MYWORKDRIVE RAPIDSTART SERVICES AGREEMENT
PLEASE READ THIS RAPIDSTART SERVICES AGREEMENT BEFORE PURCHASING OR USING THE RAPIDSTART CONSULTING OR TRAINING SERVICES. BY USING OR PURCHASING THE RAPIDSTART CONSULTING OR TRAINING SERVICES, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. BY ELECTRONICALLY PURCHASING RAPIDSTART SERVICES CUSTOMER ACCEPTS THE TERMS OF THIS AGREEMENT. MYWORKDRIVE RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO MYWORKDRIVE PROGRAMS AND SERVICES AT ANY TIME WITHOUT NOTICE.
This MyWorkDrive Consulting and Training Services Agreement (“Agreement”) is by and between Wanpath LLC dba MyWorkDrive, with its principal place of business at 605 Market Street, Suite 410, San Francisco, CA 94105 and the customer (“Customer”) identified on an order form incorporating this Agreement (“Order Form”), and is effective as of the date MyWorkDrive signs the Order Form (the “Effective Date”) or completion of purchase electronically on our site at https://www.myworkdrive.com.
1. RAPIDSTART CONSULTING SERVICES AND TRAINING SERVICES.
1.1 Consulting Services. Subject to the terms of this Agreement, MyWorkDrive will provide Customer consulting services (“Consulting Services”) as set forth on an order form entered into between the parties.
1.2 Training Services. Subject to the terms of this Agreement, MyWorkDrive will provide Customer training services (“Training Services”) as provided on the applicable Order Form.
1.3 General Provisions. Consulting Services and Training Services (collectively, “Services”) are only for Customer’s internal use and Customer may not use the Services to supply any consulting services or training services to any third party. Purchased Consulting and Training Services must be used within 30 days of purchase and are scheduled in 2 or 4 hour blocks with a maximum of 4 hours per day. Failure of customer to provide MyWorkDrive with 24 Hour notice of missed appointments will result in a 2-hour deduction in banked prepaid hours or billable services. Unless otherwise agreed (at MyWorkDrive’s discretion), all training and consulting is conducted between 8 AM – 5 PM Pacific Standard Time, Monday-Friday, United States Holidays excepted.
Customer will pay to MyWorkDrive the fees as agreed to on the order form or via our web portal. All fees will be paid prior to commencement of services. All payments are nonrefundable and made without the right of setoff or chargeback.
3.1 Ownership of Deliverables. Unless otherwise set forth in an Order Form, Customer acknowledges that it is not obtaining any intellectual property rights from MyWorkDrive under this Agreement. Customer acknowledges that in the course of performing its obligations under this Agreement, MyWorkDrive may create training materials or other works of authorship (collectively “Work Product”). Subject to Customer’s rights in its Confidential Information, MyWorkDrive shall own all right, title and interest in such Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Customer pursuant to or in connection with the performance of Consulting Services (a “Deliverable”), MyWorkDrive retains all right, title and interest in such Deliverables and hereby grants to Customer a nonexclusive, right to use, execute, reproduce, display and perform any such Deliverables.
3.2 Training Materials. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to any training materials provided by MyWorkDrive to Customer in connection with the provision to Customer of Training Services (“Training Materials”), other than the rights of use specifically granted in this Agreement. Customer will be entitled to keep and use all Training Materials provided by MyWorkDrive to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to MyWorkDrive. In particular and without limitation, Training Materials may not be modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. During the term of this Agreement, Customer may copy the Training Materials for its internal use.
3.3 Residual Rights. Notwithstanding the above, Customer agrees that MyWorkDrive, its employees and agents will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Services performed under this Agreement, subject to its obligations respecting Customer’s Confidential Information pursuant to Section 4.
4. CONFIDENTIAL INFORMATION.
Customer agrees not to disclose and shall hold their Confidential Information in trust and confidence and avoid the disclosure or release thereof to any MyWorkDrive personnel including but not limited to server or user logins, addresses, infrastructure diagrams, passwords and engineering documents. Customer further agrees that all training, remote access and consulting will require supervised access on their part.
5. WARRANTY AND LIABILITY.
5.1 Limited Warranty. With respect to any Services, MyWorkDrive warrants that Services rendered under this Agreement will be performed by qualified personnel; and the Services performed will substantially conform to any applicable requirements set forth in the Order Form.
5.2 Remedies. In the event that any Services fail to conform to the foregoing warranty in any material respect, the sole and exclusive remedy of Customer will be for MyWorkDrive, at its expense, to promptly re-perform the applicable Services. The foregoing warranty is expressly conditioned upon (i) Customer providing MyWorkDrive with written notice of any claim thereunder within seven (7) days of delivery of the affected Services, which notice must identify with particularity the non-conformity; (ii) Customer’s full cooperation with MyWorkDrive in all reasonable respects relating thereto, including, in the case of modified software, assisting MyWorkDrive to locate and reproduce the nonconformity; and (iii) with respect to any Deliverable, the absence of any alteration or other modification of such Deliverable by any person or entity other than MyWorkDrive.
5.3 Avertissement. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, MYWORKDRIVE DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY REPRESENTATION, WARRANTY OR CONDITION FROM COURSE OF DEALING OR USAGE OF TRADE.
6.1 No Employee Relationship. MyWorkDrive’s employees are not and will not be deemed to be employees of Customer. MyWorkDrive will be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workmen’s compensation and any similar taxes associated with employment of MyWorkDrive’s personnel. MyWorkDrive’s employees will not be entitled to any benefits paid or made available by Customer to its employees.
6.2 Subcontractors. MyWorkDrive may engage third parties to furnish services in connection with the Services, provided that such third parties have executed appropriate confidentiality agreements with MyWorkDrive. In addition, Services may be performed by Affiliates of MyWorkDrive.
For a period of three years from the termination of this Agreement or the initial Proposal, Customer agrees to not employ, make an offer of employment to, or enter into a consulting relationship with any employee or subcontractor of Company who is directly involved with the delivery of services under this Agreement, except upon the prior written consent of Company. If such a situation does arise, Customer is required to pay a commission of 100% of the employee’s first year salary based on either the new salary or the current Company salary, whichever is greater.
8. TERM AND TERMINATION.
The term of this Agreement will commence on the Effective Date and will remain and continue in effect for 1 year after completion of the RapidStart engagement, unless terminated as provided under this Agreement. This Agreement may be terminated in whole or in part by each party (the “Non-Breaching Party”) upon written notice to the other party if any of the following events occur by or with respect to such other party (the “Breaching Party”): (i) the Breaching Party commits a material breach of any of its obligations under this Agreement and fails to cure such breach within thirty (30) days after receipt of notice to do so; or (ii) any insolvency of the Breaching Party, any filing of a petition in bankruptcy by or against the Breaching Party, any appointment of a receiver for the Breaching Party, or any assignment for the benefit of the Breaching Party’s creditors. Upon termination, MyWorkDrive will be entitled to recover and retain payment for all Services and related expenses rendered through the date of termination, including for work in progress. In the event of termination or upon expiration of this Agreement, Sections 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 will survive and continue in full force and effect.
END USER shall indemnify, defend and hold harmless MyWorkDrive and its members, officers, directors, employees, representatives and agents from and against any and all damages, claims, losses, expenses, costs, obligations and liabilities, including, without limitation, attorneys’ fees and costs, arising from or related to this Agreement and END USER’s use or operation of the MyWorkDrive Software, Servers or Configuration recommendations.
10.1 Entire Agreement. This Agreement and the MyWorkDrive software terms of service available at https://www.myworkdrive.com/terms-of-service/ constitutes the entire agreement between the parties concerning the subject matter hereof. Purchase orders shall be for the sole purpose of defining quantities, prices and describing the Services to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.
10.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable.
10.3 Waiver. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by the Employee and by an authorized officer of the Company (other than the Employee). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.
10.4 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due).
10.5 No Third Party Beneficiaries. Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of MyWorkDrive and Customer and do not create any right in favor of any third party.
10.6 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California, without reference to the principles of conflicts of law. The provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The parties shall attempt to resolve any dispute related to this Agreement informally, initially through their respective management, and then by non-binding mediation in San Francisco County, California. Any litigation related to this Agreement shall be brought in the state or federal courts located in San Francisco County, California, and only in those courts and each party irrevocably waives any objections to such venue.
10.7 Notices. All notices must be in writing and shall be effective three (3) days after the date sent to the other party’s headquarters as shown on the Order Form, Attention Legal Department.
10.8 Government Regulation. Customer acknowledges that the Deliverables may be subject to export restrictions by the U.S. government and import restrictions by certain foreign governments. Customer may not export or re-export the Deliverables except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. Customer shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any Deliverables or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Deliverables are further restricted from being used for: (a) terrorist activity, or (b) the design or development of nuclear, chemical, or biological weapons or missile technology, without the prior permission of the U.S. government. The Deliverables and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Deliverables and Documentation by the U.S. Government shall be governed solely by the terms of this Agreement.
11. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCE WILL MYWORKDRIVE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF INCOME OR LOSS OF BUSINESS ADVANTAGE), WHETHER OR NOT FORESEEABLE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MYWORKDRIVE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID UNDER THE APPLICABLE ORDER FORM IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS OF LIABILITY WILL REMAIN IN FULL FORCE AND EFFECT, REGARDLESS OF WHETHER EITHER PARTY’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION 8 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND MYWORKDRIVE AND THE FEES CHARGED FOR THE SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.