2. How the Service Works.
We provide our Services (or portions thereof) as a work flow tool to Customers subject to a separate agreement that incorporates this Agreement (“Service Agreement”). A Customer may elect to pay Consultants through our Services. We currently use Stripe to execute online payment transactions under this Agreement. By agreeing to this Agreement or continuing as a Registered User, you agree to be bound by the Stripe Connected Account Agreement if you make or receive payments for Consulting Services via our Service, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”), as may be updated from time to time. As a condition of our enabling payment processing services through Stripe or another payment gateway provider, you agree to provide us accurate and complete information about you and your business, and you authorize us to share it and transaction information related to your use of the payment processing services provided by Stripe or such other payment gateway provider, with Stripe or such other payment gateway provider for the purpose of processing the payments you authorize on our Services. Stripe or such other payment gateway providers may also aggregate your information for other purposes, but only in ways that don’t identify you personally or disclose any personal information about you, and may disclose your personal information when necessary to comply with the law. For avoidance of doubt, if any payment you initiate using our Services does not successfully complete, the payee reserves the right to seek payment from you via or outside our Services.
3. Registered Users.
You may access and use some of our Services without becoming a Registered User and/or at no direct cost. However, if you, as a Customer, Consultant, Customer client or you otherwise wish to access the workflow features of our Services or other features requiring registration, including the ability to manage Consulting Services, you must become and remain a Registered User. To become a Registered User, 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 Registered User may not have more than one active account. We reserve the right to suspend or terminate your account and your access to our Services for any reason.
Registration and/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, (i) you represent and warrant to us that you are 21 years of age or older, (ii) 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, and (iii) 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.
4.Use of Our Services.
a. Independent Contractor Status.
Our Services are separate and distinct from the services of all Registered Users. You acknowledge that WorkRails is not an employer or employee of any Registered User. The relationship between WorkRails and all Registered Users are strictly as independent contractors who operate separate and distinct businesses from each other. We do not endorse or control any Registered User, the manner or method of Consulting Services, do not exercise control over the Registered User’s working relationship with other Registered User and do not warrant your safety, the Consulting Services of any Consultant or that Customers will pay for Consulting Services.
b. 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.
c. No Guarantees.
d. Prohibited Use of Our Services.
Use of our Services is subject to compliance with this Agreement. 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 Registered Users 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.
e. Privacy and Communications.
f. Code of Conduct.
While using our Services you agree not to:
- Restrict or inhibit any Registered User 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;
- 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 Registered User 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 Registered Users 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 Registered User, 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;
- Engage in any communication related to sexual conduct, nudity, or which expresses profanity.
5. Third Party Sites and Services.
Our Services may give you access to links to third-party websites (“Third Party Sites“), either directly or through other Registered Users 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.
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.
In connection with the Consulting Services, Registered Users may grant each other remote access to such Registered User’s 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.
Opinions, advice, statements, reviews, offers, or other information or content made available through our Services or any Registered User or Other User, but not directly by us, are those of their respective authors and Registered Users and Other Users, who are solely responsible for such content.
“Confidential Information” means: (a) WorkRails Technology, (b) any of our business or technical information, (c) any information provided by or collected from Registered Users shall be “Registered User 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. 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 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. Proprietary Rights.
a. Our Ownership of Application/Services.
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. 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 Registered Users or Other Users. You will not post through our Services, or transmit or display to other Registered Users 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.
8. 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 Registered User profile, on the WorkRails Application or communicated through our Services. 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 Registered Users. If a particular product or Service is discontinued or unavailable, we reserve the right to provide a substitute product or Service.
THE APPLICATION, SERVICES 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 REGISTERED USERS OR USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF OUR SERVICES OR OTHERWISE.
10. RELEASE FOR INTERACTIONS BETWEEN USERS.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER REGISTERED USERS AND/OR OTHER USERS. YOU UNDERSTAND THAT WE MAY OR MAY NOT PERFORM BACKGROUND CHECKS ON REGISTERED USERS OR OTHER USERS. IN THE EVENT THAT YOU HAVE A DISPUTE (I) WITH ANOTHER REGISTERED USER OR OTHER USER OF OUR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY DISPUTE BETWEEN REGISTERED USERS REGARDING ANY CONSULTING SERVICES), OR (II) CONCERNING OR RELATED TO 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 (“I” AND “I”, COLLECTIVELY “DISPUTES”), YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE WORKRAILS AND OUR 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 DISPUTES.
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.”
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) ANY DISPUTES (AS DEFINED ABOVE) WITH OTHER REGISTERED USERS OR OTHER USERS, (II) THE SUBSTANCE AND/OR CONTENT OF ANY CONSULTING SERVICES, INCLUDING, WITHOUT LIMITATION, ANY COMMUNICATION OR TRANSACTION BETWEEN YOU AND ANY OTHER REGISTERED USER 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.
12. LIMITATION OF LIABILITY.
EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS AND CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL YOU NOR WE, NOR ANY OF YOUR OR OUR OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES, BE LIABLE TO EACH OTHER ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR PROFIT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE MAXIMUM LIABILITY OF WORKRAILS, AND/OR ANY OF ITS OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES, TO ANY REGISTERED USER FOR ANY CAUSE WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED (I) WITH RESPECT TO ANY CUSTOMER, TO THE AMOUNT RECEIVED BY US UNDER THE SERVICE AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY, AND (II) WITH RESPECT TO CONSULTANTS, $100.
13. OTHER TERMS.
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 Registered User or Other User under this Agreement.
b. Jurisdiction; Venue.
You agree that any claim or dispute that has arisen or may arise between you and us under this Agreement and/or the Services Agreement and/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.
c. US Export Controls.
Software from the 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.
d. 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 firstname.lastname@example.org.
If either you or we (each of us a “party” and collectively “parties” for purposes of this section) do not enforce any right or remedy available under this Agreement and/or the Service Agreement, that failure is not a waiver of the right or remedy for any other breach or failure by the 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 the parties 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 the parties regarding the use of the WorkRails Application and/or our Services. This Agreement is binding on the parties and each of their successors and assigns. This Agreement may not be assigned by any Registered User without our prior written permission. We may assign this Agreement without consent.
f. Contact with Us.
In the event any Registered User or Other User wishes to contact us for any reason relating to this Agreement, such Registered User or Other User may contact us at email@example.com.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.
Rev. October, 2017