Terms of Service
THESE TERMS GOVERN YOUR USE OF THE SERVICE. THEY INCLUDE A BINDING INDIVIDUAL ARBITRATION PROVISION AND A WAIVER OF CLASS ACTIONS AT SECTION 17, A DISCLAIMER OF WARRANTIES AT SECTION 13, AND A LIMITATION OF LIABILITY AT SECTION 14. FEES ARE NON-REFUNDABLE, AS SET OUT AT SECTION 6. READ THEM BEFORE YOU SUBSCRIBE.
1. Parties and acceptance
This Subscription Agreement (the “Agreement”) is entered into between Workman Magic, LLC, a Nevada limited liability company doing business as GigWand (“GigWand,” “we,” “us” or “our”), and the individual or entity that creates an account (“Subscriber,” “you” or “your”), each a “Party” and together the “Parties.”
You accept this Agreement by creating an account, by clicking a control indicating acceptance, or by accessing or using the Service. If you accept on behalf of an entity, you represent that you have authority to bind that entity, and “you” refers to that entity. If you do not have that authority, or do not agree, you must not use the Service.
You represent that you are at least eighteen (18) years old, or the age of legal majority in your jurisdiction if that is greater, and that you have the capacity to enter into this Agreement. The Service is a business tool and is not offered to anyone who does not.
2. Definitions
“Service” means the GigWand hosted customer relationship management application made available at gigwand.app, together with its application programming interfaces, booking forms, signing pages, electronic mail delivery, documents and related services.
“Subscriber Data” means all data, records and content submitted to or generated within the Service by you or your Users, including records relating to your leads, clients, contacts, companies, venues, engagements, agreements, invoices and correspondence.
“Client Data” means that subset of Subscriber Data which constitutes personal information relating to your own clients and prospective clients.
“Users” means individuals authorized by you to access the Service under your account.
“Subscription Term” means the monthly or annual period for which you have paid, commencing on the date the applicable payment is received and renewing in accordance with Section 5.
3. License and permitted use
Subject to your continuing compliance with this Agreement and payment of all applicable fees, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service for your internal business purposes during the Subscription Term.
The Service is provided on a software-as-a-service basis. No copy of the software is delivered to you, and nothing in this Agreement transfers ownership of, or any interest in, the Service, its software, or any intellectual property therein, all of which is and remains our exclusive property or that of our licensors.
4. Restrictions
You shall not, and shall not permit any User or third party to:
- resell, sublicense, lease, rent, distribute or otherwise make the Service available to any third party, except to your own Users as contemplated herein;
- reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, structure or underlying ideas of the Service, except to the extent such restriction is prohibited by applicable law;
- access the Service to build, or to assist any third party in building, a competing product or service, or to benchmark it for publication without our prior written consent;
- circumvent or attempt to circumvent any access control, usage limit, plan restriction, rate limit or security measure;
- transmit through the Service any unlawful, infringing, defamatory or malicious material, or any code intended to disrupt or damage any system or data;
- use the Service, or its electronic mail facilities, to send unsolicited commercial electronic mail, or in any manner that violates the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, or any analogous law of any jurisdiction; or
- use the Service in violation of any applicable law or regulation, or in a manner that causes us to be in violation of any obligation owed to a third party, including the acceptable use policies of our payment processor or electronic mail provider.
We may suspend access immediately and without notice where we determine, acting reasonably, that continued access presents a risk to the Service, to other subscribers, to any third party, or to our relationship with a payment processor or mail provider.
5. Subscription, trial, fees and renewal
5.1 Trial. We may offer a free evaluation period of 14 days. No fee is charged and no payment instrument is required to begin a trial.
If no subscription is purchased before the trial expires, access to the CRM is suspended in accordance with Section 10. Your account and Subscriber Data remain in place, and access is restored by purchasing a subscription.
5.2 Fees. Subscription fees are $29.99 per month or $299.99 per year, as selected by you at the point of purchase, quoted and payable in United States dollars, exclusive of any applicable taxes. You are responsible for all sales, use and similar taxes, excluding taxes on our net income.
5.3 Authorization. By purchasing a subscription you authorize us, and our payment processor, to charge your designated payment instrument the then-current fee for the Subscription Term and for each renewal term, on a recurring basis, until canceled in accordance with Section 7.
5.4 Automatic renewal. YOUR SUBSCRIPTION RENEWS AUTOMATICALLY AT THE END OF EACH SUBSCRIPTION TERM FOR A FURTHER TERM OF EQUAL LENGTH, AT THE THEN-CURRENT RATE, UNLESS CANCELED BEFORE THE RENEWAL DATE. You may cancel at any time, with immediate effect on renewal, from the Plan and Billing page within your account, without contacting us and without providing a reason.
5.5 Changes in fees. We may change subscription fees. Any increase takes effect only at the commencement of a renewal term, and we will give not less than thirty (30) days’ notice by electronic mail to the address on your account before it does. Your continued use after the increase takes effect constitutes acceptance; if you do not accept, your remedy is to cancel before the renewal date.
5.6 Failed payment. If a charge is declined we may retry it, and may suspend access under Section 10 until payment succeeds. You remain responsible for fees accrued before suspension.
5.7 Changes of billing period. Where you change between monthly and annual billing, the unused portion of the current term is credited to your account and applied against subsequent invoices. Such credit is applied to fees only, is not redeemable for cash, and is not refundable under any circumstance, including on cancellation or termination.
6. No refunds
EXCEPT FOR ACCOUNT CREDITS EXPRESSLY PROVIDED UNDER SECTION 5.7, ALL FEES ARE EARNED WHEN PAID AND ARE NON-REFUNDABLE. Fees for a Subscription Term already purchased are non-cancellable and non-refundable, and no refund, credit, rebate or proration is given for any partial Subscription Term, for any period during which the Service was not used, for any feature not used, or for any account canceled, closed, suspended or terminated before the end of a term for which payment has been made.
Fees are charged for availability of the Service for the Subscription Term purchased, and not for actual usage. This section applies equally where you cancel, where you delete your account, and where we terminate or suspend under Section 10 or Section 11.
What you receive instead. On cancellation your subscription continues for the remainder of the Subscription Term already paid for, and access is not withdrawn before the end of that term. Nothing in this section limits any right you may have that cannot lawfully be excluded, nor any refund we elect to grant in our sole discretion, which shall not constitute a waiver of this section or a course of dealing.
Chargebacks. If you dispute a charge with your card issuer without first contacting us, we may suspend the account pending resolution. You agree that this section, together with the record of your acceptance of this Agreement, constitutes the refund policy applicable to the transaction.
7. Cancellation by you
You may cancel at any time from the Plan and Billing page in your account. Cancellation stops the next renewal; it does not terminate the current Subscription Term, and the Service remains available to you until that term expires. Fees already paid are not refunded, as set out at Section 6.
8. Subscriber Data and ownership
8.1 Your data is yours. As between the Parties, you retain all right, title and interest in and to Subscriber Data. We claim no ownership of it.
8.2 Our license to it. You grant us a worldwide, non-exclusive, royalty-free license to host, copy, transmit, display and process Subscriber Data solely to the extent necessary to provide, secure, support and maintain the Service, and as otherwise permitted by the Privacy Policy.
8.3 Your responsibility for Client Data. You are the controller of Client Data and we are a processor acting on your instructions. You represent and warrant that you have the lawful basis, consents and notices required to collect Client Data, to submit it to the Service, and to send electronic mail to the individuals it concerns using the Service. You are solely responsible for the content of communications you send through the Service, including automated sequences you configure.
8.4 Export. You may export Subscriber Data at any time while your account is open, from the export facilities within the Service, in commonly readable formats and without charge. You are encouraged to do so before closing your account.
8.5 Erasure on closure. CLOSING YOUR ACCOUNT DELETES IT IMMEDIATELY AND IRREVERSIBLY. Your Subscriber Data and the database holding it, your user records and your stored credentials are destroyed at the point of closure. There is no recovery period, no archived copy held for your benefit, and we cannot restore the account or its contents afterwards, whether or not you ask us to. Export anything you wish to keep before you close. The limited closure record described in Section 8.6 is the only exception.
8.6 What survives closure. Billing and tax records held by us and by our payment processor are retained for the period required by law. Backups taken before closure expire on their ordinary cycle and are not restored to reinstate a closed account. Documents already delivered to a third party, such as an agreement sent to and signed by your client, remain with that third party.
We also retain a closure record for our own business records and statistics. It contains your business or performing name, your craft, the plan you were on, the date you signed up and the date you closed the account. It does not contain your electronic mail address, and we cannot and do not send you anything after closure. It is not used for marketing of any kind.
9. Confidentiality and security
Each Party shall protect the other’s Confidential Information with not less than reasonable care, and shall not disclose it except to personnel and contractors with a need to know who are bound by obligations no less protective than those in this section. Subscriber Data is your Confidential Information.
We maintain administrative, technical and physical safeguards designed to protect Subscriber Data, including logical separation of each subscriber’s records, encryption in transit, and access controls. No method of transmission or storage is wholly secure, and we do not warrant that the Service cannot be compromised.
10. Suspended accounts
10.1 When access is suspended. We may suspend access where a trial ends without a subscription, where a subscription ends, where a renewal payment remains unsuccessful after the payment grace period in Section 10.2, where required by law, where we reasonably suspect a breach of Section 4, or where continued access presents a security risk.
10.2 Payment grace period. If a renewal payment is declined, your account remains fully accessible for 7 days while the payment is retried. Access is suspended only if it has not succeeded by the end of that period.
10.3 What suspension does and does not affect. Suspension restricts access to the CRM. It does not delete anything. You may still reach the billing pages and export your Subscriber Data while suspended, and your public booking forms and signing links may continue to operate, with information submitted through them saved to your account. Your Subscriber Data remains associated with your account, and access is restored by subscribing or renewing, unless you choose to close the account under Section 8.5.
10.4 Effect on the term. Suspension does not extend the Subscription Term and does not give rise to any refund or credit.
11. Term and termination
This Agreement commences on acceptance and continues until all subscriptions have expired or been terminated. Either Party may terminate for material breach on thirty (30) days’ written notice if the breach is not cured within that period. We may terminate immediately, without notice, for breach of Section 4 or non-payment, or where required by law. On termination, all licenses granted end and you must cease use of the Service. No refund arises on termination for any reason.
12. Electronic signatures and documents
The Service provides facilities for generating agreements and for capturing electronic signatures. You acknowledge that documents produced through the Service, including any template we supply, are provided as a convenience and as a starting point only; that they have not been prepared for your particular circumstances, jurisdiction or engagement; and that we are not a law firm and do not provide legal advice. You are solely responsible for the legal sufficiency, accuracy and enforceability of any document you send, and you should obtain independent legal advice before relying on one.
You are responsible for satisfying yourself that any electronic signature captured through the Service meets the requirements applicable to your transaction under the Electronic Signatures in Global and National Commerce Act, Chapter 719 of the Nevada Revised Statutes, or other applicable law.
13. Disclaimer of warranties
THE SERVICE, INCLUDING ALL SOFTWARE, TEMPLATES, SAMPLE AGREEMENTS, DOCUMENTS AND MATERIALS MADE AVAILABLE THROUGH IT, IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT ANY ELECTRONIC MAIL SENT THROUGH THE SERVICE WILL BE DELIVERED TO OR ACCEPTED BY ANY RECIPIENT OR INBOX, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE WILL PRODUCE ANY PARTICULAR BUSINESS RESULT, BOOKING, REVENUE OR OUTCOME.
14. Limitation of liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BOOKINGS, GOODWILL, BUSINESS OPPORTUNITY OR DATA, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
OUR TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO US IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
The foregoing limitations do not apply to liability that cannot lawfully be limited, including liability for fraud, for wilful misconduct, or for death or personal injury caused by negligence. The Parties acknowledge that these limitations are an essential basis of the bargain and that the fees reflect them.
15. Indemnification
You shall defend, indemnify and hold harmless Workman Magic, LLC and its officers, members, employees and agents from and against any third-party claim, and any resulting damages, liabilities, costs and reasonable attorneys’ fees, arising out of or relating to: (a) Subscriber Data or Client Data, including any claim that our processing of it at your instruction infringed any right or violated any law; (b) communications you sent through the Service; (c) any agreement, invoice or document you generated through the Service and delivered to a third party; or (d) your breach of Section 4 or of any representation in Section 8.3.
16. Modification of these Terms
We may amend this Agreement. For any amendment that materially reduces your rights or materially increases your obligations, we will give not less than thirty (30) days’ notice by electronic mail to the address on your account, and the amendment takes effect at the start of your next Subscription Term. Your continued use after that date constitutes acceptance. If you do not accept, your remedy is to cancel under Section 7 before the amendment takes effect. The current version is always published at this address, and the effective date appears at its head.
17. Governing law, venue and dispute resolution
17.1 Governing law. This Agreement, and any dispute arising out of or relating to it or to the Service, is governed by the laws of the State of Nevada, without regard to its conflict of laws principles, and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
17.2 Informal resolution. Before commencing any proceeding, the complaining Party shall give the other written notice describing the dispute and the relief sought, served in the manner set out in Section 19. The Parties shall attempt in good faith to resolve the matter for thirty (30) days following that notice.
17.3 Binding arbitration. Any dispute not resolved under Section 17.2 shall be resolved by final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, before a single arbitrator, seated in Clark County, Nevada. Judgment on the award may be entered in any court of competent jurisdiction. Either Party may bring an individual action in small claims court, and either Party may seek injunctive relief in a court of competent jurisdiction to protect its intellectual property or Confidential Information, without first proceeding under this section.
17.4 Class action waiver. DISPUTES SHALL BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MORE THAN ONE PERSON. EACH PARTY WAIVES ANY RIGHT TO TRIAL BY JURY.
17.5 Venue. To the extent any matter is not subject to arbitration, the Parties submit to the exclusive jurisdiction of the state and federal courts located in Clark County, Nevada, and waive any objection to venue or forum non conveniens.
18. General
Entire agreement. This Agreement, together with the Privacy Policy, constitutes the entire agreement between the Parties as to its subject matter and supersedes all prior proposals, representations and understandings, whether oral or written. No purchase order or other document issued by you shall add to or vary these terms.
Severability and waiver. If any provision is held unenforceable, it shall be modified to the minimum extent necessary to make it enforceable, and the remainder shall continue in full force. A failure to enforce any provision is not a waiver of it.
Assignment. You may not assign this Agreement without our prior written consent. We may assign it in connection with a merger, acquisition or sale of all or substantially all of our assets, on notice to you.
Force majeure. Neither Party is liable for failure to perform, other than an obligation to pay, caused by events beyond its reasonable control, including acts of God, fire, flood, civil unrest, labour disputes, governmental action, and failures of telecommunications, hosting or internet infrastructure.
Relationship. The Parties are independent contractors. Nothing creates a partnership, joint venture, agency or employment relationship, and neither Party may bind the other.
Survival. Sections 6, 8, 9, and 11 through 19 survive termination.
Electronic communications. You consent to receive communications from us electronically, and agree that electronic communications satisfy any legal requirement that such communications be in writing.
19. Notices
19.1 Our details. Workman Magic, LLC is a Nevada limited liability company based in Las Vegas, Nevada, United States.
19.2 Legal notice. Legal notice to us must be in writing and sent by electronic mail to [email protected], and is deemed given on the day sent. Notice to you may be given by electronic mail to the address on your account, or by posting within the Service, and is likewise deemed given on the day sent.
19.3 Keeping addresses current. Each Party is responsible for keeping the address it gives for notice current, and for ensuring that mail sent to it is received.
19.4 Service and product communications. We may send you electronic mail at the address on your account. Such mail falls into two categories. Service communications concern the operation of your account, including billing and payment events, renewal and expiry, security and availability matters, and changes to this Agreement. They are sent for as long as your account is open and, being necessary to your use of the Service, are not subject to unsubscribe. Product communications concern the Service itself, including new and changed features, fixes, guidance, webinars, and offers relating to the Service. Every such message contains a means of unsubscribing, which we will honor promptly and in any event within the period required by applicable law. Unsubscribing from product communications does not affect service communications. We send neither category to a closed account, because closure removes the address we would send to.
See also our Privacy Policy, which forms part of this Agreement.