WURKNOW TERMS AND CONDITIONS
Effective Date: January 31, 2022
These Terms and Conditions (these “Terms”) are entered into by and between WurkNow, Inc. (“WurkNow”) and the customer (“Customer”) identified in the Quote that these Terms are attached to or referenced in.
1. DEFINITIONS. Capitalized terms shall have the following meanings, or the meanings assigned to them in the other sections of this Agreement:
a. “Account” means a WurkNow account that each Authorized User will need to register for in order to access and use the Software. Any registration information that an Authorized User provides must be accurate, current and complete.
b. “Agreement” means these Terms, the Quote, any documents explicitly referenced in these Terms, and any addendum to this Agreement agreed upon in writing by both parties.
c. “Authorized Users” shall mean Customer’s employees, consultants, and contractors authorized by Customer to access and use the Software or Services, who have been supplied user identification and passwords by Customer.
d. “Business Day” means Monday through Friday, 9:00 a.m. to 5:00 p.m., Pacific Standard Time – California U.S. time, excluding any U.S. federal or state public holiday.
e. “Confidential Information” means all confidential information of a party, whether written or oral, and whether in paper or electronic format, disclosed to a receiving party that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential information related to either party’s customer lists, customer information, products, technical information, pricing information, pricing methodologies, or information regarding the disclosing party’s business planning or business operations shall be deemed Confidential Information without any marking or further designation.
f. “Customer Data” means all data and information uploaded by Customer to the Software.
g. “Documentation” means the Software’s manuals, instructions, guides or other materials, as WurkNow may update from time to time in its sole discretion.
h. “Privacy Policy” means the WurkNow’s privacy policy available at https://wurknowapp.wurknow.com/Documents/WurkNow_Privacy_Policy.html, which is incorporated into this Agreement. In the event of a conflict between the terms of this Agreement and the Privacy Policy, the Privacy Policy shall control.
i. “Third Party Customer” means a certain thirty party whom at the reasonable request of Customer, WurkNow has agreed to provide the Software or Services directly to such third party. For clarity, a Third Party Customer is not an Authorized User. j. “Site” means https://wurknow.com (including any successor site).
k. “Services” means the Support Services and any Supplemental Services provided by WurkNow to Customer pursuant to this Agreement.
l. “Software” means those subscription web-based software, products, or applications licensed by Customer, as set forth in the Quote and described in the Documentation, provided by WurkNow to Customer pursuant to this Agreement.
1. “Support Services” means the maintenance and support services provided in connection with the Software, as set forth in the Quote.
2. “Supplemental Services” means any professional services other than Support Services that WurkNow may from time to time perform on an hourly or fixed fee basis.
3. “Usage Data” means data and information related to Customer’s use of the Software or Services that is used by WurkNow in an aggregate and anonymized manner, including to compile statistical and performance information.
4. “User Agreement” means the terms and conditions available at https://wurknowapp.wurknow.com/Documents/WurkNow_License_Agreement.html, which each Authorized User must accept in order to access and use the Software. In the event of a conflict of terms between this Agreement and the User Agreement, the terms of the User Agreement shall control.
1. QUOTE. These Terms serve as the framework under which WurkNow and Customer shall enter into a separate ordering document that represents the provisioning by WurkNow to Customer of the (a) Software, and/or (b) Services (each, a “Quote”). The Quote shall be governed by these Terms and is hereby made part of and incorporated into this Agreement. In the event of a conflict between the terms these Terms and the Quote, these Terms shall control, unless the Quote expressly references the specific provision in these Terms to be modified by the Quote.
2. SOFTWARE. Subject to the terms of this Agreement, WurkNow grants Customer a limited, non-transferable (except in accordance with a permitted assignment hereunder), non-sublicensable, non-exclusive, and revocable right during the term of this Agreement to allow Authorized Users to access and use the Software for its internal business purposes. This Agreement is not a sale, or assignment and transfer, of any Software.
3. CHANGES. WurkNow may from time to time develop enhancements, upgrades, updates, improvements, modifications, extensions and other changes to the Software and Services (“Changes”). Customer hereby authorizes WurkNow to implement such Changes. Changes do not include any major new releases of software or any software that WurkNow licenses separately, which would be subject to a separate Quote.
4. CUSTOMER OBLIGATIONS. Customer shall at its expense comply with all legal requirements applicable to Customer’s use of the Software and Services. Customer acknowledges that it has read and understood the Privacy Policy prior to entering into this Agreement, and has notified the Authorized Users that, at their option, the Software may collect, use and/or store their personal data in compliance with the Privacy Policy. Customer is solely responsible for each Authorized User’s compliance with all terms and conditions of this Agreement. In order to access and use the Software, each Authorized User shall be required to accept the User Agreement and the Privacy Policy. Customer shall take all necessary steps to prevent unauthorized access to or use of each Account. Login and password information for each Account may not be shared and shall only be used by the Authorized User to whom the Account is initially registered by. Client is solely responsible for maintaining confidentiality and preventing unauthorized access to or use of the Accounts. Customer will immediately notify WurkNow of any unauthorized access to or use of any Account or any other known or suspected breach of security related thereto. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data generated, uploaded and transmitted by Customer and Authorized Users.
5. USAGE RESTRICTIONS. The Software is provided to Customer for use only as expressly set forth in this Agreement, the Documentation, and the User Agreement, and Customer and Authorized Users will not use the Software in whole or in part for any other use or purpose. In particular, Customer and the Authorized Users will not, and will not allow any third party to: (a) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means, or disclose any of the foregoing, (b) except as expressly set forth in this Agreement, provide, rent, lease, lend, or use the Software for timesharing, subscription, or service bureau purposes, (c) sublicense, transfer or assign (except in accordance with a permitted assignment hereunder) the Software or any of the rights or licenses granted under this Agreement; or remove or obscure any trademark, product identification, proprietary marking, copyright or other notices provided with the Software or related documentation. Customer and the Authorized Users shall not: (i) use the Software for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law, (ii) transmit Customer Data using the Software that infringes upon or misappropriates the intellectual property or privacy rights of any third party, (iii) perform any load testing of the Software or attempt to probe, scan or test the vulnerability of the Software without proper authorization, (iv) log into a server or account that Customer is not authorized to access, (v) engage in any activity that interferes with or disrupts the Software, or (vi) upload any file containing any back door, time bomb, Trojan horse, worm, virus or similar malicious code Software.
6. THIRD PARTY CUSTOMERS. At Customer’s reasonable request, WurkNow will provide the Software or Services to Third Party Customers. As a condition precedent for WurkNow’s provision of such Software or Services, Customer must ensure that each Third Party Customer (a) acquires the Software or Services directly from WurkNow, and (b) accepts and agrees to terms and conditions substantially similar to this Agreement through WurkNow’s click wrap agreement.
7. SERVICES
1. Support Services. WurkNow shall use commercially reasonable efforts to provide Customer with Support Services via electronic and telephone support during a Business Day. For electronic support, Customer shall be provided a user account with a ticketing system (e-mail and/or another software) where the Customer may enter all bugs, revisions, and enhancements with respect to the Software. For telephone support, Customer will be provided telephone support in the case of an extremely urgent situation that affects Customer’s use of the Software. WurkNow will not provide any Support Services for: (i) Software that has been modified by Customer or its agents, (ii) server hardware failure, (iii) problems caused by third party software not provided by WurkNow, including but not limited to: Stripe, AWS, etc., (iv) non-WurkNow provided equipment or hardware malfunction, (v) issues that have been addressed in any Changes that Customer has elected not to apply, or (vi) issues arising from Microsoft SQL Server, Amazon Web Services, or Amazon Server Central UI changes.
2. Supplemental Services. WurkNow may perform Supplemental Services and other professional technical services at Customer’s request. Supplemental Services will be performed only on Customer’s advance written approval and will be invoiced at WurkNow’s published rates or other rates approved in advance in writing by Customer.
8. TERM AND TERMINATION.
1. Term. These Terms will continue in full force and effect to the extent necessary to give effect to the Quote. The initial term of the Quote for the Software or Services shall be set forth on the Quote. Unless otherwise set forth on the Quote, a Quote for Software shall automatically renew for a successive one year term unless either party provides written notice of its intent not to renew no less than thirty (30) days prior to the end of the then-current Quote term.
2. Termination. Notwithstanding the foregoing, either party may terminate this Agreement (i) immediately in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) days of written notice from the other party, (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing, or (iii) as otherwise set forth in the Quote. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement.
3. Effect of Termination. Upon any termination or expiration of this Agreement, WurkNow shall no longer provide the applicable Software or Services to Customer, and Customer shall promptly cease and cause its Authorized Users to promptly cease using the Software or Services. If this Agreement is terminated for any reason other than as a result of WurkNow’s material breach, then WurkNow shall be entitled to all of the fees due under the Quote for the entire term of the Quote.
9. PAYMENTS.
1. Fees. Customer agrees to pay WurkNow for Software and Services provided and expenses incurred in accordance with and at the rates set forth in the Quote. WurkNow requires payment in full of its first invoice before providing the Software or Services. Thereafter, monthly recurring fees shall be due on the first day of each calendar month or annually, as set forth in the Quote. Invoices for Supplemental Services, if any, and/or other non-recurring amounts are due upon the date of invoice. WurkNow may change the recurring fees for the Software or Support Services on thirty (30) days’ advance written notice thereafter. Payments must be made in United States dollars.
2. Collections. WurkNow reserves the right to immediately suspend or discontinue the provisioning of the Software or Services without liability if any payment due hereunder is overdue. WurkNow may charge interest on amounts that are overdue at the lesser of eighteen percent (18%) per annum or the maximum rate under applicable law. Customer shall pay WurkNow’s costs of collection of overdue amounts, including collection agency fees, attorneys’ fees and court costs.
3. Taxes. Customer shall remit to WurkNow all sales or similar tax imposed on the provision of the Software or Services (excluding taxes due on WurkNow’s income) regardless of whether WurkNow fails to collect the tax at the time the related Software or Services are provided. Customer will provide such information and documentation reasonably requested by WurkNow to determine whether WurkNow is obligated to collect sales or similar tax from Customer.
10. SUSPENSION OF SOFTWARE AND SERVICES. In addition to the suspension rights in Section 10(b), WurkNow reserves the right to immediately suspend or cancel Customer’s use of the Software or WurkNow’s performance of the Services without liability if: (a) for Customer’s or an Authorized User’s violation of Sections 5 or 6, (b) if WurkNow determines that the security or function of the Software or Services may be compromised due to hacking, denial of service attacks, or other activities constituting or having the potential to constitute a security incident, (c) WurkNow reasonably believes that the Software or Services are being used in violation of this Agreement or applicable law, (d) WurkNow reasonably believes that the suspension of Software or Services is necessary to protect its network or its other customers, or (e) requested by a law enforcement or government agency of competent jurisdiction. Where feasible, WurkNow shall give Customer notice of a suspension or cancellation under this Section 11.
11. CONFIDENTIALITY.
1. Use and Disclosure. Each party: (i) shall treat as confidential all Confidential Information provided by the other party, (ii) shall not use such Confidential Information except as expressly permitted under the terms of this Agreement or otherwise previously authorized in writing by the disclosing party, (iii) shall implement reasonable procedures to prohibit the disclosure, unauthorized duplication, reverse engineering, disassembly, decompiling, misuse or removal of such Confidential Information, and (iv) shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care to prevent the disclosure of the other party’s Confidential Information as it uses to prevent the disclosure of its own Confidential Information and shall in any event use no less than a reasonable degree of care.
2. Exceptions. Notwithstanding the above, the receiving party’s nondisclosure obligations shall not apply to information that: (i) was generally available to the public at the time it was disclosed, or becomes generally available to the public through no fault of the receiving party, (ii) was known to the receiving party at the time of disclosure as shown by written records in existence at the time of disclosure, (iii) was developed independently by the receiving party prior to the disclosure, as shown by written records in existence prior to the disclosure, (iv) is disclosed with the prior written approval of the disclosing party, (v) becomes known to the receiving party from a source other than the disclosing party without breach of this Agreement by the receiving party and in a manner which is otherwise not in violation of the disclosing party’s rights, or (vi) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party shall provide reasonable advance notice to enable the disclosing party to seek a protective order.
3. Return of Confidential Information. Upon the request of the disclosing party after termination or expiration of this Agreement, the receiving party shall: (i) promptly deliver the non-oral Confidential Information of the disclosing party to the disclosing party, and (ii) cause all copies, summaries, synopses or derivations thereof to be destroyed; provided, however, that each party may retain: (1) an archival copy or other appropriate record of any such Confidential Information to assure compliance with this Agreement or any applicable governmental requirements or to resolve any disputes arising from this Agreement, and (2) Confidential Information to the extent it has become included in automatic “backups” by routine procedures or by electronic communication or information management systems. Any Confidential Information retained in accordance with this Section 12 shall remain subject to the use and confidentiality restrictions in this Agreement.
4. Injunctive Relief. Notwithstanding any other provision of this Agreement, both parties acknowledge that any disclosure or use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to seek an injunction to restrain such use in addition to other appropriate remedies available under applicable law.
12. PROPRIETARY RIGHTS.
1. Ownership of WurkNow Services and Software. Customer agrees that WurkNow, its licensors or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights in and to the Software, Services, Services deliverables and any and all related and underlying software (including interfaces created by WurkNow), databases, technology, reports and documentation, and any adaptation, modification, derivation, addition or extension to the Software and Services. Except for the limited rights granted hereunder, nothing in this Agreement gives the Customer any right, title or interest in or to the Software, the Services or any related documents. Customer hereby unconditionally and irrevocably grants to WurkNow an assignment of all right, title, and interest in and to the Usage Data, including all intellectual property rights relating thereto.
2. Ownership of Customer Data. Customer owns and shall retain all ownership right, title, and interest in and to the Customer Data and any and all intellectual property rights embodied therein. WurkNow shall have no right, title, or interest in or to the Customer Data other than the limited license rights expressly set forth in this Agreement.
3. Ownership of Usage Data. Customer hereby unconditionally and irrevocably grants to WurkNow an assignment of all right, title, and interest in and to the Usage Data, including all intellectual property rights relating thereto.
4. License to WurkNow. Customer hereby grants to WurkNow and its affiliates a fully paid up, non-exclusive, irrevocable, transferrable, worldwide right and license to process, reproduce, store, distribute, display, perform, modify, adapt, translate, create derivative works from, transmit, make available and otherwise use Customer Data during the Term in connection with WurkNow’s provision of the Software and Services and performance of WurkNow’s obligations under this Agreement.
13. REPRESENTATIONS AND WARRANTIES.
1. Reciprocal. WurkNow represents and warrants to Customer, and Customer represents and warrants to WurkNow, that: (i) it has the power and authority and the legal right to enter into this Agreement and to perform its obligations under this Agreement, (ii) it has taken all necessary action on its part to authorize the execution and delivery of this Agreement, and, (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents
2. Customer. Customer represents and warrants to WurkNow that (i) the information provided to WurkNow for the purpose of establishing an Account with WurkNow is accurate, and (ii) it has all rights, title and interest to use and upload the Customer Data onto the Software.
14. INDEMNIFICATION
1. Indemnity by WurkNow. Subject to Section 15(c) below, WurkNow will defend Customer and its officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Software infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid by under a court-approved settlement of, a Claim Against Customer. If a Claim Against Customer is brought or is likely, in WurkNow’s sole opinion, to be brought, WurkNow will, at its option and expense: (i) obtain the right for Customer to continue using the Software, (ii) replace or modify the affected Software so it becomes non-infringing, or (iii) upon notice to Customer, terminate this Agreement or Customer’s use of the affected Software, provided that in the case of (iii) WurkNow promptly refunds to Customer the prorated portion of any unearned pre-paid recurring fees paid hereunder for the affected Software. WurkNow’s obligations in this Section 15(a) do not cover third party claims to the extent such claims arise from: (1) any products, services, technology, materials or data not created or provided by WurkNow (including without limitation any Customer Data), (2) any modifications made to the Software after delivery by a party other than WurkNow, (3) any combination of the Software with other products, processes or materials not provided by WurkNow, (4) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications to the Software that would have avoided the alleged infringement, and/or (5) Customer’s use of the Software is not strictly in accordance with this Agreement.
2. Subject to Section 15(c) below, Customer will defend WurkNow and its officers, directors, employees and agents (collectively, the “WurkNow Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the WurkNow Indemnitees by a third party: (i) alleging that the Customer Data, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party, (ii) arising out of or attributable to the Customer’s or an Authorized User’s breach of Sections 5 above, or (iii) arising out of or attributable to Customer’s misuse of the Software (each, a “Claim Against WurkNow”). Customer will indemnify the WurkNow Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the WurkNow Indemnitees as a result of, or for any amounts paid under a court-approved settlement of a Claim Against WurkNow.
3. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (i) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, (ii) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement, provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault or subjects the indemnified party to ongoing obligations without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (iii) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.
4. This Section 15 states WurkNow’s sole liability, and the Customer’s exclusive remedy, for its indemnification obligations hereunder.
15. DISCLAIMERS. WURKNOW DOES NOT WARRANT OR REPRESENT THAT THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, COMPLETELY SECURE, THAT ALL DEFECTS AND ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE AND SERVICES WILL MEET CUSTOMER’S PARTICULAR REQUIREMENTS OR EXPECTATIONS. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WURKNOW DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THIS AGREEMENT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CUSTOMER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SOFTWARE AND SERVICES CHOSEN.
16. LIMITATION OF DAMAGES.
1. Neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data) in connection with the performance of this Agreement, even if it is aware of the possibility of the occurrence of such damages.
2. Except for a Party’s willful misconduct or gross negligence, a PARTY’S INDEMNIFICATION obligations set forth in Section 15 hereof, and/or customer’s breach of its obligations under sectionS 5, 6 or 10, the total cumulative liability of a Party to the other Party for any and all claims and damages arising under thIS Agreement, whether by statute, contract, tort or otherwise, will not exceed the fees paid by Customer to WURKNOW under the QUOTE for the SOFTWARE OR Services which form the subject of the claim during the twelve (12) month period immediately preceding the event giving rise to the claim. The provisions of thIS Agreement allocate risks between the Parties. The pricing set forth in the QUOTE reflects this allocation of risk and the limitation of liability specified herein.
17. PUBLICITY. Customer may not publicly use WurkNow’s name, logo, or other trade or service mark without WurkNow’s permission.
18. THIRD PARTY PRODUCTS. As a convenience to Customer, WurkNow may arrange for Customer’s purchase or license of third-party software, services, and other products not included as part of the Software, and/or may provide support to Customer in relation to those products. WurkNow makes no representations or warranty whatsoever regarding such third-party products and related services and as between WurkNow and Customer such software is provided “as is.” Customer’s use of third-party software, services, and other products is governed solely by the terms of any license or other agreement between Customer and the third party.
19. NOTICE. Unless otherwise stated under this Agreement, any notices required under this Agreement to WurkNow shall be given in writing via certified or guaranteed delivery carrier to: WurkNow, Inc., Attn: Notice, 4187 Flat Rock Drive, Riverside, CA 92505, and any notices required under this Agreement to Customer shall be given via electronic mail or via certified or guaranteed delivery carrier to the individual designated on the Quote. Notices are deemed received on the day delivered, or if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered.
20. ASSIGNMENT. Neither party may assign this Agreement without the prior written consent of the other party; provided, however, that WurkNow may assign any or all of its rights and obligations hereunder to any of its subsidiaries or affiliates or to a successor in the event of a merger, acquisition or sale of or all substantially all of its assets without the written consent of Customer. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any attempted assignment in contravention hereof shall be null and void.
21. GOVERNING LAW AND DISPUTES. All disputes, claims, actions, suits or other proceedings or questions arising out of or in connection with this Agreement shall be governed by, and construed in accordance with, the substantive laws and decisions of the State of Delaware as would be applicable to contracts wholly made and to be performed within the State of Delaware without giving effect to the principles thereto relating to conflicts of law, and shall be determined by arbitration before a single arbitrator in Wilmington, Delaware under the Commercial Rules of the American Arbitration Association. The arbitrator shall be required to add to the award of the prevailing party all attorney’s fees actually incurred by the prevailing party (even if the award to the prevailing party is less than such party had sought), as well as costs incurred in commencing the action. In the event that the prevailing party in any such arbitration is compelled to resort to further legal proceedings to collect upon any arbitration award then, in any such event, there shall be added to the amount set forth in the arbitration award all attorneys’ fees actually incurred by the prevailing party in any post arbitration collection proceedings. Nothing in this Section 22 shall limit a party’s right to injunctive relief in accordance with Section 12(d). THE PARTIES HEREBY EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER PERTAINING TO ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
22. FORCE MAJEURE. Except for payment obligations hereunder, neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to an act of God, fire, earthquake, flood, or any other natural disaster; war, riot, or insurrection; pandemic or epidemic; compliance with any statutory, regulatory or legal obligation; shortages or unavailability or other delay in delivery not resulting from the responsible party’s failure to timely place orders therefore; electrical or power outages, utilities or other telecommunications failures; cyber-attacks, viruses or hacking; strikes or other organized labor action; terrorist activity; or any other cause outside of its reasonable control (“Force Majeure Event”). The party asserting that a Force Majeure Event shall (a) promptly notify the other party of the existence of such cause and its probable duration, and (b) continue to make all reasonable efforts to prevent, limit and remove the effects of any such cause.
23. MISCELLANEOUS.
1. Modifications. These Terms may be amended by WurkNow from time to time in its sole discretion, and Wurknow will post a notice on the Site any time These terms amended. The terms on Customer’s purchase order or other business forms are not binding on WurkNow with respect to this Agreement.
2. Non-Waiver. A party’s failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of this Agreement. A party’s waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous, or future occurrence, whether similar in nature or not.
3. Construction. The captions in this Agreement are not part of this Agreement but are for the convenience of the parties. The use of the word “including” in this Agreement shall be read to mean “including without limitation.”
4. Counterparts. Any documents signed in connection with this Agreement may be signed in multiple counterparts, which taken together will constitute one original. Facsimile signatures or signatures on an electronic image, such as .pdf or .jpg format, shall be deemed to be original signatures.
5. Survival. The following provisions will survive expiration or termination of this Agreement: fees, indemnity obligations and any provision that is made the basis of a claim for indemnification, confidentiality obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, governing law and venue, notice, miscellaneous provisions, and other provisions that by their nature are intended to survive termination of this Agreement.
6. No Third-Party Beneficiaries. Except as otherwise explicitly set forth in this Agreement, there are no third-party beneficiaries to this Agreement.
7. Severability. In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining part of this Agreement will remain in full force and effect, provided that this Agreement without the unenforceable provision is consistent with the material economic incentives of the parties leading to this Agreement.
8. Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other on any agreement. This Agreement is non-exclusive. WurkNow may provide service to any person, including a competitor of Customer.
9. Entire Agreement. This Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
24. EQUIPMENT LEASING
1. In the event Customer is leasing equipment, Customer shall at its own expense protect, keep, and maintain in its custody, all equipment herein leased, in a good state of condition and repair, and agrees to return the same equipment less normal wear and tear to WurkNow’s premises upon the termination of leasing period. The leasing rate will remain in effect until the equipment is received and accepted in good condition by WurkNow.
2. In the event the equipment is destroyed or damaged, by any casualty, outside of normal wear and tear, or is lost, stolen or goes missing, the Customer shall be liable to WurkNow for the full replacement value or cost thereof as determined by the Vendor to replace or repair the same, and no allowance will be made for the reason that any part of it was not used by the Customer.
3. Customer agrees to assume full responsibility and liability for the return of the equipment herein leased to Customer. Customer agrees not to deface, obliterate or damage said equipment beyond normal wear and tear as determined by WurkNow and/or equipment(s) manufacturer(s) standards.
4. WurkNow reserves the right to withhold any future equipment maintenance until reimbursed for replacement costs for any equipment that has been damaged through misuse by the Customer.