Universal Terms and Conditions
This Nowsta Universal Terms and Conditions Agreement (this “Universal Terms”) applies to the services and information (collectively, the “Universal Services”) that Nowsta, Inc. (“Nowsta,” “we,” “our,” or us”) provides to you through any of the products which you currently utilize, which you are contracted to utilize, or which you intend to utilize, including but not limited to our Workforce Management Platform and related services (the “Platform”), the NowstaPay Platforms and related services (the “NowstaPay Platform”), and/or the Nowsta Labor Marketplace Platform and related services (the “Labor Marketplace Platform”). The Platform, NowstaPay Platform, and the Labor Marketplace Platform are collectively referred to herein as the “Nowsta Product” or “Nowsta Products”. Your use of any one or more of the Nowsta Products explicitly subjects you to these Universal Terms as well as the respective agreement and terms and conditions of each and every Nowsta Product you use, along with any applicable order form for that individual Nowsta Product (referred to herein, collectively, as the “Nowsta Product Agreement(s)”).
In addition to these Universal Terms, each individual Nowsta Product is subject to its own Agreement and Terms and Conditions which govern its use and the terms thereof. These Universal Terms are intended to apply to all Nowsta Products which you utilize, which you are contracted to utilize, or which you intend to utilize. Those individual Nowsta Product Agreements are specifically incorporated herein by reference, including their terms, conditions, and definitions, as they may be updated from time to time, as if they were fully set forth herein, and to the extent that you are party to an individual Nowsta Product Agreement for your use of the Product to which those terms apply. These Universal Terms are intended to apply to the use of each Nowsta Product, collectively and individually, and extend to all parties thereto, respectively, including but not limited to, those Parties identified across the Nowsta Product Agreements variously as “Nowsta”, “Nowsta Customer”, NowstaPay Client”, and/or “you”.
- WARRANTY AND DISCLAIMER
1.1. Disclaimer of Nowsta Warranties. Nowsta shall use reasonable efforts consistent with prevailing industry standards to maintain Services as defined in the respective Terms and Conditions of each Nowsta Product which you may use or in the future may use, as such respective Terms and Conditions describe those Services for that Nowsta Product, in a manner which minimizes errors and interruptions in the respective Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Nowsta or by third-party providers, or because of other causes beyond Nowsta’s reasonable control, but Nowsta shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, NOWSTA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND NOWSTA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. NOWSTA DOES NOT IN ANY WAY WARRANT OR OTHERWISE VERIFY THE ACCURACY OR VERACTIY OF ANY SUBMITTED USER DATA, AS IT IS DEFINED, NOR ANY WORKER DATA, AS IT IS DEFINED. NOWSTA DOES NOT IN ANY WAY WARRANT THE ACCURACY OR SUFFICIENCY OF ANY CALCULATED TAX WITHHOLDING FROM AN EARLY PAYMENT AMOUNT OR IN CALCULATING AN EMPLOYEE CAP WITHIN THE NOWSTAPAY PLATFORM’S USE. NOWSTA MAKES NO WARRANTIES WITH REGARD TO ANY ENGAGMENT OR THE ACTS OR OMMISSIONS OF ANY CONTRACTOR OR CONTRACTOR PROVIDED STAFF WITHIN THE USE OF THE LABOR MARKETPLACE PLATFORM.
1.2. Representations and Warranties. You represent and warrant that (i) you have neither falsely identified nor provided any false information to gain access to the Platform, the NowstaPay Platform, and/or the Labor Marketplace Platform, and that, for Registered Employers and NowstaPay Clients, your billing information is correct, and (ii) the Submitted Content you submit to the Platform and any content you submit to the NowstaPay Platform or to Nowsta through use of the NowstaPay Platform or the Labor Marketplace Platform, will not contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer-programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
1.3. User Disputes. You are solely responsible for your interaction with other Registered Users. Nowsta has no obligation to become involved in disputes between Registered Users. If you have a dispute with one or more Registered Users, you release Nowsta (and our officers, directors, agents, employees, subsidiaries, and affiliates) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
You are solely responsible for payments made to Registered Workers through the NowstaPay Platform. Nowsta has no obligation to become involved in disputes between NowstaPay Clients and theirWorkers, whether Registered Workers, Unregistered Workers, or Ineligible Workers. If you have a dispute with one or more Registered Workers, you release Nowsta (and our officers, directors, agents, employees, subsidiaries, and affiliates) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
You are solely responsible for the acts and omissions, and any contract or work disputes, between and among Nowsta Customer, Nowsta Customer employees or agents, Contractor(s), and/or Contractor Staff, through your use of the Labor Marketplace Platform.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOWSTA AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF ANY NOWSTA PRODUCT’S RESPECTIVE AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY MATTER BEYOND NOWSTA’S REASONABLE CONTROL; (C) FOR ANY ACT OR OMISSION OF A CONTRACTOR OR CONTRACTOR PROVIDED STAFF THROUGH YOUR USE OF THE LABOR MARKETPLACE PLATFORM; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES YOU PAID TO NOWSTA FOR THE SERVICES UNDER ANY NOWSTA PRODUCT’S RESPECTIVE TERMS AND CONDITIONS IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY AND ARISE FROM YOUR USE OF THAT RESPECTIVE NOWSTA PRODUCT; AND (II) NEITHER PARTY TO ANY AGREEMENT FOR A RESPECTIVE NOWSTA PRODUCT SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY UNDER THAT SAME AGREEMENT FOR THAT RESPECTIVE NOWSTA PRODUCT FOR LOST PROFITS, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY NOWSTA PRODUCT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREUNDER, EVEN IF THE PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL NOWSTA BE LIABLE FOR SUMS FORWARDED TO REGISTERED WORKERS, CORRECTLY OR INCORRECTLY, WHICH WERE BASED UPON WORKER DATA SUBMITTED OR CONFIRMED BY, FOR, OR ON BEHALF OF NOWSTAPAY CLIENT BY NOWSTAPAY CLIENT OR BY ITS DESIGNATED SHIFT MANAGERS WITHIN THE USE OF THE NOWSTAPAY PLATFORM.
You agree to defend, indemnify, and hold Nowsta and its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any liability to Registered Workers, Unregistered Workers through the Nowsta Platform and to any third parties, including reasonable attorneys’ fees, arising from or related to: (i) any actual or alleged misuse of any Nowsta Product by you and/or your Affiliates, agents or contractors; (ii) any actual or alleged infringement by you of any intellectual property rights or any claim that you violate any rights of publicity or privacy of any third party; (iii) any material violation or alleged material violation of any laws or regulations by you; (iv) any negligent or willful misconduct of you and/or your affiliates, agents or contractors; (v) any breach by you of any representation, warranty, covenant, or obligation in this Agreement or any individual Nowsta Product Agreement to which you are a party; (vi) any negligent or intentional act or omission committed by you and/or your affiliates, agents or contractors, in connection with the performance of this Agreement or any individual Nowsta Product Agreement, which act or omission gives rise to any claim for damages against you, Nowsta and/or its Nowsta’s parents, affiliates, employees or agents; (vii) your violation of applicable law; and your breach of this Agreement or any Agreement for use of a Nowsta Product, or in relation to any claim reasonably related to the Service(s) provided to you by Nowsta for any one or all of the Nowsta Products. This shall include, without limitation, any claims made by employees or staff of any Registered Employer as well as any claims made by and between any Registered User. This shall also include, without limitation, any claims made by employees or staff of any NowstaPay Client, as well as any claims made by any individual or entity claiming rights of garnishment over a Registered Workers Early Payment through the Services of the NowstaPay Platform.
Nowsta specifically denies any obligation to defend and/or indemnify you or your affiliates, agents or contractors from and against any third-party claims made against you or your affiliates, agents or contractors arising from any negligent or intentional act or omission committed by or in connection with the performance of any Nowsta Customer Engagement through your use of the Labor Marketplace Platform, as it may apply; or any claim made by a Contractor, Staff, customer of you, or any other third party made in connection with any Engagement through the Labor Marketplace Platform, including without limitation, any claims for injuries by a Contractor or Staff sustained during the course of an Engagement, or immediately preceding or following such Engagement, whether by intentional act, omission, or negligence.
You agree to indemnify, hold harmless and defend Nowsta from any and all claims arising out of or related to an Engagement through your use of the Labor Marketplace Platform, including but not limited to claims that Contractor or its Staff was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Contractor or its Staff was misclassified (including, but not limited to, wages, taxes, penalties, interest and attorney’s fees), any claim that Nowsta was an employer or joint employer of a Contractor or its Staff, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for unpaid wages, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits. Such indemnified claims shall include, but not be limited to, those which are attributable to personal injury, sickness, disease or death; and/or result from injury to or destruction of real or personal property including loss of use thereof, theft, misuse or misappropriation.
- COVID-19 FEATURE WARRANTY, DISCLAIMER, LIMITATION OF LIABILITY, AND INDEMNIFICATION
4.1. Disclaimer of Nowsta Warranties: COVID-19 Features. In addition to all disclaimers of warranties contained herein, Nowsta specifically states that NOWSTA DOES NOT WARRANT THAT THE RESPONSES PROVIDED BY ANY REGISTERED USER OR PROSPECTIVE/ACTUAL EMPLOYEE OR CONTRACTOR ANSWERING NOWSTA’S COVID-19 PRE-SHIFT SCREENING FEATURE, OR ANY RELATED FEATURE, THROUGH THE USE OF THE PLATFORM, ARE ACCURATE, NOR DOES NOWSTA WARRANT THAT SUCH RESPONSES ARE SUFFICIENT TO MAKE DETERMINATIONS RELATING TO COVID-19 PROCEDURES. FURTHER, NOWSTA DOES NOT WARRANT THAT THOSE RESPONSES PROVIDED BY ANY USER TO A REGISTERED EMPLOYER’S PRE-SHIFT COVID-19 QUESTIONNAIRE ADHERE TO ANY SPECIFIC LOCAL, STATE, OR FEDERAL STATUTE, RULE, REGULATION, PROCEDURE, POLICY, GUIDELINE, OR SIMILAR IMPLEMENTATION RELATIVE TO DETERMINATIONS OF LABOR, EMPLOYMENT, HEALTH, OR SAFETY OF REGISTERED EMPLOYER’S EMPLOYEES, CONTRACTORS, STAFF, CUSTOMERS, VENDORS, OR ANY OTHER INDIVIDUAL. NOWSTA MAKES NO REPRESENTATION TO THE REGISTERED EMPLOYER OR REGISTERED USER OF ANY LOCAL, STATE, OR FEDERAL STATUTE, RULE, REGULATION, PROCEDURE, POLICY, GUIDELINE, OR SIMILAR IMPLEMENTATION RELATIVE TO DETERMINATIONS OF LABOR, EMPLOYMENT, HEALTH, OR SAFETY
4.2. Representations and Warranties. You represent and warrant that you shall consult your local, state, and federal guidelines relative to COVID-19 statutes, rules, regulations, procedures, policies, and guidelines, whether in the context of employment decisions or health and safety matters. You further represent and warrant that any and all decisions made by you, whether related to labor, employment, health, safety, or otherwise, shall be made solely within your own discretion, and that the information provided to you by Nowsta from the COVID-19 pre-shift screening functions is used solely for the intended purposes of screening of employees for COVID-19, and any action on your part deriving therefrom rests solely with you. You further represent, warrant, and acknowledge that, other than the information supplied by Registered Users through the COVID-19 pre-shift screening functions, Nowsta has made not representations as to the veracity of the provided information, nor any representations on the sufficiency of such screening in the context of adherence by you to COVID-19 labor, employment, health, and safety requirements of your local, state, and federal authorities.
4.3. Limitation of Liability of Nowsta. In addition to all limitations of liability contained herein, and notwithstanding anything to the contrary, NOWSTA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, REPRESENTATIVES, CONTRACTORS, AGENTS, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER RELATING TO OR ARISING FROM THE USE OF NOWSTA’S PRE-SHIFT COVID-19 SCREENING FEATURE, OR ANY RELATED FEATURE OR YOUR ACTIONS RESULTING FROM THE RESPONSES PROVIDED THEREFROM, INCLUDING BUT NOT LIMITED ANY CLAIM, CAUSE OF ACTION, ALLEGATION, OR OTHERWISE RELATING TO THE SUFFICIENCY OF THE INFORMATION PROVIDED, THE VERACITY OF THE INFORMATION PROVIDED, THE ACTIONS AND DECISIONS MADE BY YOU FOLLOWING THE PROVISION OF THE INFORMATION, OR ANY RESULTING MATTERS, INCLUDING WITHOUT LIMITATION THOSE MATTERS WHICH CONCERN LABOR, EMPLOYMENT, HEALTH, SAFETY, OR OTHER LIABILITY ARISING FROM YOUR USE OF NOWSTA’S COVID-19 PRE-SHIFT SCREENING FEATURE OR ANY MATTER RELATING TO COVID-19, WHETHER SUCH CLAIMS, CAUSES OF ACTION ALLEGATIONS, OR OTHERWISE ARE AT LAW OR IN EQUITY, ALONG WITH ALL CLAIMS OF DAMAGES RELATING THERETO.
4.4. Indemnity. You agree to defend, indemnify, and hold Nowsta and its subsidiaries, affiliates, officers, directors, representatives, contractors, agents, and employees harmless from any third party, including but not limited to registered users, any individual providing responses through Nowsta’s Pre-Shift COVID-19 Screening Features, and any other third party, whether your employee, customer, or otherwise, including reasonable attorney’s fees, which may arise from your use of Nowsta’s Pre-Shift COVID-19 Screening Features, or any matter resulting therefrom or relating thereto, including without limitation, those matters relating to your failure to adhere to the terms of this agreement or to operate in accordance with local, state, and federal statutes, rules, regulations, procedures, policies, and guidelines relating to labor, employment, health, and safety.
5.1. Severability. If any provision of this Agreement or any individual Nowsta Product Agreement, is found to be unenforceable, illegal, or invalid, in any jurisdiction under any circumstances for any reason: (a) such provision will be reformed to the minimum extent necessary to cause such provision to be valid, enforceable and legal while preserving the intent of the Parties as expressed in, and the benefits to such Parties provided by, such provision; or (b) if such provision cannot be so reformed, such provision will be severed from this Agreement and an equitable adjustment will be made to this Agreement or applicable Nowsta Product Agreement (including addition of necessary further provisions to this Agreement or applicable Nowsta Product Agreement) so as to give effect to the intent as so expressed and the benefits so provided. Such holding will not affect or impair the validity, enforceability or legality of such provision in any other jurisdiction or under any other circumstances. Neither such holding nor such reformation or severance will affect or impair the legality, validity or enforceability of any other provision of this Agreement or applicable Nowsta Product Agreement.
5.2. Assignability. This Agreement and each and every individual Nowsta Product Agreement which may apply to you, are not assignable, transferable or sub-licensable by you except with Nowsta’s prior written consent. Nowsta may transfer and assign any of its rights and obligations under this Agreement or any individual Agreement for a Nowsta Product without consent.
5.3. Complete Agreement(s). This Agreement and each and every Nowsta Product Agreement to which you are a party, are collectively the complete and exclusive statement of the mutual understanding of the parties with respect to each and every individual Nowsta Product, and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement and the individual Nowsta Product agreements, and that all waivers must be in a writing signed by both parties, except as otherwise provided herein.
5.5. Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement or any individual Nowsta Product Agreement, and you do not have any authority of any kind to bind Nowsta in any respect whatsoever.
5.6. Notice. All notices under this Agreement and the individual Nowsta Product Agreements which apply to you will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
5.7. Cooperation and Further Assurances. You agree to reasonably cooperate with Nowsta to serve as a reference account upon request. Subject to the terms and conditions of this Agreement and each individual Nowsta Product Agreement which may apply to you, at any time and from time to time, each of the Parties thereto, at their own cost and expense, in good faith and in a timely manner, shall use its commercially reasonable efforts to take or cause to be taken all appropriate actions, do or cause to be done all things necessary, proper or advisable, and execute, deliver and acknowledge such documents and other papers as may be required to carry out the provisions of this Agreement and each individual Nowsta Product Agreement which may apply to you, and to give effect to the consummation of the transactions contemplated by this Agreement and each individual Nowsta Product Agreement which may apply to you.
5.8. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions that would result in the application of another law.
YOU AGREE THAT ANY PROCEEDING (IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY APPLICABLE NOWSTA PRODUCT AGREEMENT(S), ANY TRANSACTIONS CONTEMPLATED THEREBY, ANY RELATIONSHIPS BETWEEN THE PARTIES THEREUNDER AND ANY DISPUTES WITH RESPECT TO ANY OF THE FOREGOING OR REFERENCED, SHALL BE COMMENCED AND PROSECUTED EXCLUSIVELY IN A COURT IN THE STATE OF NEW YORK IN THE JUDICIAL DISTRICT WHERE NOWSTA HAS ITS PRINCIPAL PLACE OF BUSINESS. EACH PARTY CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF ANY COURT IN THE STATE OF NEW YORK IN THE JUDICIAL DISTRICT WHERE NOWSTA HAS ITS PRINCIPAL PLACE OF BUSINESS IN RESPECT OF ANY SUCH PROCEEDING. EACH PARTY CONSENTS TO SERVICE OF PROCESS UPON IT WITH RESPECT TO ANY SUCH PROCEEDING BY DELIVERY TO THE PARTY TO BE SERVED AT THE ADDRESS AND IN THE MANNER PROVIDED FOR THE GIVING OF NOTICES SET FORTH IN THE ORDER FORM FOR EACH RESPECTIVE NOWSTA PRODUCT AND/OR AS PROVIDED BY YOU IN YOUR REGISTRATION FOR USE OF THE PLATFORM, OR BY ANY OTHER MEANS OTHERWISE PERMITTED BY APPLICABLE LAWS AND RULES. EACH PARTY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH PROCEEDING IN ANY COURT IN THE STATE OF NEW YORK IN THE JUDICIAL DISTRICT WHERE NOWSTA HAS ITS PRINCIPAL PLACE OF BUSINESS AND ANY CLAIM THAT IT MAY NOW OR HEREAFTER HAVE THAT ANY SUCH PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
YOU AGREE THAT ANY PROCEEDING (IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY APPLICABLE NOWSTA PRODUCT AGREEMENT(S), ANY TRANSACTIONS CONTEMPLATED THEREBY, ANY RELATIONSHIPS BETWEEN THE PARTIES THEREUNDER AND ANY DISPUTES WITH RESPECT TO ANY OF THE FOREGOING OR REFERENCED WILL INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE YOU IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH PROCEEDING.
5.9. Injunctive Relief. You acknowledge that remedies at law may be inadequate to protect Nowsta against any breach of this Agreement or any respective Nowsta Product Agreement which may apply to you, and, without prejudice to any other rights and remedies otherwise available to Nowsta, you agree to the granting of injunctive relief in Nowsta’s favor, without any requirement to post a bond or other security or to prove actual damages, and without regard to the adequacy of any remedy at law.
5.10. Nondiscrimination. You and Nowsta each agrees that it shall not discriminate on the basis of race, color, religion, gender, sexual orientation, gender identity or expression, age, national origin, disability, veteran or military status, or any other protected category under applicable law. You and Nowsta each affirms that it is an equal opportunity and affirmative action employer and it will comply with all applicable federal, state, and local laws, rules, regulations, and orders governing employment, including the Fair Labor Standards Act; Executive Order 11246 and Amendment; the Vietnam Era Veterans Readjustment Act of 1975; the Civil Rights Act of 1964; the Equal Pay Act of 1963, the Age Discrimination in Employment Act; the Immigration Reform and Control Act of 1986; the Americans With Disabilities Act; the National Labor Relations Act; and the Immigration Control Act of 1990. You and Nowsta shall also comply with Executive Order 13201, as amended, which is also administered by the OFCCP and all relevant rules, regulations and orders pertaining thereto. The employee notice clause and all other provisions of 29 C.F.R., part 470, are hereby incorporated by reference.
5.11. Headings. The headings of this Agreement and each Nowsta Product Agreement are for convenience of reference only and are not part of the substance of this Agreement or any applicable Nowsta Product Agreement.
5.12. Counterparts. This Agreement and each applicable Nowsta Product Agreement may be signed in any number of counterparts, each of which (when executed and delivered) shall constitute an original instrument, but all of which together shall constitute one and the same instrument. This Agreement and each applicable Nowsta Product Agreement, shall become effective at such time as counterparts shall have been executed and delivered by both of the Parties, regardless of whether both of the Parties have executed the same counterpart. It shall not be necessary when making proof of this Agreement or any applicable Nowsta Product Agreement to account for any counterparts other than a sufficient number of counterparts which, when taken together, contain signatures of both of the Parties. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
5.13. Interpretation. This Agreement and each applicable Nowsta Product Agreement shall be deemed to have been drafted jointly by you and Nowsta, and shall not be specifically construed against either Party based on any claim that such Party or its counsel drafted this Agreement or any applicable Nowsta Product Agreement. Unless otherwise expressly specified in this Agreement or in any applicable Nowsta Product Agreement:
- the words “include”, “includes” and “including”, and correlative words, shall be deemed to be followed by the words “without limitation”;
- any terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa;
- the words “hereof”, “hereby”, “herein” and “hereunder”, and correlative words, refer to this Agreement and any applicable Nowsta Product Agreement to which you are a party as a whole and not any particular provision;
- the word “or” is not exclusive and is deemed to have the meaning “and/or”;
- references to a person shall mean a person or entity, and shall include the successors and assigns thereof; and
- all references to payments in this Agreement and any applicable Nowsta Product Agreement shall be payments in U.S. dollars.