HomeMy WebLinkAboutR-2026-112 Approving Agreement with gWorksRESOLUTION NO. R-2026-112
A RESOLUTION APPROVING AN AGREEMENT WITH GWORKS
BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF
RIVERSIDE, MISSOURI AS FOLLOWS:
THAT the Board of Aldermen approves the agreement with GIS Workshop LLC
dba gWorks for software and related services, together with the Superseding Addendum
thereto, attached hereto in their substantial form. The Mayor is authorized to sign the
agreements on behalf of the City; and
FURTHER THAT the Mayor, the City Administrator, and other appropriate City
officials are hereby authorized to take any and all actions as may be deemed necessary
or convenient to carry out and comply with the intent of this Resolution and to execute
and deliver for and on behalf of the City all certificates, instruments, agreements, and
other documents, as may be necessary or convenient to perform all matters herein authorized.
PASSED AND ADOPTED by the Board of Aldermen of the City of Riverside,
Missouri, the 4th day of August 2026.
/s/ Kathleen L. Rose
Kathleen L. Rose, Mayor
ATTEST:
/s/ Melissa McChesney
Melissa McChesney, City Clerk
SUPERSEDING ADDENDUM
This Superseding Addendum ("Addendum") is entered into by and between GIS
Workshop, LLC d/b/a gWorks ("gWorks") and the City of Riverside, Missouri ("City"), and is
incorporated into and made a part of the Master Software & Services Agreement, any Terms of
Service, and any Order, proposal, quote, statement of work, or similar document between the
parties, collectively referred to as the "Agreement." In the event of any conflict between this
Addendum and the Agreement, this Addendum shall control. The parties agree as follows:
1. To the extent of any direct conflict between this Addendum and the Agreement on the
specific topics addressed in Sections 2 through 5 ofthis Addendum, this Addendum shall control.
This Addendum does not supersede or modify the Agreement's provisions relating to limitation of
liability (Section 9), intellectual property (Section 6), data security (Section 11 ), or any other
provisions not expressly addressed herein.
2. Notwithstanding anything in the Agreement to the contrary, the City shall not indemnify,
defend or hold harmless gWorks, its affiliates, officers, employees, agents, contractors,
subcontractors, representatives, successors, or assigns, except to the limited extent expressly
authorized by Missouri law. Nothing in the Agreement shall be construed as a waiver of the City's
sovereign immunity, governmental immunity, official immunity, or any other immunity, defense,
limitation, or liability cap available to the City or its officials, officers, employees, agents, or
representatives under Missouri law, including but not limited to Sections 537.600 and 537.610,
RSMo. The City shall remain responsible only for its own acts and omissions to the extent liability
is imposed by applicable law.
3. Notwithstanding anything in the Agreement to the contrary, the Agreement shall be
governed by and construed in accordance with the laws of the State of Missouri, without regard to
conflict-of-law principles. Any litigation, action, or proceeding arising out of or relating to the
Agreement shall be filed and maintained exclusively in the state courts of Platte County, Missouri,
or, if federal jurisdiction exists, in the United States District Court for the Western District of
Missouri. The City does not agree to binding arbitration, mandatory mediation, or any other
mandatory alternative dispute resolution procedure unless separately approved in writing by the
City's governing body after a dispute has arisen. Any provision requiring arbitration, mediation as
a condition precedent to litigation, proceedings outside Missouri, waiver of jury trial, or exclusive
jurisdiction or venue outside Missouri is deleted and of no force or effect as to the City.
4. Order-specific terms (including pricing, scope, and term) may not be modified except by a
written amendment signed by authorized representatives of both parties. Amendments to the
Master Software & Services Agreement applicable to all gWorks clients shall be governed by
Section 14 of the MSSA, which permits gWorks to amend the MSSA by posting an updated
version at gworks.com; such amendments become effective thirty (30) days after posting unless
the City provides written notice ofrejection, in which case the then-current MSSA terms continue
to apply until the next Order renewal. Click-through terms, invoice terms, and purchase order
acknowledgements shall not modify the Agreement.
5. All payment obligations of the City under the Agreement are subject to annual
appropriation and budget approval by the City's Board of Aldermen. The Agreement shall not be
construed to create a debt or obligation in violation of Article VI, Sections 26(a) or 26(b) of the
Missouri Constitution, or any other applicable law. If funds are not appropriated or are otherwise
unavailable for any fiscal year, the City may terminate the Agreement, in whole or in part, without
penalty, early termination fee, cancellation charge, acceleration of future payments, or liability for
damages. In that event, the City shall remain responsible only for amounts lawfully due and
payable for goods or services actually received before the effective date of termination, subject to
available appropriations. No provision of the Agreement shall be construed to obligate the City to
appropriate money for any future fiscal year. Any automatic renewal provision in the Agreement
is subject to annual appropriation and the City's legal authority to continue the Agreement.
CITY OF RIVERSIDE, MISSOURI
By: /s/ Kathleen L. Rose
Name: Kathleen L. Rose
Title: Mayor
Date: August 4, 2026
GIS WORKSHOP, LLC d/b/a gWorks
By: /s/ Jay Banfield
Name: Jay Banfield
Title: VP of Operations
Date: 8-5-26
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MASTER SOFTWARE & SERVICES AGREEMENT
Last Updated: August 13, 2025
This Master Software & Services Agreement (this “MSSA”, and together
with the applicable Order as defined in Section 1, this “Agreement”)is by
and between GIS Workshop, LLC d/b/a gWorks, a Delaware limited
liability company (“gWorks”), and the company, organization, or
governmental entity identified on the executed Order (“Client ”) into
which this MSSA is incorporated. Client and gWorks are individually a
“Party,” and collectively, the “Par ties”. The Parties hereby agree as follows:
1. STRUCTURE OF AGREEMENT. This Agreement sets forth the terms
and conditions governing the services, software, and hardware for
which Client has contracted to be provided by gWorks as set for th the
applicable Order (defined below). Each Order (together with this MSSA
incorporated therein) shall constitute a separate and binding contract
between gWorks (or its Affiliate as described in this Section 1) and
Client. An Affiliate of gWorks may contract under this MSSA by
executing an Order. Each such Affiliate of gWorks executing an Order is
agreeing to be bound by the terms and conditions of this MSSA and the
applicable Order. In such case, a gWorks Affiliate shall be deemed to be
“gWorks” and a “Party” for purposes of this MSSA and the applicable
Order. There shall be no joint and several liability or joint liability by or
between gWorks and its Affiliates. “Affiliate” means, with respect to a
par ty, any entity that directly or indirectly controls, is controlled by, or is
under common control with such party. For purposes of the Affiliate
definition, an entity “controls” another entity if it has the power to direct
the management and policies of the other entity, through ownership of
more than 50% of the voting securities of an entity, representation on its
board of directors or other governing body, or by contract. “Order”
means a written order that: (a)is executed by Client and gWorks (or its
Affiliate as described in this Section1); (b) sets forth the products and
services to be provided by gWorks; (c)the fees to be paid by Client for
such products and services; and (d)incorporates by reference this
MSSA. Client purchase orders are identified only to authorize payment
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2. GWORKS OFFERINGS.
2.1 Software. If the Order includes gWorks on-prem Desktop
Services software, the terms and conditions set forth at Exhibit A
("Desktop Services Terms") shall apply. "Desktop Services" means any
gWorks desktop -based software applications and related support
services that Client has licensed pursuant to an Order.
2.2 SaaS Solution. If the Order includes a gWorks SaaS Solution,
including, without limitation, gWorks Cloud Hubs (including Finance, HR,
Utility Billing, FrontDesk, Payments, Ops, Maps, and Storage) as well as
other cloud -based software, including Hiperweb, and ULOCO/811, the
terms and conditions set forth at Exhibit B ("SaaS Solution Terms")shall
apply. "SaaS Solution" means any gWorks internet-based application,
geospatial system, or website or mobile application that Client has
subscribed to by Order and may access via https://gworks.com or
subdomain,https://frontdeskgworks.comor subdomain, or another designated URL.
2.3 Professional Services. If the Order includes professional
services, including but not limited to software implementation or
onboarding, client onboarding, advanced/custom support beyond
general support, time and material services, consulting, data extracting,
or projects of a defined scope ("Professional Services"), the terms and
conditions set forth at Exhibit C ("Professional Services Terms") shall apply.
2.4 General Support. During the term of the applicable Order,
provided Client is not in breach of this Agreement, gWorks will provide
general support services related to the Services during the hours of
8:OOAM through 5:OOPM, CST, Monday through Friday (not including
holidays);provided, however, that no general support services are
offered or provided for perpetual Desktop Services licenses unless
purchased by Client pursuant to an Order. This general support
schedule may change from time to time, as determined by gWorks in its
sole discretion. General support services will include email
communication during the time frame described above. Any support
services beyond the general support services described herein, or any
support services provided outside of the time frame described above,
may be provided by gWorks if purchased by Client and set forth in the
Order. General support services are subject to change at gWorks' sole discretion.
2.5 Hardware. If the Order includes the purchase of hardware
("Hardware"), the terms and conditions set forth at Exhibit D ("Hardware Terms") shall apply.
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2.6 Card Processing Services. If the Order includes credit card
processing services (“Card Processing Services”) the terms and
conditions set for th in the applicable Order (“Sub-Merchant Agreement
for Card Processing Services”) shall apply when Client subscribes to,
accesses or uses such Card Processing Services.
2.7 Services. The Desktop Services, SaaS Solution, Professional
Services, general support, Card Processing Services are collectively, the “Services.”
3. RIGHT TO MODIFY; SUSPENSION
3.1 Right to Modify. gWorks has the right to modify and update (or
refrain from modifying and updating) the Services at any time, provided
however, that gWorks will notify Client of any material changes in the
existing functionality or capabilities of the Services. Updates and
improvements provided as part of gWorks’ general maintenance
services shall be made from time to time in gWorks’ sole and absolute
discretion. gWorks shall be under no obligation to provide any updates,
improvements or enhancements. All right, title and interest to upgrades,
improvements, enhancements, and special programming shall vest in
and belong exclusively to gWorks. Client specifically acknowledges that
some additional services or upgrades may be developed for the
Services, for which gWorks may require the payment of additional fees
or other terms and conditions in order for Client to be entitled to use
such additional services or upgrades, which services or upgrades shall
not be deemed to be Services hereunder absent payment of such fees
or compliance with such conditions.
3.2 Suspension. gWorks may suspend delivery of Hardware and/or
the per formance of Services (and Client’s access to or use of Desktop
Services and SaaS Solution) without notice or liability if: (a) Client fails
to pay any amount due to gWorks within 15 days of receiving a non-
payment notice from gWorks; (b) there is any event for which gWorks
reasonably believes the suspension of the Services is necessary to
protect its systems or other clients, or (c) a law enforcement or third
party government agency has requested such suspension. If gWorks
suspends the Services based on clause (b), and such suspension lasts
longer than 15business days, then Client may terminate this Agreement
or any Order upon written notice to gWorks.
4. FEES AND EXPENSES
4.1 Fees. Client agrees to pay to gWorks a non-refundable annual
subscription fee for the applicable Services (excluding Professional
Services and Hardware purchases) set forth in the Order in the amount
and on the terms set for th in such Order (the “Annual Fees”). All other
fees, including but not limited to, those for Professional Services (e.g.,
onboarding, etc.) and Hardware shall be as set for th in the applicable
Order and shall be due and payable by Client on the Order Effective
Date (defined below). Unless otherwise agreed by the Parties, Client
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shall be initially charged the Annual Fee on the effective date set for th
on the applicable Order (“Order Effective Date”). If no Order Effective
Date is expressly set for th on the Order, the Order Effective Date is the
date the Client signs the applicable Order.
4.2 Payment. Upon registration, gWorks may issue an invoice to
Client for payment by Client of the Annual Fees in accordance with the
terms of such invoice. The Annual Fees and all other fees shall be
processed on a reoccurring basis by gWorks through an issued invoice,
which shall be payable by Client in accordance with its terms and the
applicable terms of the Order. Unless otherwise set forth in the
applicable Order or invoice, Client shall pay all invoiced amounts,
without deduction or set off, no later than 30 days following the date of
the applicable invoice.
4.3 Late Payment. Any payment that is past due to gWorks shall bear
interest at the lesser of 12% per annum or the highest rate allowed by
law, which ever is less. Client shall reimburse gWorks for all reasonable
costs and expenses incurred (including reasonable attorneys’ fees) in
collecting any overdue amounts.
4.4 Taxes. Client shall pay all sales, use, value-added, excise, and
other similar taxes (excluding taxes on gWorks’ income) and all tariffs
which result from, or are related to, the Services. Where applicable,
upon the execution of a change order for Professional Services, gWorks
may require Client to pay for all such Services completed from execution
of the original Order to the execution of the change order modifying the
same. Client’s failure to make any payment when due shall be deemed a
material breach of this Agreement.
4.5 Fee Changes. gWorks reserves the right to change Annual Fees,
and any other fees, under an Order for subsequent renewal
terms. gWorks will notify Client at least for ty-five (45)days in advance of
the renewal date with the renewal term invoice, and the increased fees
will apply at the star t of the next renewal term under such Order. If
Client does not agree to the fee increase, Client must provide written
notice of nonrenewal to gWorks at least thirty (30) days prior to the end
of the then current term. Client’s continued access to or use of the
Services beyond the cancellation window constitutes Client’s agreement
to those changes to fees.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall be in effect from the Order Effective
Date, as applicable, and shall continue until the end of the term of the
applicable Order, unless terminated in accordance with this Agreement.
Unless otherwise set for th in the applicable Order, this Agreement shall
automatically renew upon expiration of the initial term set forth in the
Order for successive renewal terms (the length of such renewal terms to
be set forth in the applicable Order, or, if none, such renewal terms shall
be one year), unless either Par ty provides written notice of nonrenewal
no less than 30 days prior to the end of the then current term and
unless terminated in accordance with this Agreement.
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5.2 Termination of Agreement. gWorks may terminate this
Agreement immediately if it reasonably believes that Client is infringing,
has infringed, or is threatening to infringe the Intellectual Property
Rights of gWorks, any of its Affiliates or any third parties, or at any time
when there are no currently effective Orders. This Agreement may be
immediately terminated, in writing, by either Par ty as follows: (a) if the
other Par ty breaches any material provision hereof and does not cure
such breach within 30 days after it receives written notification thereof
from the non-breaching Party; or (b) upon dissolution, insolvency, or any
adjudication in bankruptcy of, or any assignment for the benefit of
creditors by, the other Party. “Intellectual Proper ty Rights” means all or
any: (i) patents, patent disclosures, and inventions (whether patentable
or not); (ii) trademarks, service marks, trade dress, trade names, logos,
corporate names, and domain names, together with all of the goodwill
associated therewith; (iii ) copyrights, copyrightable works (including
computer software programs, documentation, algorithms, program
code, Specifications, repor ts, and designs), mask works, and rights in
data and databases; (iv) trade secrets, knowledge, know-how,
techniques, ideas, concepts, and other proprietary information; and (v)
all other intellectual proper ty rights, in each case whether existing prior
to the date of this Agreement or whether developed in the course of
each Party’s performance of its obligations under this Agreement,
whether registered or unregistered, and including all applications for,
and renewals or extensions of, such rights, and all similar or equivalent
rights or forms of protection provided by applicable law in any
jurisdiction throughout the world.
5.3 Termination of Services. Upon termination or expiration of a
Service: (a) Client shall immediately pay all outstanding amounts it owes
to gWorks for such Service asset for th in the applicable Order; (b) Client
shall immediately cease using such Service; and (c) gWorks may take
steps to change, remove, or otherwise block Client's access to such
Service. Annual Fees are nonrefundable. No termination or expiration of
a Service, any Order, or this Agreement will affect Client's obligation to
pay all amounts set for th in each Order.
5.4 Effect of Termination. Upon termination of this Agreement for any
reason: (a) Client shall immediately pay all outstanding amounts it owes
to gWorks hereunder; (b) Client shall immediately cease using all
terminated Services; and (c) gWorks may take steps to change, remove,
or otherwise block Client’s access to any and all Services. Not
withstanding the above, if, within thirty (30) days after the termination
of this Agreement, or any Services, Client requests to export any data
files, gWorks will expor t such data files to Client upon Client’s payment
for such data export services charged at gWorks then-standard rates.
Unless otherwise specified in the applicable Order, Client shall
reimburse gWorks for the costs of all non-cancelable products or
services procured from third parties in connection with gWorks’
per formance of the Services. The provisions of Sections 1, 4, 5.4, 6, 7.2,
7.3, 8, 9, 10, 13, 14 and 15 shall survive the termination of this
Agreement, to the extent applicable.
6. INTELLECTUAL PROPERTY
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6.1 gWorks Ownership. Subject to Section 6.2,Client acknowledges
that gWorks and/or the third par ty sources of gWorks’ information are
the owners of all right, title and interest in and to all Intellectual Proper ty
Rights in, to or covering the Services, Third Par ty Materials, the
underlying software used therein, any and all updates, enhancements or
derivatives or any of the foregoing, and any and all work product
created or developed by or on behalf of gWorks hereunder, in any form
whatsoever, including: (a) the technology available as part of or
embodied in the Services; and (b) all content, including but not limited
to text, software, music, sound, photographs, video, graphics, plots,
typeset formulas, tables, general page layouts, juxtapositions of data or
other material contained in the Services or otherwise provided as part
of the Services. Client acknowledges the Services and any other
products or services offered by gWorks are protected by US and
international copyrights, patents, trademarks, service marks, trade
secrets or other proprietary and intellectual property rights and laws, as
applicable. Client acknowledges that it claims no Intellectual Proper ty
Rights of gWorks, the Services, or Third Party Materials, and will be
entitled only to such rights as are expressly granted to Client pursuant
to any and all agreements between gWorks and Client. The Services
may be used only in accordance with this Agreement. All pending and/or
registered trademarks and service marks, and other graphics, logos,
and trade names used by gWorks in connection with the Services, and
any other products or services offered by gWorks (collectively the
“gWorks Trademarks”) are the trademarks of gWorks or its content
providers. gWorks and Client acknowledge that, in the event of any third
party claim that the Services infringes such third par ty ’s Intellectual
Proper ty Rights, gWorks will be solely responsible for the investigation,
defense, settlement and discharge of any such intellectual property
infringement claim, subject to this Agreement. Except as expressly set
for th in this Agreement, nothing in this Agreement shall transfer any
right, title, or interest in any of either Party ’s Intellectual Proper ty Rights
or technology to the other.
6.2 Client Materials. “Client Materials” shall mean all information,
content, data, functionalities, and any other materials provided to
gWorks by Client, whether created by Client or a third par ty, pursuant to
this Agreement, for the purpose of assisting gWorks with the providing
the SaaS Solution. Client acknowledges and agrees that, in order for
Client to fully utilize cer tain por tions of the Service, Client must input, or
permit gWorks to input, cer tain Client Materials into the Services, and by
doing so, is not relinquishing any of its ownership or rights in and to
such Client Materials. Client hereby grants to gWorks a non-exclusive,
sublicensable, perpetual, worldwide license to use, host, reproduce,
store, enhance, supplement and otherwise distribute Client Materials in
any and all ways necessary for gWorks to provide to Client the Services
and for all other legitimate business purposes of gWorks related to the
Services (or with respect to gWorks’ other legitimate business needs).
Client, not gWorks, shall have sole responsibility for the accuracy,
quality, integrity, legality, reliability, appropriateness, and intellectual
proper ty ownership of all Client Materials, and gWorks shall not be
responsible or liable for the deletion, correction, inaccuracy, destruction,
damage, loss or failure to store any Client Materials. Client
acknowledges and agrees that gWorks is not responsible for examining
or evaluating and makes no guarantees regarding the accuracy,
completeness, timeliness, validity, legality, decency, quality or any other
aspect of Client Materials, and gWorks shall have no liability to Client or
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any third party for its use of or reliance on Client Materials. gWorks
reserves the right to remove and/or discard Client Materials upon thirty
(30) days written notice to Client. If Client does not claim its Client
Materials or make arrangement to do so within thirty (30) days of
gWorks providing such notice, gWorks may remove and/or discard Client
Materials. gWorks will, upon request, provide Client with access to
Client Materials through the Services during the term of the applicable
Order, in the default form made available via the Services; provided,
however, that any request to export or extract Client Materials from the
SaaS Solution or Desktop Services will be subject to additional fees
pursuant to an Order. The Par ties agree that gWorks will provide notice
to Client of any Client Materials of which it has possession upon
termination of this Agreement. gWorks will maintain any such Client
Materials for a period of thirty (30) days following termination of this
Agreement. If Client or its legal representative does not claim or make
arrangements to claim Client Materials within thir ty (30) days after the
notice, gWorks has no further obligation to maintain any Client Materials.
6.3 Third Party Materials. gWorks may from time (a) to time arrange
for Client’s purchase, lease, or license of third party hardware,
equipment, software, services, data, or other products not owned by
gWorks, and the Services may otherwise include access to third par ty
software, services, and data, (b) in providing the Services or developing
a Deliverable, use cer tain third par ty technology set forth in the
applicable Orders, or (c) include access to third par ty software,
services, and data through the Services or by or through links to third
party sites (collectively, “Third Party Materials”). Client’s use of Third
Party Materials in this Section6.3 is governed by the terms and
conditions of any license or other agreement between Client and third
party, and Client agrees to abide by all such terms and conditions. To
the extent gWorks has the right to grant licenses to such Third Par ty
Materials, gWorks hereby grants to Client a royalty-free, non-exclusive
license to use the Third Par ty Materials solely in connection with its use
of the applicable Deliverable, subject to any limitations imposed by the
owner of such Third Party Materials. By accessing the Services, Client is
agreeing to be bound by each of these third par ty’s terms with respect
to the Third Party Materials. gWorks makes no representations or
warranties with respect to any Third Party Materials and shall have no
liability arising out of or relating to Client ’s use thereof. Any third par ty
warranties are the exclusive remedies of Client with respect to Third Materials.
6.4 Feedback. If Client, or any of its employees or contractors sends
or transmits any communications or materials to gWorks through any
means, suggesting or recommending changes to Services, including
new features or functionality relating thereto, or any comments,
questions, suggestions, or the like (collectively, “Feedback”), gWorks is
free to use such Feedback irrespective of any other obligation or
limitation between the Parties governing such Feedback. Client hereby
assigns to gWorks on Client's behalf, and on behalf of its employees,
contractors and/or agents, all right, title, and interest in, and gWorks is
free to use, without any attribution or compensation to any party, any
ideas, know-how, concepts, techniques, or other intellectual proper ty
rights contained in the Feedback, for any purpose whatsoever, although
gWorks need not use any Feedback.
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7. REPRESENTATIONS AND WARRANTIES
7.1 Mutual Warranties. Each Party hereby represents warrants to the
other that: (a) it is validly organized, in good standing, and licensed to
conduct business in each jurisdiction in which the failure to do so would
have a material adverse effect on such Par ty; (b) it has all necessary
corporate power and authority to enter into this Agreement, to grant to
the other Par ty all of the rights granted hereby, and to perform its
obligations hereunder; (c) this Agreement is and shall remain the valid,
legal, and binding obligation of such Par ty, enforceable against it in
accordance with its terms, except where enforceability may be limited
by bankruptcy, insolvency, or similar laws affecting creditors’ rights or
by principles of equity; and (d) the execution, delivery, and per formance
of this Agreement does not conflict with, or result in a breach of, any
agreement, written or oral, to which it is a par ty or by which it or its properly is bound.
7.2 Client Warranties. Client represents and warrants to gWorks that
Client has obtained all necessary authorizations, consents and/or
licenses to provide Client Materials to gWorks and to permit gWorks to
use, reproduce, and/or modify Client Materials, without liability to Client or any third party.
7.3 gWorks Disclaimer. CLIENT AGREES TO ACCESS THE SERVICES
AT ITS SOLE RISK, AND GWORKS SHALL HAVE NO LIABILITY TO CLIENT
OR ANY THIRD PARTY FOR CLIENTS ACCESS OF OR RELIANCE ON THE
SERVICES. CLIENT ACKNOWLEDGES THE INTERNET CONSISTS OF
MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED
AND THEREFORE ARE NOT SUBJECT TO GWORKS CONTROL, AND
COMPUTER SYSTEMS ARE INHERENTLY UNSTABLE, MAY
MALFUNCTION OR CEASE TO FUNCTIONAT ANY TIME WITHOUT
WARNING, AND SUCH. MALFUNCTION OR CESSATION MAY MAKE THE
SERVICES TEMPORARILY OR PERMANENTLY UNAVAIL ABLE. THE
SERVICES, HARDWARE, THIRD PARTY PRODUCTS, INTELLECTUAL
PROPERTY AND ANY REL ATED PRODUCTS AND SERVICES ARE
SUPPLIED TO CLIENT “AS IS.” NEITHER GWORKS NOR ANY THIRD
PARTY INFORMATION OR SERVICE PROVIDER OF GWORKS GIVES ANY
WARRANTIES, EXPRESS OR IMPLIED, REL ATED THERETO, EXCEPT AS
EXPRESSLY PROVIDED IN THIS SECTION. GWORKS DISCL AIMS, AND
CLIENT EXPRESSLY WAIVES, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A
PARTICUL AR PURPOSE. NEITHER GWORKS NOR ANY THIRD PARTY
INFORMATION OR SERVICE PROVIDER OF GWORKS MAKES ANY
WARRANTIES THAT (A) THE SERVICES WILL MEET CLIENT’S
REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-
FREE, (B) THE RESULTS THAT MAY BE OBTAINED FROM ACCESS TO
THE SERVICES WILL BE ACCURATE OR RELIABLE, (C) THE QUALITY OF
ANY HARDWARE, SERVICES, INFORMATION OR OTHER MATERIAL
RECEIVED OR OBTAINED BY CLIENT THROUGH THE SERVICES WILL
MEET CLIENT’S EXPECTATIONS, OR (D) ANY ERRORS IN THE
SOFTWARE USED TO OPERATE THE SERVICES WILL BE CORRECTED.
ANY MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH
CLIENT’S ACCESS TO THE SERVICES ARE ACCESSED AT CLIENT’S OWN
DISCRETION AND RISK, AND CLIENT WILL BE SOLELY RESPONSIBLE
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FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA
RESULTING THEREFROM. FURTHER, THE SERVICES AND DATA MAY BE
SUBJECT TO LIMITATIONS, DEL AYS, AND OTHER PROBLEMS
INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC
COMMUNICATIONS. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
GWORKS IS NOT RESPONSIBLE FOR ANY DEL AYS, DELIVERY FAILURES
OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. GWORKS IS
NOT RESPONSIBLE ORLIABLE FOR DAMAGES FROM LOST PROFITS,
LOSS OF BUSINESS OR ANY OTHER LOSSES OR LIABILITIES ARISING
OUT OF CLIENT’S USE OF OR RELIANCE ON THE SERVICES. CLIENT
ACKNOWLEDGES AND AGREES THAT IN ENTERING INTO THIS
AGREEMENT OR ANY ORDER IT HAS NOT RELIED AND IS NOT RELYING
ON ANY REPRESENTATIONS, WARRANTIES OR OTHER STATEMENTS
WHATSOEVER, WHETHER WRITTEN OR ORAL (FROM OR BY GWORKS
OR ANY OF ITS AFFILIATES OR REPRESENTATIVES) OTHER THAN
THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE
APPLICABLE ORDER AND THAT IT WILL NOT HAVE ANY RIGHT OR
REMEDY RISING OUT OF ANY REPRESENTATION, WARRANTY OR
OTHER STATEMENT NOT EXPRESSLY SET FORTH IN THIS AGREEMENT
OR THE APPLICABLE ORDER.
8. INDEMNIFICATION.
8.1 gWorks. gWorks will defend and indemnify Client from and against
any and all third-par ty claims, and any and all damages, liabilities, costs
and expenses (including reasonable attorney fees) incurred by Client as
a direct result of such third-party claims, to the extent such third-party
claims arise from an allegation that the Services, as provided by gWorks,
infringes such third party’s US intellectual property rights.
Notwithstanding the fore going, gWorks will have no obligations under
this Section 8.1 in connection with any claims, actions, damages and
liabilities that arise from or relate to: (a) breach of this Agreement by
Client or any of its Affiliates or Users, (b) negligence or more culpable
conduct by Client, its Affiliates or Users, (c) violation of any laws by
Client, its Affiliates or Users, or (d) the combination of the Services with
any software, hardware, data or technology that is not provided by
gWorks or not proprietary to gWorks. Client shall provide prompt notice
of any indemnified claim and reasonably cooperate with gWorks’
defense. gWorks will control the defense of any indemnified claim,
including appeals, negotiations, and any settlement or compromise
thereof. gWorks’ obligation in this Section8.3 will be excused if either of
the following materially prejudices the defense: (i ) Client’s failure to
provide prompt notice of the indemnified claim; or (ii ) Client’s failure
reasonably to cooperate in the defense.
8.2 Client. To the extent allowed under state law, Client will indemnify,
defend and hold harmless gWorks, its Affiliates, and its and the
irrespective directors, officers, employees, agents, contractors,
subcontractors, representatives, successors and assigns from and
against any and all claims, actions, causes of action, litigation, demands,
proceedings, subpoenas, damages, fines, penalties, deficiencies, losses,
liabilities, costs, settlements, judgements and expenses (including
interest, court costs, reasonable fees and expenses of attorneys,
accountants and other experts and professionals or other reasonable
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fees and expenses of litigation or other proceedings or of any claim,
default or assessment) based on, arising out of or related to: (a)Client’s
actual or alleged breach of this Agreement; (b) damages based on the
use of the Services in a manner not contemplated in this Agreement; (c)
any claim that gWorks’ authorized use of Client Materials in accordance
with this Agreement and gWorks’ rights herein to the extent such claim
alleges gWorks’ use violates any par ty’s rights, any law, or Client did not
have the necessary consents, approvals, authorizations or permits to
provide Client Materials to gWorks; (d) Client’s actual or alleged
negligence, fraud or violation of any law; or (e) any personal injury
(including death) or proper ty damage arising out of, resulting to, in the
nature of or caused by the gross negligence or willful misconduct of
Client. If this provision is otherwise prohibited by state law, Client shall
remain responsible and liable for its acts and/or omissions with respect
to any claim concerning the foregoing indemnity obligations.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY THING TO THE
CONTRARY HEREIN ORELSEWHERE, IN NO EVENT SHALL GWORKS OR
ANY OF ITS AFFILIATES BE LIABLE FOR ANYINDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGESFOR
LOSS OF PROFITS, REVENUE, DATA OR USE, UNDER, ARISING FROM OR
REL ATING TOTHIS AGREEMENT, TRANSACTIONS CONTEMPL ATED
UNDER THIS AGREEMENT, HARDWARE, OR SERVICES(REGARDLESS OF
THE FORM OF CL AIM, WHETHER CONTRACT, TORT, STRICT
LIABILITY,NEGLIGENCE, INDEMNITY OR OTHERWISE) EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES
AND EVEN IF ANY OF THE LIMITED REMEDIES OF THISAGREEMENT
FAIL TO FULFILL ITS ESSENTIAL PURPOSE. NOTWITHSTANDING
ANY THING TOTHE CONTRARY HEREIN OR ELSEWHERE, GWORKS
SHALL NOT BE LIABLE TO CLIENT FOR ANYBREACH OF SECURITY ON
OR OF THE SERVICES, REGARDLESS OF WHETHER ANY
REMEDYPROVIDED IN THIS AGREEMENT FAILS ITS ESSENTIAL
PURPOSE. NOTWITHSTANDINGANY THING TO THE CONTRARY HEREIN
OR ELSEWHERE, IN NO EVENT SHALL THE CUMUL ATIVELIABILITY OF
GWORKS AND ITS AFFILIATES UNDER, ARISING FROM OR REL ATING TO
THISAGREEMENT, TRANSACTIONS CONTEMPL ATED UNDER THIS
AGREEMENT, HARDWARE, OR SERVICES(REGARDLESS OF THE FORM
OF CL AIM, WHETHER CONTRACT, TORT, STRICT
LIABILITY,NEGLIGENCE, INDEMNITY OR OTHERWISE) EXCEED, IN THE
AGGREGATE, THE FEES PAID BYCLIENT TO GWORKS UNDER THIS
AGREEMENT DURING THE SIX MONTH PERIOD
IMMEDIATELYPRECEDING THE EVENT CAUSING THE DAMAGE
REL ATING TO THE FIRST CL AIM MADE AGAINSTGWORKS OR ANY OF
ITS AFFILIATES UNDER, ARISING FROM OR REL ATING TO
THISAGREEMENT, ORDERS, HARDWARE, OR SERVICES. FOR CL ARITY,
THE FOREGOING IS A TOTAL AGGREGATE LIABILITY CAP, AND NOT A
PER CL AIM, PER INCIDENT OR PER ORDER CAP. SOMESTATES OR
OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF
LIMITATION OFLIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATIONS ANDEXCLUSIONS MAY NOT
APPLY TO CLIENT IF SUCH EXCLUSIONS OR PROHIBITED
UNDERAPPLICABLE L AW.
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10. CONFIDENTIALITY. During the term of this Agreement, each Party
(as “Discloser”) may provide the other Party (as “Recipient”) with certain
confidential and proprietary information (“Confidential Information”).
Confidential Information includes Discloser’s research, financial and
accounting data and projections, technical data, computer programs,
customer lists and information, marketing strategies, estimated staffing
requirements, know-how, any information that is marked “confidential”
(or with a similar legend), any information that is orally disclosed,
identified as confidential at the time of disclosure, and confirmed in
writing as being confidential within 30 days thereafter, as well as any
information or material which, by its nature and under the circumstances
surrounding its disclosure, is generally considered proprietary and
confidential, regardless of whether it is marked or properly reduced to
writing. Confidential Information does not include information that(a) is
publicly known at the time of its disclosure; (b) is lawfully received by
Recipient from a third party not under an obligation of confidentiality to
Discloser; (c) is published or otherwise made known to the public by
Discloser; or (d) was generated independently by Recipient before
disclosure by Discloser. Recipient shall not use Discloser’s Confidential
Information except to the extent necessary to per form its obligations
under this Agreement. Recipient will likewise restrict its disclosure of
Discloser’s Confidential Information to those who have a need to know
such Confidential Information in order for Recipient to perform its
obligations under this Agreement. Such persons will be informed of and
will agree to the provisions of this Section, and Recipient will remain
responsible for any unauthorized use or disclosure of Confidential
Information by any of them. Notwithstanding the foregoing, Recipient
may disclose such Confidential Information if required or requested to
do so by a governmental agency, a court or administrative subpoena, an
order or other legal process or requirement of law, or in order to defend
its rights hereunder. If so requested or required, Recipient shall (i ) first
notify Discloser of such request, requirement or proposal for use in
defense; (ii) in the case of a required disclosure, furnish only such
por tion of Confidential Information as it is advised in writing by counsel
that it is legally required to disclose; and (iii )cooperate with Discloser in
its effor ts to obtain an order or other reliable assurance that confidential
treatment will be accorded to that por tion of Confidential Information
that is required to be disclosed. Upon termination of this Agreement,
and upon the written request of Discloser, Recipient shall return all of
Discloser’s Confidential Information which is in its possession or under its control.
11. DATA SECURITY; BACKUP; DISASTER RECOVERY. gWorks agrees to
maintain, through itself or through third party service providers, backup
and disaster recovery facilities sufficient to permit it to recover and
make available to Client under this Agreement the Services and Client
Materials as soon as reasonably practicable. gWorks will notify Client of
any data breach or loss in accordance applicable laws. gWorks shall
maintain adequate security precautions to minimize the likelihood of any
unauthorized access through the Internet to Client Materials or other
data provided by Client to gWorks through the Services, including,
among other things, the use of a secure server, protective firewalls and encryption.
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12. FORCE MAJEURE. Any delay in or failure of per formance by gWorks
under this Agreement shall not be considered a breach of this
Agreement, and shall be excused, to the extent caused by any
occurrence beyond the reasonable control of gWorks.
13. GOVERNING LAW; DISPUTE RESOLUTION. This Agreement shall be
governed by and interpreted under the laws of the State of Nebraska,
without giving effect to the conflicts of law principles thereof. Any
dispute arising under this Agreement will be first referred for resolution
to each Par ty ’s respective management designee. To the extent that the
designees of the Parties cannot resolve the dispute within a reasonable
period of time, the Parties shall attempt in good faith to settle the
dispute by non-binding mediation and/or engaging in binding arbitration.
Any and all mediation and arbitration hearings shall be held in Omaha,
Nebraska, unless the Parties agree otherwise. All such arbitration will be
conducted in accordance with the Commercial Arbitration Rules of the
American Arbitration Association by a panel of three neutral arbitrators,
one selected by each Party and the third (who will be the chair of the
panel) selected by the other two arbitrators. The award or decision
rendered by the panel(including an allocation of the costs of arbitration)
will be final and binding, and judgment may be entered upon such award
by any court of competent jurisdiction. Neither Par ty shall initiate
litigation with respect to any dispute until at least ninety (90) days after
notice of the dispute is first given or received. In the event litigation is
pursued, each Par ty, for itself and its successors and assigns, hereby
expressly and irrevocably (a) consents to the exclusive jurisdiction of
the state and federal cour ts of the State of Nebraska, (b) waives any
objection based on forum non conveniens or any objection to venue of
any such action, and (c) KNOWINGLY, VOLUNTARILY,IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY.
14. MODIFICATION; AMENDMENT. gWorks may amend this Agreement
from time to time by posting an amended version at its website
(https://gworks.com). Such amendment will be deemed accepted and
become effective thir ty (30) days after such posting(the “Proposed
Amendment Date”) unless Client gives gWorks timely written notice of
rejection of the amended terms. If rejected by Client, this Agreement will
continue under the most recently accepted provisions pursuant to
Client’s most recent Order, and the amended terms will become
effective at the start of Client’s next Order Effective Date or renewal of
any Order term following the Proposed Amendment Date. Client ’s
continued use of the Services after the effective date of an amendment
shall constitute Client’s consent, and bind Client thereto.
15. MISCELLANEOUS. All references to and mentions of the word
“including” or the phrase “e.g.” means “including, without limitation.”
Unless context unambiguously requires otherwise, “or” is not exclusive
and includes “and.” This Agreement shall not be construed in favor of or
against either Party by reason of the extent to which either Party or its
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professional advisors participated in the preparation or drafting of this
Agreement. The section and subsection headings used herein are for
reference and convenience only and shall not enter into the
interpretation thereof. No person or entity other than the Parties hereto,
and their respective successors and/or assigns, shall have any right,
remedies, obligations or liabilities under this Agreement, except for
indemnified parties set for th in Section 8. Any and all notices, consents,
or other communications required or permitted hereunder shall be in
writing. It shall be deemed given when (a) delivered personally, (b) sent
by confirmed fax or e-mail, (c) sent by commercial overnight courier
with written verification of receipt, or (d) sent by registered or cer tified
mail, return receipt requested, postage prepaid, and the receipt is
returned to the sender. Names, addresses, and fax numbers for notices
(unless and until written notice of a change to the same is provided in
accordance with these provisions) are listed on the signature page to
this Agreement. All provisions of this Agreement and the Order shall be
binding upon, inure to the benefit of, and be enforceable by and against,
the respective successors and permitted assigns of gWorks and Client.
Client may not assign, pledge, delegate or otherwise transfer (whether
by operation of law, acquisition or sale of stock or assets, merger,
consolidation, transfer of control or otherwise) this Agreement or any
Order, or any rights or obligations under this Agreement or any Order,
without the prior written consent of gWorks, such consent to be
exercised in the sole discretion of gWorks, and any purpor ted
assignment, pledge, delegation or transfer in violation of this provision is
null and void. During the term of this Agreement and for a period of one
year thereafter, Client shall not, directly or indirectly, solicit for
employment or hire any employee of gWorks with whom Client has had
contact or who became known to Client in connection with this
Agreement. Except as expressly stated herein, the Parties’ rights and
remedies under this Agreement shall be cumulative and non-exclusive.
All waivers must be inwriting. Any waiver or failure to enforce any
provision of this Agreement on one occasion shall not be deemed a
waiver of any other provision or of such provision on any other occasion.
If a court of competent jurisdiction holds any provision, or part of any
provision, of this Agreement to be illegal or invalid, the provision, or the
affected par t of such provision, shall be null and void and deemed
automatically severed from this Agreement. Any such holding shall not
affect the legality or validity of the remaining provisions or remaining
parts or unaffected provisions of this Agreement. The relationship
between the Parties is that of independent contractors only, and
nothing in this Agreement shall be interpreted or construed to create a
partnership, joint venture, employer-employee, or agency relationship,
or any other relationship between the Par ties, other than that of
independent contractors. Neither Par ty shall have the power to obligate
the other Par ty in any manner whatsoever unless expressly provided in
this Agreement. This Agreement contains the entire agreement of the
Parties with respect to the subject matter hereof and shall supersede
any and all prior or contemporaneous, written or oral, discussions,
negotiations, agreements, or understandings between the Parties. In the
event of any conflict between the provisions of this Agreement and any
Order, or any other addenda, this Agreement will control, provided,
however, the Order will control if (i ) the Order specifically references this
Section 15 and states that the provisions of the Order will control and (ii)
the provision at issue in the Order does not conflict with any provision in
Sections 6, 7.3, 8.1 or 9 of this Agreement. Exhibits A, B, C, D, E and F
(attached hereto) are hereby incorporated into this MSSA by reference.
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EXHIBIT A – DESKTOP SERVICES TERMS
1. License.
a. Desktop Services Subscription License. Subject to Client’s
compliance with this Agreement, and in consideration of the Annual
Fee(and all other fees set forth in the applicable Order) paid by Client
hereunder, gWorks grants to Client a personal, non-assignable, non-
transferable and non-exclusive license during the term of the applicable
Order to use Desktop Services solely for the internal conduct of Client’s
business, only on the specified quantity of devices and at the locations
designated in the Order. The Annual Fee for the Desktop Services
subscription license includes general support services.
b. Desktop Services Perpetual License. This section applies, if and
only if, the applicable Order expressly identifies the Desktop Services
license as a perpetual license. Subject to Client’s compliance with this
Agreement, and in consideration of the upfront license fee (and all other
fees set for th in the applicable Order) paid by Client hereunder, gWorks
grants to Client a personal, revocable (if this Agreement is terminated by
gWorks), non-assignable, non-transferable, perpetual and non-exclusive
license to use Desktop Services solely for the internal conduct of
Client’s business, only on the specified quantity of devices and at the
locations designated in the Order. Client may purchase annual
maintenance and suppor t for the Desktop Services perpetual license
pursuant to an Order. Not withstanding anything to the contrary herein
or elsewhere, gWorks has no obligation to provide any maintenance or
support services for perpetual licenses, unless Client purchases such
services as expressly set forth in an Order. If Client elects to not renew
maintenance or support services and later desires to purchase
maintenance or support services, in addition to the fees set forth in the
Order, Client will pay gWorks all fees and amounts that Client would
have paid gWorks if Client had maintained maintenance and support
services for the entire period between nonrenewal and repurchase.
c. Ownership. Client acquires only the right to use the Desktop
Services and does not acquire any legal or equitable right of ownership
in the Desktop Services. This Agreement and the license granted
pursuant hereto may not be mor tgaged, pledged, assigned,
sublicensed, leased or otherwise transferred by Client without prior
written consent from gWorks. Client may not reverse engineer or
attempt to derive the source code of the Desktop Services.
2. Termination of Desktop Services. The Desktop Services
Subscription License has been designed to cease functioning in the
event that the Annual Fee, or any other fee, is unpaid. Client
acknowledges the existence of this feature in the Desktop Services
Subscription License and specifically waives any claim for damages,
which may result. In the event of default, all unpaid Annual Fees, product
support-related fees, and any other fees and charges payable for the
entire duration of this Agreement shall, upon written notice by gWorks
become due and payable. This remedy shall be in addition to any other
remedy lawfully available to gWorks.
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3. Effect of Desktop Services Termination. Upon termination or
expiration of this Agreement for any reason, Client shall remain liable for
all unpaid charges required to be paid under this Agreement including;
unpaid Annual Fees and product-support-related fees, not withstanding
such termination. In the event of breach of default of this Agreement,
Client shall hold gWorks harmless from all reasonable attorney’s fees,
costs and interest (at the highest rate permitted by law) arising by
reason of such breach or default, from the date of the default or breach,
in addition to other damages. gWorks shall not be required, under any
circumstances, to refund any por tion of the implementation or
onboarding fees, the Annual Fee, or the product support-related fees, already paid.
4. Use Restrictions. Client shall not use the Desktop Services for any
purposes beyond the scope of the license granted in this Agreement.
Without limiting the foregoing and except as otherwise expressly set
for th in this Agreement, Client shall not at any time, directly or indirectly:
(i) copy, modify, or create derivative works of the Desktop Services or
documentation, in whole or in par t; (ii ) rent, lease, lend, sell, sublicense,
assign, distribute, publish, transfer, or otherwise make available the
Desktop Services or documentation; (iii ) reverse engineer, disassemble,
decompile, decode, adapt, or otherwise attempt to derive or gain
access to the source code of the Desktop Services, in whole or in par t;
(iv)remove any proprietary notices from the Desktop Services or the
documentation; or (v) use the Desktop Services in any manner or for any
purpose that infringes, misappropriates, or otherwise violates any
intellectual proper ty right or other right of any person, or that violates any applicable law.
5. Reservation of Rights. gWorks reserves all rights not expressly
granted to Client in this Agreement. Except for the limited rights and
licenses expressly granted under this Agreement, nothing in this
Agreement grants, by implication, waiver, estoppel, or otherwise, to
Client or any third party any intellectual proper ty rights or other right,
title, or interest in or to the Desktop Services.
6. Client Responsibility. Client is responsible and liable for all uses of
the Desktop Services and documentation resulting from access
provided by Client, directly or indirectly, whether such access or use is
permitted by or in violation of this Agreement. Without limiting the
generality of the foregoing, Client is responsible for all acts and
omissions of users, and any act or omission by a user that would
constitute a breach of this Agreement if taken by Client will be deemed
a breach of this Agreement by Client. Client shall make all users aware
of this Agreement’s provisions as applicable to such user’s use of the
Desktop Services, and shall cause users to comply with such provisions.
7. Suppor t. gWorks will provide its General Support, as set forth in
Section 2.4, during the term of the Order at no addition charge.
EXHIBIT B – SAAS SOLUTION TERMS
1. Access and Use. Subject to Client’s compliance with this Agreement,
and in consideration of the Annual Fee(and all other fees set forth in the
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applicable Order) paid by Client hereunder, gWorks hereby grants to
Client, and Client hereby accepts, pursuant to the terms and conditions
set for th herein, a non-exclusive, non-transferable, non-sublicensable
right and subscription to access the SaaS Solution during the term of
the applicable Order. All features, content, specifications, data, and
layout of the SaaS Solution described or depicted on, or generated
through, the Services are subject to change at gWorks’ discretion.
2. Mapping Data. While gWorks makes extensive effor ts to present
accurate and up to date mapping data, Client acknowledges that such
mapping data rely on the accuracy and currency of the third party data
used by gWorks in connection therewith. gWorks makes no
representations or warranties as to the mapping data, and the Parties
acknowledge that mapping data may be inaccurate, incomplete,
unreliable or out of date. Client shall independently verify the accuracy,
completeness and relevance of any information it receives from gWorks
as par t of such mapping data before relying on it for any purpose.
3. Limited Use. The rights granted by gWorks to Client for the SaaS
Solution are personal to Client and allow Client to use and access the
SaaS Solution and any data generated through the SaaS Solution for its
own internal personal or business use, for public access (allowing the
public to use any available computers or mobile devices to obtain
access), on its own computer or mobile device, as strictly set forth in
this section. Except as otherwise provided herein, the subscription
rights set for th in this section may not be shared by more than one
individual or assigned to new users without gWorks consent, given or
withheld in gWorks’ sole discretion.
4. Client Obligations.
4.1 Accounts. Prior to Client being able to access the SaaS Solution,
Client may be required to register for the Services, or by executing a
written agreement (i.e. this Agreement or Order) with gWorks in the form
provided by gWorks. As part of the registration process, Client will be
required to provide cer tain information, and may be awarded a
username and password (“Account Credentials”). Client shall remain
responsible for maintaining the security of its Account Credentials, and
shall not disclose Account Credentials to any third party except as
authorized herein. gWorks will not be responsible or liable for any loss or
damage caused by Client ’s failure to comply with its security obligation.
Client remains responsible for all activity occurring under its accounts,
and shall notify gWorks immediately of any unauthorized use of any
Account Credentials or any other known or suspected breach of security.
4.2 Access. Client shall provide gWorks with reasonable access to
Client’s personnel, facilities, equipment, and Client Materials during
normal business hours and otherwise as reasonably requested by
gWorks, to enable gWorks to provide the Services. Except as expressly
set for th in this Agreement, gWorks will have no liability for any
damages incurred by Client due to a breach of the security of Client’s
own facilities or technology. Client shall take such actions as are
reasonably necessary to protect the security of its own facilities and
technology. gWorks shall have no liability for loss of any Client Materials.
Accordingly, Client shall be solely responsible for creating and
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maintaining current copies of all Client Materials provided to or stored
by gWorks, and storing such copies in a reasonably secure location.
4.3 Compliance with Laws. Client shall comply with all laws, rules, and
regulations with respect to Client ’s performance of its obligations
hereunder and otherwise with respect to its access to and use of the
Services, including all applicable laws regarding the transmission of
technical data exported from the United States or the country in which
Client resides, and gWorks shall have no responsibility therefor,
including any responsibility to advise Client of such laws or regulations.
4.4 Client Systems. Client shall ensure that any hardware, devices,
applications, or software not provided by gWorks pursuant to this
Agreement (“Client System”) will function properly while using the
Services. The failure of Client ’s Client System to so function shall not
relieve Client of any of its obligations under this Agreement. At Client ’s
expense, Client will be responsible for providing or obtaining the Client
System necessary to access the Services and Client Materials and
making Client Materials available to gWorks for gWorks to provide the
Services. Client acknowledges and agrees that gWorks provision of
Professional Services is dependent upon Client ’s technology
infrastructure at the time such Professional Services are to be
per formed, and further changes to Client’s technology infrastructure in
the future may require additional Professional Services subject to a
separate Order at gWorks then-current rates.
4.5 Use Restrictions. Client shall not use the Services for any purposes
beyond the scope of the access granted in this Agreement. Client shall
not at any time, directly or indirectly, and shall not permit any user to: (a)
copy, modify, or create derivative works of the Services, in whole or in
part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute,
publish, transfer, or otherwise make available the Services; (c)remove,
modify, or obscure any copyright, trademark, or other proprietary rights
notices that appear on any software provided or licensed to Client by
gWorks; (d) reverse engineer, decompile, or disassemble, reverse
assemble or emulate the functionality, reverse compile, attempt to
derive the source code of, reduce to human readable form, the SaaS
Solution or the underlying software used therein, in whole or in part; (e)
use the SaaS Solution, the underlying software used therein, or any
por tion thereof to create any tool, application or software product that
can be used to create software applications of any nature whatsoever;
(f) use the SaaS Solution in any unlawful manner whatsoever;(g) access
the SaaS Solution by any unauthorized means other than through
Services;(h) Spider, data-mine, scrape, probe or otherwise attempt to
abuse the SaaS Solution; or (i ) use the SaaS Solution in any manner or
for any purpose that infringes, misappropriates, or otherwise violates
any Intellectual Proper ty Right or other right of any person, or that
violates any applicable law.
EXHIBIT C – PROFESSIONAL SERVICES TERMS
1. Standard. The Professional Services will be performed by gWorks in
a professional and workmanlike manner, using qualified personnel, in
accordance with the Specifications and the terms set forth in the
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applicable Order. If the Order includes Professional Services for the
Client to migrate from Desktop Services to a gWorks SaaS Solution the
gWorks statement of work (“Statement of Work”)set forth in the Order
shall also apply to Client and such Statement of Work shall be treated as
an “Order” for purposes of this Agreement. gWorks will, in its sole
discretion, select personnel to render the Professional Services,
establish working hours for its personnel, use the resources and
materials it deems appropriate to per form the Professional Services,
and, within the parameters set forth in an Order, determine the method,
details, and means of per forming the Professional Services.
“Specifications” means the specifications and functionalities to which
the Professional Services deliverables shall be developed by gWorks, as
set for th in an Order.
2. Work Product. gWorks will retain ownership of all rights, title and
interest, including without limitation all Intellectual Proper ty Rights, in, to
and covering any work product or deliverables resulting from Professional Services
EXHIBIT D – HARDWARE TERMS
1. Purchase and Sale. During the term of this Agreement, Client shall
purchase from gWorks, and gWorks shall sell to Client, the hardware
specified in the quantities set forth in the applicable Order at the prices set for th therein.
2. Agreement Prevails Over Client’s PO. The Par ties intend for the
express terms and conditions contained in this Agreement(including any
Order(s) and attachments hereto) to exclusively govern and control each
of the Par ties' respective rights and obligations. No general terms or
conditions provided by Client in any purchase order, nor any variations
made to this Agreement’s terms and conditions by Client in any
purchase order are valid and shall be void and have no effect. Without
limitation of the foregoing, any attempt to modify, supersede,
supplement or otherwise alter this Agreement, will not modify this
Agreement or be binding on either Par ty unless expressly approved in a
written amendment in accordance with this Agreement.
3. Order Acceptance/Rejection. Client ’s issuance of a signed Order to
gWorks is an offer to purchase Hardware pursuant only to these terms
and conditions and the Order. Client shall be obligated to purchase from
gWorks quantities of Hardware specified in the Order. gWorks accepts
an Order to purchase Hardware by written confirmation of the Order by
an authorized representative or by delivering the applicable Hardware to
Client, whichever occurs first. gWorks may reject a Order for any reason
or no reason in its sole discretion. gWorks has no obligation to accept
any Order or offer to purchase Hardware issued by Client.
4. Shipment. gWorks shall select the method of shipment of and the
carrier for the Hardware. gWorks may, in its sole discretion, without
liability or penalty, make par tial shipments of Hardware to Client. Each
shipment will constitute a separate sale and Client shall pay for the
Hardware shipped, in accordance with the payment terms specified in
Agreement, whether such shipment is in whole or partial fulfillment of an
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Order. gWorks shall deliver the Hardware to the delivery location set
for th in the applicable Order, using standard packaging and shipping
methods. Any time quoted for delivery is an estimate only, and no delay
in the shipment or delivery of any Hardware shall relieve Client of its
obligations under this Agreement. Title to Hardware shipped under any
Order passes to Client upon Client’s payment in full for the Hardware.
Risk of loss to Hardware passes to Client upon gWorks transfer of
ordered Hardware to carrier.
5. Disclaimer. GWORKS MAKES NOWARRANTY WHATSOEVER WITH
RESPECT TO THE HARDWARE, INCLUDING ANY (I) WARRANTY
OFMERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICUL AR
PURPOSE; (III)WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST
INFRINGEMENT OF INTELLECTUALPROPERTY RIGHTS OF A THIRD
PARTY; WHETHER EXPRESS OR IMPLIED BY L AW, COURSE OFDEALING,
COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ANY
AND ALLWARRANTY CL AIMS, IF ANY, MUST BE SUBMITTED TO THE
ORIGINAL MANUFACTURER.
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