User agreement

1. THE WORKANA PLATFORM.

1.1 Purpose of the Workana Platform.

The Workana Platform enables Users to buy and sell Services online. Clients post jobs and invite Contractors to apply. Contractors post profiles and bid on jobs. If a Client accepts a Contractor's bid for a job, a Service Contract is formed directly between such Client and Contractor subject to the terms specified in Section 3 (Service Contract Terms Between Client and Contractor). Workana collects payment from the Client on behalf of the Contractor.

1.2 Eligibility.

The Workana Platform is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law.

User agrees that User is not (a) a citizen or resident of a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes, including without limitation Cuba, Iran, North Korea, Sudan and Syria; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.

2. Workana POLICIES

2.1 Workana Fee.

Workana charges Contractors a fee for services and technology including but not limited to maintaining the Workana Platform, providing online tracking resources, or collecting amounts owed by Clients and remitting them to Contractors. Typically, this fee is equal to 15% of Client's payments, plus a fee for withdrawals.

2.2 General User Obligations.

Workana has created a marketplace to connect Clients and Contractors using the Workana Platform. Workana is not a service company and does not provide Services or manage individual Contractors or their work, in any manner. Workana expects a consistent and high level of courtesy, respect and professionalism from all of its Users toward each other. Users agree to use good judgment when posting information, comments, feedback or other content regarding other Users, Workana or any third party anywhere within the Workana Platform. Users may be held legally responsible for damages suffered by other Users, Workana or any third party as a result of legally actionable or defamatory comments, remarks, or other information or content posted to the Workana Platform. All Clients and Contractors are to comply with all laws applicable to them or to their activities, and with all posted Workana Policies, which are hereby incorporated into this Agreement by reference. These policies may be modified from time to time at Workana's discretion, and the currently effective policies will be deemed to be part of this Agreement.

You will not access (or attempt to access) the Site by any means other than the interface provided, and you will not use information from the Site for any purpose other than the purpose for which it was made available. You will not engage in any activity that interferes with or disrupts the functioning of the Site. You will not upload or attach an invalid or malicious or unknown file. You will not insert any external links that may be malicious or unknown to you, or used for offering any goods or services other than Services.

Under federal law, Workana is not legally responsible for any remarks, information or other content posted or made available on the Workana Platform by any User or third party, even if such information or content is defamatory or otherwise legally actionable. Workana is not responsible for and does not monitor or censor content for accuracy or reliability. However, Workana reserves the right to remove or restrict access to any information or content posted or made available on the Workana Platform if ordered to do so by a government authority or if Workana considers such information or content to be in violation of this Agreement.

Pursuant to the Digital Millennium Copyright Act, Workana has implemented procedures for receiving written notification of claimed infringements and for processing such claims. If you believe your copyrights are being infringed by a User of the Workana Platform, please fax to Workana at (+1) 650 488 4966 a Notice of Infringement that includes substantially the following: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work claimed to have been infringed; (3) identification of the material that is claimed to be infringing that is to be removed, and information reasonably sufficient to enable Workana to locate it; (4) information reasonably sufficient to enable Workana to contact the complaining party; (5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf the owner of an exclusive right that is allegedly infringed.

2.3 Identity and Account Security.

All identity information associated with an Workana User account must be real and verifiable. Each Workana User account must be used by only one person, and each person is allowed to use only one User account. Workana reserves the right to validate User information at any time, including but not limited to validation against third party databases or the verification of one or more official government or legal documents that confirm the User's identity. You authorize Workana, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial instruments. Failure to provide information about you and your business when requested is a violation of this Agreement. The User is solely responsible for ensuring and maintaining the secrecy and security of the User's Workana account password. User agrees not to disclose this password to any third party and shall be solely responsible for any use of or action taken through the use of such password on Workana. You must notify Workana Support immediately if you suspect that your password has been lost or stolen. By using your Workana User account, you acknowledge and agree the Workana's account security procedures are commercially reasonable. You may not allow third parties to use this password to perform any action, including but not limited to, posting jobs, bidding for or performing Services under your Workana User account, except through an authorized Workana API.

2.4 Job Postings and Applications.

2.4.1 Posting a Job. All jobs posted to Workana must not contain any information enabling or requesting contact or payment outside of the Workana Platform. Job postings must be of a professional nature and accurately describe the Services requested. They should be free of offensive language or advertisements for other products or services. Job postings may not request any service that is illegal or violates intellectual property rights, copyrights or the terms of service of another service, product or website. Job postings related to the creation of adult or explicit content or those that involve modeling or acting are prohibited. Job postings that involve exposure to content of an adult or potentially offensive nature should notify potential readers in the title of the job posting.

2.4.2 Applying to a job. All information provided in a job application must be true, accurate and complete. Workana reserves the right to verify any and all information provided on a User's profile or job application. By applying to a job, the User is attesting that he/she/it has the skills and ability to perform the requested Services by the deadline stated in the job posting.

2.5 Managing and Working on Contracts.

2.5.1 Managing Contracts. Clients agree to review the interim work product and respond promptly to communications with and requests for information from the Contractor. Client agrees to provide detailed specifications to Contractors

2.5.2 Working on Contracts. Contractors agree to use Workana's communication tools. Any communications done outside of our platform cannot be used when in dispute and not guaranteed by Workana. The Contractor is responsible for providing all tools and resources necessary to complete the Contract, unless explicitly stated in advance by the Client. Contractors agree to respond to all Client communications and requests for information within one business day. If the Contractor will be unable to meet this requirement due to an absence, he is expected to notify the Client at least 2 weeks prior. After the completion of a Contract, the Contractor agrees to provide timely, honest and objective feedback on the Client.

2.6 Billing and Payments.

2.6.1 Fixed-Price Contracts. Workana works under a fixed price contracts model. When parties agree to specific requirements for a contract and these are met, the payment of the contract occurs. In cases where Clients and Contractors disagree on the completion of the objectives of the contract they have the option to dispute the payment. See dispute section below.

2.7 Payment accounts

Each Contractor must properly discharge and credit its Client for all payments Workana receives from such Client. Each User understands and agrees that:

The transmission of funds in the manner described herein is not a separate and discrete service that Workana provides in addition to its Workana Platform services. Rather, transmission of funds in an auditable manner is an integral part of the Workana Platform services that Workana is providing. The Workana payment account is a custodial account administered by Workana to facilitate dismbursement of the Client's payment to the Contractor. Workana acts as agent of the Contractor and not as a trustee or fiduciary with respect to payments received through Workana. Workana holds funds delivered to it in a commingled account at a bank, and may include in the titling of that account "Workana for the benefit of others" or similar words. Workana maintains records at Workana that should, in the event of a bank failure, allow the FDIC to determine which funds are payable to which Contractors. Workana will not voluntarily make your funds available to its creditors in the event of bankruptcy. You agree that you will not receive interest or other earnings on the funds that Workana handles as your agent and places in comingled accounts. In consideration for your use of the Workana Platform, you irrevocably transfer and assign to Workana any ownership right that you may have in any interest that may accrue on funds held in commingled accounts. This assignment applies only to interest earned on your funds, and nothing in this Agreement grants Workana any ownership right to the principal of the funds you maintain with Workana. In addition to or instead of earning interest on commingled accounts, Workana may receive a reduction in fees or expense charged for banking services by the banks that hold your funds.

2.8 Non-payment.

If Client fails to pay amounts due under this Agreement, whether by cancelling Client's credit card, initiating an improper chargeback, or any other means, Client's Workana account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. Without limiting other available remedies, Client must reimburse Workana for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of two percent (2%) per month or the maximum allowed by law, plus attorneys' fees and other costs of collection as allowed by law. In its discretion, Workana may setoff amounts due against other amounts received from or held for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.

2.9 Hold on funds.

Workana reserves the right, in its sole discretion, to place a hold on funds for Client payments to clear or if Workana suspects they may be subject to charge back or if fraud is suspected. Workana will release a hold as soon as deemed appropriate. In cases of fraud, abuse or violation of this Agreement, the Workana payment guarantee shall be revoked and all monies in an Workana account may be held and/or reclaimed, not just those from the Contract(s) under investigation.

2.10 Dispute Resolution.

2.10.1 Clients may dispute a contract the four (3) days following it's close. It is the Client's responsibility to review to file any disputes on a timely basis. Once the dispute period has passed, the charges are accepted by the Client and can no longer be disputed and can only be refunded by the Contractor.

2.10.2 All dispute resolutions by Workana are final and cannot be appealed. We will always seek to reach an agreement between the Client and the Contractor in all situations. In cases where an agreement cannot be reached Workana will make a final decision using internal communication logs and other means we believe useful. Any communication between the Client and the contractor that was conducted outside Workana cannot be used in a dispute.

2.11 Ratings and Feedback.

Workana provides its feedback and rating system as a means through which Users can express their opinions publicly. Workana does not monitor or censor these opinions or investigate any remarks posted by Users for accuracy or reliability. You acknowledge and agree that the Workana Platform will contain public feedback from Users with whom you have transacted. You acknowledge that feedback results for you may consist of comments and ratings left by other Users and that Workana may calculate a composite feedback number based on these individual ratings. You may be held legally responsible for damages suffered by other Workana Users or third parties as a result of these remarks if a court finds that these remarks are legally actionable or defamatory. Workana is not responsible for any feedback or comments posted or made available on the Workana Platform by any Users or third parties, even if that information is defamatory or otherwise legally actionable. Any effort to falsify feedback, manipulate or coerce another User by threatening negative feedback or offering to sell or buy Services in exchange for feedback is in violation of this Agreement. Workana reserves the right to delete ratings and feedback as it deems appropriate.

2.12 Privacy. (please check our privacy policy)

Workana treats personally identifiable information differently from general information. Personally identifiable information can be used to identify, locate or contact you. General information is information that is not personally identifiable information and is not associated with personally identifiable information. Workana may convert personally identifiable information into general information by excluding information that is personally identifiable. You acknowledge that general information belongs to Workana and that Workana has the right to use such general information as it determines in its sole discretion. Workana may process information in the country where it was collected, as well as other countries (including the United States) where laws regarding processing of personal information may be less stringent than the laws in your country

2.12.1 Security. We will use commercially reasonable methods to keep personally identifiable information securely in our files and systems. For example, we use secure Internet connections, including SSL (Secure Sockets Layer) encryption, to help protect financial data.

2.12.2 Information gathered during registration. If you register to buy or sell Services using Workana, we collect and store personally identifiable information, including your name, address, email address and password. Workana may request additional information from you or third parties to validate or supplement this information. Clients are also required to enter information regarding a payment method, such as credit card, bank account, or PayPal account information. You agree to provide us with information reasonably requested by us, even if the request is made after conclusion of your work on a particular Contract.

2.12.3 Automatically gathered information. Workana automatically collects your browser type and browser software version to tailor the presentation of the Workana Platform to your platform and to maintain a record of your activity on the site. Workana uses cookies to enable Users to specify unique preferences and to track User trends and patterns. Users always have the option of disabling cookies via their browser preferences. If you disable cookies on your browser, please note that some parts of our site may not function as effectively or may be considerably slower. As an automatic process, our webserver software records a log file of IP addresses that access the Workana Platform, and we use a third party for device identification. We also collect IP address and other system information for purposes of statistical analysis and to maintain the trust and security of the Workana Platform. We will not use IP addresses or other system information to identify a User unless we determine, in our sole discretion, that it is necessary to enforce compliance without various policies to protect our service, the Site, our customers, or others.

2.12.4 The private and shared areas of the Site help to facilitate communication and the exchange and sharing of information between Clients and Contractors once a Contract has started. Workana may use general information from these and other areas of the site for statistical analysis, product development, marketing and research. Workana reserves the right to monitor communications through the Site and, if we believe that a User is violating this Agreement, Workana Policies, or any international, federal or state laws, we may terminate such usage. Workana uses commercially reasonable efforts to insure that its collection of such relevant information does not interfere with the operation or security of your system.

2.12.5 Use of Personally Identifiable Information. The Workana Platform describes how personally identifiable information is shared. We also use personally identifiable information for our own internal purposes, including contacting you via email to inform you about updates to the Workana Platform and providing you with services and information relating to transactions that you conduct on the Site. We provide personally identifiable information to third parties who process it in accordance with our instructions in order for Workana to provide services to you. We reserve the right to disclose your information if we have a good-faith belief that the disclosure is (i) required by law, regulation, or legal process; (ii) appropriate to detect, prevent, or remedy violations of this Agreement, fraud, security, or technical issues; or (iii) permitted in order to protect Workana, other Users or the public. If Workana is involved in a change of control through merger, acquisition, sale of stock or assets, we will give notice before your personally identifiable information is transferred or becomes subject to a different privacy policy.

2.12.6 Links to other sites. Workana is not responsible for the privacy practices or the content of any other websites to which the Site links or which link to the Site. By clicking on a link, logo or other item, please note that you may no longer be on the Site. To check what Internet location you are on, note the URL at the top and/or bottom of your browser. We encourage you to read the posted privacy statement of that website before interacting with it.

2.13 Companies and Company Contractors.

A "Company" is an organization seeking to make money on Workana by selling the Services of Company Contractors. A "Company Contractor" is a Contractor under contract to do work on Workana on behalf of a Company. A Company has a manager responsible for the actions of all its members, including its Company Contractors, administrators in charge of maintaining the Company's finances, roster, and profile, and staffing managers in charge of finding and supervising Contracts. One User may serve in all or multiple roles. Every person who will do work for a Company must have an individual User account and Contractor profile associated with that person's Company on Workana. If a Company Contractor is no longer working for a Company, the Company may not use the Contractor's profile in any way. Contractors leaving a Company must contact the Company manager to remove their association. Companies may not refuse to release a Company Contractor. When leaving the Company, Company Contractors keep their profiles, including their work and feedback histories. Their histories are meant to reflect work done by them. The Company's work and feedback history will retain the Contracts of Contractors who have since left the Company.

2.14 Enforcement of User Agreement and Policies.

Workana has the right, but not the obligation, to suspend or cancel your access to the Workana Platform if it believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting Workana's other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the Workana Platform to you if (a) you breach any terms and conditions of this Agreement or other written policies and procedures posted on the Site; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, our Users or for Workana. Once suspended or terminated, you MAY NOT continue to use the Workana Platform under a different account or reregister under a new account. If you attempt to use the Workana Platform under a different account, we reserve the right to reclaim available funds in that account and/or use an available payment method to pay for any amounts outstanding. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. When your User account is canceled, you may no longer have access to any parts of the Workana Platform, including data, messages, files and other material you keep on Workana. All intellectual property provided by Clients for the purposes of completing Contracts will be returned by Contractors immediately upon termination.

3. SERVICE CONTRACT TERMS BETWEEN CLIENT AND CONTRACTOR.

User agrees that all Service Contracts between any Client or Contractor shall: (i) include the terms and conditions provided in Sections 3.1 through 3.10 below ("Standard Terms"); (ii) name Workana as an express third party beneficiary under the Service Contract; and (iii) make no representations or warranties or enter into any contracts on behalf of Workana, except as may be otherwise provided for herein. Client and Contractor may agree to terms in their Service Contract materially different than the Standard Terms; however, nothing in such Service Contract will in any way limit or modify Workana's rights.

3.1 Services.

Contractor shall perform Services in a professional and workmanlike manner. Under Fixed-Price Contracts, Contractor shall deliver the agreed-upon Work Product.

3.2 Company.

Contractor and Company agree and acknowledge that Company's employees or contract personnel are not employees of Workana or Client. Company is solely responsible for all wages, costs, and expenses of Company's employees or contract personnel and has the sole and exclusive right to supervise and control them. Neither Client, nor Workana, will require Company's contract personnel to devote full time to performing the Contracts entered into by Company as required by this Agreement. Furthermore, both Contractor and Company acknowledge and agree that neither it, nor any of its employees or agents, shall have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, professional compensation benefits, unemployment benefits, or any other employee benefits of any kind from Workana or Client.

3.3 Fees.

Client shall pay Contractor the agreed-upon fees for delivery and acceptance of the Work Product (under Fixed-Price Contracts). All amounts paid by Client shall be paid through the Workana Platform to Workana as the Contractor's agent, and Client's obligation of payment to Contractor is met when payment is made to Workana.

3.4 Termination of a Service Contract.

For Fixed-Price Contracts, the Client may terminate at any time but may not recover any payments made to the Contractor unless mutually agreeable. The Contractor may terminate a Fixed-Price Contract at any time if no payment has been made. If a payment has been made on a Fixed Price Contract, the Contractor may terminate if there is written agreement from the Client, after the payment has been refunded or a dispute has been settled.

3.5 Client Deliverables.

Client grants Contractor a limited, non-exclusive, revocable (at any time, at Client's sole discretion) right to use the Client Deliverables as necessary for the performance of the Services. Client reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Client Deliverables. Upon completion or termination of the Service Contract, or upon written request by the Client, Contractor shall immediately return all Client Deliverables to the Client and further agrees to purge all copies of Client Deliverables and Work Product contained in or on Contractor's premises, systems, or any other equipment otherwise under Contractor's control. Contractor agrees to provide written certification to the Client certifying the return or purging of Client Deliverables within ten (10) days after the receipt of the Client's written request to certify.

3.6 Work Product.

Any copyrightable works or works for hire prepared by Contractor in connection with a Fixed-Price Contract for Client shall be owned by the Contractor until payment has been made by the Client and accepted by the Contractor. If the Client pays an amount less than the amount agreed to in the Service Contract, the Contractor may refund the amount paid within two (2) weeks of the payment date and retain ownership of the Work Product.

To the extent that under applicable law, Proprietary Rights cannot be assigned, Contractor hereby irrevocably agrees to grant, and hereby grants, to Client an exclusive (excluding also Contractor), perpetual, irrevocable, unlimited, worldwide, fully paid, and unconditional license to use and commercialize Work Product in any manner now known or in the future discovered. To the extent such license grant is not fully valid, effective or enforceable under applicable law, Contractor hereby irrevocably agrees to grant, and hereby grants, to Client, such rights as Client reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal ownership. In order to ensure that Client will be able to acquire, perfect and use such Proprietary Rights, Contractor will: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to Client; (ii) sign any documents at Client's request to assist Client in the documentation, perfection and enforcement of its rights; and (iii) provide Client with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Proprietary Rights. Contractor also irrevocably authorizes Client to act and sign on Contractor's behalf and take any necessary steps in order to perfect Client's rights under this Agreement. In the case that under applicable law, Contractor retains any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights" (collectively "Moral Rights") or other inalienable rights to Work Product or Confidential Information under this Agreement, Contractor irrevocably agrees to waive, and hereby waives, all such rights, or, to the extent Contractor cannot waive such rights, Contractor agrees not to exercise such rights, until Contractor has provided prior written notice to Client and then only in accordance with any reasonable instructions that Client issues in the interest of protecting its rights. Contractor agrees to assist Client in every proper way to obtain and enforce the Proprietary Rights and other legal protections for the Work Product in any and all countries. Contractor will sign all documents that the Client may reasonably request for use in obtaining and enforcing such protection, including, but not limited to, any assignment deed which the Client may select at its sole discretion. Contractor's obligations under this will continue even after Contractor deregisters from or ceases use of the Workana Platform. Contractor appoints Client as Contractor's attorney-in-fact to execute documents on Contractor's behalf for the purposes set forth in this Section.

3.7 Pre-existing Intellectual Property in Work Product.

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

3.8 Professional classification.

Client assumes all liability for proper classification of professionals as independent contractors or employees based on applicable legal guidelines. This Agreement does not create a partnership or Company relationship between Client and Contractor. Contractor does not have authority to enter into written or oral (whether implied or express) contracts on behalf of Client.

Contractor acknowledges that Workana does not, in any way, supervise, direct, or control Contractor's work or Services performed in any manner. Workana does not set Contractor's work hours and location of work. Workana will not provide Contractor with training or any equipment, labor or materials needed for a particular Contract.

Workana will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Client and Contractor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Contractor's performance of Services.

All Contractors are classified as independent and is free at all times to provide Services to persons or businesses other than Client, including any competitor of Client.

Client and Contractor shall be solely responsible for all obligations for tax withholding, the payment of taxes and/or providing the benefits associated with any relationship.

Client and Contractor agree to indemnify, hold harmless and defend Workana from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Contractor was misclassified, any liabilities arising from a determination by a court, arbitrator, government Company (including, but not limited to, taxes, penalties, interest and attorney's fees), any claim that Workana was an employer or joint employer of Contractor, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, professional compensation benefits, unemployment benefits, or any other employee benefits.

3.9 Audit Rights

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

3.10 General.

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

3.11 Entire Agreement.

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

4. ACKNOWLEDGMENTS BY USER OF WORKANA'S ROLE.

4.1 Service Contracts.

User expressly acknowledges, agrees and understands that: (i) the Workana Platform is merely a venue where Users may act as Clients or Contractors; (ii) Workana is not a party to any Service Contracts between Clients and Contractors; (iii) User recognizes, acknowledges and agrees that User is not an employee of Workana and that Workana does not, in any way, supervise, direct, or control User's work or Services; (iv) Workana shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (v) Workana has no control over Contractors or over the Services promised or rendered by Contractors; and, (vi) Workana makes no representations as to the reliability, capability, or qualifications of any Contractor or the quality, security or legality of any Services, and Workana disclaims any and all liability relating thereto.

4.2 Proprietary Rights.

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

4.3 Workana's Compensation.

All Workana Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.

5. FEES AND PAYMENTS.

5.1 Formal Invoices and Taxes.

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

5.2 Billing Client.

For bonuses, milestone payments and Fixed-Price payments, Client is billed immediately. If Client believes a charge to be incorrect, Client shall notify Workana within the time period set forth in the Dispute Resolution Policy, in which case Workana will promptly investigate the Time Log to determine, in its sole discretion, whether an adjustment is appropriate. Workana's determination shall be final. If Client does not notify Workana within this time set forth in the Dispute Resolution Policy, the charge automatically becomes final and Client cannot appeal it.

5.3 Payment.

Client hereby authorizes Workana to run credit card authorizations on all credit cards provided by Client, to store credit card details as Client's method of payment for Services, and to charge Client's credit card (or any other form of payment authorized by Workana or mutually agreed to between Client and Workana).

5.4 Dispute Resolution Policy Between Contractor and Client.

All disputes between a Contractor and a Client regarding the chargeable nature shall be resolved pursuant to Workana's Dispute Resolution Policy.

5.5 Payment Guarantee.

Workana will guarantee performance of the Client's payment to you as a Service Contractor where the work performed and captured pertains directly to the Service Contract billed. Determination of whether these criteria have been met is at the sole discretion of Workana. The Payment Guarantee will not apply to Contractors or Contracts in violation of this Agreement, where the Contractor is aware of or complicit in another User's violation of this Agreement, or where there is any other involvement in fraudulent activities or abuse of this Payment Guarantee.

6. CONFIDENTIAL INFORMATION.

6.1 Confidentiality.

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

6.2 Return.

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

6.3 Publications.

Without limiting this section, Client, Contractor and Workana shall not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a relevant Contract.

7. WARRANTY DISCLAIMER.

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

8. LIMITATION OF LIABILITY.

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

9. INDEMNIFICATION.

9.1 Proprietary Rights.

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

9.2 Indemnification by Client.

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

9.3 Indemnification by Contractor.

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

10. TERM AND TERMINATION.

10.1 Term.

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

10.2 Termination.

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

10.3 Consequences of Termination.

Termination shall not relieve Client of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, shall be invoiced to Client following termination pursuant to Section Billing Client, and charged to Client's credit card or other form of payment pursuant to Section Payment. Subject to Section Dispute Resolution Policy, Workana shall pay Contractor, in accordance with the provisions of Section Fees and Payments.

10.4 Survival.

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

11. GENERAL.

11.1 Entire Agreement.

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

11.2 Side Agreements.

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

11.3 Compliance.

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

11.4 Notices: Consent to Electronic Notice.

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

11.5 Modifications.

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

11.6 No Waiver.

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

11.7 Assignability.

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

11.8 Severability.

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

11.9 Choice of Law.

This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement ("Claims") shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

11.10 Informal Dispute Resolution and Arbitration.

Workana and User hereby agree that any Claims shall first be settled through the Workana dispute resolution program. Claims that the parties cannot resolve informally and where the amount in controversy is less than USD$25,000, the parties agree to resolve in a cost-effective manner through binding non-appearance-based arbitration conducted by a single arbitrator. If a party elects arbitration, that party will initiate the arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties or the American Arbitration Association (AAA) if no other service is agreed upon. The arbitrator shall be selected from a list of no less than five names through alternative strikes. Unless the parties mutually agree otherwise, the ADR provider and the parties will proceed as follows:

  • the arbitration will be conducted by telephone and/or be solely based on written submissions, as specified by the party that initiates the arbitration;
  • the arbitration shall not involve any personal appearance by the parties or witnesses; and
  • any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

Disputes over $25,000 that do not involve Workana may be resolved in whatever forum the parties deem appropriate.

11.11 Prevailing Language.

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

12. DEFINITIONS.

12.1 "Client" means any User utilizing the Workana Platform to request Services to be performed by a Contractor. From time to time, Workana may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to Workana when acting in this way.

12.2 "Client Deliverables" means instructions, requests, intellectual property and any other information or materials that a Contractor receives from a Client for a particular Contract.

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

12.4 "Contract" means a particular project or set of ongoing tasks for which a Client has requested Services to be performed by a Contractor and the Contractor has agreed on the Workana Platform.

12.5 "Contractor" means any company or individual User utilizing the Workana Platform to offer Services to Clients.

12.6 "Contractor Deliverables" means instructions, requests, intellectual property and any other information or materials that a Client receives from a Contractor for a particular Contract.

12.7 "Contractor Fees" means for (a) a Fixed-Price Contract, the Fixed-Price; and (b) any bonuses paid or other payments made by a Client for a Contract.

12.8 "Effective Date" means the date of acceptance of this Agreement.

12.9 "Fixed-Price" means a fixed fee agreed between a Client and a Contractor, prior to the commencement of a Contract, for the completion of all Services requested by Client for such Contract.

12.10 "Fixed-Price Contract" means a Contract for which Client is charged a Fixed-Price.

12.11 "License Agreement" means the license agreement between User and Workana relating to use of the Workana Team software.

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

12.13 "Services" means web development, software development, writing, translation, administrative, marketing, design customer service, sales, data entry, general business services and other knowledge-based or online services.

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