Worksmith Workbench Agreement

BY ENTERING INTO AN ORDER FORM FOR WORKSMITH WORKBENCH FIELD SERVICE MANAGEMENT SOFTWARE (AN “ORDER FORM”) OR OTHERWISE ACCESSING THE SERVICES (AS DEFINED BELOW) YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS SET FORTH BELOW (THIS “AGREEMENT”). THIS AGREEMENT REPRESENTS A BINDING CONTRACT BETWEEN YOU AND WORKSMITH, INC. (“WORKSMITH”) FOR YOUR USE OF THE PLATFORM. THIS AGREEMENT IS EFFECTIVE AS OF THE EARLIER OF (1) THE EFFECTIVE DATE SET FORTH IN THE ORDER FORM OR (2) THE DATE YOU FIRST ACCESS THE SERVICES. YOU AGREE TO RECEIVE ELECTRONIC DISCLOSURES AND NOTICES FROM, AND TO TRANSACT ELECTRONICALLY WITH, WORKSMITH.

THIS AGREEMENT CONTAINS LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTY, CONSENT TO USE OF PERSONAL INFORMATION AND OTHER IMPORTANT TERMS. PLEASE READ IT CAREFULLY BEFORE PROCEEDING.

IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE OF YOUR EMPLOYMENT OR CONTRACT WITH AN ENTITY (E.G., A CORPORATION, LIMITED LIABILITY COMPANY, OR PARTNERSHIP), (A) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT, AND (B) “CUSTOMER,” AS USED IN THIS AGREEMENT, REFERS TO YOU AND THAT ENTITY.

TERM OF AGREEMENT
1. Initial Term. The term of the Agreement (“Initial Term”) shall commence on the start date set forth in the Order Form and shall continue in full force until the end date set forth in the Order Form, subject to Section 5 below.
2. Renewal. Following expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods unless Customer provides at least ninety (90) days’ written notice of non-renewal prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term, together with each Renewal Term, if any, are referred to collectively herein as the “Term”.
WORKSMITH WORKBENCH FIELD SERVICE MANAGEMENT SOFTWARE
1. Comprehensive Field Service Management Platform. Worksmith shall provide a comprehensive field service management software platform for Customer. With respect to any software included in the Services (“FSM Software”), Customer shall be entitled to the then-current and supported versions of such FSM Software throughout the Term of the Agreement.
COMPENSATION; INVOICES
1. Fees; Expenses. As compensation for the Services, Customer will pay Worksmith the fees specified in the applicable Order Form (“Pricing and Fees”).
2. Fee Increases. Worksmith reserves the right to increase Pricing and Fees with respect to any Renewal Term by an amount equal to the sum of (i) any increases in Worksmith’s cost of providing or procuring the Facilities & Experience Management Services (including as a result of any fee increase imposed by Vendors) plus (ii) an amount equal to the sum of (A) the Consumer Price Index (as published by the U.S. Bureau of Labor Statistics) plus (B) three percent (3%). Worksmith shall provide written notice of any such increase to the Pricing and Fees prior to the commencement of a Renewal Term.
3. Invoices. All invoices shall be payable within thirty (30) days of the date of the applicable invoice. Invoices will be sent to the billing address set forth in the applicable Order Form.
OTHER COSTS
1. Implementation Costs. Customer agrees and acknowledges that Worksmith will incur initial startup implementation costs in the amount set forth in the applicable Order Form (“Implementation Costs”). Customer shall pay the Implementation Costs within thirty (30) days of the Effective Date. All Implementation Costs shall be paid in advance by Customer prior to Worksmith commencing work on the applicable implementation services.
2. FSM Platform Fees. Customer agrees and acknowledges that FSM Platform Fees are as set forth in the applicable Order Form (“SaaS Fees”). Customer shall pay the annual SaaS Fees within thirty (30) days of the Effective Date. All SaaS Fees shall be paid in advance by Customer prior to Worksmith granting access to the FSM Platform.
TERMINATION PROVISIONS.
1. Customer’s Right to Terminate Agreement. Customer shall be entitled to terminate this Agreement in whole by notice in writing to Worksmith immediately if Worksmith commits a material breach of any of the provisions of this Agreement; provided, however, that Worksmith does not cure such breach within thirty (30) days of its receipt of Customer’s written notice of the occurrence of the subject breach. If Customer terminates prior to the end of the then-current Initial Term or Renewal Term, as applicable, pursuant to this Section, then Customer shall be required to reimburse Worksmith for any upfront costs referenced in Section 4 within thirty (30) days following notice of termination.
2. Worksmith’s Right to Terminate Agreement. Worksmith may terminate this Agreement in whole or part by providing written notice to Customer upon occurrence of the following: (i) Customer’s failure to make undisputed payments in accordance with the applicable payment terms; provided, that Worksmith must first give Customer ten (10) days written notice of nonpayment; (ii) any material breach by Customer of any of the provisions of this Agreement; provided, that Customer does not cure such breach within thirty (30) days of its receipt of Worksmith’s notice of the occurrence of the subject breach; or (iii) Customer suspends or discontinues its business or sells or otherwise disposes of all or substantially all of its assets. If Worksmith terminates prior to the end of the term pursuant to this Section, then Customer shall be required to reimburse Worksmith for any upfront costs referenced in Section 4 within thirty (30) days following notice of termination.
3. Right to Immediate Termination. Notwithstanding any provision of this Agreement to the contrary, either Party shall have the right to terminate this Agreement immediately if (i) the other Party files a petition for insolvency or for appointment of a receiver, trustee or assignee or for adjudication, reorganization or arrangement under any bankruptcy act or other applicable law or (ii) if any similar petition is filed against the other Party and such petition is not dismissed within ninety (90) days thereafter. If Worksmith exercises its termination rights under this Section, Worksmith does not waive its right to reimbursement for any upfront costs referenced in Section 4 within thirty (30) days following notice of termination.
4. Termination Assistance Period. During the ninety (90) days following the expiration or termination of this Agreement, or such shorter period as mutually agreed by the Parties (“Termination Assistance Period”), Worksmith, if requested in writing by Customer, shall perform the Services on the same payment terms and conditions as in this Agreement, and provide to Customer or a successor service provider any and all Customer Data and facilitate the orderly transfer of responsibility for the Services to Customer or the successor provider (collectively, the “Termination Assistance Services”). Worksmith shall provide Customer Data in a format reasonably agreed to by the Parties within seven (7) business days upon expiration or termination of this Agreement and on reasonable notice during the final year of the Initial Term or during any Renewal Term, as applicable.
OWNERSHIP / INTELLECTUAL PROPERTY.
1. Worksmith Exclusive Ownership Rights. The Services provided to Customer hereunder may include software, inventions, data, modules, components, designs, utilities, subsets, objects, program listings, tools, models, methodologies, programs, systems, analysis frameworks, leading practices, processes and specifications owned or held for use by Worksmith, including the FSM Services (collectively, the “Worksmith Technical Elements”). Subject to Customer’s limited right to use the Worksmith Technical Elements in accordance with this Agreement, as between the Parties, Worksmith retains all right, title and interest in and to the Worksmith Technical Elements, including all intellectual property rights therein. Technical Elements include, but are not limited to, work order management, dispatching, notification, check-in/check-out, invoicing and reporting. Customer acknowledges and agrees not to modify, reverse engineer or create any derivative works of any Worksmith Technical Elements, and that any and all modifications or enhancements to the Worksmith Technical Elements, whether or not suggested, developed or requested by, or on behalf of, Customer or Worksmith (including any work product resulting from Worksmith’s provision of customization services pursuant to Section 4.2)), shall be and remain the sole property of Worksmith, and Customer hereby irrevocably and unconditionally assigns all right, title and interest in and to the Foregoing to Worksmith. Without limiting the foregoing, the Parties agree that this Agreement is not a sale and does not convey to Customer any rights of ownership in or to the Services, the Worksmith Technical Elements, or the technology or intellectual property owned or held for use by Worksmith. Worksmith hereby grants to Customer, a non-exclusive, limited license to use the FSM Services during the Term to facilitate Customer’s use of the Services, which such license may be used by Customer’s personnel in accordance with the terms and conditions of this Agreement. After the expiration or termination of this Agreement, Customer shall, upon Worksmith’s request, return or certify destruction of all Worksmith property (including Worksmith Technical Elements) in Customer’s possession and shall not use Worksmith’s property, including the Worksmith Technical Elements, or any derivatives thereof, in any manner whatsoever; provided, however, that Customer shall not be obligated to return or destroy any reports, analysis or other documentary deliverables resulting from the Services and Customer shall have an ongoing right to use same for its internal business purposes.
2. Customer Data. As between the Parties, Customer shall retain all right, title and interest in and to the data provided to Worksmith relating to Customer’s use of the Services, including data entered into the FSM Services (collectively, the “Customer Data”), which such Customer Data may be used by Worksmith during the Term and thereafter for purposes of (A) providing the Services; (B) analyzing, improving, and informing the Services or other services or products that may be developed or provided from time to time by Worksmith and (C) enforcing Worksmith’s rights under this Agreement. Customer further acknowledges and agrees that, notwithstanding any other provision in this Agreement to the contrary, Worksmith may use and disclose anonymized Customer Data for any purpose whatsoever, so long as Worksmith takes commercially reasonable efforts to prevent the reidentification of such Customer Data with Customer.
3. Feedback. As between the Parties, Worksmith shall own all right, title and interest in and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the services provided under this Agreement (“Feedback”). Worksmith acknowledges and agrees that Feedback is provided “As-Is” and without warranty of any kind, and that use of any Feedback is at Worksmith’s sole risk. In furtherance of the foregoing, Customer hereby irrevocably and unconditionally assigns all right, title and interest in and to such Feedback to Worksmith.
4. Remedies. Customer acknowledges that the Worksmith Technical Elements are unique and that monetary damages would be insufficient to compensate Worksmith for any breach by Customer, its principals, affiliates, employees or agents. Accordingly, Customer agrees that, in addition to any other remedy available to Worksmith under this Agreement or under Applicable Laws, Worksmith shall be entitled to seek injunctive and other special and equitable relief from any court of competent jurisdiction in connection with any such breach.
CONFIDENTIALITY; DATA SECURITY.
1. Confidentiality. Neither Party (the “Receiving Party”) shall, during the Term or at any time thereafter, (i) disclose or transmit Confidential Information of the other Party (the “Disclosing Party”) to any third party either in whole or in part, except to its employees, agents and independent contractors (including, when Worksmith is the Receiving Party, to Vendors) (each person, an “Authorized Representative”) with a need to know such Confidential Information in connection with the Receiving Party’s performance of its obligations, or exercise of its rights, under this Agreement; (ii) make use of any Confidential Information of the Disclosing Party for any purpose other than as contemplated in, or permitted pursuant to, this Agreement. The Receiving Party shall take commercially reasonable precautions to safeguard the Confidential Information of the Disclosing Party from unauthorized disclosure and, at a minimum, shall afford the Confidential Information of the other Party such precautions and safeguards as it affords to its own confidential information of a similar nature. The Receiving Party shall be liable for any violation of the terms of this section resulting from the actions or omissions of its Authorized Representatives. “Confidential Information” for purposes of this Agreement shall mean all non-public, confidential or proprietary information of either Party and its clients and customers, including (I) information regarding costing, systems, technology, formulations, and other technical, business and economic data and information, received by the Disclosing Party in the course of the negotiation of, or performance of its obligations under, this Agreement and (II) any information which the Receiving Party knows or should know to be confidential or proprietary based on the nature of such information or the circumstances surrounding its disclosure. Confidential Information shall not include information that (i) comes into the public domain through no fault of the Receiving Party or (ii) is rightfully received by the Receiving Party from a third party having a bona fide right to disclose such information. Notwithstanding the foregoing, Receiving Party shall be permitted, upon reasonable prior written notice to the Disclosing Party (unless such notice is legally prohibited) to disclose Confidential Information of the Disclosing Party if required by Applicable Law. In the event that Receiving Party is requested pursuant to, or required by, Applicable Laws to disclose any Confidential Information of the Disclosing Party, Receiving Party will notify the Disclosing Party promptly (unless such notice is legally prohibited) so the Disclosing Party may seek a protective order or other appropriate remedy or, in the Disclosing Party’s sole discretion, waive compliance with the confidentiality provisions of this Agreement. At the Disclosing Party’s expense, the Receiving Party will cooperate in all reasonable respects, in connection with any reasonable actions to be taken for the foregoing purpose.
2. Securities Regulations. Worksmith and Customer acknowledge that each Party is aware (and that each Party’s Authorized Representatives who will have access to Confidential Information have been or will be advised) that federal and state securities laws prohibit any person or entity who has material, non-public information about a publicly-traded company from purchasing or selling securities of such company, or from communicating such information to any other person or entity under circumstances in which it is reasonably foreseeable that such person or entity is likely to sell or purchase such securities. Each Party further acknowledges that if any Worksmith or Customer employee uses Confidential Information that it receives from the other Party in a manner that violates federal or state securities laws, such use will be deemed a violation of this Agreement and the non-violating Party will be entitled to seek any remedies available to it pursuant to the terms of this Agreement, at law or in equity.
3. Equitable Relief. Customer and Worksmith each acknowledge and agree that breach of this Section may cause irreparable harm to the non-breaching Party for which the award of money damages may be inadequate. The Parties, therefore, agree that the Disclosing Party shall be entitled to seek injunctive and/or other equitable relief in any court of competent jurisdiction to prevent or otherwise restrain a breach, or threatened breach, of this Section by the Receiving Party or others, in addition to seeking any other remedy provided under this Agreement or available at law.
4. Data Security. Worksmith shall have and adhere to commercially reasonable information security guidelines for maintaining security controls and shall, upon Customer’s request, reasonably discuss such guidelines with Customer.
INDEMNIFICATION AND DEFENSE.
1. Worksmith Indemnification and Defense. Worksmith shall defend, indemnify and hold harmless Customer and its parents, subsidiaries, affiliates and Landlords and their respective members, shareholders, directors, officers, employees and agents (the “Customer Released Parties”) from and against all damages, claims, demands, losses, actions, proceedings, judgments, penalties, fines, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses and court costs) (collectively, “Losses”) made or recovered against the Customer Released Parties arising out of, resulting from, or in connection with: (i) any claim arising from injury or death to a Worksmith employee or Vendor or third party arising out of the negligent performance of the Services at the Locations; (ii) any claim for payment by a Worksmith employee or Vendor arising out of the performance of the Services so long as Customer has either paid Worksmith for the respective Services or has previously served a dispute notice concerning the respective Services; or (iii) any claim that the Worksmith Technical Elements infringe, misappropriate or otherwise violate the intellectual property rights of any third party. The obligation to defend, indemnify and hold harmless shall not apply to the extent any claim arises out of or results from the gross negligence or willful misconduct of the Customer Released Parties.
2. Customer Indemnification and Defense. Customer agrees to defend, indemnify, and hold harmless Worksmith, its parent, subsidiaries and affiliated entities, and their respective members, shareholders, directors, officers, employees and agents (“Worksmith Released Parties” and, together with the Customer Released Parties, the “Released Parties”), from and against any and all Losses made or recovered against the Worksmith Released Parties arising out of, resulting from, or in connection with: (i) Customer’s or its employees’ or service providers’ willful misconduct or gross negligence or (ii) Customer’s, its employees’ or service providers’ failure to comply with any Applicable Law related to this Agreement.
3. Indemnification Obligation Conditions. The obligation of an indemnifying Party to defend, indemnify and hold the indemnified Party’s Released Parties harmless is expressly conditioned on the following: (i) the indemnified Party promptly notifying the indemnifying Party, in writing, of any claim or demand; (ii) the indemnifying Party being given sole control over the defense of any action, claim or demand and the negotiations for their settlement or compromise, including the selection of defense counsel; provided, that any settlement or compromise that requires contribution from the indemnified Party’s Released Parties must be approved by the indemnified Party; and (iii) the indemnified Party’s Released Parties cooperating with the indemnifying Party in a reasonable way to facilitate the negotiation, settlement or defense of any claim or demand.
LIMITATIONS ON LIABILITY.
1. WAIVER. EXCEPT FOR (i) DAMAGES ARISING FROM, RELATED TO OR IN CONNECTION WITH A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS, LOST REVENUES, BUSINESS INTERRUPTION, LOSS OF GOOD WILL OF ANY KIND OR NATURE WHATSOEVER. THE PROVISIONS OF THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTY.
2. LIABILITY CAP. EXCEPT FOR DAMAGES ARISING FROM, RELATED TO OR IN CONNECTION WITH A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, in no event shall either party’s aggregate liability under this Agreement or otherwise relating to the Services exceed AN AMOUNT EQUAL TO the AGGREGATE amount of fees paid OR PAYABLE to worksmith in the twelve (12) month period FOLLOWING THE EFFECTIVE DATE.
INSURANCE.
1. Insurance Coverage. During the Term of this Agreement, Worksmith shall maintain without lapse the following types of insurance, in at least the following amounts:
  1. Commercial General Liability with minimum coverage of $1,000,000 per occurrence for bodily injury and property damage, including personal and advertising injury, and products and completed operations, which coverage shall be on a per location basis;
  2. Umbrella (Excess Liability). $3,000,000 per occurrence and aggregate.
  3. Cyber liability. Minimum coverage of $2,000,000 per occurrence for data breaches, data/loss, destruction, fraud, and related claims.
2. Endorsement. All policies may be endorsed primary and non-contributory with or in excess of any coverage which Customer may carry.
3. Certificates of Insurance. Within fifteen (15) business days following the Effective Date, Worksmith shall, upon Customer’s request, provide certificate(s) of insurance evidencing the above coverages The certificates shall provide for thirty (30) business days written notice to Customer in the event of a policy cancellation, non-renewal or material change, or ten (10) business days’ notice for non-payment of premium (email notice to suffice). The insurance company shall be admitted to do business in the State where business is being conducted, as appropriate and shall be rated at least “A-VIII” by AM Best.
4. Damages Covered by Insurance. Customer waives all rights against Worksmith for damages to the extent such damages are covered by the proceeds of the insurance required by this Agreement. If the policies of insurance referred to in this Agreement require an endorsement for the waiver, Worksmith shall cause them to be so endorsed.
5. Vendor Insurance. Worksmith shall require its Vendors to maintain insurance as required in Worksmith’s standard subcontractor agreement; provided, however, in no event shall the insurance be less than $1,000,000.00 per occurrence and $2,000,000.00 aggregate. Depending upon the nature of the Service, Customer may reasonably require, and Worksmith shall direct, a Vendor to obtain additional types or amounts of insurance or bonding and name Customer, its affiliates and subsidiaries as additional insured in keeping with industry standards.
MISCELLANEOUS.
1. Force Majeure.
  1. Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement, or to enjoy any of its benefits because of fire, natural disaster, action or decrees of governmental bodies (“Force Majeure Event”), the Party who has been so affected shall immediately give written notice to the other Party and shall do everything possible to resume performance.
2. Assignment. Neither Party shall assign this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement, and all rights and obligations under this Agreement (i) to the purchaser of all, or substantially all, of the assigning Party’s assets, business or property relating to this Agreement, (ii) the assigning Party’s successor as the result of a merger, consolidation or other business combination, or (iii) if the sale or transfer of all or any portion of the outstanding stock, membership or other ownership interest of the assigning Party results in a third party obtaining the power to direct or cause the direction of the management and policies of the assigning Party. This Agreement and all of the provisions of this Agreement shall be binding upon and enforceable by and against the successors in interest and permitted assigns of Worksmith and Customer.
3. Notices.
  1. Delivery of Notices. All notices, requests, consents, approvals, payments in connection with this Agreement, or communications which either Party desires or is required or permitted to give or make to the other Party under this Agreement shall be deemed to have been given, made and delivered, only when made or given in writing and sent by (i) nationally recognized overnight courier (for next business day delivery), or (ii) by hand delivery to the contact details set forth in the Order Form
  2. Change of Addressee. The Parties may designate another addressee or change its address for notices and other communications hereunder by a notice given to the other Party. Notice sent by hand delivery will be deemed received when delivered or upon refusal of delivery and notices sent by overnight courier will be deemed received the next business day. Notices or receipts given by the respective attorneys for the Parties shall be deemed to have been given or received by the applicable Party.
  3. E-Mail Sufficient. Notwithstanding the foregoing, email notice shall be sufficient to deliver Dispute Notices, and to request and/or approve Facilities & Experience Management Services and FSM Services.
4. Severability. Each provision hereof shall be interpreted in such a manner as to be effective and valid under Applicable Law. If any provision or application thereof is held invalid or unenforceable, then it shall, to that extent alone, be ineffective only to the extent of such prohibition or invalidity without affecting the validity of the remaining provisions or the application of such provision to other circumstances.
5. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. All prior agreements, representations, statements, negotiations, understandings, and undertakings between the Parties are superseded by this Agreement.
6. Independent Contractor. Worksmith is an independent contractor, and is not an agent, employee, joint venture, or partner of Customer. Worksmith shall have no right or power to enter into any agreement in the name of, or on behalf of Customer, or to otherwise obligate Customer in any manner. The Services will be performed under the general direction of Customer, but the manner and means by which the Services are accomplished, including the hiring of personnel (either Vendors or employees) to perform Services and the means by which said personnel are paid, will be determined by Worksmith, subject to the requirement that Worksmith will at all times comply with Applicable Law and with Customer’s reasonable instructions. Worksmith, its employees and Vendors will not be eligible for, and shall not participate in, any employee pension, health, welfare, or other fringe benefit plan, of Customer. No workers’ compensation insurance shall be obtained by Customer covering Worksmith, its employees or Vendors.
7. Execution. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which together shall constitute one document. A facsimile, email, PDF or electronic signature shall be deemed an original signature. Each of Customer and Worksmith represent that the person signing this Agreement on its behalf has the requisite authority to do so and thereby can bind it.
8. Governing Law; Venue. This Agreement and the rights and obligations of the Parties hereto shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of Texas (without giving effect to its choice of law principles). All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction and venue of the state and federal courts of competent jurisdiction situated in Travis County, Texas, and both Parties consent to the personal and exclusive jurisdiction and venue of these courts, and waive any objections that a Party may now, or hereafter, have based on venue and/or forum non-convenience.
9. Public Notices; Worksmith Marketing Right.
  1. Public Notices. Customer shall not make any press release or public announcement regarding this Agreement or otherwise publicly disclose any of the terms of this Agreement without the prior written consent of Worksmith, except where required to do so under Applicable Law, but only after prior consultation with Worksmith.
  2. Worksmith Marketing Rights. Notwithstanding anything in subsection (i) to the contrary, Worksmith may include Customer’s name and logo on its website and otherwise refer to Customer as a customer of the Services. In furtherance of the foregoing, Customer hereby grants Worksmith a limited, non-exclusive license to use its logos and trademarks for such purposes; provided, however, that Worksmith’s use of such logos and trademarks shall comply with any trademark usage or similar guidelines which may be provided by Customer to Worksmith from time to time.
10. Modification. Any amendments, modifications, changes, or variances to this Agreement, Order Form or any Schedules or exhibit hereto made by either Party shall be void and of no effect unless made in writing and signed by both Parties.
11. Waiver. The waiver or failure of either Party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of such right in the future or a waiver of any other rights established under this Agreement.

Construction; Interpretation. The terms, covenants and language of this Agreement were the result of negotiations between the Parties and, as a result, there shall be no presumption that ambiguities in this Agreement, if any, shall be resolved against either Party. Any controversy over the construction of this Agreement shall be decided neutrally, and without regard to events of authorship or negotiation and shall be construed reasonably to carry out its intent. The article, paragraph and/or section headings and the arrangement of this Agreement is for the convenience of the Parties and do not in any way affect, limit, amplify or modify the terms and provisions hereof. In the event of a conflict of terms in this Agreement, the following is the order of precedence in interpretation: (i) this Agreement and (ii) any Exhibits or Schedules to this Agreement. Unless the context clearly indicates to the contrary, (a) the plural includes the singular and the singular includes the plural; (b) “and” and “or” are each used both conjunctively and disjunctively; (c) “any,” “all,” “each,” or “every” means “any and all,” and “each and every”; (d) “includes” and “including” are each “without limitation”; (e) “herein,” “hereof,” “hereunder” and other similar compounds of the word “here” refer to the entire Agreement and not to any particular paragraph, subparagraph, section or subsection; and (f) all pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the entities or persons referred to may require.