Terms of Service
Last Update: December 5, 2022
These WRK Terms of Service (the “Terms of Service”) apply to Customer’s access to and use of the WRK Delivery Platform. These Terms of Service, together with the order or online registration form (“Order Form”) referencing these Terms of Service (collectively, the “Agreement”), form a binding legal agreement between Wrk Technologies Inc. (“WRK”, “Wrk”, “us”, “we”, “our”) and Customer. The term “Customer” refers to the organization agreeing to these Terms of Service or, if the Terms of Service are being agreed to by an individual who is not formally affiliated with an organization, Customer is such individual. The “Parties” refer to WRK and Customer and “Party” refers to each of WRK and Customer.
BY USING THE WRK DELIVERY PLATFORM (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 13(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE WRK DELIVERY PLATFORM.
CUSTOMER REPRESENTS AND WARRANTS TO WRK THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE WRK DELIVERY PLATFORM ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO WRK THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
1. Definitions
a. “Commitment Period” means the period in time during which Customer will meet the Minimum Commitment set out in, or referenced by, the Order Form.
b. “Customer Data” means any data, information, content, records, and files, including any Customer Processes that Customer (or any of its Users) loads, transmits to or enters into the WRK Automation Platform, including but not limited to Personal Information.
c. “Customer Processes” means Customer’s proprietary or non-public processes or any process improvements to Public Workflows that Customer makes available to in connection with Customer’s use of the WRK Automation Platform.
d. “Deliverables” means information, content, documents, work product, data, media, and all digital or physical materials that are described in an Order Confirmation, created by or on behalf of WRK during the provision of WRK Fulfilment Services, and that are provided to Customer.
e. “Fees” has the meaning set out in Section 7.
f. “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
g. “Minimum Commitment” means the minimum financial spend for Commitment Period set out in, or referenced by, the Order Form.
h. “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
i. “Personal Information” means information about an identifiable individual.
j. “Private Workflow” means a Workflow created by Customer using Customer Processes.
k. “Public Workflow” means all Workflows including Workflows licensed, procured, or developed by or for WRK, other than Private Workflows.
l. “Services” means the WRK Delivery Platform and the WRK Fulfilment Services.
m. “Support Services” has the meaning set out in Section 6.
n. “Term” has the meaning set out in Section 12.
o. “User” has the meaning set out in Section 5.
p. “Website” means any websites used by WRK to provide the WRK Delivery Platform, including the websites located at *.wrk.com, and any other domains or subdomains it may use in the future.
q. “Workflow” means an object in the WRK Automation Platform that reflects the description and mapping of a business process, that comprises of a sequence of micro- tasks, and that is used by Customer to request Deliverables through the WRK Delivery Platform.
r. “WRK Delivery Platform” means WRK’s online platform through which WRK makes available its services to fulfil requests for Workflows including by delegating micro-tasks in such Workflows to a combination of humans and machines.
s. “WRK Fulfilment Services” means the services provided by WRK to fulfill and execute Workflows.
t. “Unit of Work” means the output of a Workflow as a result of one or more related set of input (e.g. one stock keeping unit (SKU) loaded into an e-commerce platform, or one PDF report document generated, or one financial transaction verified).
2. The Wrk Delivery Platform
a. Provisioning of the WRK Delivery Platform. Subject to Customer’s compliance with the terms and conditions of this Agreement, WRK will make the WRK Delivery Platform available to Customer on the terms and conditions set out in this Agreement during the Term. Customer is responsible for identifying and authenticating all Users and for all Users’ use of the WRK Delivery Platform in compliance with this Agreement.
b. Orders. Through the WRK Delivery Platform and subject to any restrictions or limitations set out on the Order Form or Order Confirmation, Customer may request the creation of Private Workflows and may place orders for WRK Fulfilment Services (“Order Requests”). WRK will review and may accept or reject any new proposed Private Workflows or any Order Requests. For Order Requests that are accepted by WRK, WRK will summarize the WRK Fulfilment Services to be provided including the Deliverables, associated Fees and any additional terms and conditions relating thereto in one or more order confirmations (each, an “Order Confirmation”). The terms of each Order Confirmation will be deemed to be incorporated by reference into this Agreement.
c. Restrictions of Use. Customer acknowledges and agrees that it is responsible for the compliance by all Users with any guidelines and policies published by WRK from time to time and for the use by all Users of the Services. Without limiting the generality of any of the foregoing, Customer must not itself, and will not permit others to:
i. sub-license, sell, rent, lend, lease or distribute the WRK Delivery Platform or any intellectual property rights therein or otherwise make the WRK Delivery Platform available to others;
ii. use the WRK Delivery Platform to permit timesharing, service bureau use or commercially exploit the WRK Delivery Platform;
iii. submit any Order Requests that: (A) include links requiring registration at a third party or Customer website; (B) involve telemarketing or contacting third parties in an unsolicited manner; or (C) would require action or inaction by WRK or any third parties that would violate any applicable law or intellectual property right.
iv. submit any Order Request or otherwise use or access the WRK Delivery Platform: (A) in violation of any applicable law or intellectual property right; (B) in a manner that threatens the security or functionality of the WRK Delivery Platform, or for any purpose; or (C) in any manner not expressly permitted in this Agreement.
v. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the WRK Delivery Platform, WRK’s systems or WRK’s provision of services to any third party, in whole or in part;
vi. submit any Order Requests or otherwise use or access of the WRK Delivery Platform to collect Personal Information without authorization or contrary to applicable laws, whether through Workflow instructions or otherwise involving software or services that contains spyware, keyloggers or other malware;
vii. submit any Order Requests or otherwise use the WRK Delivery Platform to conduct surveys that use our Subcontractors’ private data;
viii. submit any Order Requests or otherwise use the WRK Delivery Platform to send, upload, create, collect, transmit, store, use post, publish or process any Customer Data: (A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (B) that Customer does not have the lawful right to send, upload, create, collect, transmit, store, use post, publish or process; (C) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); (D) is libelous, slanderous, defamatory, bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual;
ix. Modify the WRK Delivery Platform;
x. reverse engineer, de-compile or disassemble the WRK Delivery Platform;
xi. remove or obscure any proprietary notices or labels on the WRK Delivery Platform, including brand, copyright, trademark and patent or patent pending notices;
xii. access or use the WRK Delivery Platform for the purpose of building a similar or competitive product or service; or
xiii. perform any vulnerability, penetration or similar testing of the WRK Delivery Platform.
d. Suspension of Access; Scheduled Downtime; Modifications. WRK may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
i. suspend Customer’s access to or use of the Services or any component thereof: (A) if Customer or any User violates any provision of this Agreement; (B) to address any emergency security concerns; or (C) if required to do so by a regulatory body or as a result of a change in applicable law; and
ii. Modify the Wrk Delivery Platform.
e. Updates. Customer is required to accept all patches, bug fixes and updates made by or on behalf of WRK to the WRK Delivery Platform
f. Subcontracting. WRK may engage third parties to provide the Services. Without limiting the generality of the foregoing, Customer acknowledges and agrees that humans (whether employees, contractors or third parties), software (whether proprietary or licensed by WRK), or a combination thereof may be involved in providing the WRK Fulfilment Services and providing Deliverables to Customer. Notwithstanding the foregoing, through the WRK Delivery Platform, Customer will be able to limit the geography of which subcontractors may provide the WRK Fulfilment Services. Customer acknowledges that such limitations may impact cost and speed of performance of such WRK Fulfilment Services.
3. Ownership; Reservation of Rights
Customer retains all of its rights, title and interest, including all intellectual property rights, in and to Customer Data. Customer grants to WRK a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to access, use, process, store, collect, disclose, and transmit Customer Data to provide the Services. WRK may collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and during and after the Term of this Agreement, WRK may use such data and information to: (i) provide the Services; (ii) improve and enhance the Services and for other WRK offerings.
WRK will not use the Customer Processes for any purpose other than to provide the Services to Customer.
WRK hereby assigns and transfers, and agrees to assign and transfer, to Customer, as and when created, all right, title and interest, including intellectual property rights, throughout the world in and to all Deliverables provided by WRK under this Agreement.
WRK or its licensors will retain all rights, title, and interests, including all intellectual property rights, in and to the WRK Delivery Platform, WRK Fulfilment Services, Workflows and any and all derivatives or Modifications thereto.
All rights not expressly granted by WRK to Customer under this Agreement are reserved.
4. Privacy
Customer understands that Personal Information, including the Personal Information of Users, will be treated in accordance with WRK’s privacy policy located at www.wrk.com/privacy-policy (the “Privacy Policy”).
5. Customer User Account
a. User Accounts. Upon Customer’s request, WRK will issue one or more accounts (each, a “Customer User Account”) to Customer for use by individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Services on Customer’s behalf (each, an “Internal User”). Customer will ensure that Internal Users only use the Services through the Customer User Account. Customer will not allow any Internal Users to share the Customer User Account with any other person. Customer may also invite or otherwise give other individuals access to use the Services on Customer’s behalf (“Other Users”, and together with Internal Users, “Users”). Customer will promptly notify WRK of any actual or suspected unauthorized use of the Services. WRK reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose. Customer will ensure that all individual users of the Services, including Users, use the Services in compliance with this Agreement.
b. Users Authorized to Act on Behalf of Customer. Customer acknowledges that by requesting a Customer User Account, Users are permitted to use the WRK Delivery Platform on Customer’s behalf, including to make Modifications to Workflows produced for Customer. Customer is responsible for all Fees associated with actions by Users.
6. Support
Customer will generally have access to WRK’s technical support services (“Support Services”) from 9am to 7pm EST on Monday to Friday through email at support@wrk.com, or as otherwise agreed to by the parties in writing.
7. Service Levels
WRK will make commercially reasonable efforts to provide the WRK Delivery Platform on a 24 x 7 x 365 basis with an objective of achieving 99% availability for each calendar month, excluding downtime or suspension of the WRK Delivery Platform for scheduled maintenance or due to a Force Majeure.
8. Fees and Payment
a. Fees. Customer will pay to WRK all fees specified in the Order Form and in each Order Confirmation (the “Fees”) in accordance with the payment terms set forth therein.
b. Disputed Invoices or Charges. If Customer believes WRK has charged or invoiced Customer incorrectly, Customer must contact WRK no later than 30 days after having been charged by WRK or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
c. Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. WRK reserves the right to suspend Customer’s access to the Services including Customer’s access to the WRK Delivery Platform until all due amounts are paid in full unless such amounts are under dispute in accordance with Section 8(b). Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
d. Taxes. The Fees set out in the Order Form or in an Order Confirmation may not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of WRK.
e. Suspension. Any suspension of the Services by WRK pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under the Agreement.
10. Confidential Information
a. Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
b. Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
c. Exceptions to Confidentiality. Notwithstanding Section 9(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of WRK, to potential assignees, acquirers or successors of WRK if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of WRK.
11. Warranty; Disclaimer; Indemnity
a. Customer Warranty. Customer represents and warrants to, and covenants with WRK that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable WRK to provide the Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to WRK and to or from all applicable third parties.
b. GENERAL DISCLAIMER. WRK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF INCLUDING THE DELIVERABLES), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY WRK TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WRK HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY,
INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, WRK EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DELIVERABLES, DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
c. WRK Indemnity WRK will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate of a Customer Indemnitee) that arise from or relate to any allegation that the WRK Automation Platform infringes any third- party Intellectual Property Right in Canada or the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any (the “Excluded Claims”): (i) incorporation of the WRK Automation Platform into, or any combination, operation, or use of the WRK Automation Platform with, any products or services not provided or authorized by WRK, unless such infringement would also have resulted solely from the use of the WRK Automation Platform without their incorporation in, or combination, operation or use, with such other products or services; (ii) modification of the WRK Automation Platform other than by WRK or with WRK’s express written approval; or (iii) unauthorized use of the WRK Automation Platform.
d. If the WRK Automation Platform is, or in WRK’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of the WRK Automation Platform is enjoined or threatened to be enjoined, WRK may, at its option and sole cost and expense:
i. obtain the right for Customer to continue to use the WRK Automation Platform materially as contemplated by this Agreement;
ii. modify or replace the WRK Automation Platform, in whole or in part, to seek to make the WRK Automation Platform (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the WRK Automation Platform under this Agreement; or
iii. if WRK determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate this Agreement and require Customer to immediately cease all use of the WRK Automation Platform or part or feature thereof.
e. Customer Indemnity. Customer will defend, indemnify and hold harmless WRK, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns (each, a “WRK Indemnitee”) against any and all Losses incurred by a WRK Indemnitee arising out of or relating to: (i) Customer Data; (ii) Customer’s breach of the Restrictions on Use set forth in Section 2(c) or the Customer Warranty set forth in Section 10(a); (iii) Excluded Claims; or (iv) the Deliverables. Customer will fully cooperate with WRK in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of WRK.
12. Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
a. AMOUNT. SUBJECT TO SECTION 11(c), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE THREE- MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL WRK’S SUBCONTRACTORS OR THIRD PARTY SUPPLIERS HAVE ANY LIABILITY.
b. TYPE. SUBJECT TO SECTION 11(c), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
c. Exceptions. The exclusions and limitations in Sections 11(a) and 11(b) do not apply to: (a) either party’s indemnity obligations under Section 10(e); (b) Losses arising out of or relation to Customer’s breach of its obligations under Sections 2(c) or 8; or (c) Losses arising out of or relating to a party’s gross negligence or more culpable conduct, including any wilful misconduct or intentionally wrongful acts.
13. Term and Termination
a. Agreement Term. This Agreement will commence on the Effective Date and continue for the term set out in the Order Form (the “Term”).
b. WRK Fulfilment Services Term. Each Order Confirmation will set out the term of the WRK Fulfilment Services applicable to such Order Confirmation and any additional terms and conditions relating to the renewal or termination of such Order. Upon termination or expiration of this Agreement, WRK will cease providing all WRK Fulfilment Services. For greater certainty, no new Order Request may be submitted after the termination or expiry of the Term.
c. Termination for Cause. Either Party may, in addition to other relief, terminate this Agreement or WRK Fulfilment Services if the other Party commits a material breach of this Agreement (or, in the case of the WRK Fulfilment Services, materially breaches the terms and conditions of the Order Confirmation) and fails within 60 calendar days after receipt of notice of such breach to correct such material breach.
d. Termination without Cause. Unless otherwise set out in the Order Form or Order Confirmation, as applicable, and subject to any terms and conditions set out therein (e.g., depending on the specific Services selected in the Order Form, the Order Form may not permit termination for convenience, establish differing notice periods or introduce termination fees), in addition to the foregoing, either party may terminate this Agreement or any WRK Fulfilment Services for its convenience at any time upon not less than 60 days’ prior written notice to the other party.
e. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 8 (Fees and Payment), Section 9 (Confidential Information), Section 10(a) (Customer Warranty), Section 10(b) (Disclaimer), Section 11 (Limitation of Liabilities), Section 12(d) (Survival), and Section 13 (General Provisions).
14. General Provisions
a. Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to WRK, to the following address:
1250 René Lévesque Boulevard West, Suite 2200
Montreal, QC
H3B 4W8
Canada
and (ii) if to Customer, to the current postal or email address that WRK has on file with respect to Customer. WRK may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with WRK current at all times during the Term.
b. Reference as Customer. Customer acknowledges and agrees that WRK may reference Customer, including using Customer’s logo or marks, to identify Customer as a customer of WRK.
c. Assignment. Customer will not assign this Agreement to any third party without WRK’s prior written consent. WRK may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
d. Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Montreal, Quebec, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent WRK from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
e. Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the WRK Automation Platform.
f. Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
g. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond WRK’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving WRK’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).
h. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
i. Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
j. Independent Contractors. WRK’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither party will represent to any third party that it has, any authority to act on behalf of the other Party.
k. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
l. Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. Notwithstanding the preceding sentence, WRK may unilaterally amend these terms of service, in whole or in part (each, an “Amendment”), by: (i) giving Customer prior notice of such Amendment; or (ii) posting notice of such Amendment on the Website. Unless otherwise indicated by WRK, any such Amendment will become effective as of the date the notice of such Amendment is provided to Customer or is posted on the Website (whichever is earlier).
m. English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.