Software Subscription and Professional Services

Terms and Conditions and Subscription Support Policy

Appendix 1 – TERMS AND CONDITIONS

1. USE AND SUPPORT.

Subject to the terms, conditions and restrictions set forth in this Agreement, including payment of the Subscription Fees set forth in the Order Form, HourWork hereby grants, and Customer hereby accepts, a non-exclusive, non-transferable, right and license, to access and use, solely for its internal business purposes, (i) the Subscription Service identified on the Order Form (the “Service”), on a hosted basis, in accordance with the user documentation provided with the Service (“Documentation), and (ii) the Documentation, each for the Subscription Term set forth in the applicable Order Form.  Use of the Service is restricted and subject to the number of units and/or other limitations set forth in the Order Form. If Customer has purchased a derivative use license, the license rights are subject to the additional terms set forth in Section 4 below.  During the Subscription Term HourWork will support the Service in accordance with the Subscription Support Policy specified in Appendix 2 hereto.

2. TERM; RENEWAL; TERMINATION

2.1 Term of Agreement.  This Agreement is effective as of the Effective Date and will continue until the services as described in the Order Form and any Statements of Work (“SOW(s)”) have been completed, expired or terminated.

2.2  Term and Renewal of Orders.  The Subscription Term described in each Order Form will commence upon the Order Form Effective Date and continue as set forth therein (“Initial Term”) and will automatically renew for additional one (1) year terms (“Renewal Term”) unless either party has given the other party written notice of non-renewal at least ninety (90) days prior to the end of an Initial Term or Renewal Term. Rates changes for any Renewal Term will be agreed upon by both parties in writing.

2.3 Termination.  This Agreement and any Service may be terminated only if one party materially breaches this Agreement and fails to cure such breach within thirty (30) days or receipt of notice of the breach from the non-breaching party.

3. FEES; PAYMENT TERMS.

Subscription Fees and any other fees for professional services are specified on the Order Form.  Customer agrees to pay any pre-approved reasonable travel and living expenses incurred in connection with the provision of services under a SOW. Unless otherwise set forth on the Order Form or a SOW, all fees will be invoiced upon the Effective Date of the Order Form.  Payment terms are Net 30 days from the date of receipt of invoice.   Customer shall be responsible for all taxes on the fees, except for taxes on HourWork’s income.

4. RESTRICTIONS; PROPRIETARY RIGHTS.

Customer shall not: (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Service or disclose any of the foregoing; (ii) encumber, transfer, manufacture, distribute, sell, sublicense, assign, provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use (except as expressly provided herein) the Service or Documentation; (iii) copy, modify, adapt, translate, incorporate into or with other software, or create a derivative work of any part of the Service or Documentation; (iv) attempt to circumvent any user limits, timing or use restrictions that are built into the Service; or (v) use the product in any harmful or unlawful ways.  The Service is the proprietary intellectual property of HourWork that contains trade secrets and is protected by copyright law. Subject to any license granted hereunder, HourWork retains sole and exclusive ownership of all right, title, and interest in and to the Service and any other technology used to provide it.  Any and all enhancements, modifications, corrections and derivative works that are made to the Service will be considered part of the Service for the purposes of this Agreement and will be owned by HourWork. HourWork shall own all rights, title and interest in any deliverables created by HourWork under a SOW, but all such deliverables shall be licensed to Customer for use in connection with Customer’s use of the Service hereunder.  Notwithstanding the foregoing, Customer retains all rights, title and interest in and to Customer’s own information and data, including Customer’s ideas, processes, standards, practices, and management policies and procedures, that is input by Customer into the Service or supplied to HourWork (“Customer Data”).

Specifically, Customer agrees and warrants to HourWork that:

• Customer will not use or attempt to use, HourWork to convey any information that may be considered unlawful, harassing, libelous, abusive, threatening, obscene, hateful, offensive, harmful, vulgar, distasteful, defamatory, indecent, objectionable, or invasive of another person’s privacy or proprietary rights;
• Customer will not use, or attempt to use, HourWork in connection with any junk messages, spamming or messages that are duplicative or unsolicited in nature;
• Customer will not send, or attempt to send, messages to emergency lines, to any health care facility or similar establishment, to numbers assigned to radio common carrier services or to any service for which the called party is charged for the call;
• Customer will not transmit, or attempt to transmit, any material that may infringe the contractual, fiduciary, intellectual property rights, or other rights of third parties, including trademark, copyright or the right of publicity;
• Customer will not initiate marketing email or text messages, or any message that is part of a plan, program or campaign to induce the purchase of goods or services or a charitable contribution when using HourWork;
• Customer will not initiate political email or text messages or prerecorded political calls using HourWork. This includes any message designed to support or oppose a political campaign or issue, or that solicits a contribution to any non-profit organization;
• Customer will not use HourWork to initiate any email or text messages to recipients if Customer have obtained their contact information from a third-party list provider;
• Customer will not use HourWork to initiate any email or text message to recipients unless Customer have received the necessary consent and provided any necessary disclosures related to any message Customer initiates using HourWork’s messaging service;
• Customer will not impersonate, or attempt to impersonate, any other person, falsify contact information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with HourWork, or otherwise attempt to mislead others as to the identity of the sender or the origin of a message;
• Customer will not resell, or attempt to resell, the use of HourWork without the express, prior written consent/permission from HourWork;
• Customer will not collect, or attempt to collect, or store information about HourWork or other users, including contact information, without their consent;
• Customer will not interfere, or attempt to interfere, with or disrupt connections to HourWork or violate the regulations, policies or procedures of such connections;
• Customer agrees and HourWork retains the right, at its sole discretion, to determine whether or not Customer’s conduct is consistent with the letter and spirit of this Agreement. HourWork may immediately terminate Customer’s HourWork account if Customer’s conduct is found to be inconsistent with these Terms and Conditions.

5. Publicity.

Customer agrees to allow the use of its and its franchisors’ names and logos, without endorsement, in a general list of HourWork customers and on HourWork’s website and in HourWork’s marketing materials and consents to receiving communications regarding product and service updates, customer support, and marketing initiatives from HourWork.

6. CONFIDENTIALITY.

Each party shall maintain as confidential and shall not disclose (except to its employees, accountants, attorneys, advisors, affiliates, outsourcers and third party service providers of recipient with a need to know in connection with recipient’s performance under this Agreement, and who have been advised of the obligation of confidentiality hereunder), copy or use for purposes other than the performance of this Agreement, any confidential information of the other party, such as but not limited to trade secrets, technology, research, development, pricing or terms of this Agreement (“Confidential Information”), and each party agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorized, negligent or inadvertent use, disclosure or publication thereof; provided, however, that Confidential Information of Customer and Customer Data shall not include information related to Customer’s former employees and past employee applicants, including without limitation, reviews and exit surveys provided to HourWork by such former employees and past applicants (“Feedback”). Breach of this Section may cause irreparable harm and damage.  Thus, in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such unauthorized use. The recipient shall be liable to the disclosing party for any use or disclosure in violation of this Section by recipient or its affiliates, employees, third party service providers or any other related party.  Notwithstanding anything to the contrary herein, Confidential Information and Customer Data shall not include information that (a) is already known prior to the disclosure by the owning party; (b) is or becomes publicly known through no breach of this Agreement; (c) is independently developed without the use of the other party’s Confidential Information and evidence exists to substantiate such independent development; (d) information that is obtained from a third party, and that third party is not, in good faith belief to the recipient, under any legal obligation of confidentiality; (e) the recipient receives written permission from the disclosing party for the right to disclose any Confidential Information; or (f) constitutes Feedback.  Customer acknowledges and agrees that HourWork may solicit, collect, and display Feedback publicly and otherwise, including but not limited to on its website and in connection with its marketing efforts.  

7. LIMITED WARRANTY.  

HourWork represents and warrants that the Service will be performed and implemented in a professional manner during the Warranty Period, which shall mean the Initial Term and any Renewal Term.  If Customer notifies HourWork in writing of a nonconformity of Service during the Warranty Period, HourWork will, at its option and expense, (a) correct any nonconformities in the Service that cause the Service to fail to conform to the Documentation, or (b) provide to Customer a pro rata refund of any prepaid but unutilized Subscription Fees applicable to the non-conforming Service.  The limited warranty set forth in this Section shall be void if the Service nonconformity is caused by (i) the use or operation of the Service with an application or in an environment other than that recommended in writing by HourWork, (ii) modifications to or customizations of the Service without the express written authorization of HourWork, (iii) accident, disaster or event of force majeure, (iv) misuse, fault or negligence of or by Customer, (v) use of the Service in a manner for which it was not designed, (vi) causes external to the Service such as, but not limited to, power failure or electrical power surges.THE WARRANTY AND REMEDIES SET FORTH IN THIS SECTION 7 REPRESENT HOURWORK’S SOLE WARRANTY AND CUSTOMER’S SOLE REMEDY IN THE EVENT OF BREACH OF WARRANTY.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, HOURWORK MAKES NO AND DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8. LIMITATION OF LIABILITY.  

THE CUMULATIVE LIABILITY OF HOURWORK TO CUSTOMER FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO HOURWORK UNDER THE APPLICABLE ORDER FORM WITHIN THE YEAR PRECEDING THE CLAIM.    NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL HourWork OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF HOURWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IS NEGLIGENT.  

9. INDEMNIFICATION.  

If a third party claims that the Subscription Service infringes any U.S. patent, copyright, or trade secret, HourWork will defend Customer against such claim at HourWork’s expense and pay all damages finally awarded through judgment or settlement, provided that Customer promptly notifies HourWork in writing of the claim, allows HourWork sole control of the defense and/or settlement, and cooperates with HourWork in, the defense or settlement of such action.  If such a claim is made or appears possible, HourWork may, at its option, secure for Customer the right to continue to use the Subscription Service, modify or replace the Subscription Service so that it is non-infringing, or, if neither of the foregoing options is available in HourWork’s reasonable opinion, terminate this Agreement and refund to Customer any unamortized pre-paid fees for use of the Subscription Service.  HourWork shall have no liability or obligation hereunder with respect to any infringement claim if such infringement is caused by (i) compliance with Customer’s instructions, designs, guidelines, plans or specifications; (ii) Customer’s use of the Subscription Service other than as specified in the applicable Documentation; (iii) modification of the Subscription Service by any person other than as authorized in writing by HourWork; or (iv) the combination, operation or use of the Subscription Service with other product(s) or services not supplied by HourWork, where the Subscription Service would not by itself be infringing.  THIS PARAGRAPH STATES HOURWORK’S ENTIRE OBLIGATION TO CUSTOMER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

10. Insurance.  

During the Term of this Agreement, HourWork shall, at its expense, at a minimum, maintain the following insurance coverage on a primary basis with the limits of liability indicated:

 

Type of Coverage                                                 Amount of Coverage

Workers’ Compensation                                     Statutory

Commercial / General Liability                          $1,000,000 per occurrence/$2,000,000 aggregate

Automobile Liability                                           $1,000,000 combined single limit        

       Umbrella Liability                                        $4,000,000 per occurrence/aggregate

       Directors & Officers                                    $1,000,000

Errors & Omissions Liability                              $5,000,000

Crime                                                                  $500,000        

All such insurance shall be with insurers who are rated “A- VII” or better by the A.M. Best Company. Upon Customer’s request, certificates of insurance for the above will be submitted to Customer. Customer will be named as an additional insured on the General, Automobile and Umbrella Liability Policies and be granted a waiver of subrogation.  HourWork will be responsible for deductibles on any insurance policies referenced as part of this Agreement.  HourWork will provide at least thirty (30) days prior notice to Customer of any termination or material modification of such coverage.

11. GENERAL.

11.1  Entire Agreement.  This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof.  If these Terms and Conditions conflict with any of the terms or conditions of any Order Form or Statement of Work, then, unless otherwise provided herein, the terms and conditions of such Order Form or Statement of Work will control solely with respect to the Services covered by such Order Form or Statement of Work.  Any purchase orders issued by Customer shall be deemed to be for Customer’s convenience only and, notwithstanding acceptance of such orders by HourWork, shall in no way change, override, or supplement this Agreement.

11.2  Waiver. Any waiver or modification of the provisions of this Agreement will be effective only if in writing and signed by the party against whom it is to be enforced.  If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. A waiver of any provision, breach or default by either party or a party’s delay exercising its rights shall not constitute a waiver of any other provision, breach or default.

11.3 Independent Contractor.   At no time shall either party make any commitments or incur any charges or expenses for or in the name of the other party, or be considered the agent, representative, partner, joint venturer, employer or employee of the other party.

11.4 Notices. All notices or other communications required to be given hereunder shall be in writing and delivered either by U.S. mail, certified, return receipt requested, postage prepaid; by overnight courier; or as otherwise requested by the receiving party, to the address first listed above.  Notices shall be effective upon their receipt by the party to whom they are addressed.        

11.5 Assignment. This Agreement may not be assigned by Customer without HourWork’s prior written consent.

11.6 Compliance with Laws. Each party will be responsible for compliance with all legal requirements related to its performance under this Agreement, including all applicable U.S. export laws and those laws related to the protection of data privacy, and proper use of financial and personally identifiable information.

11.7 Force Majeure. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, or strikes (each a “Force Majeure Event”) provided that such party gives prompt written notice to the other party of the Force Majeure Event.  The time for performance will be extended for a period equal to the duration of the Force Majeure Event.

11.8 Governing Law and Disputes. This Agreement and any dispute arising hereunder shall be governed by and interpreted and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflict of law principles, and shall be subject to the exclusive jurisdiction of the federal and state courts located in the Commonwealth of Massachusetts, and each party consents to the exclusive personal jurisdiction and venue of such courts.

11.9 Non-Solicitation. Neither party shall directly or indirectly solicit, employ or engage any employee of the other party with whom the non-employing party came into contact through the performance of this Agreement during the period such employee was engaged in the performance of this Agreement and for one (1) year after such engagement.  If any court or other adjudicatory body determines that the foregoing provision is unenforceable because of its duration or scope, the court or adjudicatory body has the power to reduce the duration or scope of the provision, as the case may be, so that in its reduced form the provision is enforceable.  Such power includes the authority to reform the provision by rewriting it, if required, so that it conforms to applicable law and carries out the parties’ intentions under this Agreement.

11.10 Survival. The following provisions of this Agreement shall survive any termination or expiration hereof: Sections 3, 4 and 6 through 11.

Appendix 2 – SUBSCRIPTION SUPPORT POLICY

1. DEFINITIONS.

1.1 Defect.  “Defect” means any error, omission, or deviation within the HourWork Platform (the “Platform”) that prevents its successful operation in substantial conformance with the HourWork published user documentation (the “Documentation”) (except for nonconformity caused by (a) the use or operation of the Platform with an application or in an environment other than that recommended in writing by HourWork, (b) modifications to or customizations of the Platform without the express written authorization of HourWork, (c) accident, disaster or events beyond HourWork’ reasonable control (“Force Majeure Event”), (d) misuse, fault or negligence of or by Customer, (e) use of the Platform in a manner for which it was not designed, or (f) causes external to the Platform such as, but not limited to, power failure or electrical power surges).

1.2 Critical Error.  “Critical Error” means a Defect that causes the Platform to be unusable.

1.3 Significant Error.  “Significant Error” means a Defect that has a material impact on Customer’s ability to use the Platform.

1.4 Other Error or Support Question. “Other Error” means a Defect that is not a Critical Error or a Significant Error. Support Question means request for information on how to effectively use the Platform.

2. SUPPORT COVERAGE.

2.1 Support Contact. [email protected]

2.2 Support Hours. 24 (Twenty-Four) Hours a Day, 7 (Seven) Days a Week

3. PREVENTATIVE SUPPORT.

HourWork will undertake reasonable efforts to prevent Defects.  These efforts include, as appropriate: (i) advising Customer of all pertinent problems encountered by other Platform users; (ii) performing the remedial work required to prevent problems encountered by other Platform users from affecting Customer’s Platform use; (iii) proactively remedying any security flaws; and (iv) reviewing data provided by Customer on the Platform operation to ascertain potential problems.

3. ERROR CORRECTION.

HourWork will undertake efforts necessary to promptly correct any Defect.  Customer may report a Defect via Phone, In-Product or Email Support.  Company will make reasonable efforts to correct the Defect or provide an acceptable work-around or action plan within the following time frames, depending on Customer’s classification of the Defect (subject to HourWork’ reasonable agreement with such classification):