Worksmith Subscription Agreement

This WORKSMITH SUBSCRIPTION AGREEMENT (the "Agreement") governs your ("Corporate Client" or "Subscriber" or "Client" or "you") use of the Worksmith Platform.

 Whereas, Worksmith provides the Worksmith Service (as defined below) that enables local service providers and corporate clients to communicate and connect.

 Whereas, Client wishes to utilize the Worksmith Service in connection with Client's business in accordance with this Agreement.

 In consideration of the foregoing and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Worksmith and Client, intending to be legally bound, hereby agree as follows:

 

I.    Definitions:

A.    Worksmith Platform means the proprietary technology platform made available to Clients on a subscription services basis (including all related ideas, concepts, systems, software, interfaces, tools, utilities, templates, forms, content, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information).

B.    Local Provider means a service provider that Client engages to provide services that are managed through the Worksmith Service.

C.    Provider Services means services that Local Providers may provide to Client from time to time and which are monitored through the Worksmith Service.

D.    Service Order means an order that Client places through the Worksmith Service to directly engage Local Providers for Provider Services.

E.    Worksmith Service Data means aggregated and anonymized data that is generated by the Worksmith Platform, the Worksmith Services or through Worksmith’s proprietary technologies.

F.     Worksmith Services means the subscription services offered by Worksmith through the Worksmith Platform to connect corporate clients with Local Providers including identifying potential Local Providers, overseeing the competitive bid process, scheduling and monitoring Provider Services, consolidating invoices and providing monthly reporting.

 

II.  Worksmith Service

A.    Subscription. The Worksmith Service is provided hereunder on a monthly subscription basis. Client may utilize the Worksmith Service to engage Local Providers to perform the Provider Services subject to a Service Order. Each Service Order contains fields that Client may use to describe the requested service. Upon submission of a Service Order, the Worksmith Service will notify Client that the Service Order has been accepted by a Local Provider and such notice shall include the Local Provider’s information, service delivery timeframes or any other pertinent information as applicable.

B.    Subscription Fees. The basic subscription for the Worksmith Service is provided free of charge. 

C.    Local Providers and Provider Services. Client acknowledges and agrees that the Provider Services are contracted for directly between the Local Provider and Client. As such, Worksmith shall not be responsible for the quality of the services, risk of loss, defective services or other non-performance by a Local Provider. All payments by Client for Provider Services shall be made through the Worksmith Service and shall be due immediately upon receipt of the Worksmith invoice. Client agrees to use a Service Order to engage a Local Provider for Provider Services in the form substantially similar to that contained in Attachment 1 hereto.  

D.    Advanced Payment. Client may elect to make an annual advanced payment through Worksmith for anticipated Provider Services for the following twelve months (“Advanced Payment”) and Client shall be entitled to a five percent (5%) discount for such Advanced Payment.

a.     The Advanced Payment amount shall be agreed upon between the parties based on historical invoices or projected spend for the Provider Services.

b.     Once the Advanced Payment is depleted, Worksmith shall invoice Client for any additional invoice amounts for Provider Services. For the avoidance of doubt, the Advanced Payment shall not be construed as a “fixed fee” for Provider Services.

c.     Notwithstanding anything to the contrary, except in the case of a material breach by Worksmith, this Agreement may not be terminated for the duration of the period applicable to the Advanced Payment.

E.    Open Service Orders. Client may elect to engage Worksmith to maintain an open Service Order to assist Client in addressing one-time, emergency or other situations in a timely fashion (“Open Service Order”). In the event Client elects an Open Service Order for certain services, Client authorizes Worksmith to engage Local Service Providers on Client’s behalf to perform the Provider Services at Local Provider’s then current fees (including any after hour or immediate response fees that may be applicable).  A Service Order shall not be deemed an Open Service Order unless expressly indicated on a particular Service Order. 

F.     Additional Worksmith Services. From time to time, Worksmith may offer its Clients additional fee-based Worksmith Services, at Client’s option. Furthermore, upon thirty (30) days’ notice to Client, Worksmith may charge subscription fees for the basic Worksmith Services.

G.    Access. Client shall maintain an active account with Worksmith to use the Worksmith Service. Client shall notify Worksmith immediately if Client believes an unauthorized third party may be using Client’s account. Worksmith will not be liable for any loss resulting from an unauthorized person using an account, passwords or any assigned credentials.

 

III.   Proprietary Rights and Licenses

A.    Worksmith Subscription License to Client. Subject to compliance with the terms of this Agreement, Worksmith hereby grants to Client a limited, non-exclusive and non-transferable license to use the Worksmith Platform on a subscription basis until termination of the Agreement. Except for the limited rights and licenses expressly granted to Client hereunder, no other license is granted, and no other use is permitted.

B.    Ownership. Worksmith (and its licensors) shall own and retain all right, title and interest (including all intellectual property and any other proprietary rights) in and to the Worksmith Platform, Worksmith Services, Worksmith Service Data, methodologies, templates, economic models and strategic frameworks, (including all improvements, developments, customizations, extensions and derivatives thereof) (collectively, “Worksmith Intellectual Property”).

C.    Use Restrictions. Client agrees not to:

1.     copy, modify, adapt, translate, or otherwise create derivative works of the Worksmith Intellectual Property or any software, services, or other technology of third-party vendor(s) or hosting partner(s) who Worksmith engages to provide the infrastructure, hardware, software, networking, storage, and related technology required to operate and provide the Worksmith Service;

2.     reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Worksmith Intellectual Property;

3.     rent, lease, sell, resell, assign, sublicense, or otherwise transfer rights in or to the Worksmith Intellectual Property, or otherwise allow any third party to use or access the Worksmith Platform;

4.     remove or modify any proprietary notices, legends, or labels on the Worksmith Intellectual Property;

5.     use, post, transmit, or introduce into the Worksmith Platform or other Worksmith Intellectual Property any device, software, virus, worm, back door, Trojan Horse, similar harmful code, or routine which interferes or attempts to interfere with the operation of the Worksmith Platform or other Worksmith Intellectual Property;

6.     use or access the Worksmith Intellectual Property in a manner that: (a) violates any applicable laws; (b) violates the rights of any third party; (c) purports to subject Worksmith to any other obligations; or (d) for any purpose not specifically permitted in this Agreement; or

7.     use the Worksmith Services in any situation where failure or fault of the Worksmith Service could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, Client may not use, or permit any other person to use, the Worksmith Service in connection with aircraft or other modes of mass transportation, nuclear or chemical facilities,  police or ambulance services or medical life support devices.

 

IV.   Termination

A. Either party may terminate this Agreement immediately upon written notice, however, any pending Service Orders shall be fulfilled under the terms of this Agreement. Worksmith reserves the right at any time to modify or discontinue, temporarily or permanently, Client’s access to the Worksmith Service.

B. Effects of Termination. Upon any expiration of this Agreement, all rights, obligations and licenses of the parties will cease, except that (a) all obligations that accrued prior to the effective date of expiration will survive and (b) the provisions of the sections entitled Proprietary Rights and Licenses, Warranty Disclaimers and Limitation of Liability and Miscellaneous will survive.

 

V.    Warranty Disclaimer and Limitation of Liability

A.    NO WARRANTY. CLIENT’S USE OF THE WORKSMITH SERVICE IS AT CLIENT’S SOLE RISK. THE WORKSMITH SERVICE IS PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” CLIENT SHALL BEAR THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AVAILABILITY OF APPLICATIONS AND CONTENT FROM THE WORKSMITH SERVICE, LOCAL PROVIDERS OR THE PROVIDER SERVICES. WORKSMITH MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE WORKSMITH SERVICE, THE LOCAL PROVIDERS OR PROVIDER SERVICES. CLIENT UNDERSTANDS THAT WORKSMITH USES AFFILIATES, THIRD-PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING, AND RELATED TECHNOLOGY REQUIRED TO RUN THE WORKSMITH PLATFORM AND THAT WORKSMITH IS NOT RESPONSIBLE FOR THE SERVICES PROVIDED BY SUCH THIRD PARTIES. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WORKSMITH DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY, AND IMPLIED, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT WORKSMITH MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.

B.   LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES OR (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL. WORKSMITH WILL NOT BE LIABLE TO CLIENT FOR ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF ONE THOUSAND DOLLARS ($1,000) UNDER THIS AGREEMENT.

 

VI.   Miscellaneous

A.    Links to Third-Party Sites. The Worksmith Service may include links to third-party sites. Worksmith does not control such sites and is not responsible for the content of any linked site, any links contained in a linked site, or any changes or updates to such sites. Worksmith is not responsible for any form of transmission received from any linked site. Client acknowledges and agrees that Worksmith is not liable for any loss or damage which may be incurred by Client as a result of the availability of third-party vendor resources or external sites.

B.    Confidentiality. The receiving party of any Confidential Information will use the disclosing party's Confidential Information solely to perform its obligations and exercise its rights under this Agreement.  “Confidential Information” shall mean with respect to either party any information disclosed by such party to the other party in connection with this Agreement. The receiving party will take all precautions necessary to safeguard the confidentiality of the disclosing party's Confidential Information.  The receiving party will have no confidentiality obligation hereunder with respect to any portion of the disclosing party's Confidential Information that (a) the receiving party independently developed without reference to the Confidential Information from the disclosing party, as proven by the written records of the receiving party, (b) the receiving party lawfully obtained from a third party under no obligation of confidentiality, (c) is or becomes available to the public other than as a result of an act or omission of the receiving party or any of its employees or (d) the receiving party is compelled to disclose pursuant to legal process provided by a court of competent jurisdiction or government body or agency.  In the event the receiving party is required to disclose Confidential Information of the disclosing party pursuant to legal process provided by a court of competent jurisdiction or government body or agency, such party (provided that notification is not prohibited by such process) will promptly notify the disclosing party to allow intervention in response to such process.

C.    Entire Agreement. This Agreement (including the Appendices) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

D.    Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, USA, without regard to its conflicts of law provisions.

E.    Notices. All notices under this Agreement will be effective upon receipt and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice.

F.     Publicity. Client hereby agrees that Worksmith may include its name and logo in customer lists that may be published as part of Worksmith's marketing and promotional efforts.

G.    Independent Contractors. The parties are independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or clients for any purpose.

H.    Assignment. Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, each party shall have the right to assign this Agreement to an affiliate or to a successor to substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.  Subject to the foregoing, this Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be void.

I.      Injunctive Relief. Each party acknowledges and agrees that a breach of any of the provisions contained in this Agreement may result in irreparable and continuing damage to the non-breaching party for which there may be no adequate remedy at law, and the non-breaching party may apply to any court of competent jurisdiction for injunctive relief or other equitable remedy to enforce or prevent any breach of the provisions of this Agreement.

J.     Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same Agreement. Execution of a facsimile copy (including PDF) shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature.

K.    Force Majeure.  Neither party shall be deemed in default of this Agreement if failure or delay in performance is caused by an act of God, fire, flood, severe weather conditions, material shortage or unavailability of transportation, government ordinance, laws, regulations or restrictions, war or civil disorder, or any other cause beyond the reasonable control of such party.

L.     Injunctive Relief. Client acknowledge that, in the event of any breach of the terms and conditions of this Agreement, Worksmith will not have an adequate remedy in money or damages. In such event, Worksmith will be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request and without the requirement of posting any bond. Worksmith's right to obtain such relief shall not limit its right to obtain other remedies.