SheWorks! User Agreement

Last Update: October 3rd, 2017, effective October 4th, 2017

This SheWorks! User Agreement (the “Agreement”) is a contract between you (the “User”) and SheWorks, Inc., a Delaware corporation with its principal business address at 100 Pine St., Suite 1250, San Francisco, CA 94111 (“SheWorks!”, “we” or “us”). You must read, agree with, and accept all of the terms and conditions contained in this Agreement in order to use our platforms located at www.WhereSheWorks.com (the “Site”) and related software and services. SheWorks! reserves the right to amend this Agreement at any time by posting a revised version on the SheWorks! Site. Each revised version will state its Effective Date, which will be on or after the date posted by SheWorks!. If the revised version materially increases your responsibilities or reduces your rights, we may post it in advance of the Effective Date in order to give you notice and the opportunity to review the additional terms. Your continued use of the SheWorks! Platform (“SheWorks! Platforms”) after the Effective Date of a revised version of this Agreement, signifies that you have read, understand, accept and agree to be bound and are bound by this Agreement. This Agreement includes and hereby incorporates by reference the agreements and policies referred to herein or linked from the URL [http://wheresheworks.com/user-agreement/], as such agreements and policies may be modified by SheWorks! from time to time in its sole discretion. In the event of a conflict of terms between such policies and agreements and this Agreement, this Agreement controls, followed up other SheWorks! policies, and then finally any agreements made in addition to these between the Users.

 

  1. THE SHEWORKS! PLATFORM.

1.1 Purpose of the SheWorks! Platform.

The SheWorks! Platform offers an online solution for Clients to engage pre-qualified contractors (“Talents”), it also provides additional access to a detailed record of actual time worked, and additionally completes the monetary transaction between Client and Talent. SheWorks! expressly reserves the right to disqualify any Talent membership based solely on qualification developed by SheWorks!.

Under this Agreement, SheWorks! provides services to both Clients and Talents, including matching Clients and qualified Talents, facilitating the formation of contracts between Clients and Talents, and managing disputes arising from and related to those contracts. If a Client and a Talent agree on terms, a Service Contract is formed between SheWorks!, Client and Talent. Client and Talent are subject to the provisions set forth in Section 3 (Service Contract Terms Between Client and Talent). SheWorks! pays Talents in connection with their delivery of services through the SheWorks! Platform. SheWorks! collects payment from Clients in connection with their receipt of services through the SheWorks! Platform.

1.2 Eligibility.

The SheWorks! Platform is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. User agrees that User is not a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation. Talents must also be eligible to legally live and work in the country in which they reside and from which they intend to work.

  1. SHEWORKS! GENERAL USER POLICIES

2.1 SheWorks! Fees.

SheWorks! does not charge a membership fee; instead it collects the difference between the fees paid by its client and payments to Talents. Any alteration of this business model requires an advance written notice to users.

2.2 General User Obligations.

You will not access (or attempt to access) the Site by any means other than the interfaces provided, and you will not use information from the Site for any purpose other than the purpose for which it was made available. You will not engage in any activity that interferes with or disrupts the functioning of the Site. You will not upload or attach any invalid, malicious or unknown file. You will not insert any external links that may be malicious or unknown to you, or used for offering any goods or services other than Services. You agree not to “scrape” or disaggregate data from the Site (whether by manual or automated means), for any commercial, marketing, or data compiling or enhancing purpose, or to copy, re-post or re-use data from the Site for any other service. You agree not to use or provide software (except for general purpose web browsers and email clients, or software expressly licensed by us) or services that interact or interoperate with the Site, e.g. for downloading, uploading, posting, flagging, emailing, search, or mobile use.

2.3 Identity and Account Security.

SheWorks! reserves the right to validate User information at any time, including but not limited to validation against third party databases or the verification of one or more official government or legal documents that confirm the User’s identity. You authorize SheWorks!, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. Failure to provide information about you and/or your business when requested is a violation of this Agreement. The User is solely responsible for ensuring and maintaining the secrecy and security of the User’s SheWorks! account information, including password. User agrees not to disclose this password to anyone and, under all circumstances, shall be solely responsible for any use of or action taken through the use of such password on the SheWorks! Platform. You must notify SheWorks! Support immediately if you suspect that your password has been lost or stolen. By using your SheWorks! User account, you acknowledge and agree that the SheWorks!’s account security procedures are commercially reasonable.

2.4 Disbursements to Talents.

SheWorks! will automatically disburse funds to Talents according to the payment instructions on file with SheWorks!. Regardless of the amount, funds become payable to Talents between the 1st and the 10th day of the following month. Talents may ask SheWorks! to expedite payments. Expedited payments and payments-on-demand are subject to an eight dollar ($8.00 USD) processing fee for each instance.

2.5 Disintermediation.

Client shall make all payments relating to, or in any way connected with, a Service Contract (including, without limitation, bonuses) through the SheWorks! Platform. Any action that encourages or solicits complete or partial payment outside of the SheWorks! Platform is a violation of this Agreement. Should a Client be found in violation of this section of this Agreement, it will owe SheWorks! an amount with respect to each Service Contract equal to the greater of a) $50,000; or b) the applicable fees had the payments been processed through the SheWorks! Platform, plus 40%.  Should a Talent be found in violation of this section of this Agreement, their use of the SheWorks! Platform will immediately terminate and Talent will owe SheWorks! an amount with respect to each Service Contract equal to the great of a) $5,000; or b) the applicable fees had the payments been processed through the SheWorks! Platform, plus 40%.

2.6 Buyout.

Notwithstanding the provisions set forth above, Users may agree to provide or receive Services outside of the SheWorks! Platform with Users identified through SheWorks!, if they comply with the following terms. If the Services are rendered more than three (3) years after the Client identifies the Talent through SheWorks!, no SheWorks! Fees or buyout provisions will apply. If Services are rendered outside of SheWorks! less than three (3) years after the Client identifies the Talent through SheWorks!, payments for such Services will not be subject to the SheWorks! Fees, provided that the Client pays SheWorks! a “Buy-Out” amount in accordance with the procedure set forth below:

2.7 Non-payment.

If Client fails to pay amounts due under this Agreement, whether by cancelling Client’s credit card, initiating an improper chargeback, or any other means, Client’s SheWorks! account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. Without limiting other available remedies, Client must reimburse SheWorks! for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, SheWorks! may set off amounts due against other amounts received from or held for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.

2.8 Hold on funds.

In cases of fraud, abuse or violation of this Agreement, the SheWorks! Payment Guarantee shall be revoked and all monies due to the Talent may be held and/or reclaimed, not just those from the Contract(s) under investigation.

For Hourly-Rate Contracts, SheWorks! will hold Client’s funds during the Dispute Period. Once the Dispute Period has passed, charges are accepted by Client and will be released to Talent.

2.9 Dispute Resolution Policy.

For Hourly-Rate Contracts only, Clients may dispute hours on the day following the disputed work or during the dispute period following the close of a monthly invoice period. The Dispute Period for Hourly-Rate Contract is seven (7) days after the last day of the Monthly Invoice Period. It is the Client’s responsibility to review the Work Diary and Time Log of every Service Contract daily and to file any disputes on a timely basis. Once the Dispute Period has passed, the charges are accepted by the Client and can no longer be disputed and can only be refunded by the Talent. Disputes can address the hours billed, the quality of the work performed, and/or the compliance of deliverables with Client specifications. SheWorks! will promptly investigate the Work Diary and Time Log to determine, in its sole discretion, whether an adjustment is appropriate. SheWorks!’s determination shall be final.

2.10 Enforcement of Agreement and Policies.

SheWorks! has the right, but not the obligation, to suspend or cancel your access to the SheWorks! Platform if it believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting SheWorks!’s other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the SheWorks! Platform to you if (a) you breach any terms and conditions of this Agreement or other written policies and procedures posted on the Site and our website (www.SheWorks!.com); (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, our Users or for SheWorks!. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. When your User account is canceled, you may no longer have access to any parts of the SheWorks! Platform, including data, messages, files and other material you keep on SheWorks!.

3. SERVICE CONTRACT TERMS BETWEEN CLIENT AND TALENT.

Unless otherwise agreed to in a writing signed by both Client and Talent, the terms and conditions of the Service Contract are as set forth in Sections 3.1 through 3.12 below (“Standard Terms”). Client and Talent may not agree to any other terms and conditions that affect the rights or responsibilities of SheWorks!.

3.1 Services.

Talent shall perform Services in a professional and workmanlike manner and shall timely deliver any agreed-upon Work Product (to be defined below).

3.2 Client Payments and Billing.

Client shall pay the agreed-upon amount for time spent (under Hourly-Rate Contracts) or the approved project (under a Fixed-Rate Contract) to SheWorks!, and Client will have no obligation of payment to Talent. Talent agrees that it will be paid solely by SheWorks! and Talent will not have any recourse against Client if Talent is not paid by SheWorks!. For Hourly-Rate Contracts, Client is billed for hourly Talent Fees on a weekly basis. For payments under a Fixed-Rate Contract, Client is billed immediately.3.3 Termination of a Service Contract.

Under Hourly-Rate Contracts, either party may terminate the Service Contract at any time for any or no reason. However, the Client remains obligated to pay for any time the Talent worked prior to termination.

For a Fixed-Rate Contract, the Client may terminate at any milestone after payment for that milestone has been made. Client may not recover any payments already made. The Talent may terminate a Fixed-Rate Contract at any time if no payment has been made. If a payment has been made on a Fixed-Rate Contract, the Talent may terminate only with the Client’s consent or after the payment has been refunded.

3.4 Client Deliverables.

Client grants Talent a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Deliverables as necessary for the performance of the Services. The Client and SheWorks! when acting as a Client, reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Client Deliverables. Upon completion or termination of the Service Contract, or upon written request by the Client, Talent shall immediately return all Client Deliverables to the Client and further agrees to purge all copies of Client Deliverables and Work Product contained in or on Talent’s premises, systems, or any other equipment otherwise under Talent’s control.

3.5 Work Product.

The Talent agrees that the work product, and other results, systems and information developed by the Talent, the Client and / or SheWorks! in connection with such Services (hereinafter referred to collectively as the “Work Product”) shall, to the extent permitted by law, be a “work made for hire” within the definition of the U.S. Copyright Act of 1968, and shall remain the sole and exclusive property of the Client and of SheWorks! when acting as a Client. To the extent that under applicable law, Proprietary Rights cannot be assigned, Talent hereby irrevocably agrees to grant, and hereby grants, to Client an exclusive (excluding also Talent), perpetual, irrevocable, unlimited, worldwide, fully paid, and unconditional license to use and commercialize Work Product in any manner now known or in the future discovered. To the extent such license grant is not fully valid, effective or enforceable under applicable law, Talent hereby irrevocably agrees to grant, and hereby grants, to Client, such rights as Client reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal ownership. In order to ensure that Client will be able to acquire, perfect and use such Proprietary Rights, Talent will: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to Client, including delivery of a complete copy of the source code for any software, documented in sufficient detail to enable a reasonably skilled programmer to correct, integrate and modify it; (ii) sign any documents at Client’s request to assist Client in the documentation, perfection and enforcement of its rights; and (iii) provide Client with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Proprietary Rights in any and all countries. In the case that under applicable law, Talent retains any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights” (collectively “Moral Rights”) or other inalienable rights to Work Product or Confidential Information under this Agreement, Talent irrevocably agrees to waive, and hereby waives, all such rights, or, to the extent Talent cannot waive such rights, Talent agrees not to exercise such rights, until Talent has provided prior written notice to Client and then only in accordance with any reasonable instructions that Client issues in the interest of protecting its rights. Talent’s obligations under this Section 3.5 will continue even after Talent deregisters from or ceases use of the SheWorks! Platform. Talent appoints Client as Talent’s attorney-in-fact to execute documents on Talent’s behalf for the purposes set forth in this Section 3.5.

3.6 Pre-existing Intellectual Property in Work Product.

Talent shall ensure that no Work Product created or delivered by Talent includes any pre-existing software, technology or other intellectual property, whether such pre-existing intellectual property is owned by Talent or a third party including, without limitation, code written by proprietary software companies or developers in the open source community (collectively “Pre-existing IP”) without obtaining the prior written consent of the Client to the inclusion of such Pre-existing IP in the Work Product. Talent acknowledges that, without limiting any other remedies, Talent shall not be entitled to payment for, and shall refund to Client any payments previously made by Client to Talent for, any Services performed on a Service Contract if the Work Product contains any Pre-existing IP that was not approved in accordance with this Section 3.6.

3.7 Worker Classification.

All Talents shall be classified as an independent contractor based on the applicable legal guidelines unless otherwise agreed to in writing by Talent, Client and SheWorks!. This Agreement does not create a partnership or agency relationship between Client and Talent. Talent does not have authority to enter into written or oral – whether implied or express – contracts on behalf of Client. Talent acknowledges that SheWorks! reserves the right to supervise, direct or control Talent’s Work Product.  SheWorks! does not set Talent’s work hours or location of work. SheWorks! is involved in determining if the compensation will be set at an hourly or fixed rate or in setting the particular rate for a Service Contract. SheWorks! will not provide Talent with training or any equipment, labor or materials needed for a particular Contract. SheWorks! will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Client and Talent will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Talent’s performance of Services. For Contracts classified as independent contractor relationships, Client may not require an exclusive relationship between Client and Talent. A Talent classified as independent contractor is free at all times to provide Services to persons or businesses other than Client, including any competitor of Client. Client and Talent agree to indemnify, hold harmless and defend SheWorks! from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Talent was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Talent was misclassified (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that SheWorks! was an employer or joint employer of Talent, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.

3.8 Audit Rights

Client and Talent each shall (i) create and maintain records to document satisfaction of its obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to SheWorks! upon request. SheWorks!, or SheWorks!’s advisors or agents, shall have the right, but not the obligation, to routinely, but no more frequently than annually, audit Talent’s operations and records to confirm compliance. Nothing in this provision should be construed as providing SheWorks! with the right or obligation to supervise or monitor the actual Services performed by Talent.

3.9 Third Party Beneficiary

SheWorks! is hereby named as a third party beneficiary of each Service Contract.

3.10 General.

Service Contracts shall be governed by Sections 6 (Confidential Information), 11 (General), and 12 (Definitions) of this Agreement, as applicable either directly or by way of analogy.

3.11 Entire Agreement.

The terms and conditions set forth in this Section 3 and any additional or different terms expressly agreed by Client and Talent shall constitute the entire agreement and understanding of Client and Talent with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.

  1. ACKNOWLEDGMENT BY USER OF SHEWORKS!’S ROLE.

4.1 Service Contracts.

User expressly acknowledges, agrees and understands that: (i) the SheWorks! Platform is a venue where Users may act as Clients or Talents; (ii) For the purposes of some contracts, SheWorks! may act as a Client or Talent to any User; (iii) SheWorks! is a 3rd party beneficiary to every Service Contracts between Clients and Talents, in the event that SheWorks! is acting as a Client or Talent, SheWorks! is a party to the Service Contract; (iv) User recognizes, acknowledges and agrees that User is not an employee of SheWorks!; however, SheWorks! reserves the right to supervise and direct Talent’s Work Product or Services and (iv) SheWorks! shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users.

4.2 Proprietary Rights.

SheWorks! and its licensors reserve all Proprietary Rights in and to the SheWorks! Platform. User may not use the SheWorks! Platform except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement. SheWorks! reserves the right to withdraw, expand and otherwise change the SheWorks! Platform at any time in SheWorks!’s sole discretion. User shall not be entitled to create any “links” to the SheWorks! Platform, or “frame” or “mirror” any content contained on, or accessible through, the SheWorks! Platform, on any other server or internet-based device.

4.3 SheWorks!’s Compensation.

All SheWorks! Fees are non-refundable whether or not Service Contracts were satisfactorily completed, unless Client complies with the dispute policy regarding Hourly-Rate Contracts, listed above.

4.4 SheWorks! as an Agent

From time to time, a User may ask SheWorks! to provide a physical or manually signed copy of this Agreement, a Service Contract, or an ancillary document (for example, to enable a User to withdraw payments from User’s foreign bank account). User hereby appoints SheWorks! as its agent for the limited purpose of executing documents that confirm User’s activities on the SheWorks! Platform. SheWorks! will act on User’s behalf and in a clerical capacity, without in any way restricting SheWorks!’s rights or expanding SheWorks!’s obligations under this Agreement or any Service Contract. Each User appoints SheWorks! as its agent to execute an Act of Acceptance or equivalent instrument on the User’s behalf documenting payments made or to be made to Talents or to SheWorks!, if another User so requests.

4.5 Communications.

SheWorks! shall be free to reproduce, use, disclose, and distribute any and all communication conducted with SheWorks! through the Site including but not limited to feedback, questions, comments, suggestions and the like (the “Communications”). The User shall have no right of confidentiality in the Communications and the Company shall have no obligation to protect the Communications from disclosure. The Company shall be free to use any ideas, concepts, know-how, content or techniques contained in the Communications for any purpose whatsoever, including but not limited to the development, production and marketing of products and services that incorporate such information.

  1. INVOICES AND PAYMENT METHODS.

5.1 Formal Invoices and Taxes.

SheWorks! shall have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Talent Fees. Instead, Talent shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Talent Fees and for issuing any invoices so required. Talent shall also be solely responsible for: (a) determining whether Talent or SheWorks! is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Talent Fees, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or SheWorks!, as appropriate; and (b) determining whether SheWorks! is required by applicable law to withhold any amount of the Talent Fees, notifying SheWorks! of any such requirement and indemnifying SheWorks! (either by permitting SheWorks! to offset the relevant amount against a future payment of Talent Fees or by refunding to SheWorks! the relevant amount, at SheWorks!’s sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. SheWorks! shall have the right, but not the obligation, to audit and monitor Talent’s compliance with applicable tax laws as required by this Section 5.1. Further, in the event of an audit of SheWorks!, Talent agrees to promptly cooperate with SheWorks! and provide copies of Talent’s tax returns, and other documents as may be reasonably requested for purposes of such audit.

5.2 Payment Methods.

Client hereby authorizes SheWorks! to run credit card authorizations on all credit cards provided by Client, to store credit card details as Client’s method of payment for Services, and to charge Client’s credit card (or any other form of payment authorized by SheWorks! or mutually agreed to between Client and SheWorks!). SheWorks! may, in its sole discretion, deviate from its typical billing cycle for Hourly-Rate Contracts and charge Client for any and all Time Logs at any time.

5.3 Payment Guarantee.

SheWorks! guarantees payment to Talents working on Hourly-Rate Contracts where the Client has a verified payment method, the time represented is captured online using the SheWorks! Platforms, the work performed and captured pertains directly to the Service Contract billed, the work performed is consistent with the task description, and each Time Log is annotated with appropriate work memos describing the work performed (the “Payment Guarantee”). Determination of whether these criteria have been met is at the sole discretion of SheWorks!. The Payment Guarantee will not apply to Talents or Contracts in violation of this Agreement, where Talent does not meet clear specifications of the Service Contract, where the Talent is aware of or complicit in another User’s violation of this Agreement, or where there is any other involvement in fraudulent activities or abuse of this Payment Guarantee.

6. CONFIDENTIAL INFORMATION.

6.1 Confidentiality.

To the extent a Client or Talent provides Confidential Information to the other, the recipient shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not: (i) disclose Confidential Information to anyone except, in the case of SheWorks!, to any Client or Talent engaged in a Contract; and (ii) use the Confidential Information, except as necessary for the performance of Services for the relevant Service Contract (including, without limitation, the storage or transmission of Confidential Information on or through SheWorks! Platform for use by Talent).

6.2 Return.

If and when Confidential Information is no longer needed for the performance of Services for the relevant Contract, or at the Client’s or Talent’s written request (which may be made at any time at Client’s or Talent’s sole discretion), Client or Talent (as the case may be) shall promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Client or Talent, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this Section 6.2 within ten (10) days after the receipt of disclosing party’s written request to certify.

6.3 Publication.

Without limiting Section 6.1 (Confidentiality), Client, Talent and SheWorks! shall not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a Contract.

  1. WARRANTY DISCLAIMER.

SheWorks! MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, SheWorks! PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SheWorks! DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 10.2 (TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST SheWorks! WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.

  1. LIMITATION OF LIABILITY.

IN NO EVENT SHALL SheWorks! BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF SheWorks! TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (A) U.S. $2,500; AND (B) ANY SheWorks! FEES RETAINED BY SheWorks! WITH RESPECT TO CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR TALENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.

  1. INDEMNIFICATION.

9.1 Proprietary Rights.

Each User shall indemnify, defend and hold harmless SheWorks! and its subsidiaries, affiliates, officers, agents, employees, representatives and agents (each an “Indemnified Party” for purposes of this Section 9) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, judgment, or adjudication that any Work Product, Services or action or omission by such User infringes Proprietary Rights or other rights of any third party.

9.2 Indemnification by Client.

Each Client shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to (i) such Client’s use of Services, including without limitation claims by or on behalf of any Talent for worker’s compensation or unemployment benefits, or (ii) any Service Contract entered into between such Client and a Talent.

9.3 Indemnification by Talent.

Each Talent shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to (i) such Talent’s provision of Services, or (ii) any Service Contract entered into between such Talent and a Client.

10. TERM AND TERMINATION.

10.1 Term.

The term of this Agreement commences on the Effective Date and continues in effect until terminated in accordance with Section 10.2 below.

10.2 Termination.

Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or by terminating or suspending User’s account), provided, that any such termination for convenience shall not affect the validity of any Service Contracts that have been executed prior to termination and this Agreement shall continue to apply with respect to such Service Contracts.

10.3 Consequences of Termination.

Termination shall not relieve Client of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, shall be charged to Client’s credit card or other form of payment pursuant to Section 5.2 (Payment Methods). Subject to Section 2.9 (Dispute Resolution Policy), SheWorks! shall pay Talent, in accordance with the provisions of Section 5 (Invoices and Payment Methods), for all time recorded in the Time Logs incurred prior to the effective date of the termination.

10.4 Survival.

Sections 4 through 12 of this Agreement shall survive any termination thereof.

 

11. GENERAL.

11.1 Entire Agreement.

This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.

11.2 Side Agreements.

Section 11.1 notwithstanding, Clients and Talents may enter into any supplemental or other written agreement that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, assignment of rights, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand SheWorks!’s obligations or restrict SheWorks!’s rights under this Agreement.

11.3 Compliance.

User shall not violate any laws or third party rights on or related to the SheWorks! Platform. Without limiting the generality of the foregoing, User agrees to comply with all applicable import and export control laws and third parties’ Proprietary Rights.

11.4 Notices: Consent to Electronic Notice.

You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the SheWorks! Platform. Notices hereunder shall be invalid unless made in writing and given (a) by SheWorks! via email (in each case to the email address that you provide), (b) a posting on the Sites or (c) by you via email to info@SheWorks!.com or to such other addresses as SheWorks! may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.

11.5 Modifications.

No modification or amendment to this Agreement shall be binding upon SheWorks! unless in a written instrument signed by a duly authorized representative of SheWorks!. For the purposes of this Section 11.5, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles.

11.6 No Waiver.

The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.

11.7 Assignability.

User may not assign this Agreement, or any of its rights or obligations hereunder, without SheWorks!’s prior written consent in the form of a written instrument signed by a duly authorized representative of SheWorks! (and, for the purposes of this Section 11.7, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). SheWorks! may freely assign this Agreement without consent of User. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.

11.8 Severability.

If and to the extent any provision of this Agreement is held to be illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.

11.9 Choice of Law.

This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement, including by not limited to a Service Contract, (“Claims”) shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

11.10 Dispute Resolution; Arbitration; Personal Jurisdiction and Venue.

SheWorks! and User hereby agree that any Claims shall first be settled through negotiation or according to the Dispute Resolution Policy set forth in Section 2.9 above. If a Claim (other than a Claim for injunctive or other equitable relief) remains unresolved by these means, either party will have the right to demand binding non-appearance based arbitration by a third party service mutually agreed upon by the parties. A final judgment will be made by the arbitrator, which must be adhered to by both parties and by SheWorks!, as applicable. You agree that any Claim you may have against SheWorks!, if not resolved as set forth above, must be resolved by the New York State courts located in New York County (or, if there is exclusive federal jurisdiction, the United States District Court for New York). You hereby irrevocably consent to the personal jurisdiction and venue of these courts.

11.11 Prevailing Language.

The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.

  1. DEFINITIONS.

12.1

“Agency” means a legally recognized entity with the ability to hire and/or contract.

12.2

“Average Weekly SheWorks! Fees” means the average weekly amount of SheWorks! Fees that became due to SheWorks! based upon work performed for Client by the Talent over the four (4) weeks immediately preceding the buy-out notice, not counting any weeks in which no SheWorks! Fees became due.

12.3

“Claim” means any controversy, dispute or claim arising out of or relating to this Agreement, including but not limited to a Service Contract.

12.4

“Client” means any User utilizing the SheWorks! Platform to request Services to be performed by a Talent. From time to time, SheWorks! may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to SheWorks! when acting in this way.

12.5

“Client Deliverables” means instructions, requests, intellectual property and any other information or materials that a Talent receives from a Client for a particular Service Contract.

12.6

“Confidential Information” means Client or Talent Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract, regardless of whether in tangible, electronic, verbal, graphic, visual or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Talent or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of Confidential Information.

12.7

“Dispute Period” means the full seven (7) days immediately following the end of a Monthly Invoice Period, this period ends at 11:59 P.m. EST on the Sunday immediately following the end of the Monthly Invoice Period.

12.8

“Effective Date” means the date of acceptance of this Agreement.

12.9

“Fixed Price” means a fixed fee agreed between a Client and a Talent, prior to the commencement of a Contract, for the completion of all Services requested by Client for such Contract.

12.10

“Fixed Price Contract” means a Service Contract for which Client is charged a Fixed-Price.

12.11

“Talent” means any company or individual User utilizing the SheWorks! Platform to offer Services to Clients.

12.12

“Talent Deliverables” means instructions, requests, intellectual property and any other information or materials that a Client receives from a Talent for a particular Service Contract.

12.13

“Talent Fees” means: (a) for an Hourly-Rate Contract, an amount equal to the number of hours recorded by Talent in the Time Logs, multiplied by the Hourly Rate; (b) the price determined by the Fixed-Price Contract; and (c) any bonuses paid or other payments made by a Client for a Service Contract.

12.14

“Hourly Rate” for a Service Contract means, in respect of a Talent, the hourly rate specified for that Talent in the SheWorks! Platform.

12.15

“Hourly-Rate Contract” means a Service Contract for which Client is charged based on the Hourly Rate.

12.16

“Indemnified Party” means SheWorks! and its subsidiaries, affiliates, officers, agents, employees, representatives and agents.

12.17

“Moral Rights” means any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights”.

12.18

“SheWorks! Platform” means the online platform operated by SheWorks!, including related software and services, that allows Clients to monitor and record activity time by a Talent and other related business.

12.19

“TransparentBusiness Time Tracker” means the online software used by SheWorks! and downloadable by SheWorks! Professionals for tracking time and registering screenshots.

12.20

“Payment Guarantee” means the guaranteed payment to Talents working on Hourly-Rate Contracts where the Client has a verified payment method, the time represented is captured online using the SheWorks! Platform, the work performed and captured pertains directly to the Service Contract billed, the work performed complies with Client task descriptions, the work hours are authorized, and each Time Log is annotated with appropriate work memos describing the work performed.

12.21

“Payment Period” shall mean the first week of each month beginning on the first working day of that month at 12:00 AM EST.

12.22

“Pre-Existing IP” means pre-existing software, technology or other intellectual property, whether such pre-existing intellectual property is owned by Talent or a third party including, without limitation, code written by proprietary software companies or developers in the open source community.

12.23

“Proprietary Rights” means any and all rights, title, ownership and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.

12.24

“Service Contract” means a particular project or set of ongoing tasks for which a Client has requested SheWorks!´s Services to be performed by a Talent and the Talent has agreed on the SheWorks! Platform.

12.25

“Services” means graphic design, web design, multimedia, e-marketing, creative writing, community management services or any other creative human services.

12.26

“The Sites” mean our websites located at www.SheWorks!.com and www.transparentbusiness.com.

12.27

“Time Logs” means the number of hours recorded for a stated period by a Talent in SheWorks! Team in compliance with SheWorks!’s then-current Policies, for the Services performed in respect of a Contract.

12.28

“Work Diary” means the collection of Talent work information collected by the SheWorks! Platform. The Work Diary includes the Time Logs, screenshots, and aggregated statistical computer information.

12.29

“Work Product” means any tangible or intangible results or deliverables that Talent agrees to create for, or actually delivers to, Client as a result of performing the Services on a particular Service Contract, including, but not limited to, configurations, computer programs or other information, or customized hardware, and any intellectual property developed in connection therewith.

BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE PARTIES CONFIRM THAT THEY HAVE READ AND UNDERSTAND THE TERMS OF THIS  AGREEMENT.