Last Updated: August 13, 2025
This Master Software & Services Agreement (this “MSSA”, and together with the applicable Order as defined in Section 1, this “Agreement”)is by and between GIS Workshop, LLC d/b/a gWorks, a Delaware limited liability company (“gWorks”), and the company, organization, or governmental entity identified on the executed Order (“Client”) into which this MSSA is incorporated. Client and gWorks are individually a “Party,” and collectively, the “Parties”. The Parties hereby agree as follows:
1. STRUCTURE OF AGREEMENT. This Agreement sets forth the terms and conditions governing the services, software, and hardware for which Client has contracted to be provided by gWorks as set forth the applicable Order (defined below). Each Order (together with this MSSA incorporated therein) shall constitute a separate and binding contract between gWorks (or its Affiliate as described in this Section 1) and Client. An Affiliate of gWorks may contract under this MSSA by executing an Order. Each such Affiliate of gWorks executing an Order is agreeing to be bound by the terms and conditions of this MSSA and the applicable Order. In such case, a gWorks Affiliate shall be deemed to be “gWorks” and a “Party” for purposes of this MSSA and the applicable Order. There shall be no joint and several liability or joint liability by or between gWorks and its Affiliates. “Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party. For purposes of the Affiliate definition, an entity “controls” another entity if it has the power to direct the management and policies of the other entity, through ownership of more than 50% of the voting securities of an entity, representation on its board of directors or other governing body, or by contract. “Order” means a written order that: (a)is executed by Client and gWorks (or its Affiliate as described in this Section1); (b) sets forth the products and services to be provided by gWorks; (c)the fees to be paid by Client for such products and services; and (d)incorporates by reference this MSSA. Client purchase orders are identified only to authorize payment and any terms or conditions in any Client purchase order(or other similar Client document) are not a part of the this Agreement or controlling. In the event of a conflict between this MSSA and any Order, the Order shall govern for purposes of such Order.
2. GWORKS OFFERINGS.
2.1 Software. If the Order includes gWorks on-prem Desktop Services software, the terms and conditions set forth at Exhibit A (“Desktop Services Terms”) shall apply. “Desktop Services” means any gWorks desktop-based software applications and related support services that Client has licensed pursuant to an Order.
2.2 SaaS Solution. If the Order includes a gWorks SaaS Solution, including, without limitation, gWorks Cloud Hubs (including Finance, HR, Utility Billing, FrontDesk, Payments, Ops, Maps, and Storage) as well as other cloud-based software, including Hiperweb, and ULOCO/811, the terms and conditions set forth at Exhibit B (“SaaS Solution Terms”)shall apply. “SaaS Solution” means any gWorks internet-based application, geospatial system, or website or mobile application that Client has subscribed to by Order and may access via https://gworks.com or subdomain,https://frontdeskgworks.comor subdomain, or another designated URL.
2.3 Professional Services. If the Order includes professional services, including but not limited to software implementation or onboarding, client onboarding, advanced/custom support beyond general support, time and material services, consulting, data extracting, or projects of a defined scope (“Professional Services”), the terms and conditions set forth at Exhibit C (“Professional Services Terms”) shall apply.
2.4 General Support. During the term of the applicable Order, provided Client is not in breach of this Agreement, gWorks will provide general support services related to the Services during the hours of 8:00AM through 5:00PM, CST, Monday through Friday (not including holidays);provided, however, that no general support services are offered or provided for perpetual Desktop Services licenses unless purchased by Client pursuant to an Order. This general support schedule may change from time to time, as determined by gWorks in its sole discretion. General support services will include email communication during the time frame described above. Any support services beyond the general support services described herein, or any support services provided outside of the time frame described above, may be provided by gWorks if purchased by Client and set forth in the Order. General support services are subject to change at gWorks’ sole discretion.
2.5 Hardware. If the Order includes the purchase of hardware (“Hardware”), the terms and conditions set forth at Exhibit D (“Hardware Terms”) shall apply.
2.6 Card Processing Services. If the Order includes credit card processing services (“Card Processing Services”) the terms and conditions set forth in the applicable Order (“Sub-Merchant Agreement for Card Processing Services”) shall apply when Client subscribes to, accesses or uses such Card Processing Services.
2.7 Services. The Desktop Services, SaaS Solution, Professional Services, general support, Card Processing Services are collectively, the “Services.”
3. RIGHT TO MODIFY; SUSPENSION
3.1 Right to Modify. gWorks has the right to modify and update (or refrain from modifying and updating) the Services at any time, provided however, that gWorks will notify Client of any material changes in the existing functionality or capabilities of the Services. Updates and improvements provided as part of gWorks’ general maintenance services shall be made from time to time in gWorks’ sole and absolute discretion. gWorks shall be under no obligation to provide any updates, improvements or enhancements. All right, title and interest to upgrades, improvements, enhancements, and special programming shall vest in and belong exclusively to gWorks. Client specifically acknowledges that some additional services or upgrades may be developed for the Services, for which gWorks may require the payment of additional fees or other terms and conditions in order for Client to be entitled to use such additional services or upgrades, which services or upgrades shall not be deemed to be Services hereunder absent payment of such fees or compliance with such conditions.
3.2 Suspension. gWorks may suspend delivery of Hardware and/or the performance of Services (and Client’s access to or use of Desktop Services and SaaS Solution) without notice or liability if: (a) Client fails to pay any amount due to gWorks within 15 days of receiving a non-payment notice from gWorks; (b) there is any event for which gWorks reasonably believes the suspension of the Services is necessary to protect its systems or other clients, or (c) a law enforcement or third party government agency has requested such suspension. If gWorks suspends the Services based on clause (b), and such suspension lasts longer than 15business days, then Client may terminate this Agreement or any Order upon written notice to gWorks.
4. FEES AND EXPENSES
4.1 Fees. Client agrees to pay to gWorks a non-refundable annual subscription fee for the applicable Services (excluding Professional Services and Hardware purchases) set forth in the Order in the amount and on the terms set forth in such Order (the “Annual Fees”). All other fees, including but not limited to, those for Professional Services (e.g., onboarding, etc.) and Hardware shall be as set forth in the applicable Order and shall be due and payable by Client on the Order Effective Date (defined below). Unless otherwise agreed by the Parties, Client shall be initially charged the Annual Fee on the effective date set forth on the applicable Order (“Order Effective Date”). If no Order Effective Date is expressly set forth on the Order, the Order Effective Date is the date the Client signs the applicable Order.
4.2 Payment. Upon registration, gWorks may issue an invoice to Client for payment by Client of the Annual Fees in accordance with the terms of such invoice. The Annual Fees and all other fees shall be processed on a reoccurring basis by gWorks through an issued invoice, which shall be payable by Client in accordance with its terms and the applicable terms of the Order. Unless otherwise set forth in the applicable Order or invoice, Client shall pay all invoiced amounts, without deduction or set off, no later than 30 days following the date of the applicable invoice.
4.3 Late Payment. Any payment that is past due to gWorks shall bear interest at the lesser of 12% per annum or the highest rate allowed by law, which ever is less. Client shall reimburse gWorks for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts.
4.4 Taxes. Client shall pay all sales, use, value-added, excise, and other similar taxes (excluding taxes on gWorks’ income) and all tariffs which result from, or are related to, the Services. Where applicable, upon the execution of a change order for Professional Services, gWorks may require Client to pay for all such Services completed from execution of the original Order to the execution of the change order modifying the same. Client’s failure to make any payment when due shall be deemed a material breach of this Agreement.
4.5 Fee Changes. gWorks reserves the right to change Annual Fees, and any other fees, under an Order for subsequent renewal terms. gWorks will notify Client at least forty-five (45)days in advance of the renewal date with the renewal term invoice, and the increased fees will apply at the start of the next renewal term under such Order. If Client does not agree to the fee increase, Client must provide written notice of nonrenewal to gWorks at least thirty (30) days prior to the end of the then current term. Client’s continued access to or use of the Services beyond the cancellation window constitutes Client’s agreement to those changes to fees.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall be in effect from the Order Effective Date, as applicable, and shall continue until the end of the term of the applicable Order, unless terminated in accordance with this Agreement. Unless otherwise set forth in the applicable Order, this Agreement shall automatically renew upon expiration of the initial term set forth in the Order for successive renewal terms (the length of such renewal terms to be set forth in the applicable Order, or, if none, such renewal terms shall be one year), unless either Party provides written notice of nonrenewal no less than 30 days prior to the end of the then current term and unless terminated in accordance with this Agreement.
5.2 Termination of Agreement. gWorks may terminate this Agreement immediately if it reasonably believes that Client is infringing, has infringed, or is threatening to infringe the Intellectual Property Rights of gWorks, any of its Affiliates or any third parties, or at any time when there are no currently effective Orders. This Agreement may be immediately terminated, in writing, by either Party as follows: (a) if the other Party breaches any material provision hereof and does not cure such breach within 30 days after it receives written notification thereof from the non-breaching Party; or (b) upon dissolution, insolvency, or any adjudication in bankruptcy of, or any assignment for the benefit of creditors by, the other Party. “Intellectual Property Rights” means all or any: (i) patents, patent disclosures, and inventions (whether patentable or not); (ii) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (iii) copyrights, copyrightable works (including computer software programs, documentation, algorithms, program code, Specifications, reports, and designs), mask works, and rights in data and databases; (iv) trade secrets, knowledge, know-how, techniques, ideas, concepts, and other proprietary information; and (v) all other intellectual property rights, in each case whether existing prior to the date of this Agreement or whether developed in the course of each Party’s performance of its obligations under this Agreement, whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.
5.3 Termination of Services. Upon termination or expiration of a Service: (a) Client shall immediately pay all outstanding amounts it owes to gWorks for such Service asset forth in the applicable Order; (b) Client shall immediately cease using such Service; and (c) gWorks may take steps to change, remove, or otherwise block Client's access to such Service. Annual Fees are nonrefundable. No termination or expiration of a Service, any Order, or this Agreement will affect Client's obligation to pay all amounts set forth in each Order.
5.4 Effect of Termination. Upon termination of this Agreement for any reason: (a) Client shall immediately pay all outstanding amounts it owes to gWorks hereunder; (b) Client shall immediately cease using all terminated Services; and (c) gWorks may take steps to change, remove, or otherwise block Client’s access to any and all Services. Not withstanding the above, if, within thirty (30) days after the termination of this Agreement, or any Services, Client requests to export any data files, gWorks will export such data files to Client upon Client’s payment for such data export services charged at gWorks then-standard rates. Unless otherwise specified in the applicable Order, Client shall reimburse gWorks for the costs of all non-cancelable products or services procured from third parties in connection with gWorks’ performance of the Services. The provisions of Sections1, 4, 5.4, 6, 7.2, 7.3, 8, 9, 10, 13, 14 and 15 shall survive the termination of this Agreement, to the extent applicable.
6. INTELLECTUAL PROPERTY
6.1 gWorks Ownership. Subject to Section 6.2,Client acknowledges that gWorks and/or the third party sources of gWorks’ information are the owners of all right, title and interest in and to all Intellectual Property Rights in, to or covering the Services, Third Party Materials, the underlying software used therein, any and all updates, enhancements or derivatives or any of the foregoing, and any and all work product created or developed by or on behalf of gWorks hereunder, in any form whatsoever, including: (a) the technology available as part of or embodied in the Services; and (b) all content, including but not limited to text, software, music, sound, photographs, video, graphics, plots, typeset formulas, tables, general page layouts, juxtapositions of data or other material contained in the Services or otherwise provided as part of the Services. Client acknowledges the Services and any other products or services offered by gWorks are protected by US and international copyrights, patents, trademarks, service marks, trade secrets or other proprietary and intellectual property rights and laws, as applicable. Client acknowledges that it claims no Intellectual Property Rights of gWorks, the Services, or Third Party Materials, and will be entitled only to such rights as are expressly granted to Client pursuant to any and all agreements between gWorks and Client. The Services may be used only in accordance with this Agreement. All pending and/or registered trademarks and service marks, and other graphics, logos, and trade names used by gWorks in connection with the Services, and any other products or services offered by gWorks (collectively the “gWorks Trademarks”) are the trademarks of gWorks or its content providers. gWorks and Client acknowledge that, in the event of any third party claim that the Services infringes such third party’s Intellectual Property Rights, gWorks will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, subject to this Agreement. Except as expressly set forth in this Agreement, nothing in this Agreement shall transfer any right, title, or interest in any of either Party’s Intellectual Property Rights or technology to the other.
6.2 Client Materials. “Client Materials” shall mean all information, content, data, functionalities, and any other materials provided to gWorks by Client, whether created by Client or a third party, pursuant to this Agreement, for the purpose of assisting gWorks with the providing the SaaS Solution. Client acknowledges and agrees that, in order for Client to fully utilize certain portions of the Service, Client must input, or permit gWorks to input, certain Client Materials into the Services, and by doing so, is not relinquishing any of its ownership or rights in and to such Client Materials. Client hereby grants to gWorks a non-exclusive, sublicensable, perpetual, worldwide license to use, host, reproduce, store, enhance, supplement and otherwise distribute Client Materials in any and all ways necessary for gWorks to provide to Client the Services and for all other legitimate business purposes of gWorks related to the Services (or with respect to gWorks’ other legitimate business needs). Client, not gWorks, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of all Client Materials, and gWorks shall not be responsible or liable for the deletion, correction, inaccuracy, destruction, damage, loss or failure to store any Client Materials. Client acknowledges and agrees that gWorks is not responsible for examining or evaluating and makes no guarantees regarding the accuracy, completeness, timeliness, validity, legality, decency, quality or any other aspect of Client Materials, and gWorks shall have no liability to Client or any third party for its use of or reliance on Client Materials. gWorks reserves the right to remove and/or discard Client Materials upon thirty (30) days written notice to Client. If Client does not claim its Client Materials or make arrangement to do so within thirty (30) days of gWorks providing such notice, gWorks may remove and/or discard Client Materials. gWorks will, upon request, provide Client with access to Client Materials through the Services during the term of the applicable Order, in the default form made available via the Services; provided, however, that any request to export or extract Client Materials from the SaaS Solution or Desktop Services will be subject to additional fees pursuant to an Order. The Parties agree that gWorks will provide notice to Client of any Client Materials of which it has possession upon termination of this Agreement. gWorks will maintain any such Client Materials for a period of thirty (30) days following termination of this Agreement. If Client or its legal representative does not claim or make arrangements to claim Client Materials within thirty (30) days after the notice, gWorks has no further obligation to maintain any Client Materials.
6.3 Third Party Materials. gWorks may from time (a) to time arrange for Client’s purchase, lease, or license of third party hardware, equipment, software, services, data, or other products not owned by gWorks, and the Services may otherwise include access to third party software, services, and data, (b) in providing the Services or developing a Deliverable, use certain third party technology set forth in the applicable Orders, or (c) include access to third party software, services, and data through the Services or by or through links to third party sites (collectively, “Third Party Materials”). Client’s use of Third Party Materials in this Section6.3 is governed by the terms and conditions of any license or other agreement between Client and third party, and Client agrees to abide by all such terms and conditions. To the extent gWorks has the right to grant licenses to such Third Party Materials, gWorks hereby grants to Client a royalty-free, non-exclusive license to use the Third Party Materials solely in connection with its use of the applicable Deliverable, subject to any limitations imposed by the owner of such Third Party Materials. By accessing the Services, Client is agreeing to be bound by each of these third party’s terms with respect to the Third Party Materials. gWorks makes no representations or warranties with respect to any Third Party Materials and shall have no liability arising out of or relating to Client’s use thereof. Any third party warranties are the exclusive remedies of Client with respect to Third Materials.
6.4 Feedback. If Client, or any of its employees or contractors sends or transmits any communications or materials to gWorks through any means, suggesting or recommending changes to Services, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), gWorks is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to gWorks on Client's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and gWorks 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 gWorks need not use any Feedback.
7. REPRESENTATIONS AND WARRANTIES
7.1 Mutual Warranties. Each Party hereby represents warrants to the other that: (a) it is validly organized, in good standing, and licensed to conduct business in each jurisdiction in which the failure to do so would have a material adverse effect on such Party; (b) it has all necessary corporate power and authority to enter into this Agreement, to grant to the other Party all of the rights granted hereby, and to perform its obligations hereunder; (c) this Agreement is and shall remain the valid, legal, and binding obligation of such Party, enforceable against it in accordance with its terms, except where enforceability may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights or by principles of equity; and (d) the execution, delivery, and performance of this Agreement does not conflict with, or result in a breach of, any agreement, written or oral, to which it is a party or by which it or its properly is bound.
7.2 Client Warranties. Client represents and warrants to gWorks that Client has obtained all necessary authorizations, consents and/or licenses to provide Client Materials to gWorks and to permit gWorks to use, reproduce, and/or modify Client Materials, without liability to Client or any third party.
7.3 gWorks Disclaimer. CLIENT AGREES TOACCESS THE SERVICES AT ITS SOLE RISK, AND GWORKS SHALL HAVE NO LIABILITY TOCLIENT OR ANY THIRD PARTY FOR CLIENTS ACCESS OF OR RELIANCE ON THE SERVICES.CLIENT ACKNOWLEDGES THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKSTHAT ARE SEPARATELY OWNED AND THEREFORE ARE NOT SUBJECT TO GWORKS CONTROL, ANDCOMPUTER SYSTEMS ARE INHERENTLY UNSTABLE, MAY MALFUNCTION OR CEASE TO FUNCTIONAT ANY TIME WITHOUT WARNING, AND SUCH. MALFUNCTION OR CESSATION MAY MAKE THESERVICES TEMPORARILY OR PERMANENTLY UNAVAILABLE. THE SERVICES, HARDWARE, THIRDPARTY PRODUCTS, INTELLECTUAL PROPERTY AND ANY RELATED PRODUCTS AND SERVICES ARESUPPLIED TO CLIENT “AS IS.” NEITHER GWORKS NOR ANY THIRD PARTY INFORMATION ORSERVICE PROVIDER OF GWORKS GIVES ANY WARRANTIES, EXPRESS OR IMPLIED, RELATEDTHERETO, EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION. GWORKS DISCLAIMS, ANDCLIENT EXPRESSLY WAIVES, THE IMPLIED WARRANTIES OF MERCHANTABILITY,NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER GWORKS NOR ANYTHIRD PARTY INFORMATION OR SERVICE PROVIDER OF GWORKS MAKES ANY WARRANTIES THAT(A) THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR BE UNINTERRUPTED, TIMELY,SECURE, OR ERROR-FREE, (B) THE RESULTS THAT MAY BE OBTAINED FROM ACCESS TO THESERVICES WILL BE ACCURATE OR RELIABLE, (C) THE QUALITY OF ANY HARDWARE, SERVICES,INFORMATION OR OTHER MATERIAL RECEIVED OR OBTAINED BY CLIENT THROUGH THESERVICES WILL MEET CLIENT’S EXPECTATIONS, OR (D) ANY ERRORS IN THE SOFTWAREUSED TO OPERATE THE SERVICES WILL BE CORRECTED. ANY MATERIALS DOWNLOADED OROTHERWISE OBTAINED THROUGH CLIENT’S ACCESS TO THE SERVICES ARE ACCESSED ATCLIENT’S OWN DISCRETION AND RISK, AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANYDAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. FURTHER, THESERVICES AND DATA MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENTIN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EXCEPT AS EXPRESSLYSET FORTH HEREIN, GWORKS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURESOR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. GWORKS IS NOT RESPONSIBLE ORLIABLE FOR DAMAGES FROM LOST PROFITS, LOSS OF BUSINESS OR ANY OTHER LOSSES ORLIABILITIES ARISING OUT OF CLIENT’S USE OF OR RELIANCE ON THE SERVICES. CLIENTACKNOWLEDGES AND AGREES THAT IN ENTERING INTO THIS AGREEMENT OR ANY ORDER ITHAS NOT RELIED AND IS NOT RELYING ON ANY REPRESENTATIONS, WARRANTIES OR OTHERSTATEMENTS WHATSOEVER, WHETHER WRITTEN OR ORAL (FROM OR BY GWORKS OR ANY OF ITSAFFILIATES OR REPRESENTATIVES) OTHER THAN THOSE EXPRESSLY SET FORTH IN THISAGREEMENT AND THE APPLICABLE ORDER AND THAT IT WILL NOT HAVE ANY RIGHT ORREMEDY RISING OUT OF ANY REPRESENTATION, WARRANTY OR OTHER STATEMENT NOTEXPRESSLY SET FORTH IN THIS AGREEMENT OR THE APPLICABLE ORDER.
8. INDEMNIFICATION.
8.1 gWorks. gWorks will defend and indemnify Client from and against any and all third-party claims, and any and all damages, liabilities, costs and expenses (including reasonable attorney fees) incurred by Client as a direct result of such third-party claims, to the extent such third-party claims arise from an allegation that the Services, as provided by gWorks, infringes such third party’s US intellectual property rights. Notwithstanding the fore going, gWorks will have no obligations under this Section 8.1 in connection with any claims, actions, damages and liabilities that arise from or relate to: (a) breach of this Agreement by Client or any of its Affiliates or Users, (b) negligence or more culpable conduct by Client, its Affiliates or Users, (c) violation of any laws by Client, its Affiliates or Users, or (d) the combination of the Services with any software, hardware, data or technology that is not provided by gWorks or not proprietary to gWorks. Client shall provide prompt notice of any indemnified claim and reasonably cooperate with gWorks’ defense. gWorks will control the defense of any indemnified claim, including appeals, negotiations, and any settlement or compromise thereof. gWorks’ obligation in this Section8.3 will be excused if either of the following materially prejudices the defense: (i) Client’s failure to provide prompt notice of the indemnified claim; or (ii) Client’s failure reasonably to cooperate in the defense.
8.2 Client. To the extent allowed under state law, Client will indemnify, defend and hold harmless gWorks, its Affiliates, and its and the irrespective directors, officers, employees, agents, contractors, subcontractors, representatives, successors and assigns from and against any and all claims, actions, causes of action, litigation, demands, proceedings, subpoenas, damages, fines, penalties, deficiencies, losses, liabilities, costs, settlements, judgements and expenses (including interest, court costs, reasonable fees and expenses of attorneys, accountants and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any claim, default or assessment) based on, arising out of or related to: (a)Client’s actual or alleged breach of this Agreement; (b) damages based on the use of the Services in a manner not contemplated in this Agreement; (c) any claim that gWorks’ authorized use of Client Materials in accordance with this Agreement and gWorks’ rights herein to the extent such claim alleges gWorks’ use violates any party’s rights, any law, or Client did not have the necessary consents, approvals, authorizations or permits to provide Client Materials to gWorks; (d) Client’s actual or alleged negligence, fraud or violation of any law; or (e) any personal injury (including death) or property damage arising out of, resulting to, in the nature of or caused by the gross negligence or willful misconduct of Client. If this provision is otherwise prohibited by state law, Client shall remain responsible and liable for its acts and/or omissions with respect to any claim concerning the foregoing indemnity obligations.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN ORELSEWHERE, IN NO EVENT SHALL GWORKS OR ANY OF ITS AFFILIATES BE LIABLE FOR ANYINDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGESFOR LOSS OF PROFITS, REVENUE, DATA OR USE, UNDER, ARISING FROM OR RELATING TOTHIS AGREEMENT, TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, HARDWARE, OR SERVICES(REGARDLESS OF THE FORM OF CLAIM, WHETHER CONTRACT, TORT, STRICT LIABILITY,NEGLIGENCE, INDEMNITY OR OTHERWISE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY OF THE LIMITED REMEDIES OF THISAGREEMENT FAIL TO FULFILL ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING TOTHE CONTRARY HEREIN OR ELSEWHERE, GWORKS SHALL NOT BE LIABLE TO CLIENT FOR ANYBREACH OF SECURITY ON OR OF THE SERVICES, REGARDLESS OF WHETHER ANY REMEDYPROVIDED IN THIS AGREEMENT FAILS ITS ESSENTIAL PURPOSE. NOTWITHSTANDINGANYTHING TO THE CONTRARY HEREIN OR ELSEWHERE, IN NO EVENT SHALL THE CUMULATIVELIABILITY OF GWORKS AND ITS AFFILIATES UNDER, ARISING FROM OR RELATING TO THISAGREEMENT, TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, HARDWARE, OR SERVICES(REGARDLESS OF THE FORM OF CLAIM, WHETHER CONTRACT, TORT, STRICT LIABILITY,NEGLIGENCE, INDEMNITY OR OTHERWISE) EXCEED, IN THE AGGREGATE, THE FEES PAID BYCLIENT TO GWORKS UNDER THIS AGREEMENT DURING THE SIX MONTH PERIOD IMMEDIATELYPRECEDING THE EVENT CAUSING THE DAMAGE RELATING TO THE FIRST CLAIM MADE AGAINSTGWORKS OR ANY OF ITS AFFILIATES UNDER, ARISING FROM OR RELATING TO THISAGREEMENT, ORDERS, HARDWARE, OR SERVICES. FOR CLARITY, THE FOREGOING IS A TOTALAGGREGATE LIABILITY CAP, AND NOT A PER CLAIM, PER INCIDENT OR PER ORDER CAP. SOMESTATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIMITATION OFLIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS ANDEXCLUSIONS MAY NOT APPLY TO CLIENT IF SUCH EXCLUSIONS OR PROHIBITED UNDERAPPLICABLE LAW.
10. CONFIDENTIALITY. During the term of this Agreement, each Party (as “Discloser”) may provide the other Party (as “Recipient”) with certain confidential and proprietary information (“Confidential Information”). Confidential Information includes Discloser’s research, financial and accounting data and projections, technical data, computer programs, customer lists and information, marketing strategies, estimated staffing requirements, know-how, any information that is marked “confidential” (or with a similar legend), any information that is orally disclosed, identified as confidential at the time of disclosure, and confirmed in writing as being confidential within 30 days thereafter, as well as any information or material which, by its nature and under the circumstances surrounding its disclosure, is generally considered proprietary and confidential, regardless of whether it is marked or properly reduced to writing. Confidential Information does not include information that(a) is publicly known at the time of its disclosure; (b) is lawfully received by Recipient from a third party not under an obligation of confidentiality to Discloser; (c) is published or otherwise made known to the public by Discloser; or (d) was generated independently by Recipient before disclosure by Discloser. Recipient shall not use Discloser’s Confidential Information except to the extent necessary to perform its obligations under this Agreement. Recipient will likewise restrict its disclosure of Discloser’s Confidential Information to those who have a need to know such Confidential Information in order for Recipient to perform its obligations under this Agreement. Such persons will be informed of and will agree to the provisions of this Section, and Recipient will remain responsible for any unauthorized use or disclosure of Confidential Information by any of them. Notwithstanding the foregoing, Recipient may disclose such Confidential Information if required or requested to do so by a governmental agency, a court or administrative subpoena, an order or other legal process or requirement of law, or in order to defend its rights hereunder. If so requested or required, Recipient shall (i) first notify Discloser of such request, requirement or proposal for use in defense; (ii) in the case of a required disclosure, furnish only such portion of Confidential Information as it is advised in writing by counsel that it is legally required to disclose; and (iii)cooperate with Discloser in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to that portion of Confidential Information that is required to be disclosed. Upon termination of this Agreement, and upon the written request of Discloser, Recipient shall return all of Discloser’s Confidential Information which is in its possession or under its control.
11. DATA SECURITY; BACKUP; DISASTER RECOVERY. gWorks agrees to maintain, through itself or through third party service providers, backup and disaster recovery facilities sufficient to permit it to recover and make available to Client under this Agreement the Services and Client Materials as soon as reasonably practicable. gWorks will notify Client of any data breach or loss in accordance applicable laws. gWorks shall maintain adequate security precautions to minimize the likelihood of any unauthorized access through the Internet to Client Materials or other data provided by Client to gWorks through the Services, including, among other things, the use of a secure server, protective firewalls and encryption.
12. FORCE MAJEURE. Any delay in or failure of performance by gWorks under this Agreement shall not be considered a breach of this Agreement, and shall be excused, to the extent caused by any occurrence beyond the reasonable control of gWorks.
13. GOVERNING LAW; DISPUTE RESOLUTION. This Agreement shall be governed by and interpreted under the laws of the State of Nebraska, without giving effect to the conflicts of law principles thereof. Any dispute arising under this Agreement will be first referred for resolution to each Party’s respective management designee. To the extent that the designees of the Parties cannot resolve the dispute within a reasonable period of time, the Parties shall attempt in good faith to settle the dispute by non-binding mediation and/or engaging in binding arbitration. Any and all mediation and arbitration hearings shall be held in Omaha, Nebraska, unless the Parties agree otherwise. All such arbitration will be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association by a panel of three neutral arbitrators, one selected by each Party and the third (who will be the chair of the panel) selected by the other two arbitrators. The award or decision rendered by the panel(including an allocation of the costs of arbitration) will be final and binding, and judgment may be entered upon such award by any court of competent jurisdiction. Neither Party shall initiate litigation with respect to any dispute until at least ninety (90) days after notice of the dispute is first given or received. In the event litigation is pursued, each Party, for itself and its successors and assigns, hereby expressly and irrevocably (a) consents to the exclusive jurisdiction of the state and federal courts of the State of Nebraska, (b) waives any objection based on forum non conveniens or any objection to venue of any such action, and (c) KNOWINGLY, VOLUNTARILY,IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY.
14. MODIFICATION; AMENDMENT. gWorks may amend this Agreement from time to time by posting an amended version at its website (https://gworks.com). Such amendment will be deemed accepted and become effective thirty (30) days after such posting(the “Proposed Amendment Date”) unless Client gives gWorks timely written notice of rejection of the amended terms. If rejected by Client, this Agreement will continue under the most recently accepted provisions pursuant to Client’s most recent Order, and the amended terms will become effective at the start of Client’s next Order Effective Date or renewal of any Order term following the Proposed Amendment Date. Client’s continued use of the Services after the effective date of an amendment shall constitute Client’s consent, and bind Client thereto.
15. MISCELLANEOUS. All references to and mentions of the word “including” or the phrase “e.g.” means “including, without limitation.” Unless context unambiguously requires otherwise, “or” is not exclusive and includes “and.” This Agreement shall not be construed in favor of or against either Party by reason of the extent to which either Party or its professional advisors participated in the preparation or drafting of this Agreement. The section and subsection headings used herein are for reference and convenience only and shall not enter into the interpretation thereof. No person or entity other than the Parties hereto, and their respective successors and/or assigns, shall have any right, remedies, obligations or liabilities under this Agreement, except for indemnified parties set forth in Section 8. Any and all notices, consents, or other communications required or permitted hereunder shall be in writing. It shall be deemed given when (a) delivered personally, (b) sent by confirmed fax or e-mail, (c) sent by commercial overnight courier with written verification of receipt, or (d) sent by registered or certified mail, return receipt requested, postage prepaid, and the receipt is returned to the sender. Names, addresses, and fax numbers for notices (unless and until written notice of a change to the same is provided in accordance with these provisions) are listed on the signature page to this Agreement. All provisions of this Agreement and the Order shall be binding upon, inure to the benefit of, and be enforceable by and against, the respective successors and permitted assigns of gWorks and Client. Client may not assign, pledge, delegate or otherwise transfer (whether by operation of law, acquisition or sale of stock or assets, merger, consolidation, transfer of control or otherwise) this Agreement or any Order, or any rights or obligations under this Agreement or any Order, without the prior written consent of gWorks, such consent to be exercised in the sole discretion of gWorks, and any purported assignment, pledge, delegation or transfer in violation of this provision is null and void. During the term of this Agreement and for a period of one year thereafter, Client shall not, directly or indirectly, solicit for employment or hire any employee of gWorks with whom Client has had contact or who became known to Client in connection with this Agreement. Except as expressly stated herein, the Parties’ rights and remedies under this Agreement shall be cumulative and non-exclusive. All waivers must be inwriting. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. If a court of competent jurisdiction holds any provision, or part of any provision, of this Agreement to be illegal or invalid, the provision, or the affected part of such provision, shall be null and void and deemed automatically severed from this Agreement. Any such holding shall not affect the legality or validity of the remaining provisions or remaining parts or unaffected provisions of this Agreement. The relationship between the Parties is that of independent contractors only, and nothing in this Agreement shall be interpreted or construed to create a partnership, joint venture, employer-employee, or agency relationship, or any other relationship between the Parties, other than that of independent contractors. Neither Party shall have the power to obligate the other Party in any manner whatsoever unless expressly provided in this Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and shall supersede any and all prior or contemporaneous, written or oral, discussions, negotiations, agreements, or understandings between the Parties. In the event of any conflict between the provisions of this Agreement and any Order, or any other addenda, this Agreement will control, provided, however, the Order will control if (i) the Order specifically references this Section 15 and states that the provisions of the Order will control and (ii) the provision at issue in the Order does not conflict with any provision in Sections 6, 7.3, 8.1 or 9 of this Agreement. Exhibits A, B, C, D, E and F (attached hereto) are hereby incorporated into this MSSA by reference.
EXHIBIT A – DESKTOP SERVICES TERMS
1. License.
a. Desktop Services Subscription License. Subject to Client’s compliance with this Agreement, and in consideration of the Annual Fee(and all other fees set forth in the applicable Order) paid by Client hereunder, gWorks grants to Client a personal, non-assignable, non-transferable and non-exclusive license during the term of the applicable Order to use Desktop Services solely for the internal conduct of Client’s business, only on the specified quantity of devices and at the locations designated in the Order. The Annual Fee for the Desktop Services subscription license includes general support services.
b. Desktop Services Perpetual License. This section applies, if and only if, the applicable Order expressly identifies the Desktop Services license as a perpetual license. Subject to Client’s compliance with this Agreement, and in consideration of the upfront license fee (and all other fees set forth in the applicable Order) paid by Client hereunder, gWorks grants to Client a personal, revocable (if this Agreement is terminated by gWorks), non-assignable, non-transferable, perpetual and non-exclusive license to use Desktop Services solely for the internal conduct of Client’s business, only on the specified quantity of devices and at the locations designated in the Order. Client may purchase annual maintenance and support for the Desktop Services perpetual license pursuant to an Order. Not withstanding anything to the contrary herein or elsewhere, gWorks has no obligation to provide any maintenance or support services for perpetual licenses, unless Client purchases such services as expressly set forth in an Order. If Client elects to not renew maintenance or support services and later desires to purchase maintenance or support services, in addition to the fees set forth in the Order, Client will pay gWorks all fees and amounts that Client would have paid gWorks if Client had maintained maintenance and support services for the entire period between nonrenewal and repurchase.
c. Ownership. Client acquires only the right to use the Desktop Services and does not acquire any legal or equitable right of ownership in the Desktop Services. This Agreement and the license granted pursuant hereto may not be mortgaged, pledged, assigned, sublicensed, leased or otherwise transferred by Client without prior written consent from gWorks. Client may not reverse engineer or attempt to derive the source code of the Desktop Services.
2. Termination of Desktop Services. The Desktop Services Subscription License has been designed to cease functioning in the event that the Annual Fee, or any other fee, is unpaid. Client acknowledges the existence of this feature in the Desktop Services Subscription License and specifically waives any claim for damages, which may result. In the event of default, all unpaid Annual Fees, product support-related fees, and any other fees and charges payable for the entire duration of this Agreement shall, upon written notice by gWorks become due and payable. This remedy shall be in addition to any other remedy lawfully available to gWorks.
3. Effect of Desktop Services Termination. Upon termination or expiration of this Agreement for any reason, Client shall remain liable for all unpaid charges required to be paid under this Agreement including; unpaid Annual Fees and product-support-related fees, not withstanding such termination. In the event of breach of default of this Agreement, Client shall hold gWorks harmless from all reasonable attorney’s fees, costs and interest (at the highest rate permitted by law) arising by reason of such breach or default, from the date of the default or breach, in addition to other damages. gWorks shall not be required, under any circumstances, to refund any portion of the implementation or onboarding fees, the Annual Fee, or the product support-related fees, already paid.
4. Use Restrictions. Client shall not use the Desktop Services 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, Client shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Desktop Services or documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Desktop Services or documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Desktop Services, in whole or in part; (iv)remove any proprietary notices from the Desktop Services or the documentation; or (v) use the Desktop Services 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.
5. Reservation of Rights. gWorks reserves all rights not expressly granted to Client 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 Client or any third party any intellectual property rights or other right, title, or interest in or to the Desktop Services.
6. Client Responsibility. Client is responsible and liable for all uses of the Desktop Services and documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of users, and any act or omission by a user that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall make all users aware of this Agreement’s provisions as applicable to such user’s use of the Desktop Services, and shall cause users to comply with such provisions.
7. Support. gWorks will provide its General Support, as set forth in Section 2.4, during the term of the Order at no addition charge.
EXHIBIT B – SAAS SOLUTION TERMS
1. Access and Use. Subject to Client’s compliance with this Agreement, and in consideration of the Annual Fee(and all other fees set forth in the applicable Order) paid by Client hereunder, gWorks hereby grants to Client, and Client hereby accepts, pursuant to the terms and conditions set forth herein, a non-exclusive, non-transferable, non-sublicensable right and subscription to access the SaaS Solution during the term of the applicable Order. All features, content, specifications, data, and layout of the SaaS Solution described or depicted on, or generated through, the Services are subject to change at gWorks’ discretion.
2. Mapping Data. While gWorks makes extensive efforts to present accurate and up to date mapping data, Client acknowledges that such mapping data rely on the accuracy and currency of the third party data used by gWorks in connection therewith. gWorks makes no representations or warranties as to the mapping data, and the Parties acknowledge that mapping data may be inaccurate, incomplete, unreliable or out of date. Client shall independently verify the accuracy, completeness and relevance of any information it receives from gWorks as part of such mapping data before relying on it for any purpose.
3. Limited Use. The rights granted by gWorks to Client for the SaaS Solution are personal to Client and allow Client to use and access the SaaS Solution and any data generated through the SaaS Solution for its own internal personal or business use, for public access (allowing the public to use any available computers or mobile devices to obtain access), on its own computer or mobile device, as strictly set forth in this section. Except as otherwise provided herein, the subscription rights set forth in this section may not be shared by more than one individual or assigned to new users without gWorks consent, given or withheld in gWorks’ sole discretion.
4. Client Obligations.
4.1 Accounts. Prior to Client being able to access the SaaS Solution, Client may be required to register for the Services, or by executing a written agreement (i.e. this Agreement or Order) with gWorks in the form provided by gWorks. As part of the registration process, Client will be required to provide certain information, and may be awarded a username and password (“Account Credentials”). Client shall remain responsible for maintaining the security of its Account Credentials, and shall not disclose Account Credentials to any third party except as authorized herein. gWorks will not be responsible or liable for any loss or damage caused by Client’s failure to comply with its security obligation. Client remains responsible for all activity occurring under its accounts, and shall notify gWorks immediately of any unauthorized use of any Account Credentials or any other known or suspected breach of security.
4.2 Access. Client shall provide gWorks with reasonable access to Client’s personnel, facilities, equipment, and Client Materials during normal business hours and otherwise as reasonably requested by gWorks, to enable gWorks to provide the Services. Except as expressly set forth in this Agreement, gWorks will have no liability for any damages incurred by Client due to a breach of the security of Client’s own facilities or technology. Client shall take such actions as are reasonably necessary to protect the security of its own facilities and technology. gWorks shall have no liability for loss of any Client Materials. Accordingly, Client shall be solely responsible for creating and maintaining current copies of all Client Materials provided to or stored by gWorks, and storing such copies in a reasonably secure location.
4.3 Compliance with Laws. Client shall comply with all laws, rules, and regulations with respect to Client’s performance of its obligations hereunder and otherwise with respect to its access to and use of the Services, including all applicable laws regarding the transmission of technical data exported from the United States or the country in which Client resides, and gWorks shall have no responsibility therefor, including any responsibility to advise Client of such laws or regulations.
4.4 Client Systems. Client shall ensure that any hardware, devices, applications, or software not provided by gWorks pursuant to this Agreement (“Client System”) will function properly while using the Services. The failure of Client’s Client System to so function shall not relieve Client of any of its obligations under this Agreement. At Client’s expense, Client will be responsible for providing or obtaining the Client System necessary to access the Services and Client Materials and making Client Materials available to gWorks for gWorks to provide the Services. Client acknowledges and agrees that gWorks provision of Professional Services is dependent upon Client’s technology infrastructure at the time such Professional Services are to be performed, and further changes to Client’s technology infrastructure in the future may require additional Professional Services subject to a separate Order at gWorks then-current rates.
4.5 Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any user to: (a) copy, modify, or create derivative works of the Services, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (c)remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on any software provided or licensed to Client by gWorks; (d) reverse engineer, decompile, or disassemble, reverse assemble or emulate the functionality, reverse compile, attempt to derive the source code of, reduce to human readable form, the SaaS Solution or the underlying software used therein, in whole or in part; (e) use the SaaS Solution, the underlying software used therein, or any portion thereof to create any tool, application or software product that can be used to create software applications of any nature whatsoever; (f) use the SaaS Solution in any unlawful manner whatsoever;(g) access the SaaS Solution by any unauthorized means other than through Services;(h) Spider, data-mine, scrape, probe or otherwise attempt to abuse the SaaS Solution; or (i) use the SaaS Solution 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.
EXHIBIT C – PROFESSIONAL SERVICES TERMS
1. Standard. The Professional Services will be performed by gWorks in a professional and workmanlike manner, using qualified personnel, in accordance with the Specifications and the terms set forth in the applicable Order. If the Order includes Professional Services for the Client to migrate from Desktop Services to a gWorks SaaS Solution the gWorks statement of work (“Statement of Work”)set forth in the Order shall also apply to Client and such Statement of Work shall be treated as an “Order” for purposes of this Agreement. gWorks will, in its sole discretion, select personnel to render the Professional Services, establish working hours for its personnel, use the resources and materials it deems appropriate to perform the Professional Services, and, within the parameters set forth in an Order, determine the method, details, and means of performing the Professional Services. “Specifications” means the specifications and functionalities to which the Professional Services deliverables shall be developed by gWorks, as set forth in an Order.
2. Work Product. gWorks will retain ownership of all rights, title and interest, including without limitation all Intellectual Property Rights, in, to and covering any work product or deliverables resulting from Professional Services
EXHIBIT D – HARDWARE TERMS
1. Purchase and Sale. During the term of this Agreement, Client shall purchase from gWorks, and gWorks shall sell to Client, the hardware specified in the quantities set forth in the applicable Order at the prices set forth therein.
2. Agreement Prevails Over Client’s PO. The Parties intend for the express terms and conditions contained in this Agreement(including any Order(s) and attachments hereto) to exclusively govern and control each of the Parties' respective rights and obligations. No general terms or conditions provided by Client in any purchase order, nor any variations made to this Agreement’s terms and conditions by Client in any purchase order are valid and shall be void and have no effect. Without limitation of the foregoing, any attempt to modify, supersede, supplement or otherwise alter this Agreement, will not modify this Agreement or be binding on either Party unless expressly approved in a written amendment in accordance with this Agreement.
3. Order Acceptance/Rejection. Client’s issuance of a signed Order to gWorks is an offer to purchase Hardware pursuant only to these terms and conditions and the Order. Client shall be obligated to purchase from gWorks quantities of Hardware specified in the Order. gWorks accepts an Order to purchase Hardware by written confirmation of the Order by an authorized representative or by delivering the applicable Hardware to Client, whichever occurs first. gWorks may reject a Order for any reason or no reason in its sole discretion. gWorks has no obligation to accept any Order or offer to purchase Hardware issued by Client.
4. Shipment. gWorks shall select the method of shipment of and the carrier for the Hardware. gWorks may, in its sole discretion, without liability or penalty, make partial shipments of Hardware to Client. Each shipment will constitute a separate sale and Client shall pay for the Hardware shipped, in accordance with the payment terms specified in Agreement, whether such shipment is in whole or partial fulfillment of an Order. gWorks shall deliver the Hardware to the delivery location set forth in the applicable Order, using standard packaging and shipping methods. Any time quoted for delivery is an estimate only, and no delay in the shipment or delivery of any Hardware shall relieve Client of its obligations under this Agreement. Title to Hardware shipped under any Order passes to Client upon Client’s payment in full for the Hardware. Risk of loss to Hardware passes to Client upon gWorks transfer of ordered Hardware to carrier.
5. Disclaimer. GWORKS MAKES NOWARRANTY WHATSOEVER WITH RESPECT TO THE HARDWARE, INCLUDING ANY (I) WARRANTY OFMERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III)WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUALPROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OFDEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ANY AND ALLWARRANTY CLAIMS, IF ANY, MUST BE SUBMITTED TO THE ORIGINAL MANUFACTURER.