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Werkey for Business Services Master Agreement

This Werkey Master Services Agreement was updated on July 2, 2021.

This Master Services agreement (Agreement) governs access to and use of the Werkey for Business services:

List of Contents

  1. Definitions
  2. Provision of Services
  3. Restrictions
  4. Restrictions Violations
  5. Fees
  6. Taxes
  7. Confidentiality
  8. Term and Termination
  9. WARRANTY DISCLAIMER
  10. Limitation of Liability
  11. Indemnity
  12. Anti-corruption
  13. Advertising
  14. Force Majeure
  15. Assignment
  16. Divisibility
  17. Applicable Jurisdiction and Attorney's Fees
  18. Comprehensive Agreement

1. Definitions

As used in this Agreement, the following terms have the meaning defined below:

  1. “Associate” means any entity that directly or indirectly controls, is controlled by or is under common control with the entity in question.
  2. “Customer” means the party that enters into an Order Form with Werkey or signs up to use the Services.
  3. “Courses” means the online or in-person courses provided by Werkey as part of the Services.
  4. “ Fees ” means the amounts payable by the Customer to Werkey for accessing the Services.
  5. "Order Form" means the order document executed mutually by Werkey and the Customer, including electronic orders submitted by Customers who purchase the Services, specifying: (1) the Fees payable by the Customer to Werkey for the provision of the Services, (2) the duration of the Services to be provided by Werkey to the Customer, (3) the number of Users authorized to access the Services and (4) other billing and payment information related to the provision of the Services by Werkey to the Customer.
  6. “Personal Data” means any personal data that Customer submits to the Services.
  7. The “Services” means Werkey or Werkey for Business, a platform for online training provided by Werkey which may or may not include the Courses.
  8. “Werkey” means Werkey Plataforma Digital Ltda.
  9. “Users” means the employees and contractors that Customer authorizes to access and use the Services.

2. Provision of Services

Werkey agrees to make the Services available to the Customer and its Users in accordance with the terms of this Agreement and as specified in an Order Form. In the event that Customer purchases a subscription to the “Werkey for Business” version of the Services, Customer acknowledges and agrees that certain features generally available in the Services may not be available to Customer.

3. Restrictions

The Customer shall not, nor shall it allow its Users:

  1. Copy, distribute, create derivative works from, hack or modify the Services or any of the Courses;
  2. Insert any inappropriate, infringing, offensive, racist, hateful, sexist, pornographic, defamatory or libelous content on the Services;
  3. Use any illegal automated means of any kind to access the Services; including, but not limited to, accessing API endpoints for which the Customer or its Users have not received authorization from Werkey;
  4. Use the Services for benchmarking or any other similar competitive purposes, or to build a competitive product for the Services;
  5. Sharing login access to the Services among multiple individuals, transferring a user license (except in connection with a change of work assignment or termination of employment agreement), or otherwise allowing any party other than Users to use the Services;
  6. Enter any computer code, file or program that could damage the Services;
  7. Use the Services in any way that is illegal or infringes on the rights of any third party, or;
  8. Allow anyone under the age of 13 to use the Services.

4. Restrictions Violations

In the event that Werkey determines that the Customer or any of its Users has violated the restrictions set forth in Section 3 above, Werkey reserves the right to terminate or suspend access to the Services for the Customer or the relevant Users.

5. Fees

Customer will pay the Fees as set out in one or more Order Forms. Unless otherwise stated in the Order Form, all fees are payable in reais. In the event that Customer delays payments, Werkey reserves the right to charge more than 1.5% interest per month or the maximum interest allowed by law, and Customer will be responsible for all third party collection costs.

6. Taxes

Fees and other amounts payable hereunder do not include any amount for taxes, including any sale, use, excise or other transaction-based tax ("Taxes") or fee (including interest and penalties). Customer agrees to pay all amounts payable under this Agreement free of all deductions or withholdings or rights of counter-claim or set-off, unless required by law. If a deduction or withholding is required, Customer agrees to pay such additional amount to ensure that the net amount received and withheld by Werkey is equal to the total amount that Werkey would have received if the deduction or withholding had not been required. The customer must reimburse Werkey and exempt Werkey from taxes or fees that Werkey must collect or remit to the applicable tax authorities. This provision does not apply to Werkey's income, deductible and labor taxes or any taxes for which the Customer is exempt, provided that the Customer has provided Werkey with a valid tax exemption certificate. To the extent a tax authority changes its position or tax policy requiring Werkey to collect a tax or charge from the Customer, Werkey will add the tax or charge to the Customer's invoice.

7. Confidentiality

7.1. Scope of Confidentiality .

Each party agrees that all codes, inventions, know-how or commercial, technical and financial information disclosed to that party ("Receiving Party") by the Disclosing Party ("Disclosing Party") constitute the Disclosing Party's confidential information ("Confidential Information ”), provided they are identified as confidential at the time of disclosure, or should reasonably be known by the Receiving Party to be confidential due to the nature of the information disclosed. Personal data is considered confidential information. Confidential Information will not, however, include any information that:

      1. Are publicly known and generally made available in the public domain prior to the time of disclosure by the Disclosing Party;
      2. become publicly known and generally available upon disclosure by the Disclosing Party to the Receiving Party through no action or inaction by the Receiving Party;
      3. Are in the possession of the Receiving Party at the time of disclosure by the Discloser;
      4. Are obtained by the Receiving Party from a third party without a known breach of the third party's confidentiality obligations, or;
      5. Are independently developed by the Receiving Party, without use or reference to Confidential Information. The Receiving Party may disclose the Disclosing Party's Confidential Information, if required by law, provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement prior to disclosure and assistance in obtaining an order, protecting the information from public disclosure.

    7.2. No use and no disclosure.

    Except as expressly authorized herein or as necessary to fulfill its obligations hereunder, the Receiving Party agrees to:

      1. Not to disclose any Confidential Information to third parties, and;
      2. Not to use Confidential Information for any purpose other than necessary to exercise your rights or fulfill your obligations hereunder.

    7.3. Processing of personal data.

    Notwithstanding the provisions of this section, Customer agrees that Werkey may process Personal Data as necessary to:

      1. Storage and other processing necessary to provide, maintain and update the Services and;
      2. Provide technical and Customer support in connection with the Services. To the extent that the Customer is subject to a local data privacy law (including, but not limited to, the General Data Protection Law in force in Brazil or equivalent law in other countries), the Customer agrees to request from Werkey a contract data protection policy before providing any Personal Data to Werkey.

    8. Term and Termination

    1. Term of mandate . This agreement will commence on the Effective Date and will continue until all Order Forms under it have expired or have been terminated. The duration of the Services will be specified in each applicable Order Form. Unless otherwise specified in an applicable Order Form, and with the exception of Customers on the Werkey for Business plan who express in writing a desire not to automatically renew the Services, Order Forms will automatically renew for additional one-year periods. , unless terminated by either party giving at least 30 days written notice prior to the end of the then-current term.
    2. Termination for Material Infringement. Either party may terminate this Agreement and any applicable Order Forms in the event that the other party materially breaches this Agreement upon 30 days written notice, unless such breach is cured during the 30 days notice period. In the event that Customer terminates this Agreement or any Order Form due to material breach by Werkey, Customer shall be entitled to receive a prorated refund for Services not provided after the date of termination. Sections 5-11 and 15-18, as well as any accrued payment rights, will survive any termination or expiration of the Agreement.

    9. DISCLAIMER OF WARRANTY

    EXCEPT AS OTHERWISE AGREED BY THE PARTIES, WERKEY PROVIDES THE SERVICES AS IS AND DISCLAIMS ALL WARRANTIES RELATED TO THE SERVICE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES RELATING TO MERCHANTABILITY, ACCURACY, FITNESS FOR A PURPOSE PRIVATE, NON-INFRINGEMENT OR AVAILABILITY.

    10. Limitation of Liability

    NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT OF THIS AGREEMENT OR RELATED TERMS AND CONDITIONS UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR: (1) ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR (2) ANY AMOUNTS EXCEEDING THE FEES PAID OR PAYABLE BY CUSTOMER TO WERKEY IN THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE MATERIAL CLAIM ARISES.

    11. Indemnity

    1. Werkey's indemnification obligations . Werkey agrees to defend Customer against all third-party claims arising out of an allegation that Customer's use of the Services, as permitted by this Agreement, infringes the intellectual property rights of third parties ("Claim against Customer") and to indemnify Customer from any damages, reasonable attorney fees and costs incurred by Customer as a result of a claim against Customer. In the event that the Services become subject to a third party intellectual property claim, or Werkey believes that the Services will be subject to such a claim, then Werkey may choose to:
      1. Modify the Services so that they are no longer allegedly infringing;
      2. Obtain a license for Customer's continued use of the Services, or;
      3. Terminate this Agreement or any applicable Order Forms and provide Customer with a prorated refund for Services not provided after the date of termination. This section declares Werkey's sole liability to Customer with respect to a claim that any part of the Services infringes the intellectual property rights of a third party.
    2. Customer Indemnification Obligations . Customer agrees to defend Werkey from all third party claims arising from Customer's breaches of Section Restrictions 3(1) and 3(2) of this Agreement ("Claim Against Werkey") and to indemnify Werkey for any damages, reasonable attorneys' fees and costs incurred by Werkey as a result of a Claim against Werkey.
    3. Compensation requirements . For the indemnification obligations under this instrument to apply, the party seeking indemnification must:
      1. Promptly file a claim for compensation;
      2. Allow the indemnifying party exclusive control of the defense or resolution of the underlying claim and;
      3. Reasonably assist in any defense or settlement of the underlying claim, at the request and expense of the indemnifying party.

    12. Anti-corruption

    Neither party has received or been offered any bribe, kickback, payment, gift or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. Upon learning of any violation of this restriction, Customer agrees to immediately notify Werkey's legal department by sending an email to support@werkey.co .

    13. Advertising

    Customer grants Werkey the right to use the Company's name and Customer's logo as a reference for marketing or promotional purposes on Werkey's website and other promotional materials.

    14. Force Majeure

    Neither party will be liable for any failure or delay in performing its obligations hereunder, to the extent that it is caused by a condition that is beyond a party's reasonable control, including, but not limited to, natural disasters, disturbances civil, acts of terrorism or war, labor restrictions, failure by a third-party hosting provider or public service provider, governmental actions, interruption or failure of the Internet or any public service, or denial-of-service attacks.

    15. Assignment

    Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by either party without the express written consent of the other party (not to be unreasonably withheld or delayed), except, however, that either party may assign this Agreement and all Order Forms under this Agreement without the consent of the other party to an Affiliate or its successor in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets . Any other attempt to transfer or assign this Agreement will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

    16. Divisibility

    If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be null and void, and the remaining provisions of this Agreement will remain in effect.

    17. Applicable Venue and Attorneys' Fees

    The parties elect the jurisdiction of the district of Piracicaba, São Paulo, as competent to resolve any doubts or disputes resulting from this Agreement, immediately renouncing any and all other jurisdictions, however privileged they may be. In the event of any dispute between the parties regarding the terms of this Agreement, the prevailing party in such dispute shall be entitled to charge the other party for all costs incurred in such dispute, including reasonable attorneys' fees.

    18. Comprehensive Agreement

    This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly terminated. This Agreement and any mutually executed Order Forms will apply in lieu of the terms or conditions in any purchase order or other documentation provided by Customer, and all such terms and conditions are null and void and superseded by this Agreement and any Order Forms mutually executed. This Agreement, or any part of it, may be modified by Werkey at any time, including the addition or deletion of terms at any time, and such modifications, additions or deletions will be effective immediately upon posting.