Terms of Service

These Service Terms and Conditions (“Agreement”) constitute a contract between TalentOrg Inc with offices at 8 The Green Suite 11439 Dover, DE 19901 (“Metawork”), and you (“Customer”). Metawork wishes to provide, and you wish to have the right to access pursuant to the terms of this Agreement, a subscription to the web, desktop, and mobile applications and services offered by Metawork ("Services").

This Agreement includes and incorporates the webpage order form with which you purchased the Services and any subsequent order forms submitted in written or electronic form ("Order Form"), as well as any other attachments or amendments that are mutually agreed in writing. The effective date ("Effective Date") of this Agreement is the date that is earlier of (a) the effective date of the first Order Form referencing this Agreement, and (b) Customer's initial access to the Services through any online registration, provisioning or order process.

By accessing or using the Services, including any Free Services as described below, you agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, organization, or other entity, you represent that you have such authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter into this Agreement or do not agree with this Agreement, you may not use the Services.

To the extent that any conflict or inconsistency arises between the provisions in this Agreement, any Order Form or the Documentation, the terms of this Agreement shall prevail. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter herein, and supersedes all prior discussions and agreements, whether written or oral, with respect to such subject matter.

Notwithstanding anything to the contrary in this Agreement, from time to time, Metawork may modify this Agreement with ten (10) days' notice to Customer. Unless otherwise specified by Metawork, changes become effective for Customer upon posting of the modified Agreement. If Customer does not agree to such changes, Customer must notify Metawork of such disagreement within the ten (10) day notice period, and Metawork (at its option and as Customer's exclusive remedy) may either: (i) permit Customer to continue under the prior version of this Agreement until the next renewal of the current Order Form, after which the modified Agreement will apply, or (ii) terminate this Agreement and provide to Customer a refund of any Fees that Customer already paid with respect to the terminated portion of the applicable Order Form. Metawork will use reasonable efforts to notify Customer of the changes through Customer's account, email, or other means. Customer may be required to click to accept the modified Agreement before using the Services in a renewal Term, and in any event continued use of the Services during the renewal Term will constitute Customer's acceptance of the version of the Agreement in effect at the time the renewal Term begins.

1. Our Obligations

1.1 Subject to and conditioned on Customer’s payment of Fees and full compliance with this Agreement, Metawork grants Customer a non-exclusive, non-sublicensable, non-transferable license during the period of time in which each subscription remains in effect ("Term") to access and use the Services, in accordance with the documentation Metawork may update from time to time in connection with upgrades ("Documentation"). Metawork Services are provided for Customer's commercial use only, not for private use.

1.2 Use of the Services may require Customer to install Metawork software ("Software") on mobile devices or desktops, which use shall be subject to this Agreement. Metawork grants Customer a non-exclusive, non-sublicensable, non-transferable license to install and use the Software only in object code form on compatible devices identified in the Documentation, solely for licensed use of the Services during the Term and in accordance with the applicable Order Form.

1.3 During the Term, Metawork will provide basic support for the Services to Customer as described in the service-level agreement ("SLA"). Metawork will provide the Services in accordance with applicable laws and government regulations. The Services, the SLA, and the Documentation are subject to modification from time to time at Metawork’s sole discretion, provided the modifications do not materially diminish the functionality of the Services provided by Metawork and the Services continue to perform according to the description of the Services specified in Section 1.4 in all material aspects. Customer shall have the right to terminate the Agreement pursuant to Section 9.2 without any penalty if (i) a material modification to the Services, the SLA or the documentation is made which materially diminishes the functionality of the Services or materially diminishes the SLA; (ii) Metawork has not obtained Customer’s consent for such modifications; and (iii) Metawork does not provide a remedy in the cure period stated in Section 9.2.

1.4 Metawork will make the Services available and the Services will perform substantially in accordance with the description found at Metawork website. Metawork offers Starter, Growth, Pro, and Enterprise plans with increasing numbers of users, features, data retention, and support levels as described on the Metawork website. Notwithstanding the foregoing, Metawork reserves the right to suspend Customer’s access to the Services immediately (i) in the event that Customer breaches Section 3 or Section 6 of this Agreement, or breaches any other provision of this Agreement and fails to correct that breach within the applicable cure period; or (ii) as it deems reasonably necessary to respond to any actual or potential security or availability concern that may affect Customer. In addition, Metawork may, without liability, suspend the Services to some or all of the Users (a) as necessary to prevent an attempted security breach or cyber-attack, (b) in order to protect Metawork's or its customers systems; or (c) if required by a governmental entity or law enforcement agency. Customer shall receive notification of such suspension, to the extent and in the manner that Metawork provides a notification to its other affected customers.

1.5 Metawork may use data related to the use of the Services by Customer that (i) does not specifically identify Customer, Users or third parties, and (ii) is combined with the data of other customers, users or additional data sources ("Aggregated Data") for the following purposes: (a) maintaining, improving, and/or analyzing the Services, including analytics and reporting, (b) complying with legal or contractual requirements, (c) analyzing and mitigating security risks such as vulnerabilities or networking issues, and (d) developing, distributing and publishing measures and reports of the Services. Aggregated Data is not Confidential Information and will not be subject to any confidentiality restrictions or obligations under Section 5.

2. Customer Responsibilities

2.1 Customer may only use the Services in accordance with the Documentation, applicable laws and government regulations and as explicitly set forth in this Agreement. Customer will cooperate with Metawork in connection with the performance of this Agreement as may be necessary, which may include making available such personnel and information as may be reasonably required to provide the Services or support. Customer is solely responsible for determining whether the Services are sufficient for its purposes, including, but not limited to, whether the Services satisfy Customer’s legal and/or regulatory requirements.

2.2 Customer shall be solely responsible for the accuracy, integrity and legality of any content or data, including personal data as this term is defined in the applicable data protection laws, submitted by or on behalf of Customer to the Services and the output of the Services that incorporates such content or data or is otherwise specific to Customer ("Customer Data"). Customer shall not provide any infringing, offensive, fraudulent, or illegal Customer Data in connection with the Services, and Customer represents and warrants that any content it provides will not violate the intellectual property or data protection rights, among other rights, of any User or third party. Metawork reserves the right, in its sole discretion, to delete or disable any Customer Data submitted by Customer that may be infringing, offensive, fraudulent, or illegal. As between the Parties, Customer exclusively owns all right, title and interest in and to all Customer Data and Metawork claims no right, title or interest in the Customer Data. Subject to the terms of this Agreement, Customer hereby grants Metawork a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and perform and display in Customer's account the Customer Data solely to the extent necessary to provide the Services to Customer. Further, Metawork may periodically access Customer's account and Customer Data to improve, support, and operate the Services (e.g., for quality assurance, benchmarking, technical support, or billing purposes).

2.3 In connection with the Services, Customer (or its Users) may choose to use or procure third-party products or services that are not licensed to Customer directly by Metawork (“Third-Party Services”). The Customer's use of such Third Party Services shall be governed solely by the terms and conditions applicable to such Third-Party Services, as agreed to between Customer and the third party. Metawork does not endorse or support, is not responsible for, and disclaims all liability with respect to Third-Party Services, including, without limitation, the privacy practices, data security processes, or other policies related to Third-Party Services. Customer agrees to waive any claim against Metawork with respect to any Third-Party Services and shall ensure it has purchased or obtained all necessary licenses required to properly access and use Third-Party Services.

2.4 Customer shall use reasonable measures to prevent unauthorized access to or use of the Services and notify Metawork promptly upon Customer becoming aware of any such unauthorized access or use. Other than Metawork's express obligations under Section 7 (Data Protection and Security), Metawork assumes no responsibility or liability for Customer Data and the consequences of collecting, submitting and using it within the Services.

2.5 Customer will be fully responsible for all use under Customer's account and for Users’ compliance with this Agreement. Any breach of this Agreement by a User shall be deemed to be a breach by Customer. Metawork’s relationship is with Customer and not individual Users or third parties using the Services through Customer. Customer will address all claims raised by its Users and third parties using the Services through Customer directly with Metawork. Customer must ensure that all third parties that utilize the Services through Customer agree (i) to use the Services in full compliance with this Agreement; and (ii) to the extent permitted by applicable law, to waive any and all claims directly against Metawork related to the Services.

3. Restrictions

Customer will not, and will not permit any Users or any third party to: reverse engineer, decompile, disassemble, decode, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services, Software, hardware tokens, or any data related to the Services (except to the extent such prohibition is contrary to applicable law that cannot be excluded by the agreement of the Parties); modify, translate, or create derivative works based on the Services or Software; share, rent, lease, loan, resell, sublicense, distribute, use, or otherwise transfer the Services or Software for time-sharing or service bureau purposes or for any purpose other than its own use, except as expressly provided in an applicable Order Form; build a competitive product or service; attempt to gain unauthorized access to restricted aspects of the Service; publicly disseminate Services performance information or analysis, including without limitation benchmarks, except with Metawork's prior written consent; or use the Services or Software other than in accordance with this Agreement and in compliance with applicable law.

4. Payment of Fees

4.1 Customer will pay Metawork all fees specified in Order Forms ("Fees") plus all applicable sales, use, and other purchase-related taxes (or provide Metawork with a valid certificate of exemption from the requirement of paying sales, use, or other purchase-related taxes) in accordance with the payment schedule and payment terms set forth on the applicable Order Form. Customer shall be responsible for all taxes related to the Services and this Agreement, exclusive of taxes on Metawork’s income. Except as otherwise indicated in the applicable Order Form, all fees and expenses shall be in U.S. dollars. Unpaid and due Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees, except to the extent applicable law requires a different interest or finance charge calculation for unpaid and due Fees and expenses. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Metawork on account thereof. If the method of payment is by credit card, Customer agrees to (i) keep Customer’s credit card information updated and (ii) authorize charging Customer’s credit card the Fees when due. Metawork will not charge Users any fees for their use of the Services or Software without Customer’s authorization and the Software can be downloaded by Users free of charge. Users’ carriers or service providers may charge fees for data usage, messaging, phone calls, or other services that are required for them to use the Services. Unless otherwise agreed, all Fees paid under this Agreement are non-refundable.

4.2 If Customer uses only Metawork Services available for free on its webpage ("Free Services"), Metawork will not charge Customer any Fees for use of such Free Services or download, installation, or use of the Software associated with the Free Services. Such Customer may discontinue using the Free Services at any time, but must immediately remove any Software from its devices.

4.3 At any time during the Term, and unless otherwise agreed to in writing by the Parties, any increase or overage in the maximum number of Users specified in the Order Form will be treated in accordance with this Section 4.3 (“Subscription Upgrade”). The maximum number of Users shall be increased as follows:

For Customers enrolled in the Starter plan, if the maximum number of Users exceeds 4, the Customer will be automatically upgraded to the Growth plan.

For Customers enrolled in the Growth plan, if the maximum number of Users exceeds 10, the Customer will be automatically upgraded to the Pro plan.

For Customers enrolled in the Pro plan, if the maximum number of Users exceeds 20, the Customer will be charged for each additional User above 20 at the per User rate specified in the Order Form.

For Subscription Upgrades for Customers on the Enterprise plan, the maximum number of Users shall be increased based on the Customer's requirements and associated custom pricing.

Metawork shall invoice Customer for the increase in the maximum number of Users at the subscription rate and payment terms specified in the most recent Order Form, prorated for the remainder of the then-applicable subscription Term. For any future subscription Term, the number of Users and applicable Fees will reflect any Subscription Upgrades.

5. Confidentiality

5.1 The term “Confidential Information” means any information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) in any form (written, oral, etc.) that is marked as confidential or that should be reasonably understood to be confidential given the nature of the information and the circumstances of the disclosure, including, without limitation: trade secrets; technology and technical information (intellectual property, inventions, know-how, ideas, and methods); business, financial, and customer information (including Customer Data and Customer personal data); pricing, forecasts, strategies, and product development plans; and/or the terms of this Agreement. However, Confidential Information shall not include any information that (i) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; or (ii) was in its possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.

5.2 Each party understands that the Disclosing Party has or may disclose Confidential Information in connection with this Agreement, but that the Receiving Party shall receive no rights in, or licenses to, such Confidential Information. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside of the scope of this Agreement, except with the Disclosing Party's prior written permission. The Receiving Party agrees: (i) to not disclose Confidential Information to any third party other than those of its employees, contractors, advisors, investors, and potential acquirers (“Representatives”) with a need to have access thereto and who have entered into non-disclosure and non-use agreements applicable to the Disclosing Party’s Confidential Information, and (ii) to use such Confidential Information solely as reasonably required in connection with the Services and/or this Agreement. Each Party agrees to be responsible for any breach of this Agreement caused by any of its Representatives. The Receiving Party further agrees to take the same security precautions to protect against unauthorized disclosure or unauthorized use of such Confidential Information of the Disclosing Party that the Party takes with its own confidential or proprietary information, but in no event, will a Party apply less than reasonable precautions to protect such Confidential Information. Each Party acknowledges that the use of such precautions is not a guarantee against unauthorized disclosure or use.

5.3 Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information as required in response to a request under applicable open records laws or pursuant to any judicial or governmental order, provided that, to the extent permitted by law, the Receiving Party gives the Disclosing Party reasonable prior notice to contest such a disclosure. For the avoidance of doubt, Customer acknowledges that Metawork utilizes the services of, and Customer may request additional services from, certain third parties in connection with Metawork’s provision of the Services (such as data hosting, telephone service providers, and Customer’s Third-Party Services providers) and such third parties will have access to Customer’s Confidential Information, including Customer Data and Customer Personal Data in accordance with this Agreement.

5.4 Each Party agrees that, upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party, or provide written certification of the destruction of, all Confidential Information of the Disclosing Party, including all Confidential Information contained in internal documents, without retaining any copy, extract, or summary of any part thereof. Notwithstanding the foregoing, a Receiving Party may retain copies of Confidential Information solely to the extent necessary for purposes of such party’s ordinary course of business internal document retention and backup requirements and procedures, provided that such Confidential Information shall remain subject to the terms and conditions of this Agreement for so long as it is retained.

5.5 Customer acknowledges that Metawork does not wish to receive any Confidential Information from Customer that is not necessary for Metawork to perform its obligations under this Agreement, and, unless the Parties specifically agree otherwise, Metawork may reasonably presume that any unrelated information received from Customer is not Confidential Information, unless such information is marked as “Confidential.”

6. Intellectual Property Rights; Ownership

Except as expressly set forth herein, Metawork alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services and/or the Software, which are hereby assigned to Metawork. Customer will not copy, distribute, reproduce, or use any of the foregoing except as expressly permitted under this Agreement. As between the Parties, Metawork owns all Aggregated Data. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or Software, or any intellectual property rights.

7. Data Protection and Security

7.1 Customer shall be responsible for determining whether the Services are appropriate for the storage and processing of Customer Data (including Customer Personal Data) under applicable data protection law. Customer represents and warrants to Metawork that the Customer Personal Data provided to or otherwise collected by Metawork in connection with the Services, the means by which Customer acquired such Customer Personal Data, and the Customer's instructions for the processing of Customer Personal Data in connection with the Services shall comply with all applicable data protection laws.

7.2 Customer (including its Users) may enable integrations between the Services and certain of its Third-Party Services (each, an “Integration”). By enabling an Integration between the Services and its Third-Party Services, Customer is expressly instructing Metawork to share the Customer Data necessary to facilitate the Integration. Customer acknowledges it is solely responsible for providing any and all instructions to the Third-Party Service provider about the use and protection of Customer Data, including any Customer Personal Data, and for entering into any required agreements with the Third-Party Service provider to protect such Customer Data or regulate its use by the Third-Party Service provider. Customer acknowledges Metawork and Third-Party Service providers are not sub-processors of each other.

7.3 Metawork shall implement reasonable technical and organizational security measures designed to protect Customer data from unauthorized access or disclosure, as further described in its Security Policy.

7.4 Metawork will retain Customer data in accordance with its Data Retention and Deletion Protocol.

8. Indemnification

8.1 For Customers enrolled in any form of Services requiring the payment of Fees, Metawork shall indemnify and hold Customer harmless from liability to third parties resulting from infringement by the Services of any patent or any copyright or misappropriation of any trade secret, provided Metawork is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Metawork will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Metawork; (ii) resulting in whole or in part from Customer specifications; (iii) that are modified after delivery by Metawork; (iv) combined with other products, processes, or materials where the alleged infringement relates to such combination; (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (vi) where Customer’s use of Services is not strictly in accordance with this Agreement and all related Documentation. If Metawork receives information about an actual or alleged infringement or misappropriation claim that would be subject to indemnification rights set forth in this Section 8, Metawork shall have the option, at its expense, to (i) modify the Software to be non-infringing or (ii) obtain a license for Customer to continue using the Software. If Metawork determines it is not commercially reasonable to perform either of the above options, then Metawork may at its option elect to terminate the license for the Services and refund the unearned portion of any prepaid subscription Fees, prorated on a monthly basis. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT, MISAPPROPRIATION, AND/OR CLAIMS ALLEGING INFRINGEMENT OR MISAPPROPRIATION. Metawork’s obligations under this Section 8 do not apply to Customer’s use of Free Services.

8.2 Customer will indemnify Metawork from all damages, costs, settlements, attorneys’ fees, and expenses related to any claim related to Customer’s breach of Section 2 “Customer Responsibilities,” Section 3 “Restrictions,” Section 5 "Confidentiality," Section 6 “Intellectual Property Rights & Ownership,” or Section 7 “Data Protection.” Without limitation, Customer shall defend and indemnify Metawork against any claim made or brought against Metawork by a User or a third party arising from Customer's provision or collection of Customer Data, including Customer Personal Data, in violation of applicable law or third party rights.

9. Termination

9.1 This Agreement commences on the Effective Date. Subject to earlier termination as expressly provided for in this Agreement, the initial Term of this Agreement shall be for the Term specified in the Order Form, or in the event of multiple Order Forms, until the Term of all Order Forms has expired. Each Order Form and this Agreement shall automatically renew after the initial Term and any renewal Term for a renewal Term equal to the expiring subscription Term, unless either party provides to the other at least thirty (30) days prior written notice that it will not renew. The Fees per User for each renewal Term will be equal to the Fees per User for the immediately prior Term, plus a price increase. Any pricing increase will not exceed seven percent (7%) per year, unless the pricing was designated in the applicable Order Form as promotional or one-time; provided, however, the Fees for each renewal Term shall not exceed the list price as of the start date of such renewal Term.

9.2 In the event of any material breach of this Agreement by either party (other than Customer’s payment obligations), the non-breaching party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. If Customer fails to pay any Fees or other amounts in the applicable Order Form in accordance with the Payment Schedule, Metawork may terminate this Agreement prior to the end of the Term by giving five (5) business days prior written notice to Customer; provided, however, that this Agreement will not terminate if Customer has paid all Fees and other amounts in the applicable Order Form prior to the expiration of such five (5) business day period.

9.3 Either party may terminate this Agreement, without notice, (i) upon the institution or if a petition is filed, notice is given, a resolution is passed, or an order is made, in each case by or against the other party under applicable law relating to insolvency, administration, liquidation, receivership, bankruptcy, or any other winding-up proceedings; (ii) upon the other party’s making an assignment for the benefit of creditors or making a voluntary arrangement with its creditors; (iii) upon the other party’s dissolution or ceasing, or threatening to cease to do business or (iv) if any event occurs or proceeding is instituted, with respect to the other party that has the equivalent or similar effect to any of the events mentioned in Section 9.3(i) through (iii). Notwithstanding anything in this Agreement to the contrary, Metawork may, without penalty or liability and with or without notice, modify or discontinue its provision of Free Services at any time and to the extent Customer is only using Free Services, immediately terminate this Agreement.

9.4 The Sections of this Agreement which by their nature should survive termination or expiration of this Agreement, including but not limited to Sections 2 through 13, will survive termination or expiration of this Agreement. No refund of Fees shall be due in any amount on account of termination by Metawork pursuant to this Section 9. In the event of termination by Customer pursuant to this Section 9, Customer shall be entitled, as its sole and exclusive remedy, to receive a refund of any prepaid subscription Fees paid by Customer to Metawork for Services not rendered as of the termination date. When this Agreement expires or terminates, Metawork shall cease providing the Services to Customer.

10. Warranties and Disclaimer of Additional Warranties

10.1 For Customers enrolled in any form of Services requiring payment of Fees, Metawork represents and warrants that it will not knowingly include, in the Services released to Users and provided to Customer hereunder, any computer code or other computer instructions, devices, or techniques, including without limitation those known as viruses, disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program, or computer system or any component thereof, including its security or Customer Data. If, at any time, Metawork fails to comply with the warranty in this Section 10.1, Customer may promptly notify Metawork in writing of any such noncompliance. Metawork will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable correction plan is not established during such period, Customer may terminate this Agreement and receive a refund of any prepaid but unearned subscription Fees, prorated on a monthly basis, as its sole and exclusive remedy for such noncompliance. This provision does not apply to Customer’s use of Free Services.

10.2 EXCEPT AS EXPLICITLY PROVIDED IN THIS SECTION 10, THE SERVICES AND METAWORK CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. Metawork HEREBY DISCLAIMS FOR ITSELF AND ITS SUPPLIERS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT.

10.3 Each Party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) its performance of this Agreement will not conflict with any obligations it has to third parties.

11. Limitation of Liability

11.1 NOTHING IN THIS AGREEMENT (OR ANY ORDER FORM) SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; (III) ITS INDEMNIFICATION OBLIGATIONS; (IV) BREACH OF SECTION 3 “RESTRICTIONS,” SECTION 4 “PAYMENT OF FEES,” OR SECTION 6 “INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP;” OR (V) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.

11.2 SUBJECT TO SECTION 11.1, IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE TO THE OTHER PARTY (OR ANY PERSON CLAIMING THROUGH SUCH PARTY) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT; THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, (I) LOSS OF REVENUE OR ANTICIPATED PROFITS (WHETHER DIRECT OR INDIRECT) OR (II) LOST BUSINESS; OR (III) LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING ACTIVE AND PASSIVE NEGLIGENCE AND STRICT LIABILITY), BREACH OF STATUTORY DUTY, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

11.3 SUBJECT TO SECTION 11.1, THE MAXIMUM LIABILITY OF EITHER PARTY OR ITS SUPPLIERS FOR ANY AND ALL CLAIMS UNDER AN APPLICABLE ORDER FORM, WHETHER BASED IN CONTRACT, TORT (INCLUDING ACTIVE AND PASSIVE NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID OR TO BE PAID TO METAWORK UNDER SUCH ORDER FORM DURING THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT SUCH CLAIM IS FIRST ASSERTED. THE FOREGOING LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

12. Government Matters

12.1 Export. Notwithstanding anything else in this Agreement, Customer may not use, or provide to any person or export or re-export or allow the export or re-export of the Services or anything related thereto or any direct product thereof, in violation of any restrictions, laws, or regulations of the U.S. Department of Commerce, the U.S. Department of the Treasury Office of Foreign Assets Control, or any other U.S. or foreign agency or authority. Each party represents that it is not named on any U.S. government denied-party list. Customer and Users shall not access or use the Services in a U.S. embargoed country.

12.2 Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Metawork employee or agent in connection with this Agreement. If Customer learns of any violation of the above restriction, Customer will promptly notify Metawork.

12.3 Commercial Software. The Services (including the Software) are “commercial items” as that term is defined at FAR 2.101. If acquired by or on behalf of any Executive Agency other than an agency within the U.S. Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data—Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. This Section 12.3 is in lieu of, and supersedes, any other FAR, DFARS, DEAR, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement. Capitalized terms used in this Section are defined in the applicable FAR or DFARs.

13. Miscellaneous

13.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

13.2 Assignment. This Agreement is not assignable, transferable, or sublicensable by Customer except with Metawork’s prior written consent, which shall not be unreasonably withheld. Metawork may transfer and assign any of its rights and obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective permitted successors and permitted assigns.

13.3 No Third-Party Beneficiaries. Nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Agreement. No entities other than Metawork and Customer may terminate, rescind, or agree to any modification, waiver, or settlement with respect to this Agreement.

13.4 Entire Agreement; Amendment. Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers, amendments, and modifications must be in writing signed by the party against whom the waiver, amendment, or modification is to be enforced. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Metawork in any respect whatsoever.

13.5 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Metawork may provide notice using the information provided in the most recent Order Form and Customer may provide notice using the contact information provided on https://metawork.so.

13.6 Force Majeure. Any delay or failure in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay or failure is due to a labor dispute, fire, earthquake, flood, or any other event beyond the reasonable control of a party, provided that such party promptly notifies the other party thereof and uses reasonable efforts to resume performance as soon as possible.

13.7 Governing Law; Arbitration. This Agreement will be governed by the laws of the State of Delaware, U.S.A. without regard to its conflict of laws provisions. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Francisco, California, U.S.A. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.

13.8 Venue; Prevailing Party. The federal and state courts sitting in San Francisco, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Notwithstanding the foregoing, each party shall have the right to commence and prosecute any action for injunctive relief before any court of competent jurisdiction. In any arbitration, action, or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

13.9 Publicity. Customer agrees to participate in press announcements, case studies, trade shows, or other marketing reasonably requested by Metawork. During the Term and for thirty (30) days thereafter, Customer grants Metawork the right, free of charge, to use Customer’s name and/or logo worldwide, to identify Customer as such on Metawork’s website or other marketing or advertising materials. For clarity, this Section 13.9 does not include the use by Metawork of Customer Personal Data for marketing or advertising purposes.

13.10 Counterparts. This Agreement may be executed in counterparts (including execution by electronic signature, pdf or other electronic transmission), each of which will be deemed an original and legally binding and all of which together will be considered one and the same agreement.