1.1 “Confidential Information” means any and all technical and non-technical information disclosed by a party, in writing or orally, to the other party during the term of this Agreement that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. Confidential information may include, without limitation, trade secrets, inventions, ideas, processes, computer source and object code, formulas, data, programs, know-how, improvements, discoveries, developments, designs, and techniques, information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, employees, and customers.
1.2 “Customer Materials” means any information, content, concepts, data and materials provided to Work Wider by or on behalf of Customer for the performance of Services.
1.3 “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
1.4 “Work Wider IP” means all: (a) Work Wider Confidential Information; (b) software, methodologies, tools, specifications, concepts, techniques, documentation and/or data utilized by Work Wider in the performance of Services, which has been created, originated, acquired, obtained or developed by Work Wider, its affiliates or by third parties either prior to the commencement of Services or outside of the scope of Services; and (c) any and all additions, enhancements, improvements or other modifications to any of the foregoing, whether or not made during the performance of Services and only to the extent they do not include Customer Materials or Customer Confidential Information.
Work Wider will use reasonable efforts to perform the services set forth in an Order Form (“Services”) for the benefit of Customer. Work Wider’s ongoing performance of Services is contingent upon Customer’s prompt and timely payment of the Fees (as defined below), as and when due and payable.
3. FEES AND PAYMENTS
3.1 Fees. Customer will pay to Work Wider the fees set forth in the applicable Order Form (“Fees”). Payment obligations are non-cancelable and all Fees are nonrefundable.
3.2 Payment. Except as otherwise expressly set forth in an Order Form, all payments must be made within thirty (30) days of Customer’s receipt of a written invoice therefor. Customer must notify Work Wider in writing of any dispute or disagreement with invoiced charges within thirty (30) days after the date of the disputed invoice. Absent such notice, Customer shall be deemed to have agreed to the charges as invoiced after the expiration of such time period.
3.3 Late Fees. Work Wider reserves the right to charge a late fee equal to 1.5% per month, or the maximum allowed by applicable law, whichever is less, on unpaid Fees and expenses owed and outstanding more than seven (7) calendar days after the due date therefor until such amounts are paid in full and/or may suspend its performance of the Services until such time, without penalty or liability to Customer. In addition, for amounts unpaid and outstanding for more than sixty (60) days following such due date, Customer shall be responsible for, and agrees to pay, reasonable costs and expenses of collection, including, but not limited to, court and attorneys’ fees and expenses.
3.4 Taxes. Fees are exclusive of any taxes that may be due in connection with the Services and Customer shall be solely responsible for any government taxes, charges and levies. If any Services, or payments for any Services are subject to any Sales Tax in any jurisdiction and Customer has not remitted such Sales Tax to Work Wider, Customer will be solely responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and will indemnify Work Wider for any liability or expense Work Wider may incur in connection with such Sales Tax. Upon Work Wider’ request, Customer will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that Customer has paid all applicable taxes.
3.5 Expenses. Customer shall reimburse Work Wider for any actual, reasonable, documented out-of-pocket third-party costs and expenses incurred in connection with performance of Services.
4.1 Customer Materials. Work Wider acknowledges and agrees that, as between Work Wider and Customer, Customer is, and shall remain, the sole and exclusive owner of all rights, title and interests in and to Customer Confidential Information and the Customer Materials; provided, however, that Customer hereby grants to Work Wider a non-exclusive, worldwide, fully-paid up license to use, reproduce and display the Customer Materials solely in connection with Work Wider’s performance of Services.
4.2 Work Wider IP. Customer acknowledges and agrees that, as between Work Wider and Customer, Work Wider is, and shall remain, the sole and exclusive owner of all rights, title and interests in and to the Work Wider Confidential Information and Work Wider IP.
5.1 Mutual Confidentiality Obligations. Each party agrees (i) to use the other party’s Confidential Information only for the purposes described herein; (ii) not to reproduce the other party’s Confidential Information and to use no less than reasonable efforts to hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) to restrict access to the other party’s Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (iv) to return or destroy all Confidential Information of the other party in its possession upon termination or expiration of this Agreement.
5.3 Confidentiality Exceptions. The provisions of Section 5.1 shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction. In addition, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.
6. REPRESENTATIONS AND WARRANTIES
6.1 Mutual. Each party represents and warrants to the other party that: (i) it is a validly existing business entity, duly licensed and qualified to carry on its business/operations and perform its obligations under this Agreement; (ii) it will comply with all applicable laws in the performance of its obligations hereunder; and (iii) its performance under the Agreement does not and will not violate or cause a breach of the terms of any other agreement to which it is a party.
6.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, WORK WIDER PROVIDES THE SERVICES “AS IS” AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER SUCH WARRANTY BE STATUTORY, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY FROM COURSE OF DEALING OR USAGE OF TRADE. WORK WIDER DOES NOT WARRANT THAT THE SERVICES WILL BE SECURE, ERROR-FREE OR PERFORM UNINTERRUPTED.
7. LIMITATION OF LIABILITY
7.1 LIMITATIONS. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 CAP. THE CUMULATIVE LIABILITY OF WORK WIDER TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO WORK WIDER BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE UNDER THE APPLICABLE ORDER FORM. THE LIMITATIONS OF LIABILITY IN THIS SECTION 7.2 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.3 Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
8.1 By Work Wider. Work Wider will indemnify, defend and hold Customer harmless from and against any and all claims, losses, damages, actions, liabilities and costs (including reasonable attorneys’ fees) arising out of a third-party claim that the Services infringe or misappropriate such third party’s intellectual property rights; provided that Work Wider shall have no liability or obligation to Customer hereunder with respect to any claim based upon (a) Work Wider’s compliance with specific instructions or specifications of Customer; or (b) modifications, alterations, combinations or enhancements of the Services not created or specified by Work Wider; or (c) use of the Services for which the Services was not designed or contemplated or licensed, if the claim of infringement would have been avoided by use of the Services in an application or environment or on a platform with devices for which the Services was designed or contemplated or licensed (collectively, “Excluded Claims”). Upon the occurrence of a claim for which indemnity is or may be due under this Section 8.1, or in the event that Work Wider believes that such a claim is likely, Work Wider may, at its option (a) modify the Services so that they become non-infringing, or substitute functionally equivalent software or services; (b) procure the rights to use such infringing component(s); or (c) terminate this Agreement on written notice to Customer and refund to Customer any prepaid but unused fees.
8.2 Indemnification by Customer. Customer will indemnify, defend and hold Work Wider harmless, from and against any and all claims, losses, damages, actions, liabilities and costs (including reasonable attorneys’ fees) arising out of a third-party claim relating to or arising out of (a) any Excluded Claims; (b) the Customer Materials; or (c) Customer’s use of Services in breach of this Agreement.
8.3 Procedures. The indemnification obligations set forth above are conditioned on the indemnified party: (i) promptly notifying the indemnifying party of any claim which may be subject to an indemnification obligation; (ii) granting the indemnifying party sole control over the defense and/or settlement of any such claim; and (iii) assisting the indemnifying party as reasonably requested and at the indemnifying party’s sole expense. Notwithstanding the foregoing, the indemnifying party shall not settle any third-party claim against the indemnified party unless the indemnified party provides its prior written consent to such settlement.
9. TERM AND TERMINATION
9.1 Term. The term of this Agreement shall commence upon execution of the first Order Form and shall continue in effect until all Order Forms have expired or been terminated, unless otherwise terminated as provided herein. In the event an Order Form does not specify a termination date, its term shall expire upon completion of Services covered by such Order Form.
9.2 Termination for Breach. Either party may terminate this Agreement or any individual Order Form immediately upon written notice in the event that the other party materially breaches this Agreement or the applicable Order Form and fails to cure such breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating party) within thirty (30) days after receiving written notice thereof.
9.3 Effect of Termination. Upon any termination or expiration of this Agreement: (i) Work Wider shall deliver to Customer a final invoice of all Fees and expenses owed and outstanding as of such termination date, which will be immediately due and payable; and (ii) each party shall return to the other party or destroy, as instructed by such other party, all of such other party’s Confidential Information. Further, if Work Wider terminates this Agreement pursuant to Section 9.2 above, all licenses granted by Work Wider shall terminate as of the effective termination date of this Agreement and Work Wider reserves the right to retain any and all prepaid Fees. Any termination or expiration of this Agreement automatically shall terminate all open Order Forms as of the date of such termination.
9.4 Survival of Obligations. The provisions of Sections 4 through 10, as well as Customer’s obligations to pay any amounts due and outstanding hereunder, shall survive any termination or expiration of this Agreement.
10.2 Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with, and shall be governed by, the laws of the State of California, without giving effect to its rules regarding conflicts of laws. Each party agrees that any and all causes of action between the parties arising from or in relation to this Agreement shall be brought exclusively in the state and federal courts located in San Francisco, CA.
10.3 Force Majeure. Work Wider will be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Work Wider. Any delay resulting from any of such causes will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
10.4 Notices. All notices required by or relating to this Agreement will be in writing and will be sent to the parties to the Agreement at the addresses and/or e-mail addresses set forth on the Order Form or otherwise exchanged between authorized representatives of the parties.
10.5 Assignment. Neither party may assign any of its rights or obligations hereunder without the other party’s prior written consent and any purported assignment in violation of the foregoing shall be void and without effect; provided, however, either party may assign this Agreement in its entirety, without the other party’s consent in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets.
10.6 Independent Contractors. The parties acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the parties are acting as independent contractors in making and performing this Agreement.
10.7 Amendments. No amendment to this Agreement will be valid unless such amendment is made in writing and is signed by the authorized representatives of the parties.
10.8 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
10.9 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
10.11 Counterparts; Headings. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
10.12 Publicity. Customer hereby grants Work Wider a non-exclusive license during the term of this Agreement to use Customer’s name, logo and other trademarks or service marks on Work Wider’s customer lists and informational materials and as otherwise necessary to perform Work Wider’s obligations under this Agreement.