Enterprise Master Platform Access and Services Agreement

These Terms of Service (“Terms”) apply to Members’ (as defined below) access to and use of the websites, mobile applications and online products and services, including but not limited to contractor onboarding, private talent, freelancer management, payment, and vendor management services (collectively, the “Services”) provided by Worksuite Inc., a Delaware corporation doing business as Worksuite (“Worksuite” or “we”), located at 650 California Street, San Francisco, CA 94108, United States.

By clicking “I Accept” or otherwise using our Services, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 17, do not use our Services.

We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms for specific Services, the additional terms will control with respect to the specific Services.

We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.

For information about how we collect, use and share information about you, please see our Privacy Policy.

If you have any questions about these Terms or our Services, please contact us at info@worksuite.com.

Members and Contractors

Worksuite provides Services to both customers, to whom Worksuite provides Services for a fee (“Members”), and their contractors such as freelancers, independent contractors, service providers, technology providers, and other individuals or entities, for whom the Services are free (“Contractors”) (collectively, “Users”). These Terms only apply to Members. The use of the Services by Contractors will be governed by the Worksuite Terms of Service for Contractors.

User Accounts, Eligibility, and Account Security

If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person or entity’s behalf and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us. You may not use our Services if you are a competitor providing services similar to our Services.

You must be at least 18 years of age to use our fee-based Services. If you are under 18 years of age (or the age of legal majority where you live), you may only use our other Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such User in relation to our Services.

You must register for an account to access some or all of our Services. You agree to provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. You are not permitted to allow others to use your account without prior authorization from Worksuite. We reserve the right to reclaim usernames or accounts on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames or accounts.

User Data

Our Services allow you and other users to host, create, post, store and transmit content, including messages, text, photos, videos, software and other materials (collectively, “User Data”). Except for the license you grant below, you retain all rights in and to your User Data, as between you and Worksuite.

You grant Worksuite a perpetual, nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to host, transmit, use, reproduce, modify, adapt, publish, translate, distribute, display your User Data, as well as to transfer your User Data to third parties including but not limited to vendors, payment processors, or any other third-party service providers used by Worksuite as necessary for us to provide the Services.

We provide functions that allow you to control who may access User Data. If you enable the features that allow you to share the User Data with others, anyone you’ve shared content with (including the general public, in certain circumstances) may have access to your User Data.

You may not create, post, store or share any User Data that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Data, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Data, we may delete or remove User Data at any time and for any reason with or without notice.

We do not guarantee that User Data will be free from loss, theft, misuse, or unauthorized access, disclosure, alteration or destruction. You must use a secure encrypted connection when transmitting User Data to us. It is your responsibility to make backups of User Data. You are solely responsible for protecting your passwords and for limiting access to your user account, computers and devices.

Upon termination of the Services by Worksuite, for reasons other than cause, or at your direction, you may request access to your User Data. You must make such request within thirty (30) days following termination. Otherwise, any Content you have stored with the Service may not be retrievable, and we will have no obligation to maintain any data stored in your account.

Data Processing

In the event and to the extent that the Services involve processing Personal Data (as defined in the Data Processing Addendum (“DPA”)), the DPA available here https://worksuite.com/security-overview/dpa/ is hereby included and incorporated into these Terms.

Article 1: OVERVIEW 

1.1 Term. The Agreement shall commence on the Effective Date and continue as specified for the initial term as specified in the Commercial Terms (the “Initial Term”) unless terminated earlier pursuant to Section 1.2. The Agreement shall automatically be extended for additional one-year terms (each an “Additional Term”) unless either party (a) gives written notice to the other no fewer than sixty (60) days prior to the expiration of the then-current Term, or (b) terminates this Agreement earlier pursuant to Section 1.2.

1.2 Termination. This Agreement may be terminated by either party by providing written notice to the other party (a) upon the material breach by the other party of any of its obligations hereunder, which breach has not been cured within sixty (60) days after the breaching party has received notice thereof; or (b) if all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy, a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days, or the other party is adjudged. If Members rightfully terminates for breach, Worksuite shall refund to Members a ratable share of any fees actually paid by Members for any Services which are not delivered for periods after the termination date.

1.3 Termination Assistance. For a period of up to sixty (60) days following termination of this Agreement (“Transition Period”), at Members’s reasonable request, Worksuite and Members will work together to transition Members and its Freelancers off the Platform to one or more replacement platform(s) at Worksuite’s then-current rates for such transition services (“Transition Fees”). Upon any termination or expiration of this Agreement: (a) Members will pay all amounts owing to Worksuite. All services provided during the Transition Period shall be subject to the terms and conditions of this Agreement unless otherwise mutually agreed in writing by the parties; provided, however, if Worksuite rightfully terminates this Agreement, as a condition to Worksuite’s obligation to provide termination assistance to Members, Members will pay Worksuite (i) all amounts then due and owing as of the date of such termination, and (ii) on the first day of each calendar month in which transition assistance shall be provided by Worksuite, an amount equal to Worksuite’s reasonable estimate of the total amount payable to Worksuite for such termination assistance for that month.

1.4 Effect of Termination. Upon termination or expiration of the Agreement for any reason, and upon expiration of the Transition Period, (a) all rights granted to Members under this Agreement with respect to the Platform, Documentation, and Services will cease, (b) Members will promptly pay to Worksuite all amounts that are due pursuant to this Agreement, and (c) Worksuite shall remove all Members Data from the Platform.

1.5 Non-circumvention. With respect to any Booking Contract entered into in connection with the Platform, without Worksuite’s prior written consent, the Members shall not terminate or cancel such Booking Contract for the purposes of engaging the Freelancer, directly or indirectly, independent of the Platform or otherwise take actions for the avoidance of paying Worksuite fees hereunder.

Article 2: SERVICES 

2.1 Services. To the extent set forth on the Statement of Work or an Exhibit to this Agreement, Worksuite shall perform the Services on behalf of the Members. Members’s and User’s rights to access the Platform are as described in the Statement of Work or on the Platform.

2.2 Implementation and Training. Worksuite will perform the consulting, training, configuration, development, and/or integration Services as expressly set forth in the Implementation Services. Any additional consulting, training, configuration, development, and/or integration services are out of the scope of the Implementation Services and subject to Worksuite agreeing to provide such services pursuant to one or more Statement(s) of Work for which Worksuite may charge additional fees.

2.3 Professional Services. Worksuite may provide additional Services required by and described in one or more Statements of Work. Members will pay Worksuite any fee(s) as mutually agreed to and set forth in a Statement of Work, as well as any Travel Expenses unless expressly agreed otherwise in the applicable Statement of Work. A Statement of Work may be amended only upon execution of a mutually agreed and revised Statement of Work (“Change Order”). Either party may request a modification to the Statement of Work. Absent an executed Change Order, Members and Worksuite shall continue to fulfill their obligations pursuant to the existing Statement of Work.

2.4 Privacy and Data Security. In performing the Services, Worksuite will comply with the data security protections as set forth by Worksuite’s website at https://worksuite.com/security-overview/ (Data Security). In the event and to the extent that the Services involve processing Personal Data (as defined in the Data Processing Addendum (“DPA”)), the DPA available at https://worksuite.com/security-overview/dpa/ is hereby included and incorporated into this Agreement.

2.5 Worksuite Platform and User Access. During the Term, Worksuite shall host (or have hosted) the Platform for Members and Freelancers to utilize the functionality of the Platform as offered by Worksuite. For the Platform Fees set forth in the Commercial Terms, Worksuite shall provide Members, its Users, and Freelancers with access to the Platform via a web-enabled user interface; provided, however, each Freelancer shall enter into Worksuite’s Standard Terms and Conditions which current version Worksuite shall post at https://worksuite.com/terms-and-privacy-policy/ or such successor website as Worksuite designates and notifies to Freelancers (the “Freelancer Terms”). The Freelancer Terms shall apply solely with respect to Freelancers and not with respect to Users. Users shall access and use the Platform pursuant to the terms and conditions of this Agreement.

2.6 Password Access. Members may access the Platform, including Members’s configured area within the Platform (the “Members Marketplace”), via password. Members shall be responsible for ensuring its Users: (a) maintain the confidentiality and security of its password(s), including, but not limited to, properly logging out of the Members Marketplace when not actively interacting with the Platform; (b) immediately notifying Worksuite of any loss, or any unauthorized use of, User’s password(s) or account(s) or any other breach of security that is known or suspected by Members; and (c) request, disclose and use the passwords solely as required to use the Services in accordance with the Agreement. Worksuite cannot and will not be liable for any loss or damage arising from Members’s failure to comply with this section, notwithstanding any language elsewhere in the Agreement.

2.7 Support Services. During the Term and subject to the Fees set forth in the Commercial Terms, Worksuite shall perform the support services as set forth in the service level agreement available at (“Support Services”) for the Platform subscribed to by Members pursuant to this Agreement. Unless agreed pursuant to a Statement of Work, Support Services do not include (a) custom modifications to the Platform; (b) maintenance and support of any customization or any third-party software or application; (c) necessary modifications or integrations to third-party applications enabling them to function properly with updates, upgrades or modifications provided by Worksuite; nor (d) any new functionality or module that Worksuite has made available as a separately priced item.

Article 3: PAYMENT AND FUNDING TERMS

3.1 Fees and Expenses. Worksuite will provide the Services and licenses for the fees set forth in the Commercial Terms or the applicable Statement(s) of Work (collectively, “Fees”). In addition to the Fees, the Members shall also reimburse Worksuite for Travel Expenses, if any, agreed upon in advance by the Members.

3.2 Invoices and Payment. Unless expressly agreed otherwise in the Commercial Terms or the applicable Statement of Work, (a) all amounts stated are in U.S. dollars, and all amounts invoiced will be due and payable in U.S. dollars; and (b) Members shall pay invoiced amounts within thirty (30) days after receipt of the invoice; provided, however, if the Agreement is terminated for reasons other than a material breach by Worksuite, all outstanding amounts hereunder owing shall become due and payable on the termination date. At the election of Worksuite, any amount not paid when due shall thereafter bear interest until paid at a rate equal to the lesser of one and one-half percent per month or the maximum rate allowed by applicable law. If Members disputes Worksuite’s invoices, including calculations on the number of Users, it must notify Members in writing within thirty (30) after receipt of the invoice and pay the undisputed portion, otherwise such disputes are waived. In addition, if the Members fails to pay any undisputed fees within thirty (30) days after receiving written notice from Worksuite specifying that such fees are overdue, Worksuite may suspend the performance of the Services. Any such suspension will not relieve the Members of its obligation to pay late fees. If collection procedures are required, the Members shall pay all expenses of collection and all reasonable attorney’s fees and costs incurred by Worksuite in connection with such collection proceeding, regardless of whether a suit is filed. These remedies are in addition to all other remedies available to Worksuite.

3.3 Taxes. The Fees do not include transfer, gross receipts, value-added, sales, use, import, withholding, excise, customs, or other similar taxes, imports, or duties applicable to or imposed on or because of the transactions contemplated by this Agreement under any applicable law or taxing jurisdiction (collectively, “Transaction Taxes”). Regardless of the party on whom Transaction Taxes are imposed under applicable law, the Members shall be solely responsible for and shall pay all Transaction Taxes. If at any time Worksuite determines that Worksuite should collect Transaction Taxes from Members and remit such Transaction Taxes to a taxing jurisdiction under the laws of such jurisdiction, Worksuite may separately charge Members, and Members shall pay to Worksuite, the amount of such Transaction Taxes. If any tax jurisdiction formally asserts that Worksuite is liable for any Transaction Taxes, the Members agrees to indemnify, defend, and hold harmless Worksuite Indemnitees from and against such claims, and shall immediately pay all such Transaction Taxes to the applicable jurisdiction on Worksuite’s behalf, plus any corresponding interest, penalty interest, and penalties. If any tax jurisdiction asserts that Worksuite is liable for Transaction Taxes, the Members agrees to promptly reimburse Worksuite for the amount thereof plus any related interest and penalties paid by Worksuite to such jurisdiction. If any amount payable by Members to Worksuite is subject to withholding or other deduction, charge, or tax, then the amount payable to Worksuite by Members shall be increased so that after such withholding, deduction, charge, or tax, the net amount paid to Worksuite equals the full amount invoiced by Worksuite.

3.4 Pay Run Funding.  Members acknowledges that in the event Worksuite does not receive funding for payments from Members by Funding Due Date, the pay run in progress will be canceled and the Members will be assessed a Pay Run Cancellation Fee.  Worksuite shall make commercially reasonable efforts to ensure that its payment processors properly pay all such amounts, provided that, Worksuite shall not be responsible for missing or inaccurate information provided by Members or Freelancers.

3.5 Acknowledgment. Members and Worksuite acknowledge (a) the Fees set forth in the Commercial Terms and other charges contemplated under this Agreement are based on the limited warranties, disclaimers, and limitation of liability specified in this Agreement; and (b) such charges would be substantially higher if any of these provisions were unenforceable.

Article 4: OWNERSHIP AND INTELLECTUAL PROPERTY

4.1 Members Data. As between the parties, the Members shall retain all rights in the trademarks, service marks, patents, copyrights, trade secrets, and other proprietary rights (“Intellectual Property”) in the Members Data. Members shall obtain all rights necessary for, and hereby grants Worksuite a limited right to process, use, display, access, perform, install, download, store, copy, and maintain the Members Data solely during the Term and any Transition Period as necessary to fulfill Worksuite’s obligations under this Agreement and for the purposes of Service Analysis. Worksuite shall only process the Members Data in conformance with the terms and conditions of this Agreement. If Worksuite or any Worksuite Personnel is deemed to have any ownership interest or rights in the Members Data, Worksuite shall assign and/or cause such Worksuite Personnel to assign, and Worksuite does hereby irrevocably assign, without royalty, all such ownership interest and rights to Members.

4.2 Ownership of Worksuite Platform. All trademarks, service marks, patents, copyrights, trade secrets, and other proprietary rights (“Intellectual Property”) in the Platform, the Documentation, the Services, any third-party software, or any other contents within the Platform (other than Members Marks and Members Data), and/or copies or portions of any of the foregoing (collectively the “Delivered Solution”) are and will remain the exclusive property of Worksuite or its licensors, whether or not specifically recognized or perfected under applicable law. Subject to the limitations set forth in this Agreement, Worksuite hereby grants Members a non-exclusive, non-transferable (except pursuant a permissible assignment of the entirety of the Agreement), non-sublicenseable license to access and use the Platform and Documentation for the sole purpose of engaging Freelancers for Members’s internal business purposes. Access and use of the Platform shall be web-enabled access only, and nothing in this Agreement shall entitle Members or Users to the object or source code of the Platform. The Members will not take any action that jeopardizes Worksuite’s or its licensor’s proprietary rights or acquire any right in the Delivered Solution, except the limited license rights specified herein. Worksuite or its licensor will own all rights in any copy, translation, modification, adaptation, or derivation of the Delivered Solution, including any improvement or development thereof and/or any ideas first reduced to practice either before the Term or during the Term. If Members or any third party engaged by Members is deemed to have any ownership interest or rights in the Delivered Solution, Members shall assign and/or cause such third party to assign, and Members does hereby irrevocably assign, without royalty, all such ownership interest and rights to Worksuite.

4.3 Service Analysis. Worksuite may (a) collect, develop, create, extract, compile, synthesize, disclose, analyze, and commercialize statistical, benchmark, and other information related to the performance, operation, and use of the Services, and (b) use any data from the Platform or the Services in aggregated form for security and operations management, to create statistical analyses, for research and development and other purposes (“Service Analyses”), on the condition that Service Analyses will be anonymized so as not to identify the source of Members Data or Members Confidential Information, or other information in a form that could serve directly, or in connection with other data to identify Members or any Person. Service Analyses shall not include any personal data. Worksuite retains all Intellectual Property rights in Service Analyses.

4.4 License Restrictions. Members shall not, nor allow or authorize any User or third party to: (a) reproduce, allow use of, or access the Platform, or sell, rent, lease, use in a service bureau, sublicense or otherwise transfer or assign its rights to access and use the Platform, in whole or in part, to a third party; (b) alter, enhance or otherwise modify or create derivative works of the Platform; (c) disassemble, decompile, reverse engineer or otherwise attempt to derive the source code of the Platform; (d) remove or destroy any proprietary markings, confidential legends or any trademarks or trade names of Worksuite or its licensors placed upon or contained within the Platform or the Documentation; or (e) upload, post or transmit into or via the Platform any viruses or unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or offensive information of any kind. Use, duplication or disclosure by the U.S. Government or any of its agencies is subject to restrictions set forth in the Commercial Computer Software and Commercial Computer Software Documentation clause at DFARS 227.7202 and/or the Commercial Computer Software Restricted Rights clause at FAR 52.227.19(c).

4.5 Use of Members Marks. Members hereby agrees that Worksuite may use and display, and grants Worksuite the right to use and display the Members’s name(s), their products and service offerings names, and their service marks, trademarks and other content (“Members Marks”) as Members may provide from time-to-time within the Platform for purposes of branding the Members Marketplace. Members represents, warrants, and covenants that Worksuite’s use of the Members Marks shall not infringe or misappropriate any intellectual property, proprietary or privacy rights of any person or entity.

Article 5: INDEMNITIES

5.1 Infringement Indemnity. Worksuite agrees to defend, indemnify and hold Members harmless from any and all third-party claims, losses, actions, suits, proceedings, or judgments, including costs and reasonable attorneys’ fees and expenses, (collectively, “Claims”) incurred by or assessed against such parties resulting, in whole or in part, from allegations the Platform, as used within the scope of this Agreement, infringes a U.S. patent issued as of the Effective Date, copyright, or trademark and will pay all final judgments awarded or settlements entered into on such claims. The foregoing indemnity obligations shall not extend to (a) modifications of the Platform by anyone other than Worksuite or Worksuite Personnel; (b) the incorporation into the Worksuite Platform of any information provided by or requested by Memberss, Users, or Freelancers; (c) the use of a combination of the Worksuite Platform with any third-party software or equipment which is not provided by Worksuite, not described by the Documentation, or any Members Data where such combination is the cause of such infringement; or (d) if Members has not adhered to its obligations under or in connection with this Agreement. THIS SECTION 5.1 STATES WORKSUITE’S ENTIRE LIABILITY AND MEMBERS’S SOLE REMEDY FOR INFRINGEMENT CLAIMS.

5.2 Opportunity to Cure. In the event the Worksuite Platform is held or is believed by Worksuite to infringe intellectual property rights, Worksuite may, at its sole option and expense, (a) modify the Worksuite Platform so that it is non-infringing; (b) replace the Worksuite Platform with non-infringing software which is functionally equivalent; (c) obtain a license for Members to continue using the Worksuite Platform as provided herein, or (d) terminate the Agreement by written notice to Members.

5.3 Reliance on Information. In providing the Services, Worksuite shall be entitled to rely upon and act in accordance with any instructions, guidelines, data, or information provided by Members and its Users, and shall incur no liability in doing so. Members shall indemnify, defend and hold Worksuite Entities harmless from any and all third party claims, losses, actions, suits, proceedings, or judgments, including, without limitation, costs and reasonable attorneys’ fees, incurred by or assessed against such parties resulting, in whole or in part from (a) any action or failure to act by Worksuite in reliance on any such instruction, approval, election, or decision, (b) any Members Data, (c) claims arising out of a Booking Contract or the performance of, or failure to perform, Freelancer Services, or (d) any violation of applicable law by Members or its Users.

5.4 Indemnification Procedure. In the event of a claim by a third party against a party entitled to indemnification pursuant to this Agreement (“Indemnified Party”), the Indemnified Party shall promptly notify the indemnifying party (the “Indemnifying Party”) after receipt of notice of such claim; provided a delay in or failure by the Indemnified Party to provide such notice shall not relieve the Indemnifying Party of its obligations to indemnify and defend, except to the extent that such delay or failure materially prejudices the Indemnifying Party’s ability to defend such claim. The Indemnifying Party, at its sole expense, shall promptly assume the defense of such claim and shall have sole control over defense of such claim, including any proposed settlement (subject to the requirements below with respect to settlement); provided, however, that if the Indemnifying Party fails to diligently defend the Indemnified Party, the Indemnified Party shall be entitled to defend the claim with counsel of its own choosing at the expense of, for the account of and at the risk of the Indemnifying Party; provided further that the Indemnifying Party shall engage counsel reasonably acceptable to the Indemnified Party, take reasonable steps to monitor and control the fees and costs of counsel so chosen, and keep the Indemnified Party reasonably informed of the status of such defense, including any settlement proposals by the claimant. In addition, the Indemnified Party may participate, in its sole discretion, in any claim using its own counsel at its own expense. The Indemnifying Party shall not settle any such claim without first obtaining the Indemnified Party’s prior written consent where the settlement of such claim results in any admission of guilt or liability on the part of the Indemnified Party or any User, imposes any obligation or liability on the Indemnified Party or any User, or has a judicially binding effect on the Indemnified Party or User (other than monetary liability for which the Indemnified Party is indemnified, without risk of non-payment, by the Indemnifying Party).

Article 6: WARRANTY AND DISCLAIMER

6.1 Worksuite Warranties. Worksuite warrants that the (a) Services will be performed with reasonable skill and care in accordance with industry practices; and (b) the Platform shall perform materially in accordance with the then-current Documentation therefor. As Members’s sole and exclusive remedies and Worksuite’s sole obligation for breach of the foregoing warranties, (i) Worksuite shall use commercially reasonably efforts to correct such defective Services, provided that Members gives Worksuite specific written notice of the defective Services within thirty (30) days after such Services are performed; and (ii) Members may terminate this Agreement following notice and the opportunity to cure pursuant to Members’s rights under Section 1.2.

6.2 Exclusion of Certain Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE PLATFORM, DOCUMENTATION, DELIVERABLES AND SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY WORKSUITE, WORKSUITE PERSONNEL OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, SATISFACTION, FITNESS FOR PARTICULAR PURPOSE OR NONINFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. THE PLATFORM, DELIVERABLES, AND SERVICES BEING PROVIDED ARE NOT WARRANTED BY WORKSUITE TO BE ERROR-FREE OR FREE FROM INTERRUPTION.  IN NO EVENT SHALL WORKSUITE BE LIABLE FOR THE ACTS OR OMISSIONS OF A FREELANCER OR ANY OTHER THIRD PARTY OUTSIDE OF WORKSUITE’S REASONABLE CONTROL.

Article 7: CONFIDENTIALITY

7.1 Strict Confidence. Each party shall maintain the Confidential Information of the other party in strict confidence, and shall at all times exercise no less than reasonable care with respect to the handling and protection of such Confidential Information. Each party shall use the Confidential Information of the other party only as expressly contemplated by this Agreement.

7.2 Limited Access. Each party shall limit the use and access of Confidential Information solely to such party’s bona fide employees, agents (including independent auditors and required government agencies), Users and Freelancers who have a need to know such information for purposes of conducting the receiving party’s business and who are obligated to maintain the confidentiality of such Confidential Information.

7.3 Required Disclosure. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party pursuant to the valid order or requirement of a court, provided that the receiving party first gives reasonable written notice to the disclosing party in order to timely contest such order or requirement. Any such disclosure by the receiving party of the Confidential Information of the disclosing party, shall, in no way, be deemed to change, affect or diminish the confidential and proprietary status of such Confidential Information.

Article 8: LIMITATION OF REMEDIES AND DAMAGES

8.1 Excluded Liabilities. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, SUFFERED BY THE OTHER PARTY OR ANY THIRD PARTY, INCLUDING LOST PROFITS, BUSINESS INTERRUPTIONS OR OTHER ECONOMIC LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY USE OF OR FAILURE TO BE ABLE TO USE THE PLATFORM OR THE SERVICES. WORKSUITE SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO (a) THE ACCURACY OR COMPLETENESS OF ANY DATA PROVIDED BY MEMBERS, A FREELANCER, ANY THIRD PARTY OR AS SUCH IS INPUT INTO THE PLATFORM, (b) FOR FREELANCER SERVICES ACQUIRED THROUGH USE OF THE PLATFORM; OR (c) COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PERSONNEL.

8.2 Liability Cap. Worksuite’s total aggregate liability for any damages arising out of or related to this Agreement will not exceed the Subscription Fees paid hereunder for the Service during the twelve (12) month period preceding the initial claim. The existence of one or more claims will not enlarge this limit.

8.3 Exclusions to the Limits on Liability. The exclusions and limits set forth in Section 8.1 and Section 8.2 shall not apply to any claim relating to a breach of (a) either party’s obligations as set forth in Article 7; (b) Members’s obligations as set forth in Article 3; and (c) either party’s obligations to defend, indemnify and hold harmless as expressly set forth in this Agreement.

Article 9: GENERAL TERMS

9.1 Force Majeure. All other terms of this Agreement notwithstanding, Worksuite shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of Worksuite (a “Force Majeure Event”), including, but not limited to, widespread Internet outage, denial of service attack, war, an act of terrorism, insurrection, multi-day power outage, acts of God or acts of civil or military authority. In the event of such a Force Majeure Event, time for delivery or other performance under this Agreement shall be as soon as practicable following such Force Majeure Event.

9.2 Compliance with Laws. The parties each agree to comply with all applicable federal, state and local laws, rules, regulations, and ordinances applicable to its performance of this Agreement; provided that it is expressly agreed that Worksuite shall not have any liability whatsoever under this Agreement with respect to any decision by Members to utilize any psychological, fitness or other qualification assessment functionality, tools, questions or other configurable aspects of the Platform and Members hereby agrees to indemnify and hold Worksuite harmless with respect to the same. All provisions required by law to be included in this Agreement are incorporated by reference. If required by law, Members shall provide all its applicants and service providers, or potential service providers, with a reasonable alternate method by which such Person may provide information directly to Members, along with any other accommodations required by law.

9.3 Nature of the Relationship. In performing hereunder, both parties are acting as independent contractors and neither party undertakes to perform any obligation of the other, whether regulatory or contractual or to assume any responsibility for the other’s business or operations. Worksuite may perform similar services for third parties and license the same or similar products to third parties. Nothing in this Agreement shall be deemed to constitute a partnership or joint venture between Worksuite and Members. Neither party shall hold itself out as having any authority to enter into any contract or create any obligation or liability on behalf of or binding upon the other party.

9.4 Notices. Any notice required or permitted to be given under the terms of this Agreement shall be deemed given when reduced to writing and delivered by certified mail, return receipt requested, or overnight national courier with a tracking system, and addressed to (a) if to Members, the address set forth for Members on the Commercial Terms, or (b) if to Worksuite, then to Worksuite Inc., Attn: CEO, 2410 Cumberland Drive, Smyrna GA 30080, or to such other address as may be provided by Worksuite to Members using notice consistent with this section.

9.5 Survival. Termination of this Agreement shall not impair either party’s then-accrued rights, obligations, liabilities, or remedies. Notwithstanding any other provisions of this Agreement to the contrary, the terms and conditions of Sections 1.3, 1.4, 2.4, and 6.2 and all of Article 3, Article 4, Article 5, Article 7, Article 8 and Article 9, and any other terms which by their reading are intended to survive beyond the Term, shall survive termination of this Agreement.

9.6 Governing Law and Venue. This Agreement is made under and will be construed in accordance with the laws of the State of Delaware, USA other than such laws, rules, regulations, and case law that would result in the application of the laws of a jurisdiction other than the State of Delaware, USA. Any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the state courts of the Delaware and the federal courts of the United States, located in the state of Delaware. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby irrevocably submits to the in personam jurisdiction and venue of such courts and waives any objection based on inconvenient forum.

9.7 Irreparable Harm. The parties agree that any breach of a party’s obligations under Article 4 or Article 7 or any infringement of intellectual property rights by a party may result in irreparable injury to the other party for which there may be no adequate remedy at law. Therefore, notwithstanding Section 9.6, in the event of any breach or threatened breach of such obligations, the non-breaching party will be entitled to seek equitable relief, in addition to its other available legal remedies in a court of competent jurisdiction.

9.8 Insurance. Worksuite shall maintain throughout the Term the following insurance: (a) worker’s compensation insurance for Worksuite Personnel as required by applicable state and federal worker’s compensation laws; (b) Professional Indemnity policy covering $325,000 per occurrence; and (c) Public Liability coverage of up to $1,500,000.

9.9 Export. Members acknowledges that the Platform and its Documentation and all related technical information, documents, and materials are subject to export controls under the U.S. Export Administration Regulations and other applicable laws. Members will comply strictly with all legal requirements established under these controls.

9.10 Integration. The Agreement, including the Commercial Terms, these Applicable Terms and Conditions, the linked documents and terms and conditions, and any Statement(s) of Work and/or Change Order(s) which are incorporated into this Agreement, constitutes the complete and entire statement of all conditions and representations of the Agreement between Worksuite and Members with respect to its subject matter and supersedes all prior writings and understandings. This Agreement may not be modified, altered, or amended, including by the addition of a Statement of Work or Change Order, except by written instrument duly executed by both Members and Worksuite. Notwithstanding the parties’ need to agree upon an implementation project plan and other related activities pursuant to a Statement of Work, the parties expressly agree that this Agreement includes all essential terms.

9.11 Construction and Interpretation. The language in all parts of this Agreement shall, in all cases, be construed simply, as a whole, and in accordance with its fair meaning and not strictly for or against any party. The parties hereto acknowledge and agree that this Agreement has been negotiated by the parties and has been the subject of arms’-length and careful negotiation over a considerable period of time, that each party has been given the opportunity to independently review this Agreement with legal counsel and that each party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the party preparing it. The captions of the articles, sections and subsections herein are inserted solely for convenience and under no circumstances are they to be treated or construed as part of this instrument. In the event of conflict between or among aspects of the Agreement, which cannot be construed when read together, precedence shall be given in the following priority: (1) this Agreement, (2) the linked documents and terms and conditions, (3) Change Orders, and (4) Statement(s) of Work. Unless the context of this Agreement clearly requires otherwise: (a) the singular shall include the plural and the plural shall include the singular wherever and as often as may be appropriate, (b) the words “includes” or “including” shall mean “including without limitation,” (c) the word “or” is not exclusive and (d) the words “hereof,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear.

9.12 Assignment. If a party wishes to assign this Agreement to anyone, such party must obtain the other’s prior written consent, which shall not be unreasonably withheld; provided that it shall be reasonable to withhold consent if the assignee is a competitor of the non-assigning party. Notwithstanding the foregoing, each party consents to the assignment of this Agreement in its entirety by the other party in connection with any change in control, or a sale or transfer of all or substantially all of the assets of the assigning party, provided (a) such assignee is not a direct competitor of the other party; (b) such assignment does not interfere with the performance of obligations under this Agreement; (c) such assignment does not change the scope of usage and the intent contemplated by the parties under this Agreement; and (d) such assignment is not pursuant to bankruptcy proceedings involving the Members. This Agreement will be binding on the parties, their successors, and permitted assigns.

9.13 Signature, Counterparts and Facsimile. This Agreement and any Statement(s) of Work or Change Order(s) may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. A document signed and transmitted by .pdf or other electronic means shall have the same binding effect as an original “wet-ink” signature.

Attachment A: Definitions

“Booking Contract” means an agreement governing the relationship between a Freelancer and Members pertaining to Freelance Services.

“Confidential Information” means (a) any business or technical information of Members or Worksuite, including any information relating to either party’s products, services, finances, product pricing, marketing plans, business opportunities, trade secrets or personnel; (b) any information of Members or Worksuite that is specifically designated by the disclosing party as confidential or proprietary; (c) any information that is known to the receiving party, or should be known to a reasonable person given the facts and circumstances of the disclosure as being treated as confidential or proprietary by the disclosing party; and (d) the terms and conditions of this Agreement; provided, however, Confidential Information excludes information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving party was demonstrably in possession of prior to first receiving it from the disclosing party; (iii) the receiving party can demonstrate was developed independently and without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Worksuite hereby designates the Platform and Documentation, as Worksuite Confidential Information.

“Members Data” means any information or content provided into or through the Platform by Members or its Users, and any Output.

“Documentation” means the Platform’s then-current written product documentation, technical information, or user manuals provided to Members in connection with the Platform.

“Freelancer” means a Person using the Platform to seek employment or work or to offer to provide services, but expressly excluding any (i) User, (ii) Members, and (iii) Worksuite Entity.

“Freelancer Services” means the services set forth in the Booking Contract to be provided to or for the Members.

“Funding Due Date” refers to end of business day (5pm ET) on the date two US business days from Pay Run Start.

“Output” means any data output from the Platform which is derived from Members Users or presents the engagement details of the Freelancer Services (e.g., hours worked, project scope, fees paid or owing to the Provided Freelancer), excluding in all cases the Output Formatting.

“Output Formatting” means in the formatting of charts, reports, graphs and graphics in which such data is presented by the Platform or as part of the Services.

“Pay Run Cancellation Fee” is the fee charged when a pay run is canceled due to funding not received from Members by the Funding Due Date and includes $250 for cancellation of the payments, plus the actual monetary loss incurred for the cancellation of any currency exchange associated with trades already purchased for those payments.

“Pay Run Start” means the Scheduled date and time the Members selects in Worksuite for processing invoices.

“Person” means an individual, partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity or organization.

“Platform” means Worksuite’s web-accessible proprietary recruiting and talent management platform accessible as of the Effective Date at www.worksuite.com.

“Provided Freelancer” means a Person performing Freelancer Services for or on behalf of Members pursuant to a Booking Contract.

“Term” means the period from the Effective Date through the end of the Initial Term and any Additional Term(s), unless earlier terminated pursuant to the terms of this Agreement, in which case it shall end on the date of termination.

“Travel Expenses” means all reasonable out-of-pocket travel and travel-related expenses which are incurred by Worksuite in connection with Worksuite’s performance of the Services.

“User” means a Person accessing the Platform or utilizing the Services on behalf of, or for the benefit of Members, excluding in all instances any Freelancer (including Provided Freelancers).

“Worksuite Entities” means (i) Worksuite, (ii) an affiliate of Worksuite, and (iii) any Worksuite Personnel.

“Worksuite Personnel” means a Person engaged or hired by Worksuite or an affiliate of Worksuite to fulfill Worksuite’s obligations under the Agreement, but excluding any Person who is a Provided Freelancer.