Employment SOFTWARE License Agreement

This Employment Software License Agreement (this “Agreement“), effective as of the date that you, as the user of the Software seeking qualified candidates for hire (the “Licensee”), acknowledged and agreed to the terms of this Agreement when registering an account (the “Effective Date“), is hereby entered into by and between Werkx, Inc., a Delaware corporation with offices located at 1919 Oxmoor Road, Suite 409, Birmingham, AL 35209 (“Werkx“), and you, as the Licensee of the Software. Werkx and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.”

WHEREAS, Werkx desires to license the Software described in Exhibit A attached hereto to Licensee, and Licensee desires to obtain a license to use the Software for its internal business purposes, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, for good and valuable consideration, the Parties hereby agree as follows:

  1. Definitions.
    • “Documentation” means the documentation, usage guides and policies made available by Werkx to the Licensee from time to time.
    • “Software” means, in conjunction with the Third-Party Products, software designed to match employers with potential candidates who qualify for various roles while simultaneously verifying the credentials provided by such potential candidates. The Software, in conjunction with the Third-Party Products, may include, but is not limited to, (i) features to verify candidate education, previous employment, licenses, permits, and veteran status, (ii) interview self-scheduling, (iii) integrated video interview, (iv) background check consents, (v) initial employee onboarding documentation to be completed via e-signature; and (vii) any Updates provided to Licensee pursuant to this Agreement.
    • “Third-Party Products” means any third-party products provided with or incorporated into the Software.
    • “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Werkx generally makes available free of charge to all licensees of the Software.
  2. License.
    • License Grant. Subject to Licensee’s compliance with the terms and conditions of this Agreement, Werkx hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 9(f)) license during the Term to (i) use the Software solely for Licensee’s internal business purposes, and (ii) make a reasonable number of copies of the Documentation solely for Licensee’s internal business purposes in connection with its use of the Software.
    • Use Restrictions. Licensee shall not use the Software for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, port, translate, localize, or create derivative works of the Software, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or the Documentation; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
    • Reservation of Rights. Werkx reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Software.
  3. Fees and Payment. Licensee shall pay Werkx the fees (“Fees“) in accordance with that certain proposal entered into by and between Werkx and Licensee without offset or deduction, and such proposal is hereby incorporated by reference. Licensee shall make all payments hereunder in US dollars on or before each invoice due date set forth in in such proposal.
  4. Intellectual Property Ownership; Feedback.
    • Licensee acknowledges that, as between Licensee and Werkx, Werkx owns all right, title, and interest, including all intellectual property rights, in and to the Software and Documentation and, with respect to Third-Party Products, the applicable third-party service providers own all right, title and interest, including all intellectual property rights, in and to the Third-Party Products.
    • Feedback. If Licensee or any of its employees or contractors sends or transmits any communications or materials to Werkx by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), Werkx is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Werkx on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Werkx is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Werkx is not required to use any Feedback.
  5. Disclaimer of Warranties. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND WERKX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WERKX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WERKX MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
  6. Indemnification. Licensee shall indemnify, hold harmless, and, at Werkx’s option, defend Werkx from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses“) incurred by Werkx resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) based on Licensee’s: (i) negligence or willful misconduct; or (ii) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Werkx or authorized by Werkx in writing; (iv) modifications to the Software not made by Werkx; or (v) use of any version other than the most current version of the Software or Documentation delivered to Licensee, provided that Licensee may not settle any Third-Party Claim against Werkx unless such settlement completely and forever releases Werkx from all liability with respect to such Third-Party Claim or unless Werkx consents to such settlement, and further provided that Werkx will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
  7. Limitations of Liability. IN NO EVENT WILL WERKX BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (e) LOSS OR DAMAGES OF ANY KIND RESULTING FROM THE INFORMATION PROVIDED TO LICENSEE WITH REGARDS TO POTENTIAL APPLICANTS, or (f) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WERKX WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL WERKX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED FIVE (5) TIMES THE TOTAL AMOUNTS PAID TO WERKX UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS LESS.
  8. Term and Termination.
    • Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until six (6) months from such date (the “Initial Term“). This Agreement will automatically renew unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term“).
    • Termination. In addition to any other express termination right set forth in this Agreement, (i) Werkx may terminate this Agreement, effective upon written notice to Licensee, if the Licensee breaches this Agreement and such breach remains uncured for ten (10) days after the Werkx provides the Licensee with written notice of such breach, and (ii) either Party may terminate this Agreement upon thirty (30) days advance written notice to the other Party.
    • Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate and, without limiting Licensee’s obligations under Section 2(b), Licensee shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to the Werkx that the Software and Documentation has been deleted or destroyed. No expiration or termination will affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
    • Survival. This Section 8(d) and Sections 1, 3, 4, 5, 6, 7, and 9 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
  9. Miscellaneous.
    • Confidentiality. Licensee agrees to hold and use the Confidential Information in strictest confidence and to take all necessary steps to maintain the secrecy and/or non-public nature of the information. The Confidential Information is made available by Werkx to Licensee solely to provide Licensee a license to use the Software in accordance with the terms herein (the “Purpose”). Licensee shall use the Confidential Information only for the foregoing Purpose and shall make no other use of the Confidential Information without the express prior written consent of Werkx. Licensee shall limit the disclosure of the Confidential Information only to those employees of Licensee who have a need to know consistent with the Purpose. Licensee shall be responsible for any breach of this Section 9 by any of its employees or contractors. If a disclosure of Confidential Information to a third party is required to accomplish the Purpose, Licensee must first obtain the consent of Werkx. “Confidential Information” includes, without limitation, any and all information or documentation, and the existence thereof, collected or created by Werkx or at Werkx’s expense or direction related to the Werkx platform, the Software, the Updates, the Documentation, or the services and license provided under this Agreement, including, without limitation, works of authorship, source code, information, data, processes, marketing strategy, production processes, pricing and pricing structures, costs, supplier lists and information, customer information, and business financial information either previously disclosed by Werkx to Licensee or hereafter disclosed by Werkx to Licensee.
    • Entire Agreement. This Agreement, together with any other documents incorporated herein by reference (including all applicable invoices and proposals) and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Exhibits; (b) second, the Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
    • Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and delivered by email (with confirmation of transmission). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
    • Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
    • Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Alabama. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Alabama, in each case located in the city of Birmingham and County of Jefferson, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    • Assignment. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder without the prior written consent of Werkx. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
    • Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
    • Equitable Relief. Licensee acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    • Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.