Welcome to the WorkRails application (the “WorkRails Application”), a matching service and venue operated by WorkRails, Inc. (hereafter “us” “we” “our” or “WorkRails”) connecting individuals or entities (“Clients”) with one or more independent contractors (“Consultants”) to provide assistance with software, websites, products and/or applications (“Software”). Our matching service is made accessible through our own websites and applications and the websites and applications of our business partners, who may be providers or distributors of Software or other third parties with whom we have business relationships (“Business Partners”). These Terms of Use (the “Agreement”) binds you or the entity you represent (“you” or “your”) to the terms and conditions set forth herein when you register or when you use or access our WorkRails Application, software, sites, materials, products, tools and other offerings (collectively, the “Services”). If you wish to use our Services, you must read, comply with and agree to be bound by the terms of this Agreement. If you object to anything in this Agreement, do not use our Services.

1. Acceptance of Terms of Use Agreement

This Agreement is an electronic contract that sets out the legally binding terms of your use of our Services, whether or not you register as a “Client” or “Consultant” or “Business Partner” (each may be referred to as a “Participant”) or access our Services, but do not register as a Participant (“Other User”). This Agreement includes our Privacy Policy, and any further terms of use for our Services, which are all incorporated herein by reference. This Agreement may be modified by us from time to time, such modifications to be effective upon posting within our Services. You have the right to receive this Agreement in non-electronic form, either before or after you electronically sign the Agreement, by printing a copy hereof.

2. How the Service Works

We are an online matching service and venue for Clients and Consultants. When you wish to engage a Consultant for assistance with one or more aspects of particular Software, you must first become a registered Client through our Services. We will then connect you with an available Consultant that represents that Consultant has expertise in such area(s). You may interact with the Consultant free of charge to decide whether you wish to engage the Consultant. During this time, we recommend that you communicate with the Consultant about his or her area of expertise, the number of hours expected to complete the consulting services and any other matters that you choose to inform your decision about whether to engage the Consultant. If you do decide to engage the Consultant and you and the Consultant agree on a statement of work for the consulting services to be provided (“Statement of Work”), you and the Consultant will then enter into an agreement for consulting services (“Consulting Services”), including a Statement of Work (“Consulting Contract”), through our Services. The Statement of Work will include a scope of work, budget and, if applicable, deliverables (“Deliverables”), and a delivery schedule for such Deliverables. The Client and Consultant each signify their agreement to the Statement for Work by clicking the “Agree” button on their respective dashboards. Thereafter, the Consulting Services will continue on a paid basis. The Client and Consultant may wish to enter into a series of Consulting Contracts for various phases of a consulting project or, when the Services allow, signify criteria for progress payments (“Milestones”).

While we match the Consultant to the Client’s request, we do not endorse, hire or employ any Consultant. Clients engage the Consultants directly through our Services and the Consulting Contract is solely between the Client and the Consultant. We are not a party to the Consulting Contract. We merely facilitate the mechanics of the contracting and consulting functions and, as payment agent for the Consultant, payment for the Consulting Services. Neither we nor the Business Partners are responsible or liable in any way for the Consultant or the Consulting Services, or any content of the Consulting Services, or any interactions between Consultants and Clients. Our Services, the provision of the Software and the products, goods and services of the Business Partners are separate and distinct from the services of the Consultant.

For Consultants, we offer various hosted products and tools to support your Consulting Services business, including contracting, scheduling, billing and communication tools. You alone are responsible for the content of your Consulting Services, the performance of your obligations under your Consulting Contracts and all of your interactions with Clients. You represent and warrant to us, Clients and Business Partners that that you have the required skill, qualifications and expertise to provide assistance to Clients for any Consulting Services for which you are engaged. You acknowledge and agree that if you and the Client do not both click “Agree” on your respective Dashboards, or if you do not deliver agreed upon Consulting Services as described in the Statement of Work or if the Client disputes the completion or performance by you of the Consulting Services or Milestones as set forth in Section 5, you will not be paid for those Consulting Services or Milestones.

We are not responsible or liable in any way for interactions between Participants. We do not offer legal, technical, financial or any other kind of advice or professional services. We do not guarantee that these Terms of Use protect you legally or sufficiently in respect to the Consulting Services or any other interactions between Participants. You are invited to seek the advice of a qualified legal professional before agreeing to these Terms of Use. If you do not agree, do not register for our Service or become a Participant.

We reserve the right to offer new products and services through the Services, discontinue any product or Services at will and to restrict any or all of our Services to Participants. If a particular Consultant, product or Service is discontinued or unavailable, we reserve the right to provide a substitute Consultant, product or Service.

3. Eligibility for Participation.

Participation in or use of our Services is void where prohibited. Any access to or use of our Services by anyone under the age of 21 is expressly prohibited. By using our Services, you represent and warrant to us that you are 21 years of age or older. If you use our Services on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. By using our Services, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.

4. Participation

You may access and use some of our Services without becoming a Participant and/or at no direct cost. However, in order to access additional features and Services, including the ability to book or provide Consulting Services, or to make the Services accessible through your Software, website or other application, you must become and remain a registered Participant (“Participation”). To become a Participant, you agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete throughout your use of the Services. A Participant may not have more than one active account. As a Participant, you must comply with this Agreement, including the terms set forth in Section 8 applying to anyone using our Services, at all times during the term of this Agreement. We reserve the right to suspend or terminate your account and your access to our Services for any reason.

a. Clients.

As a Client, you will have the ability to book and pay for Consulting Services, manage your Consulting Services schedule, communicate with Consultants, receive your Consulting Services, access help documents and use any other Services provided to Clients. You represent, warrant and agree to us and the Consultants you engage, that you shall: (a) register a valid credit card or debit card to pay for your Consulting Services (“Payment Card”), (b) pay us, as the Consultant’s payment agent, for all Consulting Services upon completion of the Consulting Services or, if applicable, Milestones, through our charge to your Payment Card, (c) work directly with us if you would like to change Consultants, (d) you will not instruct the Consultant to perform any action that violates applicable law, rule or regulation (“Applicable Law”), infringe any third party’s intellectual property rights or cause harm any third party and you will not use the Work Product (as defined in Section 7) for any illegal purpose. Through our Services, you will be able to: (i) manage your account status through our Services, including registering any new Payment Card you wish to use to pay for your Consulting Services, and (ii) manage all scheduling directly with the Consultant you engage through our Services, negotiate and agree to a Statement of Work with the Consultant, and (iii) engage with Consultants through our Services, including receiving your Consulting Services. Clients are responsible for paying any and all taxes attributable to the Consulting Services, except for our and the applicable Consultants’ income taxes.

In connection with your Consulting Services, you may grant the Consultant remote access to your computer. You do so at your own peril and we advise you to use a reputable remote access service. We are not responsible for any consequences arising from such remote access.

You may also register your company as a Client. You represent and warrant that you are authorized to enter into this Agreement on behalf of your company and, that upon doing so, it will form an agreement binding on your company. WorkRails has the right to use your company logo in its marketing materials.

If the Consultant does not perform some or all of the Consulting Services, as set forth herein, we will attempt to resolve the dispute as set forth in Section 5, but we will not be responsible for Consultant’s failure to perform its obligations under the Consulting Contract.

b. Consultants.

You must be at least twenty one (21) years old to be a Consultant. As a Consultant, you will have access to tools that enable you to manage contracting with Clients, scheduling and billing for your Consulting Services, communication with Clients, including providing the Consulting Services, and receiving payment for Consulting Services (the “Tools”). Acceptance of your Participation is at our sole discretion and we may terminate your participation at any time for any reason. For each of your Consulting Contracts, you represent, warrant and promise to us and to the Client that engages you for such Consulting Services that: (a) you have the proper skill, training, background and ability to perform the Consulting Services in a competent and professional manner, (b) such Consulting Services will be performed in accordance with applicable standards and any Applicable Law and the Work Product will not infringe any third party intellectual property right, violate the rights of or cause harm to any third party or contain any Harmful Code (as defined in Section 8.c), (c) such Consulting Services will not cause you to breach any agreements you have entered into with anyone, including this Agreement, (d) you will honor all terms and conditions of the Consulting Contract and you will render the Consulting Services at the rate established by us or the applicable Business Partner at the time of booking, (e) you will comply with all terms and conditions of the these Terms of Use and any other additional Consultant policies in effect at the time of booking and provided or made accessible to you prior to agreeing to the Consulting Contract, and (f) you will provide the Consulting Services solely through electronic means (e.g., our Services, phone, Skype, Facetime or similar means) and will observe all anti-harassment and non-discrimination laws in the performance of your Consulting Services. Additional terms and conditions of service may be contained within your Consultant account. You shall not (i) access any Client’s computer except with a reputable remote access service and with express permission of such Client, (b) access any areas of the Client’s computer for which you do not have the Client’s express permission or areas that you do not need to access in connection with the Consulting Services, (c) collect or store any information from a Client’s computer, or (d) modify any setting or material on the Client’s computer without such Client’s express permission. All information to which you have access through remote access shall be deemed to be the Client’s Confidential Information.

Your relationship with us is that of an independent contractor, and nothing in these Terms of Use or any other agreement is intended to, or shall be construed to create a partnership, agency, joint venture, employment or similar relationship between you and us or between you and any other Participant. You are not authorized to make any representation, contract, or commitment on behalf of us and/or any Business Partner unless specifically requested or authorized by us or them in writing to do so. You are not entitled to any of the benefits that we or any other Participant may make available to our or their respective employees, such as group health or life insurance, profit-sharing or retirement benefits.

You designate us your payment agent for the Consulting Services you provide and, in that capacity, we will use commercially reasonable efforts to collect the amounts due to you for completion of Consulting Services or Milestones. You understand and agree that in certain instances specified in Section 5, you will not paid for your Consulting Services. If the Client does not pay for your Consulting Services for any other reason, we will not be able, nor shall we be responsible for, paying you for your Consulting Services. For each potential engagement with a Client, You will see (i) the rate for Consulting Fees (“Consulting Services Rate”), which is the rate that is set and to which you and the Client agree in the Statement of Work, and (ii) the rate we pay you (“Pay Rate”) after we deduct our service fees for use of our Services, including our services as payment agent (“Service Fees”). Consulting Services Rates and Pay Rates are algorithmically calculated based on market supply and demand. You will have the opportunity to review the Consulting Services Rate and the Pay Rate and make a business decision to accept them. You are not obligated to accept any engagement with Clients. If the Client pays us for your Consulting Services and you are in good standing under this Agreement, we will remit the compensation due to you based on the Pay Rate (“Consultant Compensation”) by direct deposit to the bank account or payment method you have registered online with us. No part of your Consulting Fees will be subject to withholding by us for the payment of any social security, federal, state or any other employee payroll taxes. We will regularly report amounts Clients pay you based on the Consulting Services Rate (“Consulting Fees”) by filing Form 1099MISC with the Internal Revenue Service as required by law. You are solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to your performance of the Consulting Services and your receipt of Consulting Fees.

You may also register your company as a Consultant. You represent and warrant that you are authorized to enter into this Agreement on behalf of your company and that, upon doing so, it will form an agreement binding agreement on your company.

c. Business Partners.

If you are accepted as a Business Partner, which includes Software providers, Software distributors, or other potential business partners of our service, you may place a button provided by us on or within your Software, application or website (“Button”). In return, we will pay you a percentage amount mutually agreed to by you and us of the Service Fees we are actually paid by the Consultant for the Consulting Services that are generated as a result of a Client being referred to our Services by pressing such Button (“Business Partner Compensation”). You may also have the ability to set the hourly consultation fee for all Consulting Services occurring through our Service as a result of a Client clicking on such Button. You are responsible for paying any and all taxes attributable to your Business Partner Compensation, except for our income taxes.

d. Independent Contractor Status.

Our Services are separate and distinct from the services of all Participants. You acknowledge that (i) WorkRails is not an employer or employee of any Participant, and (ii) no Participant is an employer or employee of any other Participant. Rather, WorkRails and all Participants are strictly independent contractors who operate separate and distinct businesses from each other. As such, we do not endorse or control any Participant, the manner or method of Consulting Services, do not exercise control over the Participant’s working relationship with other Participants and do not warrant your safety, the Consulting Services of any Consultant or that Clients will pay for Consulting Services. We urge all Participants and Other Users of our Services to be responsible and careful about their use of our Services, any transaction entered into as a result of our Services and interactions with other Participants.

e. Contact with Us.

In the event any Participant or Other User wishes to contact us for any reason relating to this Agreement, such Participant or Other User may contact us at support@workrails.com.

f. Account Security.

You are responsible for maintaining the confidentiality of your username and password. You shall not disclose your password to any unauthorized third party and will take sole responsibility for any activities or actions under your account, whether or not you have authorized such activities or actions. You agree to (a) immediately notify us of any unauthorized use of your username or password or any other breach of security, and (b) ensure that you exit from your account and our Services at the end of each session. We will not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. If you share your computer with others, you may wish to consider disabling any auto-sign in features if linked to your account.

g. No Non-Permitted Participation.

Participation is only with our permission, which may be revoked at any time, for any reason, in our sole discretion.

h. General Disclaimers on Participation.

We cannot guarantee that each Participant is at least the required minimum age, nor do we accept responsibility or liability for any content, communication or other use or access of our Services by persons under the age of majority in violation of this Agreement. We disclaim all, and assume no responsibility for, evaluating or verifying the accuracy, suitability, truthfulness or authenticity of any information provided by any Participant. We assume no responsibility for ensuring a Participant’s compliance with any applicable laws, rules and regulations or this Agreement. We are not responsible for the conduct, whether online or offline, of any Participant or Other User of our Services. Under no circumstances will we or any of our employees, officers, agents, advertisers or affiliates be responsible or liable for any loss or damage, including personal injury or death, resulting from anyone's use of the Services, the products, goods or services of any Participant, any content posted on our Services or transmitted to Participants that is not by or from us, or any interactions between Participants or Other Users of our Services, whether online or offline. We cannot guarantee and do not promise any specific results from use of our Services. Consulting Services require Clients and Consultants to have a specified device and a sustained and reliable Internet connection.

i. Termination of Participation.

You may terminate your Participation at any time, for any reason, by cancelling your account within your account profile. To help us analyze and improve our Services, you may be asked to provide a reason for your termination. We may terminate your Participation at any time for any reason without notice and, if we elect to provide notice, through notice to your email address on file which we need for tax/accounting purposes (e.g., we will deactivate your account, but we cannot delete business records). We are not required to disclose a reason for the termination of your Participation. However, if we terminate your Participation because you breached this Agreement and we provide you notice of that, you will not be entitled to any refund, Consulting Fees or Business Partner Compensation, as applicable. All decisions regarding the termination of Participation shall be made in our sole discretion. Upon termination of a Business Partner Participation, the Business Partner shall remove the Button and any of our code from its website, application, Software or CMS. After your Participation is terminated, all terms that by their nature should survive termination of this Agreement shall be deemed to survive such termination.

j. Non-Circumvention

During the term of this Agreement and for two years thereafter, (a) no Client or Business Partner shall, directly or indirectly, circumvent, initiate, solicit, negotiate, contract or enter into any business transactions with any Consultant introduced by us through our Services, without our consent, and (b) no Consultant shall, directly or indirectly, circumvent, initiate, solicit, negotiate, contract or enter into any business transactions with any Client or Business Partner introduced by us through our Services, without our consent. In case of such circumvention, (a) a circumventing Business Partner shall pay us thirty-three percent (33%) of the first year’s compensation (including salary and bonus) if Business Partner hires such Consultant as an employee, and (b) otherwise, such circumventing Participant agrees and guarantees that such Participant will make a payment to us equal to 10 times the commission or fee we would have realized in such transactions, had Participant not circumvented our rights under this Agreement.

5. Pricing; Charges for No Shows; Payment of Consulting Fees; Disputes and Termination of Consulting Agreements.

a. Pricing. Hourly rates for Consulting Services are posted prior to the Consulting Services being rendered and are not negotiable between the Client and the Consultant. Rates vary and are subject to change at any time (but not for outstanding Consulting Contracts). Clients and Consultants are obligated to honor the prices established at the time of engagement.

b. No-Shows. Clients will pay, by a charge to their Payment Cards on file, $25 for any failure to show up to a scheduled appointment with a Consultant without cancelling at least 24 hours prior to the scheduled appointment. This amount will be paid to the Consultant. We reserve the right to terminate a Consultant’s account and Participation in our Services in the event Consultant fails to show up to a scheduled appointment with a Client without cancelling at least 24 hours prior to the scheduled appointment.

c. Approval or Incomplete. Consultant will press the “Complete” button once the Consulting Services or a Milestone has been completed.  If the Client agrees, the Client will press the “Approve” button.  If the Client does not agree, the Client will press the “Incomplete” button within 7 days after the Consultant presses the “Complete” button.  We will charge the Client’s Payment Card for such Consulting Services when: (a) the Client presses the “Approve” button, or (b) if the Client does not press either the “Approve” or “Incomplete” button within 7 days after the Consultant presses the “Complete” button.

d. Disputed Completion Status. If the Client believes in good faith that the Consulting Services or Milestone are not complete and wishes to dispute that payment is due for such Consulting Services or Milestone, the Client must, within the 7 day period after the Consultant presses the Complete button, press the “Incomplete” button and notify the Consultant that the Consulting Services are incomplete and specify the exact manner in which they are incomplete.  If, after discussions with Consultant, the Client still reasonably believes that the Consulting Services or Milestone are not complete and wishes to dispute in good faith that payment is due for such Consulting Services or Milestone, the Client must contact us via email at disputes@workrails.com and we will contact the Client to discuss the details of how the Consulting Services or Milestone is incomplete and what specifically needs to be done to complete the Consulting Services or Milestone.

e. Other Disputes. During performance of the Consulting Services, a Client or Consultant may change the project status by pressing the “Dispute” button. This action notifies the other party and WorkRails that such party does not wish to continue with the Consulting Services or that such party has an issue with how the Consulting Services are being performed. Reasons for placing Consulting Services in Dispute status could include the following:

a. Deliverables are late or wrong
b. Failure of Client to cooperate
c. Misrepresentation of Consultant skills
d. The other party’ s abandonment the Consulting Services project

Pressing the “Dispute” button does not guarantee that Consulting Services will be canceled nor does it release either party of any liability. During the performance of Consulting Services, if either party becomes non-responsive for a period of 7 days, they will be deemed to have abandoned the Consulting Services project.

f. Termination of Consulting Contract. If a breach that is capable of cure has not been cured within thirty (30) days after pressing the “Dispute” button related to such breach, the non-breaching Consultant or Client may terminate the Consulting Agreement .

g. WorkRails Monitoring of and Charges for Disputes. We reserve the right, but not the obligation, to monitor disputes between Participants and/or Other Users. In the event that WorkRails incurs any costs in resolving a dispute between Participants and/or Other Users, Work Rails may charge a fee to any or all involved Participants and Other Users to cover such cost.

6. Confidentiality.

"Confidential Information" means: (a) WorkRails Technology, (b) any of our business or technical information, (c) any business or technical information exchanged between us and a Business Partner to enable integration of the Button into the Business Partner’s Software, application or website, (d) any information provided by or collected from Clients, any information about Clients provided or made accessible to Consultants by us or our Business Partners, and any information gleaned by Consultants from Clients or from access to any Client computers shall be “Client Confidential Information” or (e) any information which given the nature of such information and the circumstances surrounding disclosure should be reasonably understood to be Confidential Information. Except for Client Confidential Information, Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party's Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure. During the term of this Agreement and thereafter, neither you nor we will use any Confidential Information of the other or of any other Participant for any purpose other than performing your or our obligations hereunder, respectively, nor shall you nor we disclose such Confidential Information to any third party, except that, you or we may disclose such Confidential Information to your or our employees and consultants, respectively, as is reasonably required in connection with the exercise of your or our rights and performance of your or our obligations, respectively, under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such third parties). Notwithstanding the foregoing, you and we may disclose such Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the party to whom such Confidential Information pertains in order to allow such party to contest such order or requirement; and (ii) on a confidential basis to your or our legal or financial advisors, respectively.

7. Ownership of Work Product.

Client shall own all right, title and interest in and to all Consulting Services provided and paid for under the Consulting Contract, and all work product produced by Consultant in connection therewith, including without limitation, the Deliverable, but exclusive of Pre-Existing Consultant IP. (collectively, the “Work Product”) and Consultant waives any “moral rights” claims Consultant may have with respect thereto. For avoidance of doubt and not by way of limitation, “Work Product” shall include but not be limited to; (a) names, characters, protectable organizational structures, “look and feel”, and other “brand” components, (b) all materials, specifications, designs, writings, code, products, or other Deliverables developed or prepared for Client by Consultant under this Agreement, and (c) any and all new or improved idea, design, concept, or other invention made or developed by Consultant during the course of rendering the Services or developing or preparing the Deliverables (collectively, “Invention”). Consultant shall promptly and completely disclose to Client in writing any and all Inventions. “Pre-Existing Consultant IP” means shall mean, excluding the Deliverables, the intellectual property that is (a) owned, acquired or developed by Consultant prior to the effective date of the Consulting Contract or independent of Consulting Contract and, in each case, without reference to any Confidential Information of Client, or (b) licensed, leased or otherwise obtained by Consultant from a third party (other than Client). Termination of the Consulting Contract or any Statement of Work shall not affect Client’s rights in and to all Work Product created for or provided to Client pursuant to this Agreement prior to the effective date of termination.

To the extent that title to any Work Product may not, by operation of law, vest in Client, Consultant hereby irrevocably assigns to Client all right, title and interest in and to any Work Product. Consultant agrees to give Client and any person designated by Client such reasonable assistance, at Client’s request and expense, as is required to perfect, secure and protect Client’s intellectual property and other rights set forth in this Section. Unless otherwise requested by Client, upon the completion of the Services to be performed under each Schedule or upon the earlier termination of such Schedule, Consultant shall immediately turn over to Client all Work Product.

Client shall determine in its sole discretion, which of its proprietary software tools and systems (each a “Tool”) shall be made available to Consultant in order for Consultant to perform its duties hereunder, if any. Consultant shall be granted a nonexclusive limited license to use internally any such Tool solely for internal purposes, which license shall be subject to: (i) Consultant’s compliance with all rules and regulations relating to use of the Tools, as published from time to time by Client, (ii) Client’s right to withdraw or modify such license at any time, (iii) Consultant’s express recognition that Client provides all Tools on an “as is” basis, without warranties of any kind, express or implied, including warranties of accuracy, merchantability, fitness for a particular purpose and non-infringement, and (iv) Consultant's agreement not to distribute, modify, reverse engineer, decompile, or disassemble the Tool. Consultant will keep strictly confidential any usernames and passwords for access to the Tools, shall not allow any other person to access or use the Tools utilizing such username or passwords, and will access or use the Tools solely for the purpose of Consultant performing the Services hereunder. If the security of Service Provider’s username(s) or password(s) is compromised in any way, or if Consultant suspects that they may be, Consultant shall immediately contact Client.

Consultant shall retain all right, title and interest in and to the Pre-Existing Consultant IP, including worldwide ownership of patent, copyright, trade secret and other proprietary right. Consultant shall not embed any Pre-Existing Consultant IP in the Work Product without Client’s prior written permission (email to suffice). If such Pre-Existing Consultant IP is embedded in the Work Product or is necessary for the proper functioning of the Work Product (Or any portion thereof). Consultant hereby grants a global, perpetual, royalty-free, irrevocable, sub-licensable, non-exclusive license to Client to use the Pre-Existing Consultant IP with the Work Product (or any portion thereof).

Nothing in this Agreement shall convey to Consultant any right, license, title, interest in or to the Work Product, the Tools or any other Client intellectual property, property interest, license or right. In addition, Consultant shall have no right to use any Client trade name, trademark or service mark without the express prior written permission of Client.

8. Use of our Services

a. Privacy and Communications. Use of our Services is also governed by our Privacy Policy. When you become a Participant, you agree and consent to receive email or other electronic messages from us and other Participants. Our electronic communications may be transactional or relationship communications relating to our Services, such as administrative notices and service announcements or changes, or electronic communications containing commercial offers, promotions or special offers from us. Please see our Privacy Policy for more information regarding these communications.

b. Code of Conduct.

While using our Services you agree not to:

  • Restrict or inhibit any Participant or Other User from using our Services, including, without limitation, by means of "hacking" or "cracking" or defacing any portion of our Services;
  • Use our Services for any unlawful purpose;
  • Express or imply that any statements you make are endorsed by us, without our prior written consent;
  • Transmit (a) any content, language, imagery, or information that is unlawful, fraudulent, threatening, harassing, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes on our or any third party's intellectual property or other rights; (b) any material, non-public information about companies without the authorization to do so; (c) any trade secret of any third party; or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us);
  • Engage in spamming or flooding;
  • Breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your Participation status;
  • Transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component;
  • Modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the WorkRails Application or our Services;
  • Remove any copyright, trademark, or other proprietary rights notices contained on the WorkRails Application or applied to our Services;
  • "Frame" or "mirror" any part of the WorkRails Application or our Services without our prior written authorization;
  • Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine," or in any way reproduce or circumvent the navigational structure or presentation of the WorkRails Application, the Services or its or their contents;
  • Harvest or collect information about Participants or Other Users of the WorkRails Application or Services without their express consent;
  • Create more than one profile without our express written consent;
  • Permit anyone else whose account or subscription was terminated, or who is not a Participant, to use our Services through your account, username or password;
  • Engage in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes;
  • Transfer your account or user ID to another party without our consent;
  • Solicit any Participant to work with or for another company for employment, independent contracting services, performances, or other service; or
  • Engage in any communication related to sexual conduct, nudity, or which expresses profanity.
c. Non-Permitted Use

Use of our Services is subject to compliance with this Agreement and our permission, which we may revoke at any time. Illegal and/or unauthorized uses of our Services may be referred for criminal prosecution. Except as expressly permitted herein, you shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or any portion thereof, including without limitation, underlying technology, trade secrets, data, content or information (collectively including the Services, “WorkRails Technology”) in any way; (ii) modify, adapt, translate or make derivative works based upon the WorkRails Technology, (iii) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the WorkRails Technology, (iv) reproduce any portion of the WorkRails Technology, (v) send or store through or on the WorkRails Technology infringing, or otherwise unlawful or tortious material, including material violative of third party intellectual property or privacy rights; (vi) send or store material containing software viruses, worms, Trojan horses, time bombs, cancelbots or other harmful computer code, files, scripts, agents, programs or programming routines (collectively, “Harmful Code”) to, on or through the WorkRails Technology (or any portion thereof), (vii) interfere with or disrupt the integrity or performance of the WorkRails Technology (or any portion thereof), (viii) access the Services provided to Participants by any means other than through your account, (ix) attempt to gain unauthorized access to the WorkRails Technology (or any portion thereof) or its related systems or networks or misrepresent its identity, use or attempt to use any unauthorized identification (including without limitation use of any third party logo, name or other identifier), (x) use the WorkRails Technology (or any portion thereof) for any purpose or in any manner that is unlawful or prohibited by this Agreement, (xi) publicly disseminate information or analysis regarding the performance of the WorkRails Technology, or any portion there, or (xii) permit or authorize any party to do any of the foregoing.

d. Third Party Sites.

Our Services may give you access to links to third-party websites ("Third Party Sites"), either directly or through other Participants or Other Users. We do not endorse any of these Third Party Sites and do not control them in any manner. Accordingly, we do not assume any liability associated with Third Party Sites. You need to take appropriate steps to determine whether accessing a Third Party Site is appropriate, and to protect your device, personal information and privacy on such Third Party Site.

e. General Disclaimer on Use of Our Services.

THE SERVICES, CONTENT, SUBMITTED CONTENT, CONSULTATIONS, AND ANY OTHER MATERIALS MADE AVAILABLE ON OR THROUGH THE USE OF OUR SERVICES ARE PROVIDED BY US ON AN "AS IS" AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND AND, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE HEREBY DISCLAIM (A) ALL SUCH WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, FREEDOM FROM ERRORS, SUITABILITY OF CONTENT, OR AVAILABILITY, AND (B) ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER PARTICIPANTS OR USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF OUR SERVICES OR OTHERWISE.

9. Your Interactions with Other Participants/Other Users; Release.

a. INTERACTIONS WITH OTHER PARTICIPANTS AND/OR OTHER USERS.

YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER PARTICIPANTS AND/OR OTHER USERS. YOU UNDERSTAND THAT WE MAY OR MAY NOT PERFORM BACKGROUND CHECKS ON PARTICIPANTS OR OTHER USERS. WE WILL NOT BE RESPONSIBLE FOR ANY ACTION OR OMISSION THAT OCCURS IF ANY PARTICIPANT OR OTHER USER MEETS WITH ANY OTHER PARTICIPANT OR OTHER USER OFFLINE OR OTHERWISE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER PARTICIPANTS AND OTHER USERS OF OUR SERVICES. YOU UNDERSTAND THAT NEITHER WE NOR OUR BUSINESS PARTNERS MAKE ANY GUARANTEES, EITHER EXPRESS OR IMPLIED, REGARDING YOUR ULTIMATE EXPERIENCE WITH PARTICIPANTS AND/OR OTHER USERS YOU MEET THROUGH OUR SERVICES. YOU DO SO AT YOUR OWN RISK AND AT YOUR OWN PERIL.

b. RELEASE.

IN THE EVENT THAT YOU HAVE A DISPUTE WITH US, OR WITH ANOTHER PARTICIPANT OR OTHER USER OF OUR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY DISPUTE BETWEEN PARTICIPANTS REGARDING ANY CONSULTING SERVICES) OR ANY THIRD PARTY SOFTWARE, WEBSITE OR APPLICATION THAT MAY BE LINKED TO OR FROM OR OTHERWISE INTERACT WITH OUR SERVICES, INCLUDING WITHOUT LIMITATION ANY SOCIAL MEDIA SITE, YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE WORKRAILS, THE APPLICABLE BUSINESS PARTNER AND OUR AND THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER AFFILIATED PERSONS OR ENTITIES FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH SUCH DISPUTE AND/OR YOUR USE OF THE SERVICES.

UNLESS OTHERWISE PROHIBITED BY LAW, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." 

10. Term

This Agreement will remain in full force and effect while you use our Services and/or are a Participant. All terms that by their nature should survive expiration or termination of this Agreement shall be deemed to survive such expiration or termination.

11. Content within our Services

a. Proprietary Rights.

We or our licensors own all right, title and interest in and to the WorkRails Application and our Services. In addition, our Services contain copyrighted material, trademarks, and other proprietary information of WorkRails and/or its licensors. Except for that information which is in the public domain or for which you have been given written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information.

b. Reliance on Content, Advice, Etc.

Opinions, advice, statements, reviews, offers, or other information or content made available through our Services or any Participant or Other User, but not directly by us, are those of their respective authors and Participants and Other Users, who are solely responsible for such content.

c. Third Party Websites.

Our Services may provide, or third parties may provide, links to other websites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such site or resource.

d. Suggestions and other Content Provided by You.

Any suggestions for improvements, modifications or updates to our Services that you provide to us shall be owned exclusively by us and we shall have the right to use them without any compensation to you therefor. You are solely responsible for the content that you post using our Services, or transmit or display to other Participants or Other Users. You will not post through our Services, or transmit or display to other Participants or Other Users, any defamatory, inaccurate, false, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). By posting Content using our Services for general consumption (i.e., not the Content you post only for access by Consultant for use in the Consulting Services for which you grant Consultant the right to use only for performance of the Consulting Services), you automatically grant, and you represent and warrant that you have the right to grant, to us, our affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing. You further represent and warrant that public posting and use of your content by us or the applicable Consultant(s) will not infringe or violate the rights of any third party.

12. Modification to Services

We reserve the right at any time to modify or discontinue, temporarily or permanently, our Services (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of our Services. Notification of changes to our Services may be posted within your Participant profile, on the WorkRails Application or communicated through our Services.

13. Copyright Policy

The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. Copyright law. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if you believe that your work has been copied and posted on the WorkRails Application or used in any of our Services in a way that constitutes copyright infringement, please contact us immediately at support@workrails.com .

14. U.S. Export Controls

Software from this WorkRails Application (the “Software”) is further subject to United States export controls. No Software may be downloaded from the WorkRails Application or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of “Specially Designated Nationals” or the U.S. Commerce Department's “Table of Deny Orders”. By downloading or using the WorkRails Applications, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

15. Indemnification

A. ALL PARTICIPANTS AND USERS. YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD WORKRAILS AND OUR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES (COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF (I) YOUR USE OF THE OUR SERVICES OR OTHERWISE RELATING TO THE BUSINESS WE CONDUCT (INCLUDING, WITHOUT LIMITATION, ANY POTENTIAL OR ACTUAL COMMUNICATION, TRANSACTION OR DISPUTE BETWEEN YOU AND ANY OTHER PARTICIPANT OR THIRD PARTY), (II) ANY CONTENT POSTED BY YOU OR ON YOUR BEHALF OR POSTED BY OTHER USERS OF YOUR ACCOUNT TO THE SERVICES, (III) ANY USE OF ANY SERVICES OR SERVICE PROVIDED BY A THIRD PARTY PROVIDER, ANY USE OF A TOOL OR SERVICES OFFERED BY US THAT INTERACTS WITH A THIRD PARTY APPLICATION OR SOFTWARE, INCLUDING WITHOUT LIMITATION ANY SOCIAL MEDIA SITE, OR (IV) ANY BREACH BY YOU OF THESE TERMS OF SERVICE OR THE REPRESENTATIONS, WARRANTIES AND COVENANTS MADE BY YOU HEREIN, INCLUDING WITHOUT LIMITATION, ATTORNEYS' FEES AND COSTS. YOU SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY CLAIM. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU AND YOU SHALL NOT IN ANY EVENT SETTLE ANY MATTER WITHOUT OUR WRITTEN CONSENT. THIS SECTION SURVIVES EXPIRATION OR TERMINATION OF THIS AGREEMENT.

B. BUSINESS PARTNERS. EACH BUSINESS PARTNER AND WE HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS EACH OTHER AND OUR RESPECTIVE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH AND TO THE EXTENT THAT ANY THIRD PARTY CLAIM ARISES OUT OF ANY ALLEGATION THAT OUR RESPECTIVE APPLICATIONS, SERVICES AND/OR SOFTWARE PRODUCTS INFRINGE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. YOU AND WE SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY CLAIM. WE EACH RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY THE OTHER AND NEITHER YOU NOR WE SHALL IN ANY EVENT SETTLE ANY MATTER WITHOUT THE WRITTEN CONSENT OF THE OTHER. THIS SECTION SURVIVES EXPIRATION OR TERMINATION OF THIS AGREEMENT.

16. LIMITATION OF LIABILITY.

EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS AND CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL WORKRAILS, ANY PARTICIPANT AND/OR EACH OF OUR OR THEIR OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES, BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, AND/OR INCIDENTAL, INCLUDING LOST PROFITS, ARISING OUT OF OR RELATING TO THIS AGREEMENT, OUR SERVICES, YOUR USE OF OUR SERVICES AND INTERACTIONS BETWEEN PARTICIPANTS AND/OR OTHER USERS THROUGH OUR SERVICES OR OTHERWISE, INCLUDING CONSULTATIONS, AND INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING THEREFROM.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, (A) THE MAXIMUM LIABILITY OF ANY BUSINESS PARTNER TO CONSULTANTS OR OTHER USERS SHALL BE $100, (B) THE MAXIMUM LIABILITY OF WORKRAILS, AND/OR ANY OF ITS OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES, TO ANY CONSULTANT, CLIENT OR OTHER USER FOR ANY CAUSE WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED (I) WITH RESPECT TO CLIENTS AND OTHER USERS, TO THE AMOUNT RECEIVED BY US, IF ANY, IN SERVICE FEES FOR THE CONSULTING SERVICES PROVIDED TO YOU GIVING RISE TO SUCH LIABILITY, OR IF NOT RELATED TO PARTICULAR CONSULTING SERVICES, ALL SERVICE FEES PAID TO US, IF ANY, FOR THE CONSULTING SERVICES PROVIDED TO YOU DURING THE TWELVE MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY, AND (II) IN THE EVENT OF CONSULTANTS, TO THE SERVICE FEES PAID TO US FOR THE CONSULTING SERVICES GIVING RISE TO SUCH LIABILITY, OR IF NOT RELATED TO A PARTICULAR CONSULTING SERVICES, ALL SERVICE FEES PAID TO US, DURING THE TWELVE MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY, (B) EXCEPT FOR THEIR RESPECTIVE INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS TO EACH OTHER, THE LIABILITY OF CONSULTANTS AND CLIENTS TO EACH OTHER FOR ANY CAUSE WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID IN CONSULTING FEES FOR THE CONSULTING SERVICES GIVING RISE TO THE LIABILITY, AND (C) WITH RESPECT TO WORKRAILS AND BUSINESS PARTNERS, EXCEPT FOR OUR RESPECTIVE INDEMNIFICATION AND CONFIDENTIALITY BUSINESS PARTNER, ON THE OTHER HAND, FOR ANY CAUSE WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE BUSINESS PARTNER COMPENSATION PAID BY US TO SUCH BUSINESS PARTNER DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

17. Governing Law; Jurisdiction; Venue.

a. Applicable Law

You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of New York, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us and/or between you or any other Participant or Other User under this Agreement. Do we need to mention this is Delaware law in NY courts? This is New York Law in NY courts.

b. Jurisdiction; Venue.

You agree that any claim or dispute that has arisen or may arise between you and us, or between you and any other Participant and/or Other User, under this Agreement or in connection with the Services, must be resolved exclusively by a state or federal court located in New York, New York. You and we agree to submit to the personal jurisdiction of the courts located within New York, New York for the purpose of litigating all such claims or disputes.

18. Third Party Beneficiaries.

Each Participant is an intended third party beneficiary of this Agreement with direct rights of enforcement with respect to all other Participants.

19. Miscellaneous.

If you or we, or any third party beneficiary (as used in this Section 19 only, a “party” and collectively, “parties”), do not enforce any right or remedy available under this Agreement, that failure is not a waiver of the right or remedy for any other breach or failure by any other party. A party’s waiver of any requirement in any one instance is not a general waiver of that requirement and does not amend this Agreement. If any part of this Agreement is held invalid or unenforceable, that part is interpreted consistent with applicable laws as nearly as possible to reflect the original intentions of you and us and the rest of this Agreement remains in full force and effect. The provisions of this Agreement that are contemplated to be enforceable after the termination of this Agreement shall survive termination of this Agreement. This Agreement, including the documents referenced herein, contain the entire agreement between you and us and between the Participants regarding the use of the WorkRails Application and/or our Services and/or, in conjunction with the applicable Statement of Work, the Consulting Services. This Agreement is binding on you, us the parties and each of their successors and assigns.

I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.

Rev. 10.1.2016