Effective: October 1, 2012
Last updated: July 8, 2022
These Terms and Conditions (as amended from time to time, "Terms and Conditions"), together with the Service Agreement(s) or Statement(s) of Work, as applicable, govern the provision of Services by WorkHands, Inc., a Delaware corporation ("WorkHands").
"Agreement" means these Terms and Conditions, the Service Agreement, and any Statements of Work entered into by the parties, in each case, as amended from time to time.
"Analyzed Data" means data and information related to Program’s use of the Platform that is aggregated and anonymized by WorkHands, including any statistical and performance information from the provision and operation of the Services, together with any related visualizations, analyses, and alerts generated by the Platform, whether or not made available to Program.
"Program" means the entity identified on the Service Agreement and any of their sponsors/cohorts
"Program Data" means any data and information that Program and its Authorized Users deliver to WorkHands or upload to the Platform, but excluding, for the avoidance of doubt, Analyzed Data and any WorkHands Intellectual Property.
"Deliverables" means reports, analyses or deliverables furnished by WorkHands in connection with the performance of Professional Services, as specified in a Service Agreement, but does not include Analyzed Data included in such reports, analyses or deliverables.
"Documentation" means any specifications, user manuals, guides, and supporting materials, regardless of format, describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of the Platform made available to Program by WorkHands under this Agreement.
"Intellectual Property" means, with respect to each party, its patents, trademarks, service marks, logos, collections of data, copyrights, trade secrets, and any other intellectual property.
"Marks" means, with respect to each party, its trademarks, trade names, service marks, tag lines and logos, whether or not registered.
"Service Agreement" means WorkHands’s Standard Service Agreement entered into by Program and WorkHands.
"Platform" means the web-based software applications, interfaces, and management tools provided by WorkHands and used to manage apprenticeship programs..
"License to Application" means subject to the terms and conditions of the Service Agreement and the Policies, WorkHands grants to Program a non-exclusive, non-transferable, limited license to use the Application in connection with the Services for the sole purposes of providing vocational assistance to the Apprentices.
"Professional Services" means the consulting and other professional services, as described in the applicable Service Agreement and/or Statement of Work.
"Services" means, collectively: (i) the Platform Subscription, (ii) the Professional Services, , and (iii) any other related services provided by WorkHands.
"Term" means, with respect to the Service Agreement, the period which commences on the Effective Date.
"WorkHands Property" means the Platform, the WorkHands API, the Analyzed Data, the Documentation, the web interfaces, algorithms, methodologies, know-how, or technology used by WorkHands to provide the Services, and any and all other WorkHands Intellectual Property together with all improvements, modifications and derivative works thereof.
"User(s)" means Program personnel authorized to access the Services via the WorkHands web interface, WorkHands API, and related applications.
"Service Agreement" means WorkHands’s standard statement of work, entered into by Program and WorkHands and pursuant to which Program may order certain Services.
"Application" is an application to be built by WorkHands and used by Apprentices, Supervisors, and Teachers for tracking apprenticeship hours and related information.
"Apprentices" means those individual Apprentices who use the Application as clients or members of the Program.
"Apprentice Data" means the information regarding the Program apprenticeship program provided by or regarding an individual Apprentice entered into the Application.
"User Data" means any data entered by an Apprentice other than Apprentice Data, such as the Apprentice’s name and contact information.
Subject to this Agreement, WorkHands agrees to use commercially reasonable efforts to provide the Services to Program during the Term (as defined below).
Platform Subscription; Changes to Services. Each applicable Service Agreement will include, among other information, the number of Active Apprentices initially ordered by Program. During the Subscription Period, Program may request to add Active Apprentices. If Active Apprentices exceeds the initial order, a new fee and invoice will be provided. WorkHands reserves the right to modify the Platform from time to time in its sole discretion, including without limitation to (i) maintain, enhance or create additional features, functionality, capabilities and services for its customers, (ii) take into account the competitive strength of, or market for, WorkHands’s products or services, (iii) maximize cost efficiency or performance of its services, or (iv) comply with applicable law.
Professional Services. Program may order Professional Services from WorkHands pursuant to a Service Agreement. The Service Agreement, as applicable, will describe in reasonable detail the Professional Services to be provided by WorkHands and the fees payable therefor.
Support Services. WorkHands shall use commercially responsible efforts to make available standard technical support to Program with respect to the Platform via chat and email during normal business hours during the Term.
Program Obligations. Program shall cooperate with WorkHands to enable WorkHands to provide the Services, including without limitation, providing WorkHands with a list of Users on or promptly after the beginning of the Term. Program is responsible for keeping such lists current and providing WorkHands with updates. Program shall restrict use of the Platform Subscription to authorized Users, using no more than the number of Active Apprentices ordered, and for implementing and enforcing industry-standard secure logon and password procedures. Program is responsible for all activities occurring under its User accounts.
License to the Application. Subject to the terms and conditions of this Agreement and the Policies, WorkHands grants to Program a non-exclusive, non-transferable, limited license to use the Application in connection with the Services for the sole purposes of providing vocational assistance to the Apprentices.
Restrictions. Program may not, directly or indirectly:
Program Compliance. Program shall use, and will ensure that all Users use, the Platform Subscription in full compliance with this Agreement and all applicable laws and regulations, including, without limitation, applicable laws and regulations concerning export, data privacy and protection, and the transmission of technical or personal data and cooperate with WorkHands in connection with compliance thereto. Without limiting the foregoing,
Fees for Services. Fees for the Services are set forth in each applicable Service Agreement. Program will pay WorkHands the fees set forth in a Service Agreement, as applicable, in accordance with the terms set forth therein.
Reimbursable Expenses. Program will reimburse WorkHands for all reasonable out-of-pocket expenses incurred in providing Professional Services if defined in an applicable Service Agreement. All reimbursable expenses will be invoiced to Program and Program shall pay the invoice upon receipt.
Taxes. All fees and expenses payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Program will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes), if any, associated with this Agreement or Program’s receipt of use of the Services, except for taxes based on WorkHands’s net income. If WorkHands is required to collect or pay any taxes for which Program is responsible, Program will pay such tax directly to WorkHands. If Program pays any withholding taxes that are required to be paid under applicable law, Program will furnish WorkHands with written documentation of all such tax payments, including receipts.
Services; Application. WorkHands and its licensors and service providers retain all right, title, and interest in and to the Services, the Application, and the Website (including any derivative works or enhancements), including but not limited to, all software, technology, information, content, and documentation and any developments or material developed by WorkHands in connection with the Services. Program does not acquire any rights to the Services or the Application, except for the limited license stated in this Agreement. Any rights not expressly granted by WorkHands are deemed withheld. Program may not decompile, reverse engineer, or otherwise attempt to derive source code from any software used in connection with the Services or the Application.
Apprentice Data. Apprentice Data includes the data related to the apprenticeship program contained in the relationship maps between Apprentices, Supervisors, Teachers, and all involved organizations, as well as the hours tracked by Apprentices in specific hours and Supervisor approval of hours over time. This includes all data specific to Program members generated during the deployment of the Services. Title to, and all intellectual property rights in, the Apprentice Data provided by the individual Apprentices remains the property of the Program and User Data remains the property of the Apprentice as applicable and subject to WorkHand’s underlying rights in the Application. Access to the Apprentice Data and User Data stored as a part of the Services is contingent on full payment of all Fees when due. Program acknowledges and agrees that WorkHands shall have the right to offer substantially similar applications with similar formats and features, including but not limited to, relationship maps and hours tracking, to its other customers. Apprentice Data does not include WorkHands proprietary code, templates and general data used by WorkHands in providing the Services and hosting the Application.
License. Program grants WorkHands a license to use, copy, transmit, store, and back-up Apprentice Data for the purposes of enabling the Program and the Apprentices to access and use the Services and for any other purpose related to provision of the Services. Program grants to WorkHands an irrevocable license to use, modify, copy and make derivative works of the Apprentice Data for its internal use and development purposes. WorkHands will use this data in an aggregated fashion towards future product development. WorkHands shall own all right, title and interest in and to such derivative works, subject to the underlying rights of Program and the Apprentices in the Apprentice Data.
Mutual Representations. Each party hereby represents and warrants that it: (i) is a legal entity duly organized, validly existing and in good standing; and (ii) has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder
WorkHands Representations. WorkHands represents and warrants that it will perform the Professional Services in a professional and workmanlike manner. As Program’s sole and exclusive remedy for a breach of the foregoing, WorkHands will re-perform the Professional Services.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, TITLE, NON-INFRINGEMENT AND/OR QUIET ENJOYMENT. NO WARRANTY IS MADE BY EITHER PARTY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. WorkHands DOES NOT WARRANT THAT THE PLATFOM, SERVICES OR THE WorkHands API WILL (i) MEET ALL OF PROGRAM’S REQUIREMENTS; (ii) WILL OPERATE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT KNOWN OR DISCOVERED ERRORS WILL BE CORRECTED; OR (iii) WILL PROVIDE DATA, ANALYZED DATA OR OTHER RESULTS THAT ARE COMPLETE, ACCURATE OR RELIABLE OR (iv) WILL MEET PROGRAM’S EXPECTATIONS. WorkHands IS NOT RESPONSIBLE FOR ANY ANALYZED DATA OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES OR THE WorkHands API, ALL OF WHICH IS OBTAINED AT PROGRAM’S OWN DISCRETION AND RISK. WorkHands EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, ANY THIRD PARTY COMPONENTS WHICH ARE OUTSIDE WorkHands’S CONTROL, SUCH AS INTERNET ACCESS, AND COMPUTER OR NETWORK EQUIPMENT, ALL OF WHICH ARE THE RESPONSIBILITY OF PROGRAM.
Waiver of Consequential Damages. WORKHANDS WILL NOT BE HELD LIABLE TO Program UNDER THIS AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF Program IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. EXCEPT FOR ANY LIABILITY THAT CANNOT BE EXCLUDED BY COMPULSORY LAW, IN NO EVENT WILL WORKHANDS AND ITS LICENSORS AND SUPPLIERS BE LIABLE TO Program OR ANY THIRD PARTY FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS OR SERVICES, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES, OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT OR FOR LOST PROFITS, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE REMEDY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, OR FOR ANY CLAIM BY ANY THIRD PARTY. Program ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL ASPECT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS SET FORTH IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
Limitation on Amount of Liability. WORKHANDS’ TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID TO WORKHANDS UNDER THIS AGREEMENT unless otherwise noted.
Term. This Agreement shall commence on the Effective Date and shall continue for a period of two years from the Effective Date, unless otherwise indicated or earlier terminated as provided in this Agreement. The Agreement shall renew upon mutual consent of the parties for one year terms unless either party sends notice of non-renewal to the other party thirty days prior to the renewal date.
Termination for Breach. A party may terminate this (i) if the other party breaches a material term and fails to cure the breach within 30 days after receiving written notice; or (ii) if the other party becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency or receivership proceeding, or has any petition under bankruptcy law filed against it, which petition is not dismissed within 60 days of the filing, or has a trustee, administrator or receiver appointed for its business or assets or any part thereof. Program’s failure to make any payment when due shall be deemed a breach of a material term subject to Service Agreement Section 6.2 (a).
Termination for Convenience. Either party may, at its sole option and in its sole discretion, terminate this Agreement upon thirty (30) days written notice to the other party for any reason or for no reason.
Termination or Suspension By WorkHands. WorkHands may suspend use of the Services for a material violation of this Agreement or of the end user Policies set forth in Section 2. WorkHands may terminate this Agreement immediately or suspend use of the Services by Program or by an individual Apprentice if WorkHands reasonably believes that Program’s use or such Apprentice’s continued use of the Services creates a risk of harm to another individual or entity or loss of goodwill to WorkHands
If use is suspended, Program will assist WorkHands in resolving the suspension issues and provide WorkHands with relevant documentation and access to its records.
Effect of Termination. Following the expiration or termination of this Agreement, Program and its Apprentices may no longer use the Services. WorkHands will provide an export of the Apprentice Data to Program, provided however that WorkHands may retain a license to Apprentice Data pursuant to the license.
Governing Law; Jurisdiction. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE’S CONFLICT OF LAWS RULES, UNLESS OTHERWISE INDICATED IN A SEPARATE AGREEMENT AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
Assignment. Program may not assign (including by way of merger, sale of stock, or sale of assets) this Agreement or any rights or obligations under this Agreement without the prior written consent of WorkHands. WorkHands may assign this Agreement or any rights or obligations under this Agreement to any affiliate, or in the event of a merger or sale of assets pertaining to the Services. Any attempt by either party to make an assignment or transfer in violation of this paragraph will be void and without effect.
General
The Agreement, including these Terms and Conditions: (i) will be binding upon and inure to the benefit of the parties, their successors and permitted assigns; (ii) creates no agency, partnership or employer-employee relationship between the parties; their relationship is that of independent contractors; and (iii) has no third party beneficiaries.
If any provision in the Agreement is deemed invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the Parties’ intent; the remainder will remain in full force and effect.
Program shall pay on demand all of WorkHands’s reasonable attorney fees and other costs incurred by WorkHands to collect any fees or charges due WorkHands under this Agreement.
No failure or delay by a party in enforcing the Agreement shall be construed as a waiver of any of its rights under it. No party shall be deemed in default of the Agreement if the performance of its obligations is delayed or prevented by events beyond its reasonable control.
The Agreement may only be amended in writing, signed by both parties.
No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement.
Program acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in a Service Agreement or dependent upon any oral or written, public or private comments made by WorkHands with respect to future functionality or features for the Services.
In the event of any conflict between the provisions in this Agreement and any Service Agreement, the terms of such Service Agreement shall prevail if so expressly stated therein.
No terms or conditions stated in a Program invoice or in any other Program order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on a Service Agreement, as applicable. Notices shall be effective upon receipt.
The Platform and any Documentation provided by WorkHands are deemed to be "commercial computer software" and any associated documentation is "commercial computer software documentation," pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Services or such Documentation by the United States Government shall be governed solely by the terms of this Agreement, except to the extent expressly permitted by the terms of this Agreement.
The Service is operated and provided by WorkHands, 224 Tara St, San Francisco, CA 94112. If you have questions about these Terms, please contact us at info@workhands.us.
