TERMS

Werkit Standard Terms of service.

These Werkit Terms of Service (“Terms”) are made and entered into as of the date of the applicable Order Form (the “Order”) (the “Effective Date”), by and between Werkit, Inc., a Delaware Corporation with offices at [enter address] (hereinafter, “Werkit”) and you (hereinafter, “Customer”). Each of Werkit and Customer shall be referred to herein as a “Party” and collectively as the “Parties”. The Terms and the Order shall collectively be referred to as the “Agreement”.

WHEREAS, Werkit is the provider of certain services relating to engagement and management of on demand talent in the fields of Data Processing and AI Automation; and

WHEREAS, Customer desires to engage Werkit in the performance of Services (as defined below) and Werkit desires to accept such engagement and to perform the Services upon the terms and conditions set forth herein. 

NOW, THEREFORE, the Parties hereby agree as follows:

1.        Services. Subject to the terms and conditions of this Agreement, Werkit shall provide to Customer certain services (“Services”), as specified in any Order executed by the Parties from time to time as part of this Agreement. Any such Orders shall be deemed to incorporate these Terms. The Order shall identify the Parties’ respective obligations under this Agreement and regarding the Services. Any changes to the Order will become effective only when executed by authorized representatives of both Parties.

2.       Engagement of Freelancers. Customer shall use the Services solely to locate, interact with and manage on demand freelancers, service providers and talent (collectively, “Freelancers”) who shall perform Customer’s projects set forth in the Order (“Projects”). Customer shall provide Freelancers with any instructions, specifications, documents, information, materials, data and access as reasonably required to perform the Projects (“Project Tools”), and shall cooperate in good faith with Werkit and the Freelancers as needed to facilitate successful performance of Projects. Customer shall be solely responsible for, and Werkit shall have no responsibility or liability in connection with, any Project Tools provided by Customer, whether directly or indirectly, including for the accessibility, availability, accuracy and completeness of such Project Tools.

3.     Fees and Payment. In consideration for performing the Services, Customer shall pay Werkit the fees set forth in the applicable Order, in accordance with the payment terms therein. Werkit reserves the right to increase such fees, provided that such charges cannot be increased more than once in any 12-month period. Werkit will give the Customer written notice of any such increase 30 days before the proposed date of the increase. Unless otherwise specified in the Order: (i) Customer will pay all amounts due under this Agreement in U.S. Dollars; and (ii) all amounts invoiced hereunder and under any Order are due and payable within 4 days of the receipt of the invoice. All fees and other amounts paid by Customer to Werkit under this Agreement and any Order are non-refundable except as stated herein. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties. All taxes, withholdings and duties of any kind payable with respect to Customer’s use of the Services, other than taxes based on Werkit’s payroll and net income, shall be borne and paid by Customer. Invoices pursuant to any Order that remain unpaid after the due date will incur an additional charge of 1.5% per month.

4.     Customer Data. From time to time, in connection with the performance of Services and/or any Project, Werkit and/or Freelancers may be exposed or have access to: (i) data from Customer’s CRM, networks or other systems; (ii) information relating to Customer’s business, intellectual property, technology, products, financials, services, and/or marketing activities, and/or (ii) professional or personal information of vendors, consultants, employees, directors, managers, service providers, customers and/or users of Customer, all of which may include Confidential Information of Customer (collectively, the “Customer Data”). Customer may transmit, transfer, provide and/or make accessible to Werkit and/or Freelancers Customer Data. Customer and its licensors shall own the Intellectual Property Rights (as such term is defined below) and all other right, title and interest of any nature in and to the Customer Data, and Customer hereby grants Werkit an irrevocable, worldwide, royalty-free right and license to collect, monitor, store, analyze, process and use Customer Data to in connection with the Services and to provide Customer Data to Freelancers. Notwithstanding the foregoing, nothing herein shall grant Customer ownership of Freelancers’ personal data, and the foregoing shall not be considered Customer Data. Furthermore, Werkit may collect, disclose, publish and use in any other manner anonymous information which is derived from the use of the Services (i.e., non-identifiable information, aggregated and analytics information that may not be used in any way to identify Customer)), in order to provide and improve Werkit’s Services, for R&D purposes and for any other legitimate business purpose.

5.       Representations and Warranties; Responsibilities

5.1.      Each Party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and (ii) the execution and performance of this Agreement will not conflict with any obligations it has towards third parties, or violate any provision of any applicable law.

5.2.      Should Customer notify Werkit in writing and in good faith that it wishes to replace a Freelancer in any Project, Werkit shall use commercially reasonable efforts to locate a potential Freelancer that meets Customer’s requirements.

5.3.      Customer represents, warrants and undertakes that it: (i) is aware and acknowledges that Werkit does not, in any way, supervise, direct, control, or evaluate Freelancers or their work and is not responsible for any work performed and/or work product or deliverables provided by Freelancers; (ii) is fully responsible and liable towards any person or entity who may be engaged by Customer, including without limitation any Freelancers (including without limitation with respect to labor, safety, insurance, social benefits, tax and pension); (iii) will use the Services in compliance with any applicable laws and regulations, including without limitation privacy protection laws; and (iv) has obtained and will maintain all approvals, consents, authorizations, permits or licenses, display any and all notices, and comply with all applicable laws and regulations, as required to transfer Customer Data to Werkit and any Freelancer, and to allow use thereof by Werkit and/or any Freelancer as provided herein. It is hereby clarified that all Freelancers act as independent contractors and are not employees of Werkit and that Werkit shall not be responsible for Customer’s engagement and/or interaction with any Freelancer, Customer’s reliance thereupon or the consequences thereof. For the avoidance of doubt, any engagements or payments made by Werkit with/to any Freelancer, are made solely on behalf of Customer. Such engagements and payments are not, and will not be construed as creating any employer-employee or any other relationship between Werkit and the Freelancers and Werkit shall not in any way be a party to the engagement between Customer and any Freelancer.

5.4.      Without derogating from the foregoing, Customer is and shall remain, at all times, solely responsible and liable for: (i) any claims initiated against Werkit in connection with Werkit’s use of Customer Data in accordance with and for the purpose of this Agreement; (ii) handling requests of Freelancers or other data subjects to delete or modify their personal information; and (iii) backup of Customer Data and/or any other data on Customer’s networks or systems.

5.5.      Customer is responsible for the provision, installation, configuration, monitoring and maintenance of any Customer-owned equipment that may be required for the use of the Services and for the performance of Projects by Freelancers, unless expressly assigned to Werkit in the Order. Customer shall ensure that Customer Equipment is technically compatible with the Services and/or with Freelancers’ work product and are connected and used in accordance with any instructions and safety and security procedures applicable to their use.

5.6.      It is hereby clarified that Werkit acts solely as an intermediary between Customer and Freelancers. Therefore, it is hereby agreed and acknowledged that Customer shall be solely responsible for: (i) the inspection and acceptance of any work, work product and/or deliverables performed and/or provided by Freelancers under a Project; (ii) determining the acceptance criteria and specifications for Projects and any deliverables for a Project; and (iii) any arrangements, agreements and/or understandings pertaining to the intellectual property rights in, and ownership of, deliverables and/or work product created and/or provided by Freelancers, and it is hereby clarified that any such arrangements, agreements and/or understandings shall be made and entered into by Customer and the Freelancers, and Werkit shall not be a party thereto.

6.       Ownership

6.1.      All rights, title, and interest, including any Intellectual Property Rights evidenced by or embodied in, attached, connected, and/or related to the Services and any materials and methodology used therein, shall be owned solely and exclusively by Werkit and its licensors. Nothing herein constitutes a waiver of Werkit’s Intellectual Property Rights under any law. “Intellectual Property Rights” means: (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing, all whether or not registered or capable of being registered; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; (vi) any rights in source code, object code, mask works, databases, algorithms, formulae and processes; and (vii) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world. 

6.2.      If Customer contacts Werkit with feedback data (e.g., questions, comments, suggestions or the like) regarding the Services (collectively, “Feedback”), such Feedback shall be deemed Confidential Information of Werkit, and all rights, including intellectual property rights in such Feedback shall belong exclusively to Werkit and Werkit shall be free to use or incorporate such Feedback into the Services and/or other current or future products or services of Werkit (without Customer’s approval and without further compensation to Customer).

6.3.      Unless otherwise specified in the Order, and subject to Sections 6.1 and 6.2 above, Customer shall own all right, title and interest (including all Intellectual Property Rights) that Freelancers specifically produce for Customer in the course of a Project (“Work Product”) and Werkit shall use reasonable efforts to procure the assignment to Customer of all Intellectual Property Rights in and to all such Work Product.

7.       Third Party Components. The Services may include, require or involve access to third party software, files and components that are subject to third party license terms. Such third party components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties.

8.       Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. For the avoidance of doubt, a recipient Party may disclose the other Party’s Confidential Information to its officers, employees, services providers or advisors solely on a “need to know” basis, and provided that they are bound by similar nondisclosure obligations as those of this Agreement. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of its disclosing Party. Confidential Information does not include any information that the receiving party can document: (a) is or becomes generally available to the public through no fault of the receiving party, (b) was rightfully in its possession or known by it prior to receipt from the disclosing party, (c) is rightfully disclosed to the receiving party without restriction by a third party that is not in violation of any obligation of confidentiality or (d) was independently developed without use of any Confidential Information of the disclosing party (except for patentable subject matter, which shall not be subject to this exception). The receiving party may disclose Confidential Information to the minimal extent required to be disclosed by law; provided that the receiving party will give the disclosing party prompt notice to allow the disclosing party a reasonable opportunity to obtain a protective order and such Confidential Information disclosed to the extent required by law shall otherwise remain confidential and subject to the protections and obligations of this Agreement.

9.     Non-Solicitation. During the Term and for a period of 12 months thereafter, Customer and any of its employees shall not, directly or indirectly, induce or solicit a Werkit customer and/or Freelancer to terminate their engagement with Werkit and/or to accept services or to become an employee, consultant or independent contractor (except through the use of the Services and pursuant to an Order made hereunder) of Customer or of any third party, and shall not assist others in doing so. For any breach of this Section ‎9, Customer shall pay Werkit an agreed penalty of $10,000 USD for each Freelancer with respect to which this Section was breached, in addition to all other rights and remedies available to Werkit in such case, at law or in equity. Werkit shall have the right to seek and obtain injunctive relief to restrain and enjoin any actual or threatened breach of the provisions contained in this Agreement.

10.  Reference Customer. Customer agrees that Werkit may identify Customer as a user of the Services and use Customer’s trademark and/or logo: (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by Werkit on Werkit’s website or social media accounts for promotional purposes

11.  Limited Warranties

11.1.    OTHER THAN AS EXPLICITLY STATED UNDER THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. IN ADDITION TO OTHER DISCLAIMERS CONTAINED IN THIS AGREEMENT, WERKIT DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. THE USE OF THE SERVICES HEREUNDER IS AT CUSTOMER’S SOLE RISK AND TO THE EXTENT ALLOWED BY LAW WERKIT EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

11.2.    WERKIT DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING: (I) THE PROFESSIONAL LEVEL OF ANY FREELANCER WHO MAY ENGAGE WITH CUSTOMER AS A RESULT OF THE USE OF THE SERVICES, (II) THE ACCURACY OF ANY INFORMATION INCLUDED IN THE SERVICES WITH RESPECT TO SAID FREELANCERS; AND/OR (III) THE SUITABILITY OF ANY FREELANCER FOR THE PERFORMANCE OF PROJECTS.

11.3.    NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WERKIT SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATIONS OF THE CUSTOMER DATA, TO THE EXTENT THAT SUCH ACCESS OR ALTERATION IS NOT DUE TO WERKIT’S WILLFUL MISCONDUCT. WERKIT SHALL NOT BE RESPONSIBLE FOR THE ACCURACY OF CUSTOMER DATA

11.4.    WERKIT IS NOT RESPONSIBLE FOR THE CONTENT, QUALITY OR THE LEVEL OF WORK AND/OR DELIVERABLES PERFORMED OR PROVIDED BY FREELANCERS AND PROVIDES NO WARRANTY WITH RESPECT TO SUCH WORK AND/OR DELIVERABLES, THEIR DELIVERY OR ANY COMMUNICATIONS BETWEEN CUSTOMER AND FREELANCER, EXCEPT AS EXPRESSLY ASSIGNED TO WERKIT IN THE ORDER.

11.5.    NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WERKIT SHALL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR THE ACTS AND OMISSIONS OF FREELANCERS WITH RESPECT TO CUSTOMER DATA OR CONFIDENTIAL INFORMATION OF CUSTOMER OR FOR FREELANCERS’ ACCESS TO OR USE OF SUCH, AND CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ENTERING INTO ANY AGREEMENTS, UNDERSTANDINGS AND/OR ARRANGEMENTS WITH FREELANCERS WITH RESPECT TO THEIR ACCESS TO AND USE OF CUSTOMER DATA AND ANY CONFIDENTIAL INFORMATION OF CUSTOMER.

12.    Limitation of Liability

12.1.    TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EITHER PARTY, ITS LICENSORS, SUPPLIERS, AFFILIATES, DISTRIBUTORS AND RESELLERS SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL DAMAGES OF ANY KIND, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION, SUFFERED BY ANY PERSON OR ENTITY, ARISING FROM, RELATED TO, AND/OR CONNECTED TO, ANY USE OF OR INABILITY TO USE THE SERVICES, EVEN IF THE RELEVANT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.2.    WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, EITHER PARTY’S, ITS LICENSORS’, SUPPLIERS’, AFFILIATES’ DISTRIBUTORS’ AND/OR RESELLERS’ TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO WERKIT UNDER THE APPLICABLE ORDER IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.

13.    Term and Termination

13.1.    This Agreement shall enter into force and effect on the Effective Date and shall unless earlier terminated as set forth herein, remain in full force and effect for the Term as detailed in the Order.

13.2.    Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured (to the extent that the breach can be cured) 30 days after having received written notice thereof. Furthermore, in the event that either Party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, the other Party shall have the right to immediately terminate this Agreement.

13.3.    Upon termination or expiration of this Agreement: (i) Werkit shall be under no obligation to continue to provide Services hereunder; (ii) the receiving Party shall return and/or permanently delete (as instructed by the disclosing Party) the Confidential Information of the other Party in its possession, other than data that the recipient is required to retain by law, regulation or governmental order; and (iii) any sums paid by Customer until the date of termination are non-refundable, and Customer shall not be relieved of its duty to discharge in full all due sums owed by Customer to Werkit under this Agreement until the date of termination or expiration hereof. This Section ‎13.3 and Sections ‎4, ‎6, ‎8, ‎9, ‎11, ‎12 and ‎14 shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive, or that by its nature ought to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination. Termination of this Agreement shall not limit Werkit from pursuing any other remedies available to it under applicable law.

14.    Miscellaneous

14.1. This Agreement represents the complete agreement concerning the subject matter hereof. Werkit reserves the right to modify these Terms at any time by publishing the revised Terms in Werkit’s website. Such change will be effective ten (10) days following the foregoing notification thereof, and Customer’s continued use of the Services or any part thereof thereafter means that Customer accepted those changes.

14.2.    The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

14.3.    If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.

14.4.    Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign the Agreement without the consent of the other in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction.

14.5.    This Agreement shall be governed by and construed under the laws of the State of New York, without reference to principles and laws relating to the conflict of laws. The competent courts of the New York County, NY shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. To the fullest extent permitted by law, each of the Parties hereby agree to waive trial by jury in any action proceeding or counter claim brought by or on behalf of either Party with respect to any matter whatsoever relating to this Agreement.

14.6.    It is further clarified that Werkit is an independent contractor of Customer under this Agreement This Agreement does not, and shall not be construed to, create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. The Parties acknowledge and agree that Werkit reserves all control of his, her or its activities as to the manner and selection of methods with respect to providing Services, and be solely responsible for supervising its employees, agents or consultants if any.

14.7.    No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from the following force majeure events (“FME”): acts of God, flood, fire, earthquake or explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, government order or law, pandemic, actions, embargoes or blockades in effect on or after the date of this Agreement, action by any governmental authority, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities and other similar events beyond the reasonable control of the Party impacted by the FME.

14.8.    All notices or reports permitted or required under this Agreement shall be in writing in English and shall be by personal delivery, by express courier service (such as FedEx or UPS) that requires proof of delivery, certified or by registered mail, return receipt requested, or by electronic mail, and shall be deemed effective (a) if mailed, 5 business days after mailing, (b) if sent by messenger or express courier service, upon delivery, and (c) if sent via electronic mail, upon transmission and electronic confirmation of receipt or (if transmitted and received on a non-business day) on the first business day following transmission and electronic confirmation of receipt.

14.9.    This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument.

[Last Updated: November 2020]

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