understand that these Workplace ToS and When I Work’s Privacy Policy do not apply to your use of such websites and services. You expressly relieve When I Work from any and all liability for loss or damage of any sort arising from your use of any products and services of Third-Party Service Providers, including their website, service, or content, including without limitation content submitted by individual Users.  You may be required by the Third-Party Service Provider to accept its terms and conditions applicable to use of the third-party content, website, information, materials, or services.

When I Work reserves the right at any time to modify or discontinue, temporarily or permanently, your access to third-party links, third-party services, and third-party information (or any part thereof) with or without notice.

Additionally, your dealings with or participation in the promotions of advertisers found in the Service, including, but not limited to, the payment and delivery of goods and services are solely between you and such advertisers. When I Work does not endorse or assume any responsibility for any such advertiser’s sites, information, materials, products, or services. You agree that When I Work shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

UNLESS OTHERWISE EXPRESSED IN THIS AGREEMENT, WHEN I WORK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED OR ADVERTISED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND, WHEN I WORK WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION(S) BETWEEN YOU AND THE THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

20. Vendors, Contractors, Subprocessors

When I Work may use vendors, contractors or other third-party service, such as our subprocessors, to help provide the Service to you, and, unless otherwise expressly agreed in writing, we may change our use of such vendors, contractors, and subprocessors at our sole discretion and without notice to you. You can find a list of our subprocessors in our Trust Center.

21. Indemnity

You agree to defend, indemnify and hold harmless When I Work and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Service, including any data or content transmitted or received by you; (b) your violation of any term of these Workplace ToS, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) Customer Data or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (f) your gross negligence or willful misconduct; or (g) any other party’s access and use of the Service (or access and use of any third-party service via the Service) with your unique username, password or other appropriate security code.

22. No Warranty

THE SERVICE, WHETHER PROVISIONED BY WIW ON A PAID SUBSCRIPTION PLAN OR PROVIDED BY WIW FREE OF CHARGE OR UNDER A FREE TRIAL, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WHEN I WORK OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WHEN I WORK, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

23. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WHEN I WORK, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO BREACH OF THIS AGREEMENT OR THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL WHEN I WORK BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHEN I WORK ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR THE SERVICE; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (F) CUSTOMER DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL WHEN I WORK, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO WHEN I WORK HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE DATE THE CLAIM AROSE.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WHEN I WORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE Workplace ToS GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE Workplace ToS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

24. Export Compliance

You will comply with all applicable import and export and re-export control and trade and economic sanctions laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations maintained by the U.S. State Department. You represent and warrant that neither you, nor any person to which you make our Service available or that is acting on your behalf, or any of your subsidiaries, or any of your or their directors, officers or employees, or any person owning 50% or more of your equity securities or other equivalent voting interests are not (a) listed on the List of Specially Designated Nationals and Blocked Persons or on any other list of sanctioned, prohibited, or restricted parties administered by OFAC or by any other governmental entity, or (b) located in, a national or resident of, or a segment of the government of, any country or territory for which the United States maintains trade or economic sanctions or embargoes or that has been designated by the U.S. Government as a “terrorist supporting” region. 

25. Governing Law, Arbitration, and Class Action/Jury Trial Waiver

 25.1 Governing Law. You agree that: (i) the Service shall be deemed solely based in Minnesota; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Minnesota. These Workplace ToS shall be governed by the internal substantive laws of the State of Minnesota, without respect to its conflict of laws principles. The parties acknowledge that these Workplace ToS evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (as it may be amended, “FAA”) governs the interpretation and enforcement of the Arbitration Agreement below and preempts all state laws (and law of other jurisdictions) to the fullest extent permitted applicable law. If the FAA is found not to apply any issue that arises from or relates to the Arbitration Agreement, then that issue will be resolved under and governed by the laws of the U.S. state where you live, or the jurisdiction mutually agreed in writing by you and us. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Hennepin County, Minnesota for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of our data, data security, Confidential Information, or Intellectual Property Rights, as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. You agree that Hennepin County, Minnesota, USA, is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable. These Workplace ToS were drafted in the English language and this English language version of these Workplace ToS is the original, governing instrument of the understanding between you and us. In the event of any conflict between the English version of these Workplace ToS and any translation, the English version will prevail.

25.2 Arbitration

(a) General. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WHEN I WORK. This Section (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and us that arises out of or relates to, directly or indirectly: (1) these Workplace ToS, including the formation, existence, breach, termination, enforcement, interpretation, validity, and enforceability thereof; (2) access to or use of the Service, including receipt of any advertising or marketing communications; (3) any transactions through, by, or using the Service; or (4) any other aspect of your relationship or transactions with us, directly or indirectly, as a Workplace or consumer (each, a “Claim,” and, collectively, “Claims”). This Arbitration Agreement will apply, without limitation, to all Claims that arose or were asserted before or after your consent to these Workplace ToS.

(b) Opting Out of Arbitration Agreement. If you are a new Workplace, you can reject and opt out of this Arbitration Agreement within thirty (30) days of accepting these Workplace ToS by emailing us at support@wheniwork.com with your full, legal name and stating your intent to opt out of this Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of these Workplace ToS including the provisions regarding controlling law or the courts in which any disputes must be brought.

(c) Dispute Resolution Process. For any Claim, you agree to first contact us at support@wheniwork.com and attempt to resolve the Claim with us informally. In the unlikely event that When I Work has not been able to resolve a Claim after sixty (60) days, we each agree to resolve such Claim by binding arbitration by JAMS before a single arbitrator (the “Arbitrator”), under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement will control. The arbitration will be conducted in the U.S. County where your principal offices are or Hennepin County, Minnesota, unless you and When I Work agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with the Rules, and the award rendered by the Arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (1) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (2) the award rendered by the Arbitrator may include your costs of arbitration, your reasonable attorneys’ fees, and your reasonable costs for expert and other witnesses; and (3) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. You and we agree that the Arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any disputes relating to the scope, interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator will also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Workplace ToS are, or whether any provision of these Workplace ToS is, unconscionable or illusory, and any defense to arbitration, including waiver, delay, laches, unconscionability, and/or estoppel.

(d) Equitable Relief. NOTHING IN THIS ARBITRATION AGREEMENT WILL BE DEEMED AS: PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA, DATA SECURITY, CONFIDENTIAL INFORMATION, OR INTELLECTUAL PROPERTY RIGHTS; OR PREVENTING YOU FROM ASSERTING CLAIMS IN A SMALL CLAIMS COURT, PROVIDED THAT YOUR CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.

(e) Severability. If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, will be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, will have no impact on the remaining provisions of this Arbitration Agreement, which will remain in force, or on the parties’ ability to compel arbitration of any remaining Claims on an individual basis pursuant to this Arbitration Agreement. Notwithstanding the foregoing, if Section 20.3 (Class Action/Jury Trial Waiver) is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement will be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief will be stayed pending the outcome of any individual claims in arbitration.

25.3 Class Action/Jury Trial Waiver

BY ENTERING INTO THESE WORKPLACE ToS, YOU AND WHEN I WORK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER. THE FOREGOING APPLIES TO BOTH NATUAL PERSONS AND ENTITIES, REGARDLESS OF WHETHER YOU HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES. THIS CLASS ACTION/JURY TRIAL WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS. YOU AND WHEN I WORK AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT INDIVIDUAL USERS.

26. General

26.1 U.S. Government Restricted Rights. To the extent the Service is being used by or on behalf of the U.S. Government, the Service will be deemed commercial computer software or commercial computer software documentation (as applicable). Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Service as are granted hereunder, in accordance with 48 C.F.R. §227.7202 and 48 C.F.R. §12.212, as applicable.

26.2 Assignment. These Workplace ToS, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by When I Work without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

26.3 Notification Procedures and Changes to the Workplace ToS. When I Work may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by When I Work in our sole discretion. When I Work reserves the right to determine the form and means of providing notifications to a Workplace, provided that you may opt out of certain means of notification as described in these Workplace ToS. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. When I Work may, in its sole discretion, modify or update these Workplace ToS, including any Schedules attached hereto and/or incorporated herein by reference, from time to time, and so you should review this page periodically. When we change the Workplace ToS in a material manner, we will provide reasonable notice to you and update the “last modified” date at the bottom of this webpage.  These Workplace ToS applies to and governs your access to and use of the Service effective as of the start of your access to the Service, even if such access began before publication of these Workplace ToS. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to current Workplace ToS or any updates to them, do not use or access (or continue to access) the Service.

26.4 Entire Agreement/Severability. These Workplace ToS, together with any amendments and any additional agreements you may enter into with When I Work in connection with the Service, shall constitute the entire agreement between you and When I Work concerning the Service. If any provision of these Workplace ToS is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Workplace ToS, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable. The terms and conditions of any Purchase Order issued with respect to this purchase are superseded by this Agreement, including the Privacy Policy.

26.5    Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligations hereunder (other than for the payment of amounts due) if such delay or failure arises from any cause or causes beyond the reasonable control of the affected party, including acts of God, floods, fires, pandemic, or loss of electricity or other utilities.

26.6.  No Waiver. No waiver of any right or provision of this Agreement shall be deemed a further or continuing waiver of such right or provision or any other right or provision, and When I Work’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

26.7   Contact. Please contact us at support@wheniwork.com with any questions regarding these Workplace ToS. The provider of the Service is When I Work, Inc., 420 North 5th St. Suite 500, Minneapolis, MN 55401 USA. We can be reached at +1-651-330-4482. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

These Workplace ToS were last modified on 04/16/2024

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Schedule A
Payroll Terms of Service – Workplaces
(“Payroll ToS”)

1. Initial Qualifications to Subscribe to Payroll Services

• (a) Registering for a Payroll Account. After accepting the Workplace ToS and these Payroll ToS, you must register for a payroll account (“Payroll Account”) via the WIW Service. Before you may access and use the Payroll Services or its underlying platform, WIW, through its Third-Party Service Providers, will use a variety of processes to validate your business’ identity, perform a credit analysis, and otherwise qualify you to be a Payroll Services subscriber. 
  
• (b) WIW’s use of Third-Party Service Providers. WIW’s Payroll Services are powered by Check Technologies, Inc. (“Check”), a Third-Party Service Provider who manages calculations, payments, and tax filings. Check requires that before you and your Users use Payroll Services, each must agree to the following:
  • Customer and its Users: Check’s Terms of Service, including Check’s Privacy Policy
  • For Customer, as the Workplace: Check’s Payroll User Service Terms; and 
  • For Customers and Users who wish to connect their bank accounts to Check: All who wish to connect their bank accounts to Check, such as Users wanting to utilize direct deposit, must agree to: (i) Check’s use of the financial services company, Plaid, to connect to the applicable bank account to Check; and (ii) allow Plaid to process Customer and User data in accordance with Plaid’s Privacy Policy.
    (collectively, “Check-Related Agreements”)

Check and WIW are separate business entities, and the terms of the Check-Related Agreements govern the use of Payroll Services in addition to those set forth in this Agreement. Please read all Check-Related Agreements as they will control to the extent that there is a conflict between this Agreement and the Check-Related Agreements.

Check uses the information you provide through the WIW Service to calculate and pay Customer’s payroll, pay Customer’s payroll taxes to applicable taxing agencies, produce payroll tax returns and W-2 statements, and, if applicable, remit wage garnishments, such as child support payments, to the applicable collecting entity, agency, or person. To facilitate payroll payments on behalf of WIW Customers to their Users, and to facilitate associated payments to taxing authorities, Check may maintain custodial accounts with one or more banks (each, the “Bank”).

(c) Information Needed to Create a Payroll Account; Qualification Process. Providing and receiving Payroll Services requires compliance with various laws, regulations, and rules, including the NACHA Operating Rules for ACH (collectively, all such laws, regulations, and rules, the “Compliance Requirements”); therefore, you agree to provide to WIW and its Third-Service Providers all information requested to satisfy the Compliance Requirements.

When registering for a Payroll Account, the information you provide must be complete and accurate and you agree to promptly update this information if it changes. You give us and our Third-Party Service Providers permission to obtain, verify, and record this information to satisfy all due diligence obligations under applicable Compliance Requirements. WIW and its Third-Party Service Providers retain full authority and discretion to grant or decline your use of the Payroll Services for any reason. WIW and its Third-Party Service Providers are not liable for any errors or inaccuracies in information you provided.

During the qualification period, prior to your initial payroll processing date, you are responsible for: (i) remitting any federal, state, and local withholding liabilities and other payroll liabilities incurred prior to enrolling in the Payroll Services; and (ii) submitting any payroll returns to tax agencies that were due for payroll tax liabilities incurred before using the Payroll Services.

You may also be required to provide additional information, accept other required terms, complete, and sign additional forms, and respond to inquiries from us (or our Third-Party Service Providers) as part of the qualification processes. Your failure to respond fully, promptly, and accurately may result in your immediate suspension or termination from the Payroll Services. 

In the event you are not approved to be a Payroll Services subscriber, we will refund any unused pre-paid Payroll Services fees, less any costs incurred by WIW (e.g. transactional fees) for the qualification process.

2. Customer Obligations For Continued Access and Use of Payroll Services

• (a) Information Needed to Maintain a Payroll Account. Once you are initially qualified and enrolled in Payroll Services, WIW and its Third-Party Service Providers will monitor your qualifications throughout your Payroll Services subscription term. From time to time, we may require you to agree to additional or updated terms and complete and sign additional forms due to changes in Compliance Requirements. We reserve the right to terminate Payroll Services to you if any information or inquiry from us remains unanswered for more than thirty (30) days.
  
• (b) Provision of Payroll Information. You are fully responsible for:
  • (i) Inviting your employees and other shift workers to onboard with Payroll Services, having each review and agree to the User Payroll Terms of Service, and having each create User Payroll Accounts to receive the benefit of WIW’s Payroll Services. 
    NOTE: Payroll processing and management is currently available only to Workplaces in the United States and to Users who are employees of Customer and receive a W-2, federal wage and tax statement.  
  • (ii) Making available sufficient funds to cover all disbursements, fees, payroll taxes, or any other amounts due under this Agreement; and
  • (iii) Reviewing and verifying the completeness and accuracy of Payroll Information (as defined below) before it is submitted to the WIW Service. The integrity and accuracy of the Payroll Services is limited by the nature of information you provide. WIW and its Third-Party Service Providers rely on you providing complete and accurate data, content, and other materials, including Payroll Information, into the Payroll Service. Your submission of Payroll Information is your authorization for WIW and its Third-Party Service Providers to create and transmit the entries necessary to process your payroll and payroll tax transactions using that information.
    
    “Payroll Information” means any information provided to either WIW or its Third-Party Service Providers through the Payroll Service that is necessary for our provision of the Payroll Service, including but not limited to information to calculate payroll, such as wage and salary information, hours worked, location of hours worked, bank information, information related to payroll tax obligations (such as your employer identification number), unemployment insurance tax rates, payroll schedule, federal and state tax information, local powers of attorney (if necessary), and, if applicable, paid-time off information, employee benefit information, wage garnishment information, and any other information provided by you and necessary for our provision of the Payroll Service. 
    
    Payroll Information, User Data (defined in subsection (c) immediately below) and any other data, content, and other materials specifically pertaining to you or your Users that are submitted into or transmitted through the Service in connection with this Agreement is collectively referred to as “Payroll Services Data”.

• (c) Consents and Authorizations.
  • (i) Data. You hereby authorize WIW to disclose to its Third-Party Service Providers, including Check, your Payroll Services Data in connection with this Agreement and you further authorize Check to disclose this Payroll Services Data to the Bank. All Payroll Services Data shall be accurate, complete, and promptly updated as necessary. 
    
    For any Payroll Services Data specific to your Users that is submitted into the Service in connection with this Agreement, including roles, employment status, employment duration, time & attendance, wage and salary information, and other information specified by WIW from time to time (collectively “User Data”), you must ensure that your Users have authorized you to disclose their User Data to WIW and its Third-Party Service Providers, including Check, and that your Users have authorized Check to disclose User Data to Bank. The provision of Payroll Services is dependent on you timely obtaining and maintaining these authorizations.
    
    By providing Payroll Services Data to WIW, you hereby grant WIW and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid, transferable, sublicensable, license to copy, display, upload, perform, distribute, publish, store, modify, translate, create derivative works from, and otherwise use your Payroll Services Data to provide the Payroll Services and interoperability with the offerings of Third-Party Service Providers, including, without limitation, as set forth in this Agreement.
    
  • (ii) Bank Account. In order for WIW, through its Third-Party Service Providers, to provide you with the Payroll Services, you must successfully connect your business checking account (“Company Bank Account”) as explained in the on-boarding instructions and you agree to maintain in your Company Bank Account available funds sufficient to cover all disbursements, fees, payroll taxes, or any other amounts due under this Agreement.
    
    You authorize WIW, through its Third-Party Service Providers, to debit and/or credit your Company Bank Account, from time to time as necessary, to process entries in the amounts and on the days required for WIW, through its Third-Party Service Providers, to provide Payroll Services on your behalf. The provision of Payroll Services is dependent on you timely obtaining and maintaining these authorizations. These authorizations will remain in full force and effect until Customer provides WIW with written notice of termination of any such authorizations in such time and such manner as to afford WIW, its Third-Party Service Providers, and the Bank a reasonable opportunity to act upon such notice.

• (d) Effect of Errors Due to Provision of Inaccurate or Untimely Payroll Services Data. You agree and acknowledge WIW and its Third-Party Service Providers rely on information furnished by you and your Users to perform the Payroll Services. WIW and its Third-Party Service Providers are not liable for any errors or inaccuracies in Payroll Services Data you or your Users provided. If any errors result, whether directly or indirectly, from WIW’s or its Third-Party Service Providers’ reliance on: (i) Payroll Services Data, whether provided by you or your Users; (ii) changes to Payroll Services Data; or (iii) requests to WIW to change Payroll Services Data, WIW or its Third-Party Service Providers may elect to attempt to correct these errors, but neither WIW or its Third-Party Service Providers make any warranties or guarantees as to the timing of such corrections or that such errors will be able to partially or fully corrected. 
  
  If interest or penalties result from such errors, you are responsible for the interest or penalties, and you acknowledge that neither WIW nor its Third-Party Service Providers are responsible for these liabilities.  
  
  WIW and its Third-Party Service Providers reserve the right to require written authorization for any corrections or amendments, to charge additional fees for any error corrections or form amendments, or to refuse to affect such corrections or amendments. 
  
  Likewise, if Payroll Services Data is not submitted by your applicable submission date or  applicable cut-off time, WIW or its Third-Party Service Providers may elect to attempt to expedite the processing of your payroll but neither WIW or its Third-Party Service Providers make any warranties or guarantees in this regard and may process that Payroll Services Data and transmit the credit or debit entries to the ACH as part of the next regularly-scheduled file we create.   WIW reserves the right to charge additional fees for the service of expediting your payroll.

• (e) Effect of Errors Due to Insufficient Bank Account Funds. Neither WIW nor Check is obligated to perform the Payroll Services including, without limitation, facilitating the Bank’s payment of wages or taxes or the preparation or filing of tax returns if you have not timely remitted to Bank the funds for wages and tax payments or you have insufficient funds in your Company Bank Account. 
  
  We will not be liable for any consequences or claims directly or indirectly arising from your failure to make sufficient funds available to pay all disbursements, fees, payroll taxes, or any other amounts to be paid by you due under these Payroll ToS.

• (f) Effect of Errors Attributable Solely to WIW or its Third-Party Service Providers; Disclaimers. If any tax filing errors result that are attributable solely to WIW or its Third-Party Service Providers – e.g. due to operational issues with the Payroll Services; WIW or its Third-Party Service Providers misses tax compliance changes;  or, we fail to deposit or remit your withholding taxes when due and the failure is not caused by you– then provided you use reasonable efforts to mitigate any penalties or losses resulting from such errors and you promptly notify us of any notices from the Internal Revenue Service or other government agencies regarding penalties or errors, we agree as follows:
  • (i) We will pay (or reimburse you for) any penalties and interest assessed by the taxing authority(ies); and/or
  • (ii) We will pay (or reimburse you for) any corrections or amendments needed due to missed tax compliance changes.
    
    The foregoing is your sole remedy and WIW’s (and its Third-Party Service Providers’) sole liability to you.
    
    EXCEPT AS SET FORTH IN THIS SUBSECTION (f), THE PAYROLL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WIW DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, AND THE WARRANTY OF NON-INFRINGEMENT. WIW DOES NOT WARRANT THAT USE OF THE PAYROLLL SERVICES WILL BE UNINTERRUPTED OR THAT THE OPERATION AND OUTPUT OF THE PAYROLL SERVICES WILL BE ERROR FREE OR COMPLETE.

• (g) Cooperation in Investigations. You agree to cooperate with us in investigating any fraudulent or illegal transactions.

• (h) Specifying a Payroll Account Administrator. As a Workplace, you will be required to designate certain individuals who are authorized to provide information, take certain actions, and enter into agreements on your behalf (each a “Payroll Account Administrator” or “Authorized Representative”), including but not limited to the ability to review, submit, amend, or cancel payrolls (each, a “Payroll Entry”). We will use reasonable efforts to verify, but do not guarantee, that anyone who submits a Payroll Entry is a Payroll Account Administrator authorized to take such action.
  
  You will require each Payroll Account Administrator and Authorized Representative to maintain a unique log-in.

• (i) Responsibility for Actions taken under your Payroll Account. You are solely responsible for actions taken under your Payroll Account. Any actions taken under your Payroll Account will be deemed authorized by you, regardless of your knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to: (i) actions taken by a Payroll Account Administrator or other Authorized Representative; and (ii) actions that a Payroll Account Administrator or an Authorized Representative (or anyone that we reasonably believe to be a Payroll Account Administrator or an Authorized Representative) directs or instructs us to take on its behalf.
  
  To the extent allowed by applicable law, you agree that if one of your Payroll Account Administrators or Authorized Representatives provides us with accurate login or identity verification credentials and authorizes us to take actions on your behalf (e.g. clicking the “Submit Payroll” or other buttons; or you verbally instruct a WIW representative to take an action), such actions will have the same effect as if you provided us with written signature authorizing us to make any electronic payments, filings, or take any other actions as it relates to the Payroll Service on your behalf.

• (j) Responsibility for Compliance with Laws. In providing Payroll Services, neither WIW or its Third-Party Service Providers are acting in a fiduciary capacity for you, and you acknowledge the following:
  • (i) You should not construe any information provided directly or indirectly through your use of the Payroll Services to be legal, tax, or accounting advice; 
  • (ii) The Payroll Services may not include all functions necessary to operate your business or to meet all federal, state, and local payroll reporting obligations applicable to you;
  • (iii) Although WIW and/or its Third-Party Service Providers may be authorized by you to act as your reporting agent with applicable tax authorities, this authorization does not relieve you of your responsibility to (or from liability for failing to) ensure that all tax returns, tax deposits, and payments are filed and made on a timely basis in accordance with applicable laws; 
  • (iv) You, as the Workplace, are solely responsible and assume all liability for complying with applicable federal, state, and local wage and hour laws, including those laws related to employee classification (e.g. employee vs independent contractor), minimum wage laws, wage deduction laws, meal period and rest break premiums, regular rate of pay calculations, overtime calculations and payments, paid sick leave accrual, itemization and issuance of pay statements, and laws pertaining to the timing of pay (including final pay); and
  • (v) WIW and its Third-Party Service Providers act only as intermediaries between you and your Users specifically and solely with respect to the delivery of payroll funds owed.
• (k) Fees.
  • (i) Base Payroll Services Fees. Payroll Services are licensed on a subscription basis with fees charged based on (A) the total number of Customer’s employees per month enrolled in Payroll Services for any portion of a month (“Base Fee”); plus (B) each employee for which Customer uses the Payroll Services for any portion of a month (“Per User Fee”). The Payroll Services subscription may be purchased by you online or by executing a WIW-issued quote or other type of WIW-approved order form. Unless WIW has agreed to provide you with a no-charge subscription to Payroll Services, Customer will pay to WIW the applicable Payroll Services fees per the terms of the Workplace ToS or per the payment terms as set forth in the Customer’s executed WIW-issued quote or other type of WIW-approved order form.
    
    Unlike WIW’s scheduling and time and attendance subscriptions, which are payable monthly or annually in advance at the start of each month-to-month or annual Subscription Term, as applicable, Payroll Services Base Fee and Per User Fee are paid monthly in arrears.
    
    Payroll Services fees are not prorated for partial month’s use and Customer will be charged a full month of fees for any portion of a month Customer uses the Payroll Services. 
    
  • (ii) Pass-Through Fees. Customer hereby agrees and acknowledges that WIW may charge certain fees and expenses (“Pass-Through Fees”) from time to time for certain “Payroll Service Events”, such as untimely tax filing where the delay is due to no fault of WIW or its Third-Party Service Providers. A schedule of Payroll Service Events and the Pass-Through Fees for each is posted in our Help Center’s Payroll Billing Reference Guide. Pass-Through Fees will be invoiced in arrears at least quarterly, and the amount of the Pass-Through Fees invoiced will be based on the type and number of Payroll Service Events that transpired.
    
    WIW and its Third-Party Service Provides may modify or amend the Pass-Through Fees and/or add additional events triggering Pass-Through Fees from time-to-time with an effective date of no-less than 15 days after such updates are communicated to Customer via email, posted on the website, or the Service itself.
    
    With respect to the fees designated as Pass-Through Fees, Partner’s use of the Services after the effective date of the updated schedule shall be deemed acknowledgment by Customer and acceptance of the changes to the Pass-Through Fees in the Pricing Schedule and the effective date of such changes.  

• (l) Additional Obligations.
  • (i) You are and shall be responsible for addressing any complaints from Users, tax authorities, and other payees and you are and shall be liable for paying any expenses, losses, fines, penalties, or damages to its Users, tax authorities, or other payees that arise out of or relate to any errors or omissions in the Payroll Services Data provided by you or your Users or that arise out of or relate to your insufficient funds.
  • (ii) You must Inform Users of any relevant policies and practices of yours and any settings you select that may impact the processing of Payroll Services Data.
  • (iii) Additional obligations of yours and your Users related to the provision of Payroll Services are detailed in the Check-Related Agreements addressed in Section 1(b) of these Payroll ToS. Please read all terms in the Check-Related Agreements.

3. When I Work’s Obligations.

3.1 Provision of Payroll Services. WIW will (a) make the Payroll Services available to you pursuant to this Agreement and the applicable WIW-issued quote or other type of WIW-issued order form; and (b) use commercially reasonable efforts to make the Payroll Services available 24 hours a day, 7 days a week, except for: (i) scheduled maintenance (See Section 3.2 for more information); and (ii) any unavailability caused by circumstances beyond WIW’s (or its Third-Party Service Providers’) reasonable control, including the following:

• (A) Emergency maintenance, including application of hotfixes, security related maintenance, or other time sensitive issues necessary to protect the performance, availability, stability, or security of the Payroll Services;
• (B) Unavailability caused by Customer’s equipment (or its individual Users’ equipment), Customer’s or User’s network unavailability, Customer Data, or Customer’s Users’ Content;
• (C) Customer making excessive requests to When I Work’s (or its Third-Party Service Providers’) API;
• (D) Unavailability caused by issues with internet access including DNS issues outside of When I Work’s control, Denial-of-Service attacks; or 
• (E) Events of Force Majeure.

3.2 Maintenance & Support Services. Standard maintenance and support (“Payroll Maintenance & Support”) is included in the Payroll Services to Customer at no additional charge. For all questions that do involve Payroll Services, the maintenance and support services currently provided to Customers with a subscription license to the When I Work Payroll Services are as follows:

• (a) Support Hours. When I Work’s Payroll Customer Care team provides support via live chat and support tickets during the following hours:        
  Monday – Friday:
  Tickets and live chat: 8am -6pm, U.S. Central Standard Time (UCTC -6) or U.S. Central Daylight Time (UTC -5) ***
  ***Holidays may affect these hours.
  
  Web-based user help is available 24×7, subject to maintenance and other downtime, including a Help Center with FAQs, product news, and updates. 
  
  Support Hours for all questions except for Payroll Services are set forth in the Workplace ToS.
  
  Customer Care team hours are also posted here in our Help Center.

• (b) Scheduled Maintenance. Scheduled maintenance may affect the availability of the Payroll Services or certain applications and features of the Payroll Service. Check, WIW’s Third-Party Service Provider for Payroll Services, uses reasonable efforts to accomplish its scheduled maintenance without affecting access to the Services.

To keep pace with different technologies and product offerings, When I Work reserves the right to modify the terms and conditions of this maintenance & support.  Modified maintenance & support terms will be posted to our Help Center at least 30 days in advance. 

4. Payroll Processing Schedule

We will process Payroll Information in accordance with the then-current processing schedule applicable to you, provided that: (i) we receive the Payroll Information no later than the applicable cut-off time to submit Payroll Information on a business day; and (ii) the ACH is open for business on that day. If any of the requirements of clauses (i) or (ii) of this Section 3 are not satisfied, we will use reasonable efforts to process the submitted Payroll Information and transmit create and transmit credit or debit entries to the ACH as part of the next regularly scheduled file. 

WIW’s standard processing time for is four (4) business days, but if you qualify for one of the expedited payroll processing programs (each, an “Expedited Payroll Program“), then subject to the provisions of this Section 3, we will process the submitted Payroll Information in less than four (4) business days. Whether you initially qualify for or continue to qualify for the Expedited Payroll Programs is decided by WIW in its sole discretion; we have no obligation to provide expedited payroll processing services to you. Certain events, including but not limited to making insufficient funds available for wages and tax payments, may cause us to cancel expedited payroll processing services immediately, without notice to you. 

In the event we determine at any time that you or any payroll transaction is a potential credit risk, we may immediately, upon notice to you: (i) withdraw the offering of any Expedited Payroll Program to you; (ii) require you to transmit funds by wire transfer or other alternate method; (iii) require you to provide current bank statements; (iv) require you to provide one or more additional payments to be held in escrow; and/or (v) any other action reasonably determined by us to mitigate credit risk.

5. Revocation or Suspension of your Payroll Account

We may deny, revoke, or suspend your access and use of the Payroll Services at any time if we determine: (i) it is necessary to mitigate an actual or suspected security threat; (ii) you have failed to adhere to these Payroll ToS; or (iii) your actions or those of any business affiliated with you creates a risk to our business operations as a matter of policy, regulation, or law. Examples of actions that may give rise to termination include, but are not limited to, repeated or systemic failure to provide accurate and timely Payroll Services Data; misrepresentation of the business or individuals using the Payroll Services on your behalf; failure to answer an information request or authorization inquiry for more than thirty (30) days; failure to timely remit to Bank the funds for wages and tax payments; failure to maintain sufficient funds to in your bank account for wages and tax payments; or any action that WIW determines presents a risk of fraud or financial harm to WIW or to its Third-Party Service Providers, or violates applicable laws or Compliance Requirements.

6. Effect of Termination of Payroll Service

You acknowledge and understand that if you terminate the Payroll Services or we terminate the Payroll Services, then such termination may not be reversible. If you or we terminate the Payroll Services, then as of the time of such termination, we will have no obligation to make further payroll tax filings on your behalf. Notwithstanding the foregoing, if you or we terminate the Payroll Services, you will be asked to make specific elections regarding whether you would like WIW to make certain final payroll tax filings (such filings, the “Final Payroll Tax Filings“) on your behalf (such elections, the “Post-Termination Filing Elections”). If you do not provide WIW with your Post-Termination Filing Elections promptly following termination of the Payroll Services, then you authorize WIW to make the Post-Termination Filing Elections on your behalf (the “WIW Selections“). You acknowledge and agree that we may rely on your Post-Termination Filing Elections and the WIW Selections, 

and we are not responsible or liable for: (i) any consequences or claims arising, directly or indirectly, from such reliance, including losses, liabilities, demands, damages, expenses, or costs (collectively “Claims”) such as IRS penalties and/or interest; or (ii) any resulting errors, or any consequences or Claims arising (directly or indirectly) from any resulting errors, in the Final Payroll Tax Filings.

The provisions of these Payroll ToS that should, by their nature survive termination and/or expiration, shall and do survive such termination and/or expiration.

These Payroll ToS were last modified on 04/16/2024

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User Terms of Service
FOR INDIVIDUAL SHIFT WORKERS OF A WORKPLACE 

IF YOU ARE AN INDIVIDUAL WHO HAS BEEN ASKED OR INVITED TO ACCESS AND USE THE SERVICE BY A WORKPLACE AS A SHIFT WORKER*, ADMIN, MANAGER, SUPERVISOR, EMPLOYEE, VOLUNTEER, AGENT, OR CONTRACTOR OF A WORKPLACE, THESE USER TERMS OF SERVICE APPLY TO YOU.  

As described further here, separate terms apply to workplaces such as employers, companies, businesses, organizations, and other entities (each, a “Workplace”) that purchase a subscription to the Service, are provided a subscription to the Service free of charge  or under a free trial. THE WORKPLACE TERMS OF SERVICE DO NOT APPLY TO YOU AS AN INDIVIDUAL USER.

NOTE REGARDING SHIFT WORKER CLASSIFICATION IN THE SERVICE

*Shift workers, including employees, independent contractors, and volunteers of a Workplace (“Users”) are often referred to within the Service as “Employees”. Within the Service, certain Employees may be designated as Managers or Supervisors by the Workplace. Naming conventions within the Service are for convenience only and are not intended to be a determination of any individual’s worker status or worker classification for any purpose, including for purposes of federal employment taxes, unemployment taxes, etc. Likewise, When I Work does not assist in the determination of whether a shift worker is exempt or nonexempt under the Fair Labor Standards Act.   Workplaces assume all liability for the proper classification of their shift workers based on applicable legal guidelines and for complying with all other employment laws, such as wage and hour laws.

INTRODUCTION

(A) Applicability to Individual Shift Workers. These User Terms of Service (“User ToS” or “Agreement”) apply to individual workers, including shift workers, admins, managers, supervisors, employees, volunteers, agents, and contractors of a Workplace that has separately agreed to the Workplace ToS or other subscription agreement with When I Work, Inc. (“When I Work,” “WIW,” “we,” or “us” or “our”) and that has created a Workplace account that you and other shift workers can join as “Users” to access and use the hosted workforce management platform and software made available by WIW via web-based and/or mobile applications (collectively the “Service”). 

The term “User” in these User ToS may also be referred to as “you,” and “your”.

The term “Workplace” in these User ToS may also be referred to as “Customer” or “Account Holder”. 

The Workplace ToS or other subscription agreement between your Workplace and WIW contains WIW’s commitment regarding delivery of the software applications and features of the Service licensed by your Workplace and made available by WIW. 

PLEASE READ THESE USER ToS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION BEFORE ACCEPTING THIS AGREEMENT OR PROCEEDING WITH ANY USE OF OUR SERVICE. IF YOU DO NOT AGREE, YOU MAY NOT REGISTER AS A USER WITH YOUR WORKPLACE AND YOU MAY NOT ACCESS OR USE OUR SERVICE.

B. Mandatory Arbitration. UNLESS YOU OPT OUT OF ARBITRATION PURSUANT TO THE INSTRUCTIONS IN SECTION 15.2(b) OF THESE USER ToS, THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 15.3 THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE CERTAIN DISPUTES, RATHER THAN THE USE OF JURY TRIALS OR CLASS ACTIONS, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTIONS OR PROCEEDINGS. 

C. Applicability of When I Work Privacy Notice. You agree to the collection and use of your information as set forth in the When I Work Privacy Notice, whether or not you fully become a registered User of our Service

D. Accepting this Agreement
This Agreement may be accepted in one or more of the following ways: 

• Clicking “I Accept”, “Continue”, “Finish”, or “Sign Up for Free” or similar language indicating you agree to abide by this Agreement provided you meet all the eligibility requirements found in Section 1.1 below; or 
• Accessing and using the Service, even if such access began before publication of these Workplace ToS. Your continued use of the Service after any such change constitutes your acceptance of the new Workplace ToS. If you do not agree to current User ToS or any updates to them, do not use or access (or continue to access and use) the Service.

E.  BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:

• (i) If you are registering as a User of a Workplace, or otherwise accessing a Workplace account, you meet all the eligibility requirements found in Section 1.1.
• (ii) You are not a competitor of When I Work nor do you work for a competitor of When I Work, and you will not provide any information gained from your use of or access to the Service to a competitor of When I Work.
• (iii) You are accessing the Service for the purpose of using the Service as intended and not for the purpose of monitoring availability, performance, functionality, or any other benchmarking or competitive purposes.
• (iv) This Agreement is a contract with When I Work. You must use the Service in compliance with this Agreement and with all applicable local, state, national, and international laws, rules, and regulations.
• (v) When I Work may, without prior notice, change the Service or add, modify, or remove features of the Service.
• (vi) When I Work may permanently or temporarily terminate, suspend, or limit your access to and use of the Service if, in our sole determination, you violate any provision of these User ToS. Notice requirements, if any, before When I Work terminates, suspends, or limits your access to and use of the Service are set forth in these User ToS.
• (vii) When I Work reserves the right to make unilateral changes to these User ToS so you should periodically review the User Terms of Service page and the Privacy Notice page. WIW will provide notice of such changes as described in Section 17.2 below. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to these Workplace ToS.
  
  Your continued use of the Service after any such change means you accept and agree to new terms. If you do not agree to any of these terms or any future terms in either the User ToS or Privacy Notice, do not access or use (or continue to access and use) the Service. 

IF YOU DO NOT OR CANNOT ACCEPT THESE USER ToS, PLEASE EXIT THE WEBSITE OR MOBILE APP AND DO NOT ACCESS OR USE THE SERVICE. AS STATED ABOVE, IF YOU ACCESS AND USE THE SERVICE, YOU ARE CONSENTING TO BE BOUND BY AND BECOMING A PARTY TO THIS AGREEMENT.  

IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, CONTACT US AT: support@wheniwork.com.

1. USE OF OUR SERVICE
1.1 Eligibility.

• (a) Eligibility Requirements. You must meet all the following eligibility requirements, or you may not access or use the Service. 
  • (i) Any use or access to the Service by anyone under 13 years of age is strictly prohibited and in violation of these User ToS.
  • (ii) Without limiting the prohibition in subsection (i) above, any use of or access to the Service by a minor (which is under 18 in most jurisdictions) is only permitted with the express written permission of such individual’s parent or guardian. If you are a minor, you represent and warrant that you have received such permission and that your parent or guardian is agreeing to these User ToS for you. If you are a parent or legal guardian, by allowing your minor child to use our Service, you agree that you are subject to these User ToS and responsible for your child’s activity on our Service.
  • (iii) The Service is available only to persons who can form a legally binding contract with When I Work (and on behalf of your Workplace, as applicable).
  • (iv) The Service is not available to any User previously removed from the Service by When I Work for violation of WIW’s Terms of Service.
  • (v) The Service shall not be accessed or used by or on behalf of any individual or entity that is (1) listed on the List of Specially Designated Nationals and Blocked Persons or on any other list of sanctioned, prohibited, or restricted parties administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), the U.S State Department’s International Traffic in Arms Regulations or by any other governmental entity; or (2) located in, a national or resident of, or a segment of the government of, any country or territory for which the United States maintains trade or economic sanctions or embargoes or that has been designated by the U.S. Government as a “terrorist supporting” region. 
  • (vi) You may not use the Service if you are legally prohibited from receiving or using the Service under the laws of the country in which you are resident or from which you access or use the Service.

1.2 Scope of License; License to Use the Service

• (a) Scope of License. The Service is licensed on a subscription basis and the subscription plan purchased by your Workplace or that is provided to your Workplace free of charge (as applicable) or under a free trial determines the software applications and features of the Service, including any Third-Party Service(s), available to you. Features may vary by the plan selected, by Workplace, and by the type of access privileges and roles (Admin, Supervisor, Manager, or Employee) a User is assigned in the Service by the Workplace.
  
  “Third-Party Service” means any software, Software as a Service, data source, or other product or service owned or licensed by a third party (“Third-Party Service Provider”) that complements your use of the Service and is integrated or otherwise accessible through the Service.  Your Workplace may import and export data between the Service and Third Party Service(s) through integrations.
  
• (b) License to Use the Service. Subject to the terms and conditions of  these User ToS, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to access and use the Service on behalf of your Workplace as permitted by your assigned User role(s), in accordance with the associated documentation we provide as part of the Service, and by the applications and features of the Service licensed by your Workplace, including, if applicable,  the services and products of Third-Party Service Providers.  
  
  We reserve all rights not expressly granted herein in the Service and the WIW Content (as defined in Section 5 below).

WIW reserves the right to permanently or temporarily terminate, suspend, or limit your access to and use of the Service if, in our sole determination, you violate any provision of these User ToS.

• (c) Geographical Restrictions on Use. The Service is designed for use by Workplaces and individuals in the United States. When I Work makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable laws and regulations, including but not limited to export and import regulations. 
  
  Unless otherwise explicitly stated, all materials found in the Service are directed to Workplaces and Users located in the United States, including spelling conventions. 

1.3 Payroll Services and On-Demand Pay

• (a) Payroll.  If your Workplace licenses payroll processing and management services (“Payroll Services”), which are powered by our Third-Party Service Provider, Check Technologies, through WIW as an additional service in connection with the Service, then the following applies:
  
  In addition to these User ToS, your creation of a Payroll User Account and the access and use of the Payroll Services are subject to the Payroll User Terms of Service (“Payroll User ToS”), attached as Schedule B and incorporated herein by reference. 
  
  Payroll Services are currently available only to Workplaces in the United States and only to Users who are Workplace employees and receive a W-2, federal wage and tax statement from you.

• (b) On-Demand Pay. On-Demand Pay (“ODP”) is a feature available to certain U.S.-based Workplaces and to certain Users through our Third-Party Service Provider, Clair. If your U.S.-based Workplace chooses to offer its Users the option to use ODP, eligible Users may access a portion of the wages they have earned in advance of payday.  This feature is available at no cost to U.S.-based Workplaces that license the Time & Attendance feature of the Service and that opt-in to ODP.
  
  Terms specific to WIW’s On-Demand Pay provider, Clair:    
  • If your Workplace chooses to offer its Users the option to use Clair for ODP and then chooses to opt-out or disable this feature, it is your Workplace’s responsibility to notify its Users of this change. 
  • To provide ODP, WIW must share certain data with Clair and Clair’s third-party service providers (such as its banking services provider).  Therefore, if you use the OPD feature, you authorize When I Work to use and to share with Clair and Clair’s third-party service providers information about you as a User associated with your Workplace, such as number of hours worked, hourly rate, and information regarding paid and unpaid breaks.
  • Users who choose to access and use ODP must each separately agree to be bound to separate terms, including Clair’s Privacy Policy, all of which may be found at Clair Legal Information.

2. Joining your Workplace

2.1 Registering as a User; Use of your WIW User Account 

• (a) Your registration as a User gives you access to the software applications and functionality within the Service that your Workplace licenses and that we establish and maintain in accordance with this Agreement, including, if applicable, the services and products of Third-Party Service Providers, 
  
  When you register as a User, the personal profile you create within your account (referred to as a “User Profile”) allows you to set a profile image, set your personal information, and configure your preferences. (See Section 3 below for further information).

• (b) By connecting When I Work with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
• (c) You may never use another User’s account without permission.
• (d) When registering as a User, you must provide accurate and complete information, and you must keep this information up to date.
• (e) If the settings are enabled by your Workplace, the Time & Attendance features of the Service require that your geolocation information be provided to the Service, such as for clock ins and clock outs via a personal computer (by checking your web browser’s geolocation or the IP address of the internet connection) or via the mobile app installed on your device (using the GPS signal on your device.).  Your Workplace determines how close Users must be to their scheduled location to clock in or clock out. 
  
  If your Workplace uses the location-based restrictions in the Time & Attendance feature, you acknowledge and agree that your geolocation information may be obtained by the Service and your geolocation may be provided to your Workplace when you clock in and clock out. You also acknowledge and agree that your geolocation information may be used for safety and security purposes.

• (f) You are solely responsible for the activity that occurs on your User account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case.
• (g) You must notify When I Work immediately of any breach of security or unauthorized use of your User account. When I Work will not be liable for any losses caused by any unauthorized use of your account.

You may control your account and how you interact with the Service by changing the settings on your Profile Settings page. By providing When I Work with your email address and/or mobile number, you consent to our using the email address and/or mobile number to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address and/or mobile number to send you other messages, such as changes to features of the Service and special offers.  

Note: You can change your communications preferences in your account or in the app.

3. User Content.  

3.1 Ownership and Uses. Some areas of the Service allow Users to post or provide content such as profile information, images, audio, comments, questions, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Service is referred to as “User Content”). WIW claims no ownership rights over User Content created by you. The User Content you create, including your User Profile, remains yours; however, by providing or sharing User Content through the Service, you agree as follows:

• (a) To allow others in your Workplace to view, edit, and/or share your User Content in accordance with your profile settings and these User ToS. Your User Content may be viewed or shared with others in accordance with the WIW Privacy Policy. 
  
• (b) To allow WIW to use, reproduce, modify, store, publish, translate, distribute, display, archive, and make derivative works of all such User Content for use in solely connection with providing and improving the Service and the interoperability with any Third Party Services as set forth in this Agreement.
  
• (c) You are to provide only such information, including User profile information, images, audio, comments, questions, and other content to When I Work that is needed to use the Service as intended and is in accordance with this Agreement. 
  
• (d) In providing the Service, WIW and its Third-Party Service Providers act as an intermediary between you and your Workplace; as such, you authorize WIW and its Third-Party Service Providers to share with your Workplace any User Content that you provide to WIW or its Third-Party Service Providers in connection with the Service. 
  
• (e) Your User Content plus any other information, records, and files that you provide, submit, post, display, or otherwise make available to or through the Service becomes “Customer Data” and you acknowledge and agree that the Customer Data is owned and controlled by our Customer (your Workplace). Your Workplace has many choices over that Customer Data. For example, your Workplace may enable or disable the integrations with Third-Party Services, manage access privileges and User roles, and request that WIW share information regarding its Users with a third party, and these choices and instructions may result in the access, use, disclosure, modification, or deletion of certain or all Customer Data.

AS BETWEEN WIW AND YOUR WORKPLACE, YOU AGREE THAT IT IS SOLELY THE RESPONSIBILITY OF YOUR WORKPLACE  TO (A) INFORM YOU AND OTHER USERS OF ANY RELEVANT WORKPLACE POLICIES AND PRACTICES AND ANY SETTINGS IN THE SERVICE THAT MAY IMPACT THE PROCESSING OF CUSTOMER DATA; (B) PROVIDE ANY NOTICES AND OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND OTHER USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF CUSTOMER DATA, INCLUDING YOUR PERSONAL INFORMATION (a/k/a PERSONAL DATA), AND THE OPERATION OF THE SERVICE; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF CUSTOMER DATA UNDER THE AGREEMENT IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE BETWEEN YOU AND OTHER USERS RELATING TO OR BASED ON CUSTOMER DATA. WIW IS NOT LIABLE FOR YOU WORKPLACE’S FAILURE TO FULFILL THESE OBLIGATIONS. 

3.2 Additional Obligations regarding User Content. In connection with your User Content, you affirm, represent, and warrant the following:

• (a) If you include personal information about you or others in your User Content, you have sufficient rights to use such person’s name or likeness in the manner contemplated by the Service and these User ToS.
  
• (b) You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
  
• (c) Your User Content and When I Work’s use thereof as contemplated by these User ToS does not and will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights (as defined below) and privacy rights.
  
• (d) Except as required pursuant to any applicable terms of service for Payroll Services and/or ODP, you will not use the Service to collect, store, or process bank account information, credit or debit card information, social security numbers, driver’s license numbers, or health or medical information, nor will you direct other Users to provide such information via the Service.
  
• (e) Your User Content does not and will not include any “protected health information” subject to the Health Insurance Portability & Accountability Act of 1996, P.L. 104-191, together with any implementing regulations, as amended from time to time (collectively, “HIPAA”). When I Work shall not be liable for breaches of HIPAA or failures to comply with this restriction by you, your Workplace, or other users associated with your Workplace account.
  
• (f) Your User Content does not and will not contain any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable or illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets or other proprietary information); 
  
• (g) Your User Content does not and will not contain any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships, that you know is not correct and current, or that violates a Workplace policy.
  
• (h) When I Work may exercise the rights to your User Content granted under these User ToS without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
  
• (i) To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.

When I Work reserves the right, but is not obligated, to reject and/or remove any User Content that When I Work believes, in its sole discretion, violates any of these provisions or is otherwise objectionable. Whether notice is provided to you or your Workplace in advance depends on the severity of the circumstances as determined solely by WIW.  It is your responsibility to maintain appropriate alternate backup of all Your User Content.

When I Work takes no responsibility and assumes no liability for any User Content that you or any other User or third-party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing, sharing, or otherwise making such User Content available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that When I Work shall not be liable for any damages you allege to incur as a result of or relating to any User Content.

You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.

For the purposes of these User ToS, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.

4. Service Rules and Restrictions. 

     You agree not to engage in any of the following prohibited activities:

• (a) copying, reproducing, duplicating, renting, leasing, selling, loaning, transferring, assigning, sublicensing, reselling, distributing, modifying, altering, or creating derivative works of or otherwise exploiting any portion of the Service without the express written permission by When I Work; 
• (b) using any scraper, data mining tool, data gathering or extraction tool or any other automated or non-automated means to collect, copy or record any part of our Service; 
• (c) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the When I Work servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that When I Work grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from wheniwork.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
• (d) uploading, posting, hosting, or transmitting spam, chain letters, SMSs, or other unsolicited email or messages;
• (e) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service;
• (f) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; 
• (g) uploading invalid data, viruses, worms, or other software agents or any code of a destructive nature through the Service; 
• (h) collecting or harvesting any personally identifiable information, including account names and profile information, from the Service;
• (i) using the Service for any commercial solicitation purposes;
• (j) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding, or attempting to hide your identity;
• (k) interfering with the proper working of the Service;
• (l) accessing any content on the Service through any technology or means other than those provided or authorized by the Service;
• (m) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein;
• (n) engaging in verbal, physical, or other abuse (including threats of abuse or retribution) of any other User or any When I Work customer, employee, member, or officer;
• (o) disassembling, reverse engineering, decoding, or decompiling any part of our Service, or deleting any copyright or other proprietary rights notices included on any part of Service.

BY USING THE SERVICE, YOU REPRESENT, WARRANT AND COVENANT THAT (I) YOU DO NOT WORK FOR A COMPETITOR OF WHEN I WORK; AND (II) YOU WILL NOT PROVIDE ANY INFORMATION GAINED FROM YOUR USE OF OR ACCESS TO THE SERVICE TO A COMPETITOR OF WHEN I WORK.

You are solely responsible for your interactions with your Workplace(s) and with other Users. We reserve the right, but have no obligation, to monitor disputes between you and your Workplace(s) or other Users. We shall have no liability for your interactions with your interactions with your Workplace or other Users, or for the Workplace’s or User’s action or inaction.

5. WIW Proprietary Rights

      5.1 WIW Content. Except for Customer Data, which includes your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (collectively the “WIW Content”), and all Intellectual Property Rights related thereto, are the exclusive property of When I Work and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, WIW reserves all rights, title, and interest in the WIW Content 

5.2 Feedback. From time to time, you may submit ideas, comments, suggestions, recommendations, opinions, bug reports, and enhancement requests relating to the Service (collectively, “Feedback”) to WIW.   WIW may freely use or exploit this Feedback in connection with the Service (or with any WIW product or service) without any obligations to you, including any fiduciary obligations. By submitting any Feedback, you agree that WIW is free to use it without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone.  If for any reason it is further needed, you hereby grant WIW a perpetual, non-revocable, royalty-free, assignable, sub-licensable, worldwide license to use and/or incorporate such Feedback into the Service (or into any WIW product or service) at any time at the sole discretion of WIW.

6. Third Party Software.

The Service may include access to certain third party software (“Third Party Software”). Any use of the Third Party Software, that accesses When I Work, is subject to these User ToS, including, without limitation, the following specific terms:

Third-Party Software may be subject to additional terms and conditions. To the extent there is a conflict between the terms and conditions applicable to any such Third-Party Software and these User ToS, the Third-Party Software terms and conditions shall control. WE DO NOT WARRANT OR PROVIDE DIRECT SUPPORT FOR ANY THIRD-PARTY SOFTWARE. IF YOU USE ANY THIRD-PARTY SOFTWARE, OR SHARE YOUR CONTENT ON OR THROUGH ANY THIRD-PARTY SOFTWARE OR THE, YOU DO SO AT YOUR OWN RISK. YOU EXPRESSLY RELIEVE US FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY SOFTWARE.

7. Mobile Apps

      7.1 Mobile Software.  We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software, you must have a mobile device that is compatible with the Mobile Software. When I Work does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. When I Work hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one When I Work account on one mobile device owned or leased solely by you, and solely in accordance with these User ToS and the features made available to you. You acknowledge that When I Work may from time to time issue upgraded versions of the Mobile Software and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions of these User ToS will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and When I Work or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these User ToS, is void. When I Work and our third-party partners or suppliers reserve all rights not expressly granted under these User ToS.

7.2 Mobile Software provided from App Store by Apple.  The following applies to any Mobile Software you acquire from the App Store (“App Store-Sourced Software”): You acknowledge and agree that these User ToS are solely between you and When I Work, not Apple, and that Apple has no responsibility for the App Store-Sourced Software or content thereof. Your use of the App Store-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Software. In the event of any failure of the App Store-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these User ToS and any law applicable to When I Work as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App Store-Sourced Software or your possession and/or use of the App Store-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these User ToS and any law applicable to When I Work as provider of the software. You acknowledge that, in the event of any third-party claim that the App Store-Sourced Software or your possession and use of that App Store-Sourced Software infringes that third party’s intellectual property rights, When I Work, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these User ToS. You and When I Work acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these User ToS as relates to your license of the App Store-Sourced Software, and that, upon your acceptance of the terms and conditions of these User ToS Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these User ToS as relates to your license of the App Store-Sourced Software against you as a third-party beneficiary thereof.

7.3 Mobile Software provided from Google Play Store. The following applies to any Mobile Software you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the User ToS are between you and When I Work only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; 9.1Sourced Software; (iv) When I Work, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the User ToS as relates to When I Work’s Google-Sourced Software.

8. Termination.

These User ToS remain effective until your Workplace’s subscription for you terminates or expires, or your access to the Service for your Workplace has been terminated by your Workplace, by you, or by WIW. 

The provisions of these User ToS that should, by their nature survive termination and/or expiration, shall and do survive such termination and/or expiration.

9. Text Messaging and Consent

9.1 Consent to Receive Periodic Messages from When I Work.  As part of the Service, When I Work sometimes causes administrative messages to be sent to Users. For example, upon adding a new User to a Workplace account, the new User will receive a welcome message, instructions on how to register for the Service, and a link with more information about the service. When I Work may send other administrative messages as well. BY SIGNING UP FOR THE SERVICE, YOU AGREE TO RECEIVE TEXT MESSAGES FROM US. To stop receiving text messages from When I Work, reply STOP to any When I Work message. You can also adjust your communications settings through your account. If you stop receiving text messages, we will alert your Workplace who may need to contact you another way.

9.2 Compliance with Laws. If you use the Service to send communications, then it is your responsibility to comply with applicable laws and regulations. You represent, warrant and covenant that all communications you cause to be sent through the Service shall at all times comply with all applicable laws and regulations, including, but not limited to, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act, and all other laws and regulations concerning privacy, telemarketing, and the sending of SMS text messages.

9.3. Stopping Text Messages. To stop receiving text messages from When I Work, reply STOP to any When I Work message. You can also adjust your settings through your account. If you stop receiving text messages, you shall alert your Workplace who may need to contact you another way.

9.4 Text Messaging Fees. You may sign up to receive certain When I Work notifications or information via text messaging. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Please be aware that texting charges can fluctuate internationally. Text messaging rates can normally be found by asking your service provider.

10. Privacy.

You understand that by using the Service you consent to the collection, use,  and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, transferred to and processed in the United States and Canada.  The Service is controlled and operated from facilities in the United States with ancillary services, such as support and product engineering, provided in Canada.

You understand and agree that if you opt to license a Third-Party Service, such as ODP or Payroll Services, then Third-Party Service Provider(s) and WIW may share data with one another to facilitate your use of the Service and the Third-Party Service.  Data that WIW receives from Third-Party Service Providers will be subject to and governed by the When I Work Privacy Policy. Data that a Third-Party Service Provider receives from WIW will be subject to and governed by each Third Party Service Provider’s privacy policy.

11. Security.

When I Work utilizes physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk. 

12. Third-Party Links and Services.

The Service contain links to third-party materials and options to use the products or services of Third-Party Service Providers that are not owned or controlled by When I Work. When I Work does not endorse or assume any responsibility for any such Third-Party Service Provider’s sites, information, materials, products, or services. If you access a third-party website or service from the Service or share your Customer Data on or through any Third-Party Service Provider’s website or service, you do so at your own risk, and you understand that these Workplace ToS and When I Work’s Privacy Policy do not apply to your use of such websites and services. You expressly relieve When I Work from any and all liability for loss or damage of any sort arising from your use of any products and services of Third-Party Service Providers, including their website, service, or content, including without limitation content submitted by individual Users.  You may be required by the Third-Party Service Provider to accept its terms and conditions applicable to use of the third-party content, website, information, materials, or services.

When I Work reserves the right at any time to modify or discontinue, temporarily or permanently, your access to third-party links, third-party services, and third-party information (or any part thereof) with or without notice.

Additionally, your dealings with or participation in the promotions of advertisers found in the Service, including, but not limited to, the payment and delivery of goods and services are solely between you and such advertisers. When I Work does not endorse or assume any responsibility for any such advertiser’s sites, information, materials, products, or services. You agree that When I Work shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

UNLESS OTHERWISE EXPRESSED IN THIS AGREEMENT, WHEN I WORK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED OR ADVERTISED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND, WHEN I WORK WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION(S) BETWEEN YOU AND THE THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

13. No Warranty

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. WIW MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE SERVICE. 

14. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WHEN I WORK OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO BREACH OF THESE USER ToS OR THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL WHEN I WORK BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

IN NO EVENT SHALL WHEN I WORK OR ITS AFFILIATES, BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING USD$100.

15. Governing Law, Arbitration, and Class Action/Jury Trial Waiver

15.1 Governing Law. You agree that: (i) the Service shall be deemed solely based in Minnesota; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Minnesota. These User ToS shall be governed by the internal substantive laws of the State of Minnesota, without respect to its conflict of laws principles. The parties acknowledge that these User ToS evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (as it may be amended, “FAA”) governs the interpretation and enforcement of the Arbitration Agreement below and preempts all state laws (and law of other jurisdictions) to the fullest extent permitted applicable law. If the FAA is found not to apply any issue that arises from or relates to the Arbitration Agreement, then that issue will be resolved under and governed by the laws of the U.S. state where you live or the jurisdiction mutually agreed in writing by you and us. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Hennepin County, Minnesota for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or other violation of our data security, confidential information, or Intellectual Property Rights, as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. You agree that Hennepin County, Minnesota is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable. These User ToS were drafted in the English language and this English language version of these User ToS is the original, governing instrument of the understanding between you and us. In the event of any conflict between the English version of these User ToS and any translation, the English version will prevail.

15.2 Arbitration

(a) General. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WHEN I WORK. This Section 17(B) (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and us that arises out of or relates to, directly or indirectly: (1) these User ToS, including the formation, existence, breach, termination, enforcement, interpretation, validity, and enforceability thereof; (2) access to or use of the Service, including receipt of any advertising or marketing communications; (3) any transactions through, by, or using the Service; or (4) any other aspect of your relationship or transactions with us, directly or indirectly, as a User or consumer (each, a “Claim,” and, collectively, “Claims”). This Arbitration Agreement will apply, without limitation, to all Claims that arose or were asserted before or after your consent to these User ToS.

(b) Opting Out of Arbitration Agreement. If you are a new User, you can reject and opt out of this Arbitration Agreement within thirty (30) days of accepting these User ToS by emailing us at support@wheniwork.com with your full, legal name and stating your intent to opt out of this Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of these User ToS, including the provisions regarding controlling law or the courts in which any disputes must be brought.

(c) Dispute Resolution Process. For any Claim, you agree to first contact us at support@wheniwork.com and attempt to resolve the Claim with us informally. In the unlikely event that When I Work has not been able to resolve a Claim after sixty (60) days, we each agree to resolve such Claim by binding arbitration by JAMS before a single arbitrator (the “Arbitrator”), under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement will control. The arbitration will be conducted in the U.S. County where you live or Hennepin County, Minnesota, unless you and When I Work agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with the Rules, and the award rendered by the Arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (1) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (2) the award rendered by the Arbitrator may include your costs of arbitration, your reasonable attorneys’ fees, and your reasonable costs for expert and other witnesses; and (3) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. You and we agree that the Arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any disputes relating to the scope, interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator will also be responsible for determining all threshold arbitrability issues, including issues relating to whether these User ToS are, or whether any provision of these User ToS is, unconscionable or illusory, and any defense to arbitration, including waiver, delay, laches, unconscionability, and/or estoppel.

(d) Equitable Relief. NOTHING IN THIS ARBITRATION AGREEMENT WILL BE DEEMED AS: PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, CONFIDENTIAL INFORMATION, OR INTELLECTUAL PROPERTY RIGHTS; OR PREVENTING YOU FROM ASSERTING CLAIMS IN A SMALL CLAIMS COURT, PROVIDED THAT YOUR CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.

(e) Severability. If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, will be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, will have no impact on the remaining provisions of this Arbitration Agreement, which will remain in force, or on the parties’ ability to compel arbitration of any remaining Claims on an individual basis pursuant to this Arbitration Agreement. Notwithstanding the foregoing, if Section 16.3 (Class Action/Jury Trial Waiver) is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement will be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief will be stayed pending the outcome of any individual claims in arbitration.

15.3 Class Action/Jury Trial Waiver

BY ENTERING INTO THESE USER ToS, YOU AND WHEN I WORK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER. THE FOREGOING APPLIES TO ALL USERS (BOTH NATUAL PERSONS AND ENTITIES), REGARDLESS OF WHETHER YOU HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES. THIS CLASS ACTION/JURY TRIAL WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS. YOU AND WHEN I WORK AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS. 

16. General

16.1 Beta Program Participation. From time-to-time, we may offer Workplaces and Users early access to and use of new or modified services, features, or functions within the Service (“Beta Program”). You may choose to participate in a Beta Program in your sole discretion. It will be made available to you at no charge in exchange for feedback and reports regarding the performance and quality of the new or modified services, features, or functions being offered. WIW may discontinue a Beta Program at any time in its sole discretion and may never make it generally available. Beta Programs are provided on an “AS IS” and “AS AVAILABLE” basis. WIW will have no liability for any harm or damage arising out of or in connection with a Beta Program.

16.2 Notification Procedures and Changes to the User ToS. When I Work may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by When I Work in our sole discretion. When I Work reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these User ToS. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. When I Work may, in its sole discretion, modify or update these User ToS, including any Schedules attached hereto and/or incorporated herein by reference, from time to time, and so you should review this page periodically. When we change the User ToS in a material manner, we will provide reasonable notice to you and update the “last modified” date at the bottom of this page. These User ToS apply to and governs your access to and use of the Service effective as of the start of your access to the Service, even if such access began before publication of these User ToS. Your continued use of the Service after any such change constitutes your acceptance of the updated User ToS. If you do not agree to the current User ToS or updates to them, do not use or access (or continue to access) the Service.

16.3 Entire Agreement/Severability. These User ToS, together with any amendments and any additional agreements you may enter into with When I Work in connection with the Service, shall constitute the entire agreement between you and When I Work concerning the Service. If any provision of these User ToS is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these User ToS, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.

16.4 Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligations hereunder (other than for the payment of amounts due) if such delay or failure arises from any cause or causes beyond the reasonable control of the affected party, including acts of God, floods, fires, pandemic, or loss of electricity or other utilities.

16.5 No Waiver.  No waiver of any right or provision of these User ToS shall be deemed a further or continuing waiver of such right or provision or any other right or provision. When I Work’s failure to assert any right or provision under these User ToS shall not constitute a waiver of such right or provision.

16.6 No Professional Advice. If the Service or any Third-Party Service provides professional information (for example, medical, legal, or financial), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.

16.7 Contact.  Please contact us at support@wheniwork.com with any questions regarding these User ToS. The provider of the Service is When I Work, Inc., 420 North 5th St. Suite 500, Minneapolis, MN 55401. We can be reached at +1-651-330-4482. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

These User ToS were last modified on 04/16/2024 

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Schedule B
Payroll User Terms of Service
(“Payroll User ToS”)

Your Workplace has separately entered into an agreement with WIW that grants your Workplace access to and use of WIW’s payroll processing services (“Payroll Services”). Your Workplace also created an account (“Payroll Account”) with WIW that you and other shift workers have been invited to join as Users of the Payroll Services, subject to these Payroll User ToS and the agreement between WIW and your Workplace. 

These Payroll User ToS govern your individual access to and use of the Payroll Services and apply to you as a User of the Payroll Services. These Payroll User ToS supplement the Terms of Service previously agreed to by you at https://wheniwork.com/terms  (“WIW Terms of Service”). If these Payroll User ToS conflict with the terms and conditions of the WIW Terms of Service, the terms and conditions of these Payroll User ToS shall control with respect to the provision of the Payroll Services. 

1. Initial Qualifications to be a User of Payroll Services

• (a) Creating a Payroll User Account.  After accepting the User ToS and these Payroll User you must:
  • (i) enroll in your Workplace’s WIW Payroll Services Account or be enrolled in that Account by your Workplace; 
  • (ii) register for a payroll account (“Payroll User Account”); and
  • (iii) update your Payroll User Account information if it changes.
• (b) Information Needed to Create a Payroll Account; Qualification Process. 
  Providing and receiving Payroll Services requires compliance with various laws, regulations, and rules, (collectively, all such laws, regulations, and rules, the “Compliance Requirements”); therefore, you agree to provide to WIW and its Third-Party Service Providers (defined below) with all information requested to satisfy these Compliance Requirements. The type of information required includes personal information such as your date of birth, address, Social Security Number, and your bank account information (if you would like direct deposit).  WIW, through its Third-Party Service Providers, uses a variety of processes to validate your identity and otherwise qualify you to be a User of Payroll Services before you may access and use the Payroll Services. You give us and our Third-Party Service Providers permission to obtain, verify, and record this information to satisfy all due diligence obligations under applicable Compliance Requirements.
  
  When registering for a User Account, the information you provide must be complete and accurate and you agree to promptly update this information if it changes. 
  
  WIW and its Third-Party Service Providers retain full authority and discretion to grant or decline your creation of a Payroll User Account to use the Payroll Services for any reason. WIW and its Third Party Service Providers are not liable for any errors or inaccuracies in information furnished by you or your Workplace. 

• (c) WIW’s use of Third Party Service Providers. WIW’s Payroll Services are powered by Check Technologies, Inc. (“Check”), a Third-Party Service Provider who manages calculations, payments, and tax filings. In doing so, Check may maintain custodial accounts with one or more banks (each, the “Bank”).  
  • All Users that access and use Payroll Services must agree to Check’s Terms of Service, including Check’s Privacy Policy.   
  • All Users who wish to utilize direct deposit must also agree to (i)  Check’s use of the financial services company, Plaid, to connect to the User’s bank account to Check: and  (ii) allow Plaid to process Workplace and User data in accordance with Plaid’s Privacy Policy.
    (collectively, “Check-Related Agreements”)
    
    Check is a separate business entity from WIW, and the terms of the Check-Related Agreements govern the use of Payroll Services in addition to those set forth in these Payroll User ToS.   Please read all Check-Related Agreements as they will control to the extent there is a conflict between the terms herein (as they relate to WIW’s provision of Payroll Services) and the Check-Related Agreements.

2. Obligations For Continued Access and Use of Payroll Services

• (a) Information Needed to Maintain a Payroll User Account. You may be required to provide additional information, accept other required terms, complete and sign additional forms, and respond to inquiries from us (or our Third-Party Service Providers) as part of our continuing role of monitoring and meeting Compliance Requirements. Your failure to respond fully, promptly, and accurately may result in your immediate suspension or termination from the Payroll Services.
  
• (b) Consents and Authorizations relating to Access, Use, and Sharing of Data; Privacy. To provide Payroll Services, WIW must have access to certain data such as information to calculate your Workplace’s payroll obligations, such as wage and salary information, payroll schedule, your Workplace’s federal and state tax information (collectively, “Payroll Information”).  Additionally, WIW must have access to certain data about you and your Workplace’s other Users, such as roles, employment status, employment duration, time & attendance, wage and salary information, location of hours worked, and, if applicable, paid-time off information, employee benefit information, wage garnishment information, and other information specified by WIW from time to time (collectively, “User Data”).
  
  Payroll Information, User Data. and any other data, content, and other materials specifically pertaining to your Workplace, you, or other Users that are submitted into or transmitted through the Service in connection with this Agreement are collectively referred to as “Payroll Services Data”.
  
  Your Workplace is to obtain any rights, permissions or consents from you and any authorized Users that are necessary for the lawful use of Payroll Services Data and the operation of the Payroll Services.
  
  Additionally, you hereby authorize WIW to disclose to its Third-Party Services Providers, including Check, your User Data in connection with this Agreement and you further authorize Check to disclose this User Data to the Bank.  All User Data shall be accurate and complete and promptly updated as necessary.
  
  You acknowledge and understand that in providing the Payroll Services, WIW and its Third-Party Service Providers act as an intermediary between you and your Workplace; as such, you authorize WIW and its Third-Party Service Providers to share with your Workplace any information that you provide to WIW or its Third Party Service Providers in connection with the Payroll Services.
  
  User Data, including personal information, that WIW receives about you will be subject to and governed by WIW’s Privacy Notice, available at https://wheniwork.com/privacy. WIW’s Privacy Notice does not apply to any third-party websites, applications, or software that integrate with the Payroll Services or any other third-party products, services, or businesses. User Data, including personal information, that a third party, including a Third-Party Service Provider, receives from WIW will be subject to and governed by that third-party’s privacy policy.

• (c) Cooperation in Investigations.  You agree to cooperate with WIW in investigating any fraudulent or illegal transactions.

3. The Relationship Between You, Your Workplace, and Us 

• (a) Workplace’s Responsibilities.  As between WIW and your Workplace, you agree that it is solely your Workplace’s responsibility to: 
  • (i) respond to and resolve any disputes with you and other Users relating to or based on Payroll Services Data, insufficient funds to meet Workplace’s wage and tax payment obligations;
  • (ii) inform you and other Users of any relevant Workplace policies and practices and any settings that may impact the processing of Payroll Services Data;
  • (iii) obtain any rights, permissions or consents from you and other Users that are necessary for the lawful use of Payroll Services Data and the operation of the Payroll Services; and
  • (iv) comply with applicable federal, state, and local wage and hour laws, including those laws related to employee classification (e.g. employee vs independent contractor), minimum wage laws, wage deduction laws, meal period and rest break premiums, regular rate of pay calculations, overtime calculations and payments, paid sick leave accrual, itemization, and issuance of pay statements, and laws pertaining to the timing of pay (including final pay). Workplaces are solely responsible and assume all liability for the proper classification of their shift workers based on applicable legal guidelines and for complying with all other employment laws, such as wage and hour laws.
• (b) Errors in Payroll Services Data; Insufficient Workplace Funds: You agree and acknowledge that WIW and its Third-Party Service Providers rely on information furnished by your Workplace and you to provide the Payroll Services. WIW and its Third-Party Service Providers are not liable (i) for any errors or inaccuracies in Payroll Services Data; or (ii) for not processing payroll becomes your Workplace does not submit the Payroll Services Data by the applicable cut-off time. 
  
  Neither WIW or Check is obligated to perform the Payroll Services including, without limitation, facilitating the Bank’s payment of wages or taxes or the preparation or filing of tax returns if your Workplace has insufficient funds in its bank account or your Workplace has not timely remitted to Bank the funds for wages and tax payments.

4. Warranty Disclaimer

THE PAYROLL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WIW DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, AND THE WARRANTY OF NON-INFRINGEMENT. WIW DOES NOT WARRANT THAT USE OF THE PAYROLLL SERVICES WILL BE ERROR FREE OR COMPLETE.

5. Revocation or Suspension of your Account 

WIW may deny, revoke, or suspend your access and use of the Payroll Services at any time if we determine (i) it is necessary to mitigate an actual or suspected security threat; (ii) you have failed to adhere to these Payroll ToS; or (iii) your actions create a risk to our business operations as a matter of policy, regulation, or law. Examples of actions that may give rise to termination include, but are not limited to, misrepresentation of the individuals using the Payroll Services; failure to answer an information request or authorization inquiry; or any action that violates applicable laws or Compliance Requirements.

These Payroll User ToS were last modified on 04/16/2024