This Member Platform Agreement (“Agreement”) is entered into by and between GoodWork Technologies, Inc. (“GoodWork”) and you (“Member” or “you”) for the provision of services through the GoodWork platform in accordance with the following terms and conditions.
1. Term. This Agreement shall commence upon Member’s first use of the Platform and continue in full force until otherwise terminated in accordance with Section 11 (Termination) (the “Term”).
2.1 Platform Access. Subject to the terms and conditions of this Agreement, GoodWork grants to Member a non-exclusive, non-transferable, non-sublicensable subscription to access and use GoodWork’s hosted platform (the “Platform”) and Documentation during the Term. The Platform provides Member with an online portal and associated tools to allow Member to source, sort, communicate with, and bid on and be matched with Projects submitted by persons or organizations (each a “Company”) seeking to engage independent contractors to perform certain Projects. For purposes of this Agreement, “Project” means a discrete set of services defined in a project scope description between Member and the applicable Company on the Platform (a “Project Scope”). If Member is required to install and download software from GoodWork in connection with the Platform, GoodWork grants Member a limited, personal, non-exclusive, non-transferable, non-sublicensable right to use the software solely in support of Member’s authorized use of the Platform, during the Term and in accordance with the provisions of this Agreement.
2.2 Third-Party Services. GoodWork may utilize certain third-party software, technology, or services (“Third-Party Services”) to facilitate and support the Platform, including to process and administer payment and facilitate communication and collaboration between Member and Companies. GoodWork does not control and is not responsible for any third-party software, technology, or services integrated with the Platform or accessed or used by Member in connection with Member’s use of the Platform, including any communication or social media platforms. The ability to use third-party software, technology, or services in connection with the Platform does not imply any endorsement by GoodWork and GoodWork makes no representations or warranties with respect to any third-party software, technology, or services. If Member is required to agree to any third party software licenses or other third party terms and conditions, Member shall be responsible for complying with such third party terms and conditions.
2.3 Restrictions. Member may only use the Platform as described in this Agreement and in the then-current documentation, specifications, and instructions regarding the Platform, including online help screens contained within the Platform, made generally available by GoodWork to its Members and modified from time to time (the “Documentation”). Except as expressly authorized by this Agreement, Member will not (a) permit any third party to access or use the Platform, (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Platform, except to the extent expressly permitted by Applicable Law, (c) use the Platform or any GoodWork Confidential Information to develop a competing product or service, (d) use the Platform, or allow the transfer, transmission, export, or re-export of the Platform or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency, (e) remove, minimize, block, or modify any copyright, trademark, proprietary rights, disclaimer, digital watermark, or warning notice included on or embedded in any part of the Documentation or Platform, including any screen displays, or any other materials provided by GoodWork hereunder, or (f) submit to the Platform, or use the Platform to upload, transfer, or transmit, any information or materials that: (i) infringe or misappropriate any intellectual property, proprietary or privacy, data protection or publicity rights of any third party; (ii) are the confidential or proprietary information of Member; or (iii) violate any applicable local, state, federal and international laws, regulations and conventions. Under no circumstances will GoodWork be liable or responsible for any use, or any results obtained by the use, of the Platform in conjunction with any content, services, software, or hardware that are not provided by GoodWork. All such use will be at Member’s sole risk and liability. GoodWork reserves the right to modify the Platform for any reason, without notice and without liability to Member, to comply with Applicable Law.
2.4 Support. During the Term, GoodWork will provide Member with reasonable email support in connection with Member’s authorized use of the Platform during GoodWork then-current business hours. GoodWork will provide Member with Platform updates and bug fixes that GoodWork in its sole discretion makes generally available to its other similarly situated Members at no charge. However, Member shall not be entitled to receive updates or new releases that include new or different functionality for which GoodWork imposes an additional charge to its Members. New or different functionality may be purchased by Member, in its discretion, at GoodWork then current pricing. GoodWork will use commercially reasonable efforts to correct reproducible failures of the Platform to perform in substantial accordance with the then-current Documentation.
2.5 Availability. GoodWork shall take commercially reasonable measures to ensure the Platform is available for access and use by Member at all times, except during regularly scheduled and emergency maintenance. In the event the Platform is unavailable, GoodWork shall take commercially reasonable measures to correct the interruption as promptly as practicable.
2.6 Member Responsibilities. Member shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Platform, including hardware, software, operating systems, networking, web servers, telecommunication and Internet connections, and the like. Member shall also be responsible for maintaining the security of the foregoing equipment and services and Member’s login information, passwords, and files. Member is responsible for all uses of Member’s account with or without Member’s knowledge or consent and for preserving and making adequate backups of its data.
3. Beta Functionality. GoodWork may designate certain new functionality or services to be made available in connection with the Services as “Beta Functionality.” Beta Functionality will be at an early stage of development and therefore operation and use of the Beta Functionality may be unpredictable and lead to erroneous results. Beta Functionality will not be appropriate for production use. Member acknowledges and agrees that: (a) the Beta Functionality will be experimental and will not have been fully tested; (b) the Beta Functionality may not meet Member’s requirements; (c) the use or operation of the Beta Functionality may not be uninterrupted or error free; and (d) Member’s use of the Beta Functionality will be for purposes of evaluating and testing the new functionality and services and providing feedback to GoodWork. Member’s use of the Beta Functionality will be subject to all of the terms and conditions set forth herein relating to the Services. Member will promptly report any errors, defects, or other deficiencies in the Beta Functionality to GoodWork. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BETA FUNCTIONALITY IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. Member waives any and all claims, now known or later discovered, that Member may have against GoodWork and its suppliers and licensors arising out of Member’s use of the Beta Functionality.
4.1 Bidding on Project Requests; Matching with a Project Team. Companies will solicit work from Members by submitting project requests to the Platform (“Project Requests”). If Member desires to complete the work described in the Project Request, Member may elect to bid on the Project Request by submitting a price for the Project through the Platform. The Platform will analyze Project Requests and bid responses to match Companies with a Member or a curated team of Members (a “Project Team”). If Member is designed by GoodWork to serve as a “Team Lead,” Member may be given the ability to select other GoodWork members for a Project Team, at GoodWork’s discretion. GoodWork may modify or remove a Team Lead designation from Member at any time. If Member is matched to or otherwise selected for a Project Request, either independently or as part of a Project Team, Member and the Company will then work together, and with the Project Team, if applicable, in good faith to develop the applicable Project Scope. Each Project Scope will describe the scope, price, and timeline for the applicable Project and must be approved by both Member and the applicable Company through the Platform. Member shall accept and hereby agrees to be bound by the terms of any Project Scope accepted, booked, or approved by Member through the Platform. By initiating work on any Project, Member agrees to be bound by the terms of the relevant Project Scope. Members and Companies may modify the Project Scope from time to time upon mutual agreement. Member agrees to work in good faith to complete Projects in accordance with the applicable Project Scope, and in accordance with the Policies and this Agreement. Member may communicate with Companies in connection with Projects, including for purposes of developing the applicable Project Scope, ongoing Project management, and submission of deliverables, through the Platform and/or Third-Party Services providing voice, video, and text communication capabilities.
4.2 Project Management. Member will perform Projects in accordance with the applicable Project Scope and in accordance with the Policies and this Agreement. If assigned or otherwise selected to a Project as part of a Project Team, Member may be reassigned or otherwise removed by GoodWork at any time and for any reason. If Member is removed, or leaves a Project, Member waives any right to, and GoodWork will have no obligation to pay to Member, the Project Fees. Performance of the work described in a Project Scope is the sole responsibility of Member, and GoodWork has no obligation to complete Project work, oversee Projects, or monitor the relationships between Member and Companies or among Project Teams. Without limiting the generality of the foregoing, GoodWork may, but is not obligated, to facilitate dispute resolution between Member and Companies and otherwise provide customer service and support to Member in connection with Member’s use of the Platform upon request if Member is not able to resolve any inquiries, issues, or disputes directly with Company.
4.3 Project Performance; Deliverables; Assignment. Member will deliver to relevant Companies all deliverables under a Project by electronic transmission through Third-Party Services. Member hereby covenants and agrees: (i) to execute an assignment agreement with each Company assigning to Company all work product included in or comprising the deliverables originated and prepared for Company by Member pursuant to the relevant Project Scope; (ii) to execute, at a Company’s request and expense, all additional documents and other instruments and do such further acts as are necessary to perfect, register, enforce, or otherwise effectuate such assignment; (iii) that all deliverables provided by Member for any Project, and all work product included therein, shall be the original work of Member alone, shall not include any third party material (except material provided by Companies for the relevant Project), and shall not infringe or misappropriate the patents, copyrights, trademarks, trade secrets, licenses, or other intellectual property, privacy, or rights of any third party; and (iv) if any deliverables or work product therein become subject to or are likely to become subject to any claims alleging infringement or misappropriation of third party intellectual property, to promptly re-perform and redeliver such deliverables to make them non-infringing at no additional cost or expense.
4.4 Companies Performance Companies’ presence on the Platform does not imply any endorsement by GoodWork of the Company or any Project, and GoodWork makes no representations or warranties with respect to any Company or any Project.
4.5 Fees and Payment Terms.
(a) Fees. Company will pay the fees associated with each Project as set forth in the applicable Project Scope (“Project Fees”). Company will pay Project Fees directly to GoodWork, who will then remit the Project Fees to Member upon satisfactory completion of the Project in accordance the applicable Project Scope. For the avoidance of doubt, no amounts to Member hereunder shall become due or payable by GoodWork hereunder until and unless GoodWork has received the applicable payment from Company. All payment schedules set forth in a Project Scope are good faith estimates only and are not binding on GoodWork. GoodWork may occasionally offer promotions or incentives to Member. The availability of promotions or incentives is not guaranteed. Any such promotions or incentives will be made available at GoodWork’s sole discretion and may be discontinued, modified, or withdrawn by GoodWork at any time for any or no reason.
(b) Payment Subject to Section 4.4(c), GoodWork will remit all Project Fees within thirty (30) days of completion of a Project, including delivery of all deliverables to the Company, in accordance and compliance with the applicable Project Scope. All payments under this Agreement will be made and processed using the payment platform provided by Stripe, Inc. (“Stripe”). Stripe is a Third-Party Service. Payment processing services for the Platform provided by Stripe are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or using the Platform, you agree to be bound by the Stripe Services Agreement, as it may be modified by Stripe from time to time. As a condition of GoodWork enabling payment processing services through Stripe, you agree to provide GoodWork accurate and complete information, and you authorize GoodWork to share it and transaction information related to your use of the payment processing services provided by Stripe.
(c) Disputes. GoodWork may, but is not obligated, to delay or withhold remittance of Project Fees to Member pending resolution of any disputes between a Company and an applicable Member or among a Project Team. In accordance with Section 4.2, GoodWork also may, but it is not obligated to, offset payment of Project Fees to Members in order to issue a refund to a Company in connection with the resolution of any such dispute.
4.6 Ratings; No Guarantee of Engagement for Work. Member acknowledges and agrees that its use of the Platform and performance under a Project may be subject to feedback from Companies (each, a “Rating”). Ratings will be made public on the Platform. GoodWork has no control over any Rating given to Member by a Company. Member further acknowledges and agrees that its Ratings may affect, impact, or otherwise influence Companies’ desire to engage Member to perform work or GoodWork’s willingness to match Member with a Project Request, and that being matched with a Project Request, engaged by a Company on the Platform, and continued membership on the Platform are not guaranteed.
5.0 Representations and Warranties
5.1 Member Warranty. Member represents and warrants that: (a) it has full power, capacity, and authority to enter into this Agreement and to grant the licenses set forth herein; (b) the Member Data does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state, or local laws, rules, or regulations (including applicable policies and laws related to spamming, privacy, or consumer protection) (collectively, “Applicable Law”); and (c) its use of the Platform will be in compliance with all Applicable Law.
5.2 GoodWork Warranty. GoodWork represents and warrants that: (a) it has full power, capacity, and authority to enter into this Agreement; (b) the Platform will substantially comply with the Documentation; (c) it shall use commercially reasonable efforts to screen the Platform for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (d) it shall comply with Applicable Law in performing this Agreement. In the event of a breach of the warranty in this Section, GoodWork’s sole and exclusive liability and Member’s sole and exclusive remedy will be for GoodWork to correct the defect in the Platform. In the event GoodWork is unable through reasonable efforts to correct the defect in the Platform within thirty (30) calendar days from receipt of notice from Member of the failure of the Platform to comply with the warranty, Member may elect to terminate this Agreement and its membership to the Platform and, if applicable receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming aspect of the Platform.
5.3 Disclaimer of Warranties.EXCEPT AS PROVIDED IN SECTION 5.2 (GOODWORK WARRANTY), THE PLATFORM IS PROVIDED “AS IS,” “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS PROVIDED IN SECTION 5.2 (GOODWORK WARRANTY), GOODWORK AND ITS VENDORS AND LICENSORS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR NON-INFRINGEMENT. MEMBER EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF THE PLATFORM IS AT MEMBER’S SOLE RISK. GOODWORK DOES NOT WARRANT THAT THE PLATFORM WILL MEET MEMBER’S REQUIREMENTS, OR THAT THE PLATFORM IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE, OR THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED. FURTHERMORE, GOODWORK DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM OR ANY COMMUNICATIONS BETWEEN MEMBER AND ITS CUSTOMERS IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, SECURITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GOODWORK OR GOODWORK’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THE PLATFORM MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. MEMBER ACKNOWLEDGES AND AGREES THAT GOODWORK AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA OR SOFTWARE MAY BE TRANSFERRED OVER THE INTERNET; AND (B) UNAUTHORIZED USERS SUCH AS HACKERS MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE MEMBER’S DATA, WEBSITES, PROPERTIES, COMPUTERS, OR NETWORKS. GOODWORK WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. GOODWORK DOES NOT WARRANT ANY DATA PROVIDED BY GOODWORK OR THROUGH THE PLATFORM WILL BE ACCURATE OR COMPLETE. MEMBER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
6.0 Proprietary Rights; Member Data
6.1 Platform. Member acknowledges and agrees that (a) the Platform is protected by intellectual property rights, as applicable, of GoodWork and its vendors and licensors and that Member has no right to transfer or reproduce the Platform or prepare any derivative works with respect to, or disclose Confidential Information pertaining to, the Platform or any part thereof, and (b) as between the Parties, GoodWork owns all right, title, and interest in and to the Platform, including any changes or modifications made to the Platform, together with any and all ideas, processes, techniques, designs, architecture, user interfaces, and “know-how” embodying the Platform and any expert-developed content contained in or accessible through the Platform. Under no circumstances will Member be deemed to receive title to any portion of the Platform, title to which at all times will vest exclusively in GoodWork. Member will preserve the Platform from any liens, encumbrances, and claims of any individual or entity. Member will not use any GoodWork intellectual property, data, or Confidential Information to contest the validity of any intellectual property rights of GoodWork or its licensors, and any such use of the foregoing will constitute a material, non-curable breach of this Agreement.
6.2 Member Data.
(a) Proprietary Rights.As between Member and GoodWork, but subject to Member’s obligations to assign all rights in Project deliverables to Companies in accordance with Section 4.3, Member shall own all right, title, and interest in and to the information, data, and materials Member loads into the Platform (“Member Data”). Member grants GoodWork a non-exclusive, world-wide, royalty-free license to use, process, and share the Member Data solely for purposes of performing this Agreement. GoodWork has no obligations to backup or preserve Member Data and Member shall retain a copy of Member Data outside the Platform. Member is responsible for obtaining all rights, permissions, and authorizations with respect to the Member Data for use as contemplated under this Agreement. Member shall comply with all intellectual property, marketing laws, advertising laws, privacy laws, and all other laws and regulations related to Member Data and shall comply with all legal duties applicable to Member.
(b) Confidentiality. Member acknowledges and agrees that: (i) the Platform is a communal resource and that Member Data may be accessed and viewed by GoodWork and any Companies engaging, or considering engaging, Member; (ii) GoodWork cannot guarantee the confidential treatment of Member Data by Companies or other third parties; and (iii) Member Data shall not include any information, data, materials, or other content that is proprietary to, or the Confidential Information of, Member.
6.3 Feedback. Member may provide suggestions, comments, or other feedback (collectively, “Feedback”) to GoodWork with respect to its products and services. Feedback is voluntary and GoodWork is not required to hold it in confidence. GoodWork may use Feedback for any purpose without obligation of any kind. GoodWork may use any technical information it derives from providing its products and services relating to problem resolution, troubleshooting, product functionality, enhancements, and fixes, for its knowledge base. To the extent a license is required under Member’s intellectual property rights to make use of the Feedback, Member grants GoodWork an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with GoodWork’s business, including the enhancement of GoodWork’s products and services.
6.4 Usage Data. GoodWork shall have the right to collect, analyze, and aggregate, including through the use of artificial intelligence (AI) technologies, data and other information relating to the provision, use, and performance of various aspects of the Platform and related systems and technologies (including information concerning Member Data and data derived therefrom), and GoodWork may (a) use such information and data to improve and enhance the Platform and for other development, diagnostic, and corrective purposes in connection with the Platform and other GoodWork offerings, and (b) disclose such data solely in aggregated or other de-identified form in connection with its business, provided such data does not include (directly or by inference) any information identifying Member or any identifiable individual. No rights or licenses are granted by either Party except as expressly set forth herein.
6.5 Third Party Data. The Platform and Documentation may contain material, data, or information provided by third parties (“Third-Party Data”). GoodWork does not control Third-Party Data and is not responsible for its content. GoodWork’s inclusion of Third-Party Data in the Platform does not imply any endorsement of the information and GoodWork makes no representations or warranties with respect to any Third-Party Data.
7.1 Confidential Information.Each Party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of GoodWork includes non-public information regarding features, functionality, and performance of the Platform. The Receiving Party agrees: (a) to take reasonable precautions to protect Confidential Information, and (b) not to use (except in provision of the Platform, or as otherwise permitted herein) or divulge to any third person any Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, (iv) was independently developed without use of any Confidential Information of the Disclosing Party, or (v) is required to be disclosed by law, provided such disclosure is made in accordance with Section 7.2 (Compelled Disclosures). For the avoidance of doubt, the confidentiality obligations and restrictions contained herein do not apply to the extent Member provides any data or information to Third-Party Services or to any data or information Member uploads to the Platform. Each Party’s Confidential Information shall remain the sole and exclusive property of that Party.
7.2 Compelled Disclosures.To the extent required by Applicable Law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with the law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of the law, order or requirement and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
7.3 Non-Exclusive Equitable Remedy. Each Party acknowledges and agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a Party or third parties to unfairly compete with the other Party resulting in irreparable harm to such Party, and therefore, that upon any such breach or any threat thereof, each Party will be entitled to appropriate equitable remedies, and may seek injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity. Any breach of this Section 7 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching Party.
7.4 Confidentiality of the Agreement. Except as permitted under Section 7.2 (Compelled Disclosure) above, no Party shall disclose the existence or terms of this Agreement to any third party without the other Party’s prior written consent, except that subject to confidentiality obligations no less restrictive than those set forth in this Agreement, a Party may disclose the existence and terms of this Agreement to third parties for purposes of providing due diligence information to potential investors in or financing resources to such Party.
7.5 Return or Destruction of Confidential Information. Upon termination or expiration of this Agreement, at the Disclosing Party’s option, the Receiving Party shall return to the Disclosing Party or certify as destroyed all Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on Receiving Party by law or regulation.
7.6 Confidentiality of Company Data Member shall treat any data, information, content, or other materials provided by Companies to Member through the Platform or otherwise in connection with a Project (“Company Data”) as confidential. Member agrees: (a) to take reasonable precautions to protect such Company Data, and (b) not to use (except in provision of the Project, or as otherwise permitted by the applicable Company) or disclose any such Company Data to any third party.
8.1 In General. GoodWork will maintain and enforce safety and physical security procedures with respect to the Platform that are (a) at least equal to industry standards for substantially similar services, and (b) which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of or access to information or systems.
8.2 Security Incident. GoodWork shall notify Member of any confirmed unauthorized access to or use of any Member Confidential Information by an unauthorized third party within seventy-two (72) hours following discovery or notification, if the information was, or is reasonably believed to have been acquired by an unauthorized person.
9.1 By GoodWork.GoodWork agrees to defend, indemnify, and hold harmless Member from and against any claim, action, investigation, proceeding, liability, loss, damage, fine, cost, or expense, including attorneys’ fees, experts’ fees, and court costs, arising out of any claim by a third party that Member’s authorized use of the Platform infringes that third party’s United States copyright, trade secret, or other intellectual property rights. Member shall: (a) give GoodWork prompt written notice of any claim; and (b) allow GoodWork to control, and fully cooperate with GoodWork (at GoodWork’s sole expense) in, the defense and all related negotiations. GoodWork shall not enter into any stipulated judgment or settlement that purports to bind Member without Member’s express written authorization, which shall not be unreasonably withheld or delayed. GoodWork shall have no obligation to indemnify Member to the extent the claimed infringement arises from or is based on (i) the Member Data, (ii) specifications, work product, or deliverables provided by Member or its agents, (iii) use of the Platform in combination with any hardware, software, products, data, or other materials not provided by GoodWork, (iv) violation of law or this Agreement by Member, or (v) misuse of the Platform (the “Excluded Claims”). Member agrees that if its use of the Platform becomes, or in GoodWork’s opinion is likely to become, the subject of an infringement claim, Member shall permit GoodWork either to procure the right for Member to continue to use the Platform or to replace or modify the Platform with technology of comparable quality and performance capabilities to become non-infringing. If in GoodWork’s sole discretion, neither alternative is reasonably possible, GoodWork may elect to immediately terminate this Agreement and, if applicable, return a prorated portion of any pre-paid, unused fees for the Platform. The provisions of this Section 9.1 (By GoodWork) state the sole and exclusive obligations and liability of GoodWork and its licensors and suppliers, and Member’s sole and exclusive remedy for any claim of intellectual property infringement arising out of or relating to this Agreement, and are in lieu of any implied warranties of non-infringement and title, all of which are expressly disclaimed.
9.2 By Member. Member agrees to defend, indemnify, and hold harmless GoodWork and its directors, officers, agents, employees, Companies, subsidiaries, and successors in interest from and against any claim, action, investigation, proceeding, liability, loss, damage, fine, cost, or expense, including attorneys’ fees, experts’ fees, and court costs, arising out of (a) any claim by a third party that the Member Data or any Member deliverables or other work product provided or created under a Project infringes the intellectual property, publicity, privacy, or other rights of any person, (b) any claim by a Company arising under or related to a Project Scope or the Member Terms, or (c) the Excluded Claims. GoodWork shall: (i) give Member prompt written notice of any claim; and (ii) allow Member to control, and fully cooperate with Member (at Member’s sole expense) in, the defense and all related negotiations. Member shall not enter into any stipulated judgment or settlement that purports to bind GoodWork without GoodWork’s express written authorization, which shall not be unreasonably withheld or delayed.
10. Disclaimer of Consequential Damages; Limitation of Liability.IN NO EVENT SHALL GOODWORK, ITS VENDORS, OR LICENSORS BE LIABLE TO MEMBER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF SALES, TRADING LOSSES, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION, OR OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE ARISING OUT OF OR CONNECTED IN ANY WAY WITH GOODWORK’S PERFORMANCE UNDER THIS AGREEMENT, OR USE OF OR INABILITY TO USE THE PLATFORM, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF GOODWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF GOODWORK AND ITS VENDORS AND LICENSORS TO MEMBER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE PLATFORM IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), SHALL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID TO MEMBER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
11.1 Termination for Cause. Each Party shall have the right to terminate this Agreement upon fifteen (15) days’ written notice (or without notice in the case of nonpayment) in the event the other Party materially breaches any provision hereof. Either Party may terminate this Agreement, with or without cause, upon sixty (60) days prior written notice. This Agreement may be terminated upon written notice by either party, immediately, if (a) a receiver is appointed for the other party or its property, (b) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business, makes a general assignment for the benefit of its creditors, or suspends the transaction of its business for a period in excess of thirty (30) days, or (c) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) calendar days from the date of commencement thereof.
11.2 Suspension. GoodWork may, in its sole discretion, immediately suspend or terminate Member’s access to the Platform at any time for any or no reason. GoodWork will use reasonable efforts to provide Member with notice prior to or promptly following any suspension. GoodWork may elect to restore access to the Platform if an event giving rise to suspension is resolved. This Section will not be construed as imposing any obligation or duty on GoodWork to monitor use of the Platform.
11.3 Effect of Termination. Upon termination of this Agreement for any reason: (a) Member’s access to and use of the Platform and Documentation will cease as of the effective date of termination; and (b) GoodWork will cease to provide the Platform to Member. Subject to resolution of any disputes related to Companies, the Platform, or Member performance, following termination, GoodWork will pay to Member all fees due to Member, in accordance with this Agreement, earned hereunder through the effective date of termination.
11.4 Survival. The following Sections shall survive any termination or expiration of this Agreement: 4 (Projects); 5.3 (Disclaimer of Warranties); 6 (Proprietary Rights; Member Data); 7 (Confidentiality); 9 (Indemnification); 10 (Disclaimer of Consequential Damages; Limitation of Liability); 11.3 (Effect of Termination); 11.4 (Survival); and 12 (General).
12.1 Insurance. Each Party, at its sole cost and expense, shall maintain appropriate insurance in accordance with industry standards. As evidence of insurance coverage, upon the other Party’s reasonable request, each Party shall deliver certificates of insurance issued by its insurance carrier showing such policies in force during the Term of this Agreement.
12.2 Affiliates, Subcontractors, and Vendors. Some or all aspects of the Platform, including support, may be provided by GoodWork’s affiliates, agents, subcontractors, and information system vendors. The rights and obligations of GoodWork may be, in whole or in part, exercised or fulfilled by the foregoing entities.
12.3 Publicity. Member hereby grants GoodWork a non-exclusive, world-wide, royalty-free license to use Member’s name(s), logo(s), and sample work product and portfolios in its member listings, web sites, and other promotional materials to identify Member as a member of GoodWork.
12.4 Independent Contractor. The Parties hereto are independent contractors. Members are not agents or employees of, and have no authority to bind, GoodWork by contract or otherwise. Further, it is not the intention of this Agreement or of the Parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.
12.5 Assignment. Member may not assign, transfer, or delegate its rights or obligations under this Agreement without the prior written consent of GoodWork. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties, their successors, assigns, and legal representatives.
12.6 Force Majeure. Except for the payment of fees hereunder, if either Party cannot perform any of its obligations because of any act of God, court order, war, riot, pandemic, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, or any other cause not within the Party’s reasonable control and could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing Party will: (a) immediately notify the other Party; (b) take reasonable steps to resume performance as soon as possible; and (c) not be considered in breach during the duration of the Force Majeure Event.
12.7 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions. The Parties waives any objections against and agrees to submit to the exclusive personal jurisdiction of the state and federal courts in New York City, New York. The Parties waive any objections or defenses it may have based upon an inconvenient forum.
12.8 Waivers. All waivers hereunder must be made in writing by a duly authorized representative of the Party against whom the waiver is to operate, and failure at any time to require the other Party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. Any waiver, in whole or in part, of any provision of this Agreement will not be considered to be a waiver of any other provision.
12.9 Severability. If any term of this Agreement is found to be unenforceable or invalid for any reason, all other terms will remain in full force and effect.
12.10 Construction. All headings used in this Agreement are for reference purposes only and are not part of this Agreement. All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection or other subpart. The words “include,” “includes,” “included,” “including,” “without limitation,” or the phrase “e.g.” shall not be construed as terms of limitation and shall, in all instances, be interpreted as meaning “including, but not limited to.”
12.11 Entire Agreement. This Agreement, as to its subject matter, exclusively and completely states the rights, duties, and obligations of the Parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions, and understandings by or between the Parties. This Agreement may only be amended in a writing signed by both Parties.
12.12 Notices. All notices under this Agreement will be in writing (including by email) and will be deemed to have been duly given when received, including when receipt is electronically confirmed. All notices under this Agreement to GoodWork at the following addresses:
GoodWork Technologies, Inc.
One Liberty Plaza, Floor 3
New York, NY 10006
Notices to Member may be posted electronically to the Platform or sent to Member at the email and/or mailing address that GoodWork has on file. GoodWork may change its address for notification purposes by notice to Member; Member may change its address to notification purposes by updating its account profile in the Platform.
12.13 Legal Fees. If any dispute arises between the Parties with respect to the matters covered by this Agreement that leads to a proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
12.14 Electronic Signatures. This Agreement and related documents may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and Member’s acceptance will be deemed binding between the Parties. Member acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Member further acknowledges and agrees that it will not contest the validity or enforceability of a signed electronically transmitted copy of this Agreement and related documents on the basis that it lacks an original handwritten signature. Electronically transmitted signatures shall be considered valid signatures as of the date hereof. Computer maintained records of a Party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.