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Customer Agreement

Updated December 7, 2021

Customer Agreement

If you have questions about this customer agreement please contact us below.

This Platform Subscription Agreement (this “Agreement”) is effective as of the Effective Date set forth in the first applicable Order Form (the “Effective Date”), and is by and between Traba, Inc. (“Traba”) and the executing party set forth in the applicable Order Form (“Customer”).  BY ACCESSING OR USING THE PLATFORM, CLICKING TO ACCEPT THIS AGREEMENT, OR EXECUTING AN ORDER FORM, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ACCESSING AND USING THE SERVICES ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS. IN THAT CASE, “CUSTOMER” WILL REFER TO THAT ENTITY Traba and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”. 

RECITALS

A. Traba operates the Platform, which permits its customers to engage Workers for Jobs; and

B. Customer desires to access and use the Platform, and Traba is willing to provide such access, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS.

(a) “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Platform, including, without limitation, any usage data or trends with respect to the Platform.

(b) “Authorized User” means an employee or contractor whom Customer has authorized to Use the Platform on behalf of Customer.

(c) “Traba IP” means the Platform, the underlying software provided in conjunction with the Platform, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Platform, Documentation, Aggregate Data, Ratings Information, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.

(d) “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Platform or to Traba in connection with Customer’s Use of the Platform, but excluding, for clarity, Ratings Information, Aggregate Data, and any other information, data, data models, content or materials owned or controlled by Traba and made available through or in connection with the Platform.  

(e) “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Traba to Customer (including any revised versions thereof) relating to the Platform, which may be updated from time to time upon notice to Customer.

(f) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

(g) “Job” means a job shift opening posted by Customer through the Platform as an offer for work to be performed by a Worker.

(h) “Order Form” means (i) a mutually executed order form or other mutually agreed upon ordering document; or (ii) the relevant terms, including, as applicable, the Fees, payment terms, Platform description, and Vetting Process, provided by Traba to Customer as set forth in Traba’s online portal through the Platform (located at https://app.traba.work) in each case which references this Agreement and sets forth the applicable Platform to be provided by Traba.

(i) “Person” means any individual, corporation, partnership, trust, limited liability Traba, association, governmental authority or other entity.

(j) “Platform” means the technology platform which connects workers with independent third-party businesses in order to fulfill open job shifts offered by such third-party businesses through the platform, which may be more particularly described or identified in the applicable Order Form.

(k) “Ratings Information” means any and all ratings, review, and feedback information on or of any user of the Platform, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer or any other user through the Platform or to Traba in connection with this Agreement.  Ratings Information is Customer Materials for purposes of Sections 7(c) and 10(d) only.

(l) “Use” means to use and/or access the Platform in accordance with this Agreement and the Documentation for its intended purposes.

(m) “Vetting Process” means (i) with regard to background checks, Traba's then-current standard reasonable background check process conducted on applicable Workers, (ii) with regard to interviews, Traba's then-current standard interviews conducted on applicable Workers, if set forth in an applicable Order Form, and (iii) any other investigation, examination, or assessment procedures carried out by or on behalf of Traba, if any, as set forth in an applicable Order Form.

(n) “Worker” means an individual, non-Customer user of the Platform who connects or engages with Customer through the Platform to perform a Job.

(o) “Worker Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of a Worker through the Platform or to Traba or Customer in connection with a Worker’s use of the Platform or performance of a Job, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Traba and made available through or in connection with the Platform.

2. PLATFORM; ACCESS AND USE.

(a) Platform.  Subject to the terms and conditions of this Agreement, Traba hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 17(f)) right to Use the Platform during the Term, solely for Customer’s internal business purposes.

(b) Use Restrictions.  Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Platform in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Platform or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Platform, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Platform to any other Person, or otherwise allow any Person to use the Platform for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Platform or Documentation 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; (vi) interfere with, or disrupt the integrity or performance of, the Platform, or any data or content contained therein or transmitted thereby; (vii) access or search the Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Platform features provided by Traba for use expressly for such purposes; or (viii) use the Platform, Documentation or any other Traba Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Platform.

(c) Authorized Users.  Customer will not allow any Person other than Authorized Users to Use the Platform.  Customer may permit Authorized Users to Use the Platform, provided that Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Platform.  Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Platform in accordance with customary security protocols, and will promptly notify Traba if Customer knows or reasonably suspects that any user name and/or password has been compromised.  

(d) Third-Party Services.  Certain features and functionalities within the Platform may allow Customer and its Authorized Users to interface or interact with, access and/or use third-party services, products, technology and content (collectively, “Third-Party Services”) through the Platform.  Traba does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto, even if recommended by Traba or provided through the Platform.  Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Platform.

(e) Reservation of Rights.  Subject to the limited rights expressly granted hereunder, Traba reserves and, as between the Parties will solely own, the Traba IP and all rights, title and interest in and to the Traba IP.  No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

(f) Feedback.  From time to time Customer or its employees, contractors, or representatives may provide Traba with suggestions, comments, feedback or the like with regard to the Platform (collectively, “Feedback”).  Customer hereby grants Traba a perpetual, irrevocable, royalty-free and fully-paid up license (with the right to sublicense) to use and exploit all Feedback in connection with Traba’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Platform.

3. FEES, WAGES, AND PAYMENT.

(a) Fees.  Customer will pay Traba the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”), without offset or deduction, and which may be reflected, in whole or in part, as a portion or percentage mark-up of Wages, which shall constitute the Fees (or a portion thereof), separate from Wages themselves, to be paid to Traba.  Traba reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon sixty (60) days’ prior notice to Customer (which may be sent by email). Customer will be deemed to have accepted such changes in or new Fees and/or charges unless Customer provides written notice to Traba declining such changes in or new Fees and/or charges, within the foregoing sixty (60) day notice period, whereby this Agreement will automatically terminate at the end of such sixty (60) day period pursuant to Section 13(d). Except as otherwise provided in the relevant Order Form, Traba will issue weekly invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice.  

(b) Payments.  Payments due to Traba under this Agreement must be made in U.S. dollars by ACH payment, check, wire transfer of immediately available funds to an account designated by Traba or such other payment method mutually agreed by the Parties, and will be due thirty (30) days following the date of any invoice or as otherwise.  All payments are non-refundable and Customer will not have the right to set off, discount or otherwise reduce or refuse to pay any amounts due under this Agreement.  If Customer fails to make any payment when due, late charges will accrue at the rate of one and one-half (1.5%) per month or, if lower, the highest rate permitted by applicable law and Traba may suspend the Platform until all payments are made in full. Customer will reimburse Traba for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.  Timely payment of all amounts due is a condition precedent to Traba’s obligations and Customer’s rights hereunder.

(c) Automatic Payments. The Platform may offer the ability for Customer to be charged applicable Fees and other charges automatically on a recurring basis monthly (“Automatic Payments”). BY PROVIDING CUSTOMER’S PAYMENT INFORMATION, CUSTOMER AUTHORIZES TRABA TO INITIATE RECURRING NON-REFUNDABLE AUTOMATIC PAYMENTS AS SET FORTH BELOW. By using the Automatic Payments feature on the Platform, Traba (or Traba’s third-party payment processor) will automatically charge Customer  monthly on the last day of each month, using the payment information Customer has provided until Customer cancels such Automatic Payments feature. Customer hereby acknowledge and agrees that the Platform may offer this Automatic Payments feature and Customer accepts responsibility for all such Automatic Payments and payment obligations prior to cancellation of such Automatic Payments feature. Such Automatic Payments will continue until cancelled by Customer or Traba, or termination or expiration of this Agreement.

(d) Taxes.  Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Traba hereunder, other than any taxes imposed on Traba’s income.  Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Traba hereunder, Customer will pay an additional amount, so that Traba receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

(e) Worker Wages. Customer is solely responsible for setting all wages owed to Workers for each Job through the Platform and for the payment of all applicable wages owed to each Worker in connection with each Job, whether through the Platform or as otherwise agreed (“Wages”). Traba may support the payment of such Wages by Customer through features or functionality offered through the Platform, however such payments, whether made through the Platform or otherwise, are the ultimately responsibility of Customer, and as between the Parties, Traba disclaims all liability and responsibility for the calculation, accuracy, collection, payment, non-payment, remittance, or otherwise in connection with any and all Wages. Service Provider represents and warrants that it will pay all applicable Wages owed to each Worker in connection with each Job, whether through the Platform or as otherwise agreed.

(f) Cancelations. In the event that Customer cancels or substantially modifies* a Shift within 12 hours before the start time of the Shift, Customer will be required and agrees to pay the total cost of the Shift, including both the worker payment for the worker and the Service Fee paid to Traba. In the event that Customer cancels or substantially modifies a Shift between 12 and 24 hours before the start time of the Shift, Customer will be required and agrees to pay fifty percent (50%) of the total cost of the Shift, including both the worker payment for the worker and the Service Fee paid to Traba. Cancellation of any Shift that has not been awarded to a specific worker, regardless of timing, will not result in any cancellation fees.

*Substantial modifications include: lowering the offered amount of pay, adding additional requirements (such as the equipment required to complete the Shift), reducing the number of slots or workers requested, or changing the length, location, or start time and/or end time of a Shift.

4. RELATIONSHIP STATUS.

(a) Employment Status. Customer acknowledges and agrees that Traba is an online platform provider and not an employment or staffing agency. Traba does not direct or control the day-to-day activities of any Worker and is not an employer of any Worker. The quality, nature, type, and any other aspect of the work and services performed by a Worker (including in connection with any Job) shall be the responsibility of the applicable Worker, and Traba shall have no responsibility or liability for (i) any services or work performed by any Worker for Customer or any Job, or (ii) any compensation, benefits, employment taxes, unemployment insurance, workers’ compensation, paid leave and disability applicable to any Worker.

(b) Relationship of the Parties.  The relationship between the Parties is that of independent contractors.  Nothing in this Agreement will be construed to establish any partnership, joint venture, fiduciary, or agency relationship between the Parties.  Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.

5. INTERVIEWS AND BACKGROUND CHECKS.

(a) Vetting Process. Traba will use reasonable efforts to carry out its Vetting Process on applicable Workers. Traba will use its then-current processes and procedures in carrying out its Vetting Process, which may be conducted on or through its Platform, and may involve the use of Third-Party Services.

6. CONFIDENTIAL INFORMATION.

(a) Confidential Information. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure.  For clarity, the Platform and the Documentation will be deemed Confidential Information of Traba.  However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.

(b) Obligations. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Traba may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data.  The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

(c) Confidentiality Term Length. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes the Platform or Documentation, such non-disclosure obligations will continue indefinitely, and with respect to any a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

(d) Agreement Terms. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

7. CUSTOMER MATERIALS AND DATA.

(a) Ownership. Traba acknowledges that, as between Customer and Traba and except as set forth in Section 7(b), Customer owns and retains all right, title and interest in and to all Customer Materials.

(b) License to Customer Materials. Customer hereby grants Traba a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform, and modify the Customer Materials, including to host, operate, improve and provide the Platform and Traba’s other related products, services and technologies to Customer, and for Traba’s general business, product, and service analytics and improvement purposes.    

(c) Representations and Warranties Regarding Customer Materials. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, consents, authority and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement, and (ii) Traba’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.

(d) Worker Materials and Restrictions. Customer acknowledges and agrees that, as between the Parties, each Worker owns its applicable Worker Materials, and Traba may freely use and exploit such Worker Materials pursuant to Traba’s then-current privacy policy). Customer may receive Worker Materials in connection with this Agreement, and Customer represents and warrants that it will only use such Worker Materials solely as necessary to allow each applicable Worker to perform its Job(s) hereunder and for Customer to perform its obligations under this Agreement, and for no other purposes.

8. NON-SOLICITATION.

Traba has invested and continues to invest great effort and resources in recruiting, selecting, and retaining Workers, and therefore Customer agrees that it will not (i) solicit any Worker who has performed an aggregated of 200 hours or less for applicable Job(s) under this Agreement, without Traba’s prior written consent, or (ii) use any Worker for, or permit any Worker to perform, any work or services other than directly applicable to a Job. If a Worker has performed more than the foregoing 200-hour aggregate threshold for applicable Job(s) (or if Traba otherwise consents in writing), Customer may hire the applicable Worker, provided Customer pays Traba, upon hiring such Worker, the following fees based on the hours worked by a Worker for all Jobs, in aggregate, as of the date of hire: (a) from 0-200 hours: $6,000; (b) from 201-520 hours: $3,000; or (c) 521 or more hours: $0. Each party acknowledges that the restrictions in this Section 8 are: (a) material terms of this Agreement, (b) fair and reasonable, and (c) reasonably required for the protection of its business interests, including, without limitation, its Confidential Information.  If any such restriction is held by a court of competent jurisdiction to be invalid or unenforceable, then that restriction will be deemed enforceable to the extent that the court will enforce it. Breach of this Section 8 shall be deemed a non-curable material breach, and, notwithstanding anything to the contrary hereunder, Traba may terminate this Agreement immediately upon notice to Customer in the event Customer breaches this Section 8.

9. REPRESENTATIONS AND WARRANTIES.  

Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.

10. INDEMNIFICATION.

(a) Traba Indemnification.  Subject to Section 10(b), Traba will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Platform infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Traba (including reasonable attorneys’ fees) resulting from such Claim.

(b) Exclusions.  Traba’s obligations under Section 10(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Platform that have been provided by Traba; (iv) modifications to the Platform by anyone other than Traba; (v) combinations of the Platform with software, data or materials not provided by Traba; or (vi) Service Provider’s continued use of a version of the Platform which has been superseded by a non-infringing version subsequently released by Traba.

(c) IP Remedies.  If Traba reasonably believes the Platform (or any component thereof) could infringe any third party’s Intellectual Property Rights, Traba may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Platform, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use.  If Traba determines that neither alternative is commercially practicable, Traba may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer.  The rights and remedies set forth in this Section 10 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Platform.

(d) Customer Indemnification.  Subject to Section 10(e), Customer will defend Traba against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; (iii) Use of the Platform by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(b); (iv) any Wages, including any non-payment thereof, to the extent not covered by Traba’s then-current insurance coverage as set forth in Section 16; (v) any Job, including any bodily injury, death, or damage to real or tangible personal property, each to the extent not covered by Traba’s then-current insurance coverage as set forth in Section 16; or (vi) any other allegations by a Worker which are attributable, in whole or in part, to Customer, to the extent not covered by Traba’s then-current insurance coverage as set forth in Section 16; and in each case, will indemnify and hold harmless Traba against any damages and costs awarded against Traba or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.

(e) Indemnification Procedures.  The Party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof.  The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services).  The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

11. DISCLAIMER.  

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM AND OTHER TRABA IP ARE PROVIDED ON AN “AS IS” BASIS, AND TRABA MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE TRABA IP, THE PLATFORM OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER, OR ANY SERVICES PROVIDED BY ANY WORKER, INCLUDING IN CONNECTION WITH ANY JOB.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRABA HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  WITHOUT LIMITING THE FOREGOING, TRABA HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE PLATFORM WILL BE ERROR-FREE, SECURE, BUG-FREE OR UNINTERRUPTED.

12. LIMITATIONS OF LIABILITY.

(a) Exclusion of Damages.  EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE TRABA IP OR THE PROVISION OF THE PLATFORM, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

(b) Total Liability.  IN NO EVENT WILL TRABA’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE TRABA IP OR THE PROVISION OF THE PLATFORM EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO TRABA IN THE SIX (6) MONTH PERIOD PRECEDING THE INITIAL EVENT GIVING RISE TO A CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED OR NUMBER OF CLAIMS, AND WHETHER OR NOT TRABA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

(c) Basis of the Bargain.  THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 12 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN TRABA AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

13. TERM AND TERMINATION.

(a) Term.  The term of this Agreement begins on the Effective Date and continues until terminated by either Party in accordance with the terms herein (the “Term”).

(b) Termination.  Either Party may terminate this Agreement, effective on written notice to the other Party, (i) if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach, or (ii) for convenience and without cause, upon providing forty-five (45) days’ written notice to the other Party.

(c) Survival.  Sections 2(e), 2(f),4, 6, 7, 8, 10, 11, 12, 13(c), 13(d), 14, and 17 will survive any termination or expiration of this Agreement.

(d) Effect of Termination.  Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Customer will return or destroy, at Traba’s sole option, all Traba Confidential Information in its possession or control, including permanent removal of such Traba Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Traba’s request, certify in writing to Traba that the Traba Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted.  No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.

14. VERIFICATION.

During the Term and for a period of three (3) years thereafter, at Traba’s request, Customer will furnish Traba with a certification signed by an executive officer of Customer verifying its compliance with this Agreement, including the restrictions set forth in Sections 7(d) and 8. Upon at least fifteen (15) days’ prior written notice, Traba may audit Customer, including Customer’s use of the Platform, Customer’s facilities where Jobs are performed, and Customer’s staffing and personnel data and information, to ensure Customer’s compliance with the terms of this Agreement. Any such audit will be conducted during regular business hours at Customer’s and will not unreasonably interfere with Customer’s business activities. Customer will provide Traba with access to the relevant Customer records and facilities.

15. TRADEMARKS.

Customer hereby grants Traba a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Platform; and (ii) Traba’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Traba and in case studies.  All goodwill and improved reputation generated by Traba’s use of the Customer Marks inures to the exclusive benefit of Customer.  Traba will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

16. INSURANCE.

Traba will, during the Term, maintain Occupational Accident Insurance (OAI) in such amounts and with such types of coverage that is usual and customary for a reasonable company in Traba’s industry.

17. GENERAL.

(a) Entire Agreement.  This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter.  This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.

(b) Notices.  All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth below or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 17(b).  Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.

If to Traba:

Traba, Inc.

2045 Biscayne Blvd

Suite 150

Miami, FL 33137

admin@traba.work

If to Customer:

Contact information as set forth in the Order Form

(c) Waiver.  Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.  No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.

(d) Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.

(e) Governing Law; Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of Florida without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction.  The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Southern District of Florida and the Parties irrevocably consent to the personal jurisdiction and venue therein.

(f) Assignment.  Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent.  Any attempt to assign or transfer this Agreement without such consent will be void.  Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise.  Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

(g) Equitable Relief.  Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2(b) and Section 8, would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

(h) Force Majeure.  Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.

(i) Subcontracting.  Traba may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Traba remains responsible for the performance of each such Subcontractor.  Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. Stripe), Traba will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Traba.

(j) Export Regulation.  Customer will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Platform or software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.

(k) U.S. Government End Users.  The Platform, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations.  Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.

(l) No Third-Party Beneficiaries.  No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.

(m) 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.  The Parties have agreed to contract electronically, and electronically signed versions of this Agreement (e.g., by “clickwrap”) will have the same weight and effect as originals.

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