By using Worky’s Client Platform, you (“you” or “Client”) agree with Worky LLC (together with its subsidiaries and affiliates, “Worky”) to the terms and conditions described herein. IN ORDER TO USE THE WORKY CLIENT PLATFORM, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE WORKY PLATFORM. If you have a Master Services Agreement with Worky (“MSA”), these terms are in addition to the terms of the MSA, and in the event of any conflict or inconsistency, the terms of the MSA govern.
Worky is being retained to provide on-demand talent appropriate to Client’s needs, drawing upon its network of talented freelancers and/or independent contractors (“Consultants” or “Talent”). Inherent to the valuable services provided by Worky is its development of this network, including Consultants that may be matched with the Client.
Based on information provided by the Client, Worky shall use commercially reasonable efforts to make such Talent available to Client. At Client’s request, Worky may also assist with Talent onboarding and integration.
The Services shall be further detailed in a Statement of Work (“SOW”), which when fully executed shall form part of this Agreement. Any number of SOWs may be entered into by the Parties. Each such SOW shall incorporate the terms and conditions set forth in this Agreement, and any reference to this Agreement herein shall include any applicable SOW.
If Client is dissatisfied with any Talent provided pursuant to this Agreement, Worky will make commercially reasonable efforts to find a suitable replacement. The determination of a Consultant’s suitability to working for Client shall be in Client’s sole and unfettered discretion, so long as they are consistent with applicable law. Client shall describe in writing the reasons why the match was unsatisfactory so that Worky may provide a suitable replacement.
Worky shall work with Client to source Talent as needed on a pay-as-you-go, time-and-materials basis. All payments shall be made in USD via bank wire, ACH transfer, or credit card.
(a) Indefinite Term. This Agreement will commence on the Effective Date and shall continue and shall continue in full force and effect until terminated in accordance with the terms below.
(b) Termination. Either party may terminate this Agreement, or of any SOW entered into pursuant to this Agreement, by giving written notice to the other party and to any Consultants whose work would be terminated as a result, upon the occurrence of any of the following events:
(i) For convenience and without cause with thirty (30) days’ notice; or
(ii) The other party has or may be commencing a voluntary or involuntary bankruptcy, receivership or similar proceeding with respect to such other party.
(c) Effect of Termination. Client may terminate any SOW without terminating the relationship between Client and Worky. In the event of termination of any SOW, Client shall pay Worky for all Services rendered up to the effective date of termination. If Client provides written notice of its termination of the relationship between Client and Worky, all SOWs shall be deemed terminated, and Worky will send to Client a final bill. Client shall pay the invoice within thirty (30) days of receipt.
Client acknowledges that Worky provides a valuable service by sourcing and matching appropriate Talent for Client needs, and so Client agrees not to circumvent this agreement. An “Introduced Consultant” shall mean a Consultant A) who was never an employee of Client prior to the Effective Date of this Agreement, and B) who was introduced to Client by Worky during the term of this Agreement.
During the “Non-Circumvention Period” (as defined below), Client shall not, for any reason whatsoever, directly or indirectly:
The “Non-Circumvention Period” shall be from the Effective Date of this Agreement until the earlier of: A) twelve (12) months after termination of this Agreement; or B) twelve (12) months after Client’s termination of, or ceasing to use the services of, the Introduced Consultant at issue; or C) twelve (12) months following Client’s declining the Introduced Consultant at issue when he or she was offered to Client by Worky.
For avoidance of doubt, this Non-Circumvention provision shall not apply to any Consultant who was not introduced to Client by Worky or its affiliates, or who had previously been an employee of Client.
Client acknowledges that these covenants are essential to protect the business and goodwill of Worky and that these covenants represent reasonable and necessary protection of the legitimate interests of Worky. Client further acknowledges that any breach or threatened breach of these covenants would cause irreparable harm to Worky for which money would not provide adequate remedy. Therefore, in the event of any breach or threatened breach, Client consents to Worky seeking enforcement of this Agreement by injunction, specific performance, or other equitable relief, without bond and without prejudice to any other rights and remedies that Worky may have for breach of this Agreement in law or in equity. Any claim or cause of action that Client may have against Worky shall not be a defense against the enforcement of this Agreement by Worky.
Notwithstanding the other provisions of this Agreement and without prejudice to those provisions, during any time from the introduction of a Consultant to Client by Worky until the expiration of the Non-Circumvention Period, Client may seek to retain or employ an Introduced Consultant directly and without the involvement of Worky, upon payment to Worky of an amount agreed upon between Client and Worky. Client shall contact Worky if Client desires to reach such an agreement.
The Parties agree to hold each other's Proprietary or Confidential Information in strict confidence. The Parties agree not to make each other's Proprietary or Confidential Information available in any form to any third party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement.
“Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, intellectual property in any form, or financial information.
Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process.
Each party's Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief, including injunction without the posting of bond. Notwithstanding termination or expiration of this Agreement, Worky and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
Client and Worky hereby represent and warrant that they each have full power, right and authority to enter into this Agreement and perform their respective obligations thereunder.
Client understands and acknowledges that Worky cannot and will not manage or supervise any Consultant provided by Worky under this Agreement, and such management and supervision is not part of the Services contemplated herein. Worky cannot and does not guaranty or warranty the performance of any Consultant in working for Client. Worky cannot and does not guaranty any particular result, or work product, or the achievement of any milestones or similar deliverables, targets or goals. Client acknowledges this disclaimer of warranty and agrees it is reasonable and fair.
The Consultant provided by Worky shall be treated as an independent contractor by Client. The Consultant shall report to the Client Contact identified by the Client in the applicable SOW. The Client Contact shall provide the Consultant with reasonable information and other guidance concerning the work to be performed, the Client’s expectations for the work, the individuals to be contacted, and the time frame for the work to be completed. The Consultant shall perform such work using such methods as seem appropriate in the professional judgment of the Consultant. Client shall determine in its sole discretion whether Consultant’s performance was satisfactory.
Worky shall make commercially reasonable efforts to supply Consultants suited to Client needs but shall not supply any educational materials, software, technology training or other proprietary material or development, all of which Client shall supply as Client determines necessary or appropriate, in Client’s sole discretion.
Worky makes no representations or warranties of any kind except as expressly provided herein. Worky specifically disclaims all other warranties, including the warranties of merchantability or fitness for a particular purpose, whether express or implied, oral or written. Client’s sole remedy from Worky for any dissatisfaction with a Consultant is obtaining a replacement Consultant.
Although Client may use the Services contemplated under this Agreement to provide a Consultant to a third party, nothing in this Agreement shall be construed to prevent Worky from providing Services directly to any party with whom Worky has an applicable agreement; in such case, Worky may in its sole discretion provide Services to the end user either directly or under this Agreement.
OFAC Compliance: The Parties each represent and warrant that they are not, and to the knowledge of such Party, none of such Party’s respective directors, officers, managers, members, or employees, or those of any of such Party’s subsidiaries, as the case may be, is a person who (a) is directly or indirectly owned or controlled by any person currently included on the List of Specially Designated Nationals (SDN) and Blocked Persons or the Foreign Sanctions Evaders List maintained by the United States Treasury Department’s Office of Foreign Asset Control (OFAC), or (b) is directly or indirectly owned or controlled by any person who is located, organized, or resident in a country or territory that is, or whose government currently is, the target of countrywide or territorial sanctions imposed by any United States government sanctions authority.
FCPA Compliance: The Parties each represent and warrant that neither Party, nor any of their respective directors, officers, managers, members, or employees, or to such Party’s knowledge, agents, contractors, or any others acting on such Party’s behalf, has directly or indirectly made any bribes or other payments in the form of cash, gifts, or otherwise, or taken any other action in violation of the U.S. Foreign Corrupt Practices Act or other applicable anti-bribery or anti-corruption laws.
All intellectual property rights in any work product created by Talent for Client pursuant to the agreements between Client and Worky, or arising out of the Services of the Talent thereunder, will become the property of Client immediately upon Client’s full payment to Worky of all amounts due and owing. Immediately upon such payment, Worky shall and hereby does assign to Client, or its designee, all rights, title and interest of Worky in and to any and all such intellectual property rights throughout the world. Upon such assignment, to the full extent allowable by law, all such property shall constitute “works made for hire” (as such term is defined in 17 U.S.C. § 101), and/or Worky hereby irrevocably assigns, transfers, and conveys (and agrees to assign, transfer, and convey, without further consideration) to Client, on a worldwide and perpetual basis, all right, title, and interest in and to any and all Deliverables (including all intellectual property rights therein). Worky will execute such further documents or take such further actions (at Client’s expense) that may be necessary to register or enforce Client’s intellectual property rights as described herein.
Client takes full responsibility for all information and content that it supplies to Worky, or to Talent pursuant to this agreement, and Client warrants and represents that it has the appropriate property or license rights to use all such information and content in the manner provided.
Worky shall retain any intellectual property rights that it had prior to this agreement, including residual rights, but to the extent any such property is included or embodied in work product created for Client as part of the Services, Worky shall and hereby does grant to Client a royalty-free, perpetual, world-wide license to use such pre-existing rights to the extent necessary to enjoy the benefit of the Services.
(a) Client Indemnity. Client shall indemnify, defend, and hold harmless Worky, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each a “Worky Indemnitee”) from and against any and all Loss incurred by a Worky Indemnitee based upon or arising out of any third-party claim, allegation, demand, suit, or proceeding (each, a “Claim”) made or brought against any Worky Indemnitee with respect to any Claim that relates, in whole or substantial part, to: (i) the inaccuracy of any information supplied by Client or its agents to Worky including, without limitation, information concerning Client’s products and services, the products or services of Client’s competitors or Client’s product or service category; (ii) the use of any materials or data provided or created by Worky and changed by Client or its agents or used in a manner different from that agreed by the parties; (iii) risks or restrictions known by Client where Client nonetheless elected to proceed; (iv) death, personal injury, or product liability (including health and safety) claims or actions arising from the use of Client’s products and services; (v) claims brought by Client’s employees for employment discrimination, other employment or labor disputes, breach of contract, personal injury or other civil law matters, or claims brought by those parties with whom Client has a contractual or supplier relationship; (vi) allegations of patent, trademark or trade dress infringement or any other violation of a patent, trademark or trade dress right; (vii) any material breach of the terms of this Agreement by, or any act of omission of, Client or its agents or employees relating to media commitments made by Worky pursuant to Client’s approval as provided for herein; or (viii) the negligence, gross negligence, bad faith, or intentional or willful misconduct of Client or its employees, agents or Client Affiliates.
(b) Worky Indemnity. Excluding claims covered by subsection (a), Worky shall indemnify, defend, and hold harmless Client, the Client Affiliates, and their respective employees, members, managers, officers, directors, shareholders, and agents (each a “Client Indemnitee”) from and against any and all Loss incurred by a Client Indemnitee based upon or arising out of any Claim made or brought against Client arising out of Worky’s negligence or willful misconduct in connection with the performance of the Services hereunder. Nothing herein shall be interpreted to render Worky liable for claims arising from actions and omissions of Client or any Consultant that are not directly related to actions or omissions of Worky. Nothing herein shall be interpreted to render Worky responsible for the acts and omissions of Consultants.
(c) Third-Party Investigations of Client. In addition, Client shall reimburse Worky for all costs and expenses (including reasonable attorneys’ fees and costs) incurred by Worky resulting from any third-party investigation of the acts or practices of Client including, without limitation, any costs or expenses related to compliance with any third-party subpoena or other discovery request. Should Worky be served with a third-party subpoena in connection with Services it performed for Client, Worky shall promptly advise Client and consult with Client regarding Worky’s response to the subpoena to the extent the subpoena seeks Client data, documents, or information pertaining to Client so that Client may have an opportunity to seek appropriate relief.
(d) Notification of Claims. A party entitled to be indemnified pursuant to this Section (the “Indemnified Party”) shall provide prompt written notice to the party liable for such indemnification (the “Indemnifying Party”) of any claim or demand which the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement. The Indemnifying Party shall promptly undertake to discharge its obligations hereunder. Additionally, the Indemnifying Party shall employ counsel reasonably acceptable to the Indemnified Party to defend any such claim or demand asserted against the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any such claim or demand at its own expense. The Indemnified Party shall cooperate with the Indemnifying Party in any such defense. In addition, the Indemnified Party shall at all times have the right to fully participate in any settlement which it reasonably believes would have an adverse effect on
its business, but the Indemnified Party shall not make any settlement of any Claims that might give rise to liability of the Indemnifying Party without the prior written consent of the Indemnifying Party. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party claim or demand.
(e) LIMITATION OF LIABILITY. EXCLUDING INDEMNIFICATION OBLIGATIONS OR DAMAGES ARISING FROM BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY AND REGARDLESS OF THE CAUSE OF ACTION, NOR SHALL WORKY’S AGGREGATE LIABILITY FOR ANY OTHER DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE REVENUE PAID BY CLIENT TO WORKY IN ACCORDANCE WITH THE APPLICABLE SOW.
This Agreement (including any SOW) and the rights of the Parties hereunder shall be governed by and interpreted in accordance with the internal laws of the State of New York, without regard to its conflict of laws rules or choice of law principles.
In the event any dispute arises between the Parties, they shall first seek to resolve the dispute before a mutually agreed upon mediator, licensed to practice law in the State of New York or any other state that may apply, prior to resorting to arbitration or litigation. Notwithstanding the foregoing, neither Party shall be prohibited from seeking arbitration in the event mediation is unsuccessful in the view of either Party after two (2) sessions (of no less than one hour each) with a mutually agreed upon mediator.
Any controversy or claim arising out of or relating to any provision of this Agreement, or the breach thereof, shall be submitted to arbitration before a single arbitrator in New York, New York, in accordance with the applicable rules, then obtained, of the American Arbitration Association (“AAA”). Nothing in this arbitration provision shall be construed to limit the parties’ rights to seek injunctive or emergency relief if provided for herein.
To the extent this arbitration provision does not apply, then exclusive jurisdiction and venue for any claims made by either party against the other shall be within the state and federal courts located in the State of New York (Supreme Court County of New York or Southern District of New York). In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs from the losing party. The Parties agree that all mediation and arbitration shall be conducted confidentially.
Waiver. The failure of any Party to seek redress for violation of or to insist upon the strict performance of any agreement, covenant or condition of this Agreement shall not constitute a waiver with respect thereto or with respect to any subsequent act.
No Third-Party Beneficiaries. This Agreement is made solely and specifically among and for the benefit of the parties hereto, and their respective successors and assigns and no other person will have any rights, interest, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third -party beneficiary or otherwise
Assignment. Except as may be necessary in the rendition of the Services as provided herein, neither Worky nor Client may assign any part or all of this Agreement without the other party’s prior written consent (which may be by email). Any attempt to assign, subcontract, or delegate in violation of this paragraph is void ab initio in each instance.
Paragraph Headings and Captions. Paragraph headings and captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of this Agreement or any provision thereof.
Severability. Wherever possible each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under any such law, such provision shall be limited to the minimum extent necessary to render the same valid or shall be excised from this Agreement, as the circumstances require, and this Agreement shall be construed as if said provision had been incorporated herein as so limited or as if said provision had not been included herein, as the case may be, and enforced to the maximum extent permitted by law, and the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in order that the transactions contemplated by this Agreement can be consummated as contemplated.
Force Majeure. Neither Client nor Worky shall be liable to the other for any failure, inability, or delay in performing hereunder if caused by any cause beyond the reasonable control of the party so failing, including, without limitation, an Act of God, war, strike, or fire; but due diligence shall be used in curing such cause and in resuming performance.
Independent Contractors; No Partnership or Joint Venture. Client and Worky agree that Worky shall perform its duties under this Agreement as an independent contractor.
Survival. Provisions of this Agreement, the performance of which by either or both Parties, or by their sense and context, are intended to survive, will survive the completion, expiration, termination or cancellation of this Agreement.