1. CONTRACTUAL RELATIONSHIP
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES. In these Terms, the words “including” and “include” mean “including, but not limited to.”
Your access and use of the Workana Site constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Workana. If you do not agree to these Terms, you may not access or use the Workana Site. These Terms expressly supersede prior agreements or arrangements with you. Workana may immediately terminate these Terms with respect to you, or generally cease offering or deny access to the Workana Site or any portion thereof, at any time for any reason.
Workana may amend the Terms related to the Workana Site from time to time. Amendments will be effective upon Workana’s posting of such updated Terms at this location or the amended policies or supplemental terms of the applicable service(s). Your continued access or use of the Workana Site after such posting constitutes your consent to be bound by the Terms, as amended
- Your agreement that the Workana Site is provided “as is” and without warranty (Section 6.A).
- Your agreement that the Workana Site is solely a communications platform providing a method for Freelancer Services to be booked, that all Freelancer Services are performed by third parties, and that Workana has no liability for any Freelancer Services or any acts or omissions of third parties (Section 2.A).
- Your agreement to release Workana from liability based on claims relating to Workana Site and otherwise (Section 6.B).
- Your agreement to indemnify Workana from claims due to your use, misuse or inability to use the Workana Site or the Freelancer Services, your violation of this Agreement, applicable laws or third party rights, and/or content or information submitted from your account to the Workana Site (Section 6.C).
- Your consent that either party has the right to compel binding arbitration (Section 7.B).
- Your agreement that no claims can be adjudicated on a class basis (Section 7.A).
2. THE SERVICES
a. APPLICATION IS SOLELY A VENUE.
The Workana Site is a technology marketplace where Users and Freelancers can identify each other and buy and sell services online. Those certain services requested by Users, which are to be completed by the Freelancers, are hereinafter referred to as “Freelancer Services.” Subject to the terms of this Agreement, Workana provides services to Users and Freelancers, including hosting and maintaining the Workana Site, and enabling the formation of User Contracts. When a User and a Freelancer enter into a User Contract pursuant to subsection B below, the User and Freelancer use the Workana Site to engage, communicate, invoice and pay online.
Unless otherwise agreed by Workana in a separate written agreement with you, the Workana Site is made available solely for your personal, noncommercial use. Workana does not itself provide the Freelancer Services. The provision of all Freelancer Services is up to the Freelancers. WORKANA, THROUGH THE WORKANA APPLICATION, OFFERS INFORMATION AND A METHOD TO OBTAIN SUCH FREELANCER SERVICES, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE SUCH FREELANCER SERVICES, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY FREELANCER SERVICES AND/OR WORK PRODUCT PROVIDED TO YOU BY FREELANCERS, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE. WORKANA IS NOT AFFILIATED WITH, ENDORSED OR SPONSORED BY ANY THIRD PARTY PROVIDER.
b. USER SERVICES
Upon the User awarding a project or contest to a Freelancer, and the Freelancer’s acceptance on the Workana Site, or the purchase of an item by a User from the Freelancer, the User and the Freelancer will be deemed to have entered into a contract (the “User Contract”) under which the User agrees to purchase, and the Freelancer agrees to deliver the Freelancer Services. The User and Freelancer may enter into an agreement between each other separate from these Terms, provided that you agree not to enter into any contractual provisions in conflict with these Terms.
You are solely responsible for ensuring that you comply with your obligations to Freelancers. If you do not, you may become liable to such Freelancer. You must ensure that you are aware of any domestic laws (including common law), international laws, statutes, ordinances and regulations relevant to you as a User, or in any other uses you make of the Workana Site.
If a Freelancer breaches any obligation to you, or causes any damages to you or your property or rights, you are solely responsible for enforcing any rights that you may have. For the avoidance of doubt, we have no responsibility for enforcing any rights under a User Contract or for any damages to your person, property or rights caused by Freelancer.
Depending on their jurisdiction, Users and Freelancers may have rights under statutory warranties that cannot lawfully be excluded. Nothing in these Terms is intended to override a right that by applicable law may not be excluded.
Each User and Freelancer acknowledges and agrees that the relationship between such User and any Freelancer is that of an independent contractor. Nothing in these Terms creates a partnership, joint venture, agency or employment relationship between any User and any Freelancer. Nothing in these Terms shall in any way be construed as forming a joint venture, partnership or an employer-employee relationship between Workana and any User or Freelancer.
c. User Deliverables.
User grants Freelancer a limited, non-exclusive, revocable (at any time, at User's sole discretion) right to use the User Deliverables as necessary for the performance of the Services. User reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the User Deliverables. Upon completion or termination of the Service Contract, or upon written request by the User, Freelancer shall immediately return all User Deliverables to the User and further agrees to purge all copies of User Deliverables and Work Product contained in or on Freelancer's premises, systems, or any other equipment otherwise under Freelancer's control. The User has 15 calendar days to comment on project deliveries with a value of up to 100 USD. If the User remains inert to this Freelancer delivery, it will be understood as accepted tacitly, releasing the funds equivalent to Freelancer. Freelancer agrees to provide written certification to the User certifying the return or purging of User Deliverables within ten (10) days after the receipt of the User's written request to certify.
d. Work Product.
Any copyrightable works or works for hire prepared by Freelancer in connection with a Fixed-Price Contract for User shall be owned by the Freelancer until payment has been made by the User and accepted by the Freelancer. If the User pays an amount less than the amount agreed to in the Service Contract, the Freelancer 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, Freelancer hereby irrevocably agrees to grant, and hereby grants, to User an exclusive (excluding also Freelancer), 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, Freelancer hereby irrevocably agrees to grant, and hereby grants, to User, such rights as User reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal ownership. In order to ensure that User will be able to acquire, perfect and use such Proprietary Rights, Freelancer will: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to User; (ii) sign any documents at User's request to assist User in the documentation, perfection and enforcement of its rights; and (iii) provide User with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Proprietary Rights. Freelancer also irrevocably authorizes User to act and sign on Freelancer's behalf and take any necessary steps in order to perfect User's rights under this Agreement. In the case that under applicable law, Freelancer 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, Freelancer irrevocably agrees to waive, and hereby waives, all such rights, or, to the extent Freelancer cannot waive such rights, Freelancer agrees not to exercise such rights, until Freelancer has provided prior written notice to User and then only in accordance with any reasonable instructions that User issues in the interest of protecting its rights.
Freelancer shall ensure that no Work Product created or delivered by Freelancer includes any pre-existing software, technology or other intellectual property, whether such pre-existing intellectual property is owned by Freelancer 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 User to the inclusion of such Pre-existing IP in the Work Product. Freelancer acknowledges that, without limiting any other remedies, Freelancer shall not be entitled to payment for, and shall refund any payments to Freelancer 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.
e. USER VETTING
Freelancers may be subject to a vetting process before they can register and during their use of the Workana Site. Although Workana may perform background checks of Freelancers, Workana cannot confirm that each Freelancer is who they claim to be and therefore, Workana cannot and does not assume any responsibility for the accuracy or reliability identity or background check information or any information provided through the Workana Site.
BY USING THE WORKANA APPLICATION, YOU AGREE TO HOLD WORKANA FREE FROM THE RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF THE PROFESSIONAL SERVICES. WORKANA IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING THIRD PARTY PROVDERS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY FREELANCER SERVICES.
Subject to your compliance with these Terms, Workana grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Workana Site on your personal device solely in connection with your use of the Workana Site; and (ii) access and use any content, information and related materials that may be made available through the Workana Site, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Workana and Workana’s licensors.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Workana Site; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Workana Site except as expressly permitted by Workana; (iii) decompile, reverse engineer or disassemble the Workana Site except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Workana Site; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Workana Site or unduly burdening or hindering the operation and/or functionality of any aspect of the Workana Site; or (vi) attempt to gain unauthorized access to or impair any aspect of the Workana Site or its related systems or networks.
h. THIRD PARTY SERVICES AND CONTENT.
The Workana Site and all rights therein are and shall remain Workana’s property or the property of Workana's licensors. Neither these Terms nor your use of the Workana Site convey or grant to you any rights: (i) in or related to the Workana Site except for the limited license granted above; or (ii) to use or reference in any manner Workana’s company names, logos, product and service names, trademarks or services marks or those of Workana’s licensors.
3. YOUR USE OF THE SERVICES
In order to use most aspects of the Workana Site, you must register for and maintain an active personal user services account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to Workana certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Workana Site or Workana’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Workana in writing, you may only possess one Account. Freelancer profiles must accurately represent the freelancer’s experience, skills, and personal information.
b. USER REQUIREMENTS AND CONDUCT.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive or provide Freelancer Services unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Workana Site (including, without limitation, all applicable labor laws), and you may only use the Workana Site for lawful purposes (e.g., no transport of unlawful or hazardous materials). You will not in your use of the Workana Site cause nuisance, annoyance, inconvenience, or property damage, whether to the Freelancer or any other party. In certain instances you may be asked to provide proof of identity to access or use the Workana Site, and you agree that you may be denied access to or use of the Workana Site if you refuse to provide proof of identity.
c. ACCEPTABLE USE
During the term of this Agreement, you may use the Workana Site for your personal use only (or for the use of a person, including a company or other organization that you validly represent). You may use the Workana Site to book Freelancer Services solely with respect to a location where you are legally authorized to have Freelancer Services performed or to provide the Freelancer Services. You may not use the Workana Site for any other purposes or in connection with any commercial endeavors whatsoever without our express prior written consent. You may not use the Workana Site in violation of any law, statute, ordinance, or regulation. You agree that an order for Freelancer Services is an offer, which is only accepted when you receive a confirmation of the order. You agree to treat Freelancers courteously and lawfully, and to provide reasonable co-operation to Freelancers to enable them to supply the Freelancer Services. Freelancers agree to provide the Freelancer Services once it has accepted an order in a quality and workmanlike manner, and to provide such services courteously and lawfully and to the best of their ability, and to only accept the order if the Freelancer is qualified and capable of performing such Freelancer Services.
The Workana Site may contain profiles, email systems, blogs, message boards, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Community Areas”) that allow you to communicate with other users. You may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. You shall NOT use the Workana Site (including but not limited to any Community Areas) to do any of the following:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including Workana staff.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information, or any materials, information or content that involve the sale of counterfeit or stolen items.
- Use the Workana Site or any Freelancer Services for any purpose or in any manner that is in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- Advertise or offer to sell any goods or services for any commercial purpose through the Workana Site which are not relevant to the services offered through the Workana Site.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or a user or allow any other person or entity to use your identification to post or view comments or otherwise use your account.
- Post the same note repeatedly (“Spamming”). Spamming is strictly prohibited.
- Download any file posted by another user that a user knows, or reasonably should know, cannot be legally distributed through the Workana Site.
- Restrict or inhibit any other user from using and enjoying the Community Areas.
- Imply or state that any statements you make are endorsed by Workana, without the prior written consent of Workana.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Workana Site in any manner.
- Hack or interfere with the Workana Site, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the Workana Site for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by Workana.
- Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
- Use the Workana Site to solicit for any other business, website or service, or otherwise contact users for employment, contracting or any purpose not related to use of the Workana Site as set forth herein.
- Use the Workana Site to collect usernames and or/email addresses of users by electronic or other means.
- Register under different usernames or identities, after your account has been suspended or terminated.
You understand that all submissions made to Community Areas will be public and that you will be publicly identified by your name or login identification when communicating in Community Areas, and Workana will not be responsible for the action of any users with respect to any information or materials posted in Community Areas.
d. PROMOTIONAL CODES.
Workana may, in Workana’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Workana Site and/or a Freelancer's services, subject to any additional terms that Workana establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Workana; (iii) may be disabled by Workana at any time for any reason without liability to Workana; (iv) may only be used pursuant to the specific terms that Workana establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Workana reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Workana determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
e. USER OR FREELANCER PROVIDED CONTENT.
Workana may, in Workana’s sole discretion, permit you (whether Users or Freelancers) from time to time to submit, upload, publish or otherwise make available to Workana through the Workana Site textual, audio, and/or visual content and information, including commentary and feedback related to the Workana Site, initiation of support requests, and submission of entries for competitions and promotions (“Content”). Any Content provided by you remains your property. However, by providing Content to Workana, you grant Workana a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, distribute, publicly display, and publicly perform such Content in all formats and distribution channels now known or hereafter devised for the purpose of providing services through the Workana Site or otherwise in connection with Workana’s business; provided that Workana will try to notify you if it uses your Content for any reason other than displaying it on the Workana Site..
You represent and warrant to Workana that you either are the sole and exclusive owner of all Content or you have all rights, licenses, consents and releases necessary to grant Workana the license to the Content as set forth above, and that your Content: (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party's copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Workana or cause Workana to lose (in whole or in part) the services of its ISPs or other partners or suppliers. Workana may, but shall not be obligated to, review, monitor, or remove Content, at Workana’s sole discretion and at any time and for any reason, without notice to you.
f. NETWORK ACCESS AND DEVICES.
You are responsible for obtaining the data network access necessary to use the Workana Site. Your mobile network's data and messaging rates and fees may apply if you access or use the Workana Site from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Workana Site and Apps and any updates thereto. Workana does not guarantee that the Workana Site, or any portion thereof, will function on any particular hardware or devices. In addition, the Workana Site may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
Users understand that use of the Workana Site may result in charges to you for the services or goods you receive from a Freelancer (“Charges”). After a User has received services or goods obtained through your use of the Service, Workana will facilitate your payment of the applicable Charges on behalf of the Freelancer, as such Freelancer's limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by User to the Freelancer. Charges will be inclusive of applicable taxes where required by law. Charges paid by User are final and non-refundable, unless otherwise determined by Workana in its sole discretion (see also the last paragraph of this Section 4). User and Freelancer each retains the right to request a modification to the Charges for services or goods received by User from such Freelancer, and such modified Charges for a particular service or good will become the new Charges if much modification is agreed to by the User and Freelancer.
All Charges are due immediately and payment will be facilitated by Workana using the preferred payment method designated in User’s Account, after which Workana will send User a receipt by email. If User’s primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, User agrees that Workana may, as the Freelancer’s limited payment collection agent, use a secondary payment method in User’s Account, if available. Freelancer agrees to Workana serving as its collection agent under this Section 4. Subject to Workana’s rights under these Terms (including the next paragraph), Workana will generally require payment from a User prior to the performance of the applicable Freelancer Services and will remit payment to Freelancer after User has confirmed that the Freelancer Services have been performed; provided that, notwithstanding anything to the contrary in these Terms, Workana shall in no event be responsible for any nonpayment or late payments by Users.
Subject to Sections 6 and 7 of these Terms (regarding limitation of liability, indemnification of Workana and Workana’s right to choose whether or not to be involved in a dispute between a User and Freelancer), as between you and Workana, Workana reserves the right to (i) establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Workana Site at any time in Workana’s sole discretion and (ii) to determine the disposition of any payment received by Workana from a User in the event of a dispute between User and Freelancer, including to remit such payment to Freelancer, to return a payment to User or to hold such payment in escrow pending a judicial or other settlement of the dispute. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. Workana will use reasonable efforts to inform you of Charges that may apply. Workana may from time to time provide certain Users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Workana Site, and you agree that such promotional offers and discounts, unless also made available or applicable to you, shall have no bearing on your use of the Workana Site or the Charges applied to you. Users may elect to cancel requests for services or goods from a Freelancer at any time, in which case Users may be charged a cancellation fee.
5. INTELLECTUAL PROPERTY; COPYRIGHT; CONFIDENTIALITY.
a. INTELLECTUAL PROPERTY RIGHTS.
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that you see or read through the Workana Site is owned by Workana, excluding Content that Workana has the right to use as described in above. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Workana owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. You may not copy, download, use, redesign, reconfigure, or retransmit anything from the Workana Site without Workana’s express prior written consent and, if applicable, the holder of the rights to the Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Workana and, if applicable, the holder of the rights to the Content.
The service marks and trademarks of Workana, including without limitation “Workana” and the Workana logos are service marks owned by Workana. Any other trademarks, service marks, logos and/or trade names appearing on the Workana Site are the property of their respective owners. You may not copy or use any of these marks, logos or trade names appearing on the Workana Site without the express prior written consent of the owner.
b. Copyright Complaints and Copyright Agent.
Workana respects the intellectual property of others, and expects users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Workana Site infringe upon your copyright or other intellectual property right, please send the following information to: Workana, 1732 1ST AVE, NUMBER 28490, New York, NY 10128, United States:
- Identification of the intellectual property right that is allegedly infringed. All relevant registration numbers, or a statement concerning the ownership of the work, should be included.
- A statement specifically identifying the location of the infringing material, with enough detail that Workana may find it on the Workana Site. Please note: it is not sufficient to merely provide a top level URL.
- Your name, address, telephone number and e-mail address.
- A statement by you that you have a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law.
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
c. CONFIDENTIAL INFORMATION.
You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Workana and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Workana in writing of any circumstances, which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Workana upon termination of this Agreement for any reason whatsoever. The term “Confidential Information” shall mean any and all of Workana’s trade secrets, confidential and proprietary information and all other information and data of Workana that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
6. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY.
Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Workana Site (including without limitation, Freelancer Services)(“Workana Services”) are provided “AS IS” and without any warranty of any kind from Workana or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE WORKANA SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE WORKANA SERVICES IS AT THE USER’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WORKANA SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WORKANA AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET USER’S REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WORKANA DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF FREELANCERS. USER’S AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH USER, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. YOU AGREE TO NOT HOLD WORKANA RESPONSIBLE FOR YOUR ACTIONS OR OMISSIONS OR THE ACTIONS OR OMISSIONS OF ANY USER OR FREELANCER.
b. LIMITATION OF LIABILITY.
WORKANA SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF WORKANA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WORKANA SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR PROVISION OF OR USE OF OR RELIANCE ON THE WORKANA SERVICES OR YOUR INABILITY TO ACCESS OR USE THE WORKANA SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN USER AND ANY FREELANCER, EVEN IF WORKANA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WORKANA SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND WORKANA'S REASONABLE CONTROL. USER ACKNOWLEDGES THAT FREELANCERS PROVIDING FREELANCER SERVICES MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED. IN NO EVENT SHALL WORKANA'S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE TOTAL FEES PAID BY, OR RECEIVED BY YOU TO/FROM WORKANA DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
WORKANA’S SERVICES MAY BE USED BY USER TO REQUEST AND SCHEDULE GOODS, OR LOGISTICS SERVICES WITH FREELANCERS, BUT YOU AGREE THAT WORKANA HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY GOODS OR LOGISTICS SERVICES PROVIDED TO USER BY FREELANCERS OR WITH RESPECT TO USER’S USE OF THE FREELANCER SERVICES (INCLUDING NON-PAYMENT) OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 6 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER USER’S RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
You agree to indemnify and hold Workana and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including but not limited to attorneys’ fees), arising out of or in connection with: (i) your use of the Workana Site or services or goods obtained or provided or sold through your use of the Workana Site, including any data or content transmitted or received by you, or any other party’s access or use of the Workana Site with your username and password; (ii) your breach or violation of any of these Terms, applicable law, rule or regulation (including, without limitation, any tax or employment laws); (iii) Workana’s use of your Content; or (iv) your violation of the rights of any third party, including Freelancers and Users.
7. DISPUTES BETWEEN FREELANCERS AND USERS
Your interactions with organizations and/or individuals found on or through the Workana Site, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Workana shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between any Users and/or Freelancers, or between Users and/or Freelancers any third party, you agree that Workana in its sole discretion may determine the amount of the Charges and to whom to remit such Charges in accordance with Section 4, provided that Workana is in no event under any obligation to become involved in any such dispute. In relation to disputes with any other Users or Freelancers, you hereby agree to indemnify Workana from any and all claims, demands, and damages, actual and consequential, of every kind and nature, known and unknown, that is related to such a dispute or our determinations with respect thereto.
8. DISPUTES WITH WORKANA
a. WAIVER OF JURY TRIAL
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Workana Site (collectively, “Disputes”) will be settled by binding arbitration between you and Workana, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Workana are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Workana otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution" section will survive any termination of these Terms.
b. INFORMAL NEGOTIATION
To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement or otherwise arising from the relationship between you and Workana, you agree to first attempt to negotiate any dispute informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices shall be the address set forth in your Workana account. Workana’s address for such notices is Workana LLC, 1732 1ST AVE, NUMBER 28490, New York, NY 10128, United States.
In the unlikely event that Workana has not been able to resolve a Dispute it has with you after attempting to do so informally, you agree to resolve any Dispute arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof, by binding arbitration by the American Arbitration Association (“AAA”) in the city of Miami, Florida under the commercial rules then in effect for the AAA, except as provided herein (the “AAA Rules”). A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Florida and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award shall be entered exclusively in the state and federal courts sitting in Miami Dade County, Florida. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
a. CHOICE OF LAW.
These Terms are governed by and construed in accordance with the laws of the State of Delaware, U.S.A., without giving effect to any conflict of law principles.
Workana may give notice by means of a general notice on the Workana Site, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Workana, with such notice deemed given when received by Workana, at any time by first class mail or pre-paid post to Workana, 1732 1ST AVE, NUMBER 28490, New York, NY 10128, United States.
c. 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.
You may not assign these Terms without Workana's prior written approval. Workana may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Workana's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you or Workana as a result of this Agreement or use of the Workana Site. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Workana's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Workana in writing.
BY CLICKING “I ACCEPT”, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND TAKEN STEPS TO THOUGHTFULLY CONSIDER THE CONSEQUENCES OF THIS AGREEMENT, THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT, AND THAT YOU ARE LEGALLY COMPETENT TO ENTER INTO THIS AGREEMENT WITH WORKANA.