Effective Date: September 14, 2020
This Terms of Service (this “Agreement”) is a contract between you (“you” or “User”) and Developers in Nordic AB (“Otivr”, “we,” or “us”). You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our websites (the “Site”), including mobile websites and applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates, all services, applications and products that are accessible through the Site and all Otivr mobile applications that link to or reference this Agreement (“Site Services”) whether provided by us or our Affiliates.
Subject to the conditions set forth herein, Otivr may, in its sole discretion, amend this Agreement at any time by posting a revised version on the Site without notice to the User. However, Otivr may, in its sole discretion, provide reasonable advance notice of any amendment that includes a Substantial Change. Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each, as applicable, the “Effective Date”).
Your continued use of the Site or the Site Services after the Effective Date of a revised version of this Agreement constitutes your acceptance of and agreement to be bound by the Terms of Service as revised. In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control unless the other Agreement explicitly states that it controls. Capitalized terms are defined throughout this Agreement and in Section 1 (Definitions).
You understand that by using the Site or Site Services after the Effective Date, you agree to be bound by the terms of service. If you do not accept the terms of service in its entirety, you must not access or use the Site or the Site Services after the effective date. If you agree to the terms of service on behalf of an entity, or in connection with providing or receiving services on behalf of an entity or agency, you represent and warrant that you have the authority to bind that entity or agency to the terms of service. In that event, ”You” and ”Your” will refer to and apply to that entity or agency.
Otivr may without notice, change or add information described on the Site. Otivr is not liable to you or anyone else if any error occurs in the information on the Site or if that information is not current.
1 DEFINITIONS
“Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Otivr.
“Client” means any authorized User utilizing the Site to seek and/or obtain Seller Services from a Service Provider. From time to time, Otivr may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to Otivr when Otivr acts in this way.
“Client Deliverables” means requests, intellectual property, and any other information or materials that a Seller or Service Provider receives from a Client to perform Seller Services.
“Confidential Information” means Client Deliverables, Seller Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract or to perform or assist in performing Seller Services, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Seller, Service Provider or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Engagement” means an engagement for Seller Services that a Service Provider provides to a Client under a Service Contract on the Site.
“Fixed-Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Seller, prior to the commencement of a Service Contract, for the completion of all Seller Services contracted by Client for such Service Contract.
“Hourly Contract” means a Service Contract for which Client is charged based on the hourly rate set by the Seller.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to Otivr, a bank account linked to your Account, a debit card, or such other method of payment as Otivr may accept from time to time in our sole discretion.
“Seller” means Otivr.
“Seller Deliverables” means requests, intellectual property, and any other information or materials that a Client receives from a Seller or Service Provider for a particular Service Contract.
“Seller Fees” means: (a) for an Hourly Contract, an amount equal to the number of work hours, agreed under a particular Service Contract, multiplied by the hourly rate set by the Seller; and (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Seller.
“Seller Services” means all services sold by Seller to Clients and performed for or delivered by Service Providers.
“Service Provider” means any authorized User utilizing the Site to advertise and provide Seller Services to Clients.
“Service Provider Fees” means the fee agreed between Otivr and a Service Provider: (a) for an Hourly Contract, an amount equal to the number of work hours, delivered under a particular Service Contract, and reported in a Time report, multiplied by the hourly rate agreed in the Service Contract; and (b) for a Fixed-Price Contract, the fixed fee agreed between Otivr and a Service Provider.
“Service Contract” means, as applicable, the contractual provisions between a Client and a Seller, and between a Seller and a Service Provider, governing the Seller Services to be performed by a Service Provider for a Client for an Engagement and the additional agreements referenced in Section 6.1 (Service Contracts).
“Site” means all website domains where Otivr is a proprietary and a sole owner, including Otivr.com, Otivr.ae, Otivr.at, Otivr.be, Otivr.ch, Otivr.co.uk, Otivr.de, Otivr.dk, Otivr.es, Otivr.eu, Otivr.fi, Otivr.fr, Otiver.in, Otivr.in, Otivr.it, Otivr.mx, Otivr.net, Otivr.nl, Otivr.org, Otivr.pl, Otivr.pt, Otiver.se, Otivr.se and Otivr.uk.
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Time report” means a report of worked hours, reported by the Service Provider, for an Hourly Contract according to Otivr routines. The time reports form the basis for invoicing and payment from Otivr to the Service Provider.
“User Content” means any data, feedback, content, text, photographs, images, video, music, or other information that you post to any part of the Site or provide to Otivr.
“Work Product” means any tangible or intangible results or deliverables that Seller agrees to create for, or actually delivers to, Client as a result of performing the Seller Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.
2 DIGITAL SIGNATURE
By registering for an Otivr account on the Site (an “Account”), or by clicking to accept the Terms of Service when prompted on the Site, you are deemed to have executed this Agreement electronically, effective on the date you register your Account or click to accept the Terms of Service. Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement and any amendments.
3 CONSENT TO USE ELECTRONIC RECORDS
In connection with the Terms of Service, you may be entitled to receive certain records from Otivr or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.
3.1 YOUR CONSENT AND YOUR RIGHT TO WITHDRAW CONSENT
By registering for an Account, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via third-party mail services using the address under which your account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting Customer Support. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
3.2 KEEPING YOUR ADDRESS AND EMAIL ADDRESS CURRENT WITH US
In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting Customer Support. In addition, so that we may communicate with you via third-party mail services, you agree to notify us immediately of any change in your address.
3.3 HARDWARE AND SOFTWARE YOU WILL NEED TO USE THE SITE SERVICES FOR YOUR BUSINESS
To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current Version”, we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of all of the records and notices we send to you electronically.
By accepting and agreeing to this Agreement electronically, you represent that (x) you have read and understand the above consent to receive records and notices electronically; (y) you satisfy the minimum hardware and software requirements specified above; and (z) your consent will remain in effect until you withdraw your consent as specified above.
4 OTIVR ACCOUNTS
4.1 ACCOUNT ELIGIBILITY
To use the Site and certain Site Services, you must register for an Account. Otivr offers the Site and Site Services for your business purposes only, and not for personal, household, or consumer use. To use the Site and Site Services, you must have, and hereby represent that you have, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity) and further represent that you intend to use the Site and Site Services for your business purposes only. You understand that you must comply with any licensing or registration requirements with respect to your business, and you represent that you comply with all such requirements. To register for an Account, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older who can form legally binding contracts. By registering for an Account, by using the Site or Site Services after the Effective Date if you had an account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to: (a) abide by this Agreement; (b) be financially responsible for your use of the Site and the purchase or delivery of Seller Services; and (c) perform your obligations as specified by any Service Contract that you enter into, unless such obligations are prohibited by applicable law or the Terms of Service. Otivr reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or for any other reason or no reason in Otivr’s sole discretion.
4.2 ACCOUNT REGISTRATION; PROFILE
By registering for an account, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, where applicable, the public. If you are a Seller you represent and warrant that you use your Profile to market your business to others for the purpose of entering into independent contractor relationships with other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide and to correct any information about your location, your business, your skills, or the services your business provides that is or becomes false or misleading. You agree not to register for more than one Client Account and one Seller Account without express written permission from us. You agree not to ask or allow another person to create an Account on your behalf, for your use, or for your benefit.
4.3 IDENTITY VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your ability to represent your business on Otivr, if it is a separate legal entity. You authorize Otivr, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business, and all information required by any money laundering/know your customer or equivalent obligations.
4.4 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your Account password. You authorize Otivr to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password or the password of any User of your Account. You further agree not to use any username, or password of another User of the Site that you are not authorized to use, and not to allow others who are not authorized to do so to use your Account at any time.
4.5 FEEDBACK
You acknowledge and agree that feedback benefits the Site, all Users, and the efficiency of the Site and you specifically request that Otivr post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. You further acknowledge and agree that Otivr will make feedback results available to other Site Users, including composite or compiled feedback. Otivr provides this feedback system as a means through which Users can share their opinions publicly and Otivr does not monitor or censor these opinions. You acknowledge and agree that posted composite or compiled feedback relate only to the business advertised in the Seller Profile and not to any individual person.
Otivr does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Otivr do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if such remarks are legally actionable or defamatory. Otivr is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Otivr reserves the right (but is under no obligation) to remove posted feedback or information that, in Otivr’s sole judgment, violates the Terms of Service or negatively affects our Site. You acknowledge and agree that you will notify Otivr of any error or inaccurate statement in your feedback results, including the JSS, and that if you do not do so, Otivr may rely on the accuracy of such information.
4.6 MARKETING
You acknowledge and agree that Otivr is entitled to announce and present the cooperation with the Client or Service Provider for marketing purposes, e.g. using the brand name and logo.
5 PURPOSE OF THE SITE AND SITE SERVICES
The purpose of the Site is to enable Clients, Service Providers and Sellers to advertise, buy, and sell Seller Services online. Subject to the Terms of Service, Otivr provides the Site Services to Users, including hosting and maintaining the Site, enabling the formation of Service Contracts, and coordinating disputes related to those Service Contracts. If Users agree on terms for Seller Services, a Service Contract is formed between Client and Seller, and between Seller and Service Provider, subject to the provisions set forth in Section 6 (Contractual Relationship). When a User enters a Service Contract, the User uses the Site to engage, communicate, invoice and pay online.
5.1 ESCROW
Otivr provides escrow services to Users to deliver, hold, or receive payment for an Engagement, and to pay service, transaction and payment processing fees to Otivr (“Escrow Services”). The Escrow Services are intended for business use, so you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes.
You hereby authorize and instruct Otivr to act as escrow agent in connection with the payment, holding, and receipt of funds for each Engagement and other specified purposes (the “Escrow”) in accordance with the Terms of Service.
6 CONTRACTUAL RELATIONSHIP
6.1 SERVICE CONTRACTS
You acknowledge and agree that a Service Contract is comprised of the following agreements (as applicable): (a) the Engagement terms awarded and accepted on the Site to the extent that the terms do not, and do not purport to, expand Otivr’s obligations or restrict Otivr’s rights under the Terms of Service; (b) the terms in Section 9 (Service Contract Terms), unless other terms are agreed to by the parties, to the extent that the provisions do not, and do not purport to, expand Otivr’s obligations or restrict Otivr’s rights under the Terms of Service; and (c) any other contractual provisions accepted by Users, to the extent that the provisions do not, and do not purport to, expand Otivr’s obligations or restrict Otivr’s rights under the Terms of Service.
You acknowledge and agree that the formation of a Service Contract between Users or between Seller and Service Provider will not, under any circumstance, create an employment between Otivr and any Service Provider.
7 PAYMENT TERMS
The Seller Fees shall be paid by the Client to the Seller as stipulated by the conditions of the Service Contract. Unless otherwise agreed in writing by Otivr, the Client is not allowed to make any payments for the Seller Services directly to the Service Providers.
7.1 PAYMENT OF SELLER FEE AND SERVICE PROVIDER FEE
Users authorize Otivr to act as escrow agent to facilitate: (a) the transfer of payment of Seller Fee from Client to Seller; and (b) the transfer of payment of Service Provider Fee from Seller to Service Provider in accordance with these Terms of Service and the transaction details applicable to such payment. Client authorizes Otivr and its authorized agents to collect payment into escrow in accordance with Client’s elected payment method and instructions. Service Provider authorizes Otivr and its authorized agents to initiate the transfer of Client’s payment upon release from escrow to an account designated by Seller or Service Provider for the full Transaction price less applicable fees or partial payment less applicable fees. Otivr will release the payment from escrow and disburse the transaction payment to Seller or Service Provider according to the agreed instructions in a Service Contract and only after Otivr deem the obligations in the Service Contract to be fulfilled. After the transaction payment has been made to Seller or Service Provider and fees have been paid to Otivr, the transaction is deemed fulfilled and will be closed.
7.2 NON-PAYMENT
If Client fails to pay the Seller Fees or any other amounts due under the Terms of Service, whether by canceling Client’s credit or debit card, initiating an improper chargeback, or any other means, Otivr may suspend or close Client’s Account and revoke Client’s access to the Site, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Seller Services. Without limiting other available remedies, Client must pay Otivr upon demand for amounts owed under the Terms of Service, plus interest on the outstanding amount at the lesser of eight percent (8%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, Otivr, at our discretion, may set off amounts due against other amounts received from or held by Otivr for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
Payment from Otivr to the Service Provider shall after receipt of billing documents be made within ten (10) business days from payment being obtained from the Client pertaining to the Service Provider’s work. The Service Provider is only entitled to payment to the extent that Otivr has received payment from the Client.
In the event that the Service Provider does not receive payment for completed work due to Otivr not having received payment from the Client, Otivr shall, at the Service Provider’s request, undertake the measures necessary to collect accounts receivable vis-à-vis the Client pertaining to the Service Provider’s work.
7.3 NO RETURN OF FUNDS
Client acknowledges and agrees that Otivr will charge Client’s designated Payment Method for the Seller Fees upon Client’s acceptance and approval of the Seller Services. Therefore, and in consideration of the Site Services provided by Otivr and the Escrow Services provided by Otivr, Client agrees that once Otivr charges the Client’s designated Payment Method for the Seller Fees as provided in this Agreement or the other Terms of Service, the charge is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Seller Fees or other Fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that Otivr may dispute or appeal the chargeback and institute collection action against Client.
7.4 FORMAL INVOICES AND TAXES
Otivr will have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to the Service Provider Fees. Service Provider will be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Service Provider Fees and for issuing any invoices so required. Service Provider will also be solely responsible for determining whether: (a) Service Provider or Otivr is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Service Provider Fees and remitting any such taxes or charges to the appropriate authorities on behalf of itself or Otivr, as appropriate; and (b) Otivr is required by applicable law to withhold any amount of the Service Provider Fees and for notifying Otivr of any such requirement and indemnifying Otivr (either by Otivr, at our sole discretion, offsetting the relevant amount against a future payment of Service Provider Fees to Service Provider or Service Provider reimbursing Otivr for the applicable amount) for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Otivr, Service Provider agrees to promptly cooperate with Otivr and provide copies of Service Provider’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Service Provider is engaging in an independent business as represented to Otivr.
7.5 PAYMENT METHODS
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes Otivr to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment for Services, and to charge Client’s credit card (or any other Payment Method).
By providing Payment Method information through the Site, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
7.6 CURRENCY CONVERSION
The Site and the Site Services operate in U.S. Dollars or Euro. If the Client’s Payment Method is denominated in a currency other than U.S. Dollars or Euro and requires currency conversion in order to make payments, the Site may display foreign currency conversion rates that Otivr or other Affiliates currently make available to convert supported currencies to U.S. Dollars or Euro. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Client, at its sole discretion and risk, may authorize the charge of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars or Euro, at the foreign currency conversion rates available on the Site. If foreign currency conversion is required to make a payment in U.S. Dollars or Euro and either Otivr or another Affiliate does not support the foreign currency or Client does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Site or an Affiliate will charge Client’s Payment Method in U.S. Dollars or Euro and Client’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by Client’s Payment Method provider. Client’s Payment method provider may also charge fees directly to the Payment Method used to fund a cross-border payment even when no currency conversion is involved. Client’s authorization of a payment using a foreign currency conversion rate displayed on the Site is at Client’s sole risk. Otivr and other Affiliates are not responsible for currency fluctuations that occur when billing or crediting and other Affiliates are not responsible for currency fluctuations that occur when receiving or sending payments via wire transfer, check or automated clearinghouse to and from the Escrow Account.
8 NON-CIRCUMVENTION
You acknowledge and agree that the compensation Otivr receives for making the Site available to you is collected through the Seller Fee. Otivr only receives this Seller Fee when a Client and a Service Provider pay and receive payment through the Site. Therefore, for 24 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you must use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “Otivr Relationship”). You may opt-out of this obligation with respect to each Client-Seller relationship only if Client or prospective Client or Service Provider pays Otivr for each such relationship:
(a) an “Opt-Out Fee” computed to be the greater of the following amounts:
(i) EUR 25,000; or
(ii) 20% of the cost to the Client of the services to be performed in the Otivr Relationship during the Non-Circumvention Period, as estimated in good faith by the prospective Client; or
(iii) all Seller Fees that would be earned by Otivr from the Otivr Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Seller from Client during the most recent normalized 8-week period, or during such shorter period as data is available to Otivr; and
(b) interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, calculated from the date Client first makes payment to the subject Service Provider until the date the Opt-Out Fee is paid.
To pay the Opt-Out Fee, you must request instructions by sending an email message to escrow@otivr.com.
Except if you pay the Opt-Out Fee, you agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:
(i) Submit proposals or solicit parties identified through the Site to contact, hire, work with, or pay outside the Site,
(ii) Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site,
(iii) Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
You agree to notify Otivr immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Otivr by sending an email message to: escrow@otivr.com.
If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported on the Site, and therefore choose to cease using the Site, you may pay the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
9 SERVICE CONTRACT TERMS
Unless otherwise expressly agreed to in writing by Client, Service Provider and Seller, the default terms and conditions of the Service Contract that a Seller enters directly with a Client when the Seller agrees to provide Seller Services to the Client are as set forth in this Section 9. Users may agree between them on any additional or different terms for their Service Contract as long as such terms do not and do not purport to affect the rights or responsibilities of Otivr or violate the Terms of Service.
Users agree that the terms concerning the Service Contract described on the Site, including Seller and Service Provider Fees, rates, hours, and milestones, form part of the Service Contract. Users agree to obtain the consent of the other before making changes to the Service Contract by adding additional or different milestones or making other changes to the Service Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Service Contract (see Section 9.5) or accept such changes by continuing to work on the Service Contract.
9.1 SERVICES
Service Providers will perform the Seller Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Seller Services will be determined and controlled solely by Seller, which is engaged by Client as an independent contractor.
9.2 RESPONSIBILITY FOR EMPLOYEES AND SUBCONTRACTORS
To ensure accurate billing, work billed for Hourly Contracts under a Service Provider’s Account must be performed by the Service Provider that has the Account.
If a User subcontracts with or employs third parties to perform Seller Services on behalf of the User for any Engagement, the User represents and warrants that it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations. As used in this Agreement, the term “Delegee” refers to any employee, independent contractor, or agent of a User that the User engages to perform any work on its behalf under a Service Contract. Regardless of whether a User has Delegees, the User remains responsible for all services performed under the User’s Service Contracts, including ensuring that the services comply with the Terms of Service (including confidentiality and intellectual property obligations).
Service Provider, Agency, Delegee, and Client acknowledge and agree that Delegees are not employees, independent contractors or agents of Otivr or Client. Agency, Delegee and Service Provider represent, warrant, and covenant that: (a) Agency and, if applicable, each other User is solely responsible for all payments, obligations, wages, costs, unemployment insurance, workers’ compensation insurance, contributions, and expenses of Delegees; (b) neither Otivr nor Client has the right or power to supervise or control Delegees; and (c) no Delegees of any Agency or other User will have any claim under this Agreement or the other Terms of Service for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, contributions, or any other employee benefits of any kind from Otivr or Client.
With respect to Delegees, Otivr merely provides the platform for Service Provider to communicate and share information with Clients and, if they are Users, with Delegees. Agency, Delegee and Service Provider understand and agree that the contract terms, pay rate, work hours, service dates and working conditions will be established by the Agency, Service Provider and/or Client and not by Otivr. Agency, Delegee and Service Provider acknowledge and agree that Delegees are not employees or independent contractors of Otivr, and further acknowledge and agree that they will not be providing any services to Otivr (directly or indirectly) while employed or engaged by the Agency or another User.
Agency, Delegee and Service Provider acknowledge and agree that Otivr does not, in any way, supervise, direct, or control Delegees; Otivr does not set Delegees’ contract terms (including determining whether the contract will be set at an hourly or fixed fee), fees, rates, work hours, work schedules, or location of work; Otivr will not provide Delegees with training or any equipment, labor, or materials needed for a particular Service Contract; and Otivr does not provide the premises at which the Delegees will perform the work.
9.3 CLIENT PAYMENTS AND BILLING
Client becomes obligated for Seller Fees immediately upon accepting a Contract offer or upon activating any additional milestone.
9.4 DISPUTE RESOLUTION
With respect to disputes arising between Clients and Sellers, and where applicable between Sellers and Service Providers, you agree to any dispute, controversy or claim arising out of or in connection with the Service Contract, or the breach, termination or invalidity thereof, is to be settled by Stockholm District Court.
9.5 TERMINATION OF A SERVICE CONTRACT
Once a Client’s Payment Method has been charged to fund the escrow account for the Engagement, absent a full refund to Client by Seller, the Service Contract does not terminate until the Seller Services are completed. However, either Client or Seller, and where applicable Service Provider, has the right to terminate a Service Contract at any time with the consent of the other party or in the event of a material breach. If a Service Contract is terminated, Client does not have the right to recover any payments already released to Seller from the escrow account for the Engagement.
9.6 INTELLECTUAL PROPERTY RIGHTS
CERTAIN DEFINED TERMS
The following capitalized terms have the following meanings:
“Background Technology” means all Inventions developed by Service Provider other than in the course of providing Seller Services to Client under the Service Contract and all Inventions that Service Provider incorporates into Work Product.
“Client Materials” means requests, intellectual property, and any other information or materials that Client provides to Seller or Service Provider for Service Provider to perform Seller Services.
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.
BACKGROUND TECHNOLOGY
Service Provider will disclose in the Engagement Terms any Background Technology which Service Provider proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Service Provider discloses no Background Technology, Service Provider warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Service Provider will separately provide, with each delivery of Work Product to Client, a third-party bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Service Provider, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Engagement Terms, Service Provider agrees that it will not incorporate into Work Product or otherwise deliver to Client any software code for which the use or distribution of the code will create (or purport to create) obligations for Client to grant any rights or immunities under Client intellectual property to a third-party, including without limitation any obligation that the Work Product or Client software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.
LICENSE TO BACKGROUND TECHNOLOGY
Upon Service Provider’s receipt of full payment from Client for delivery of Work Product, Service Provider hereby automatically grants to Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated or used in Work Product delivered for that payment. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
CLIENT MATERIALS
Client grants Seller and Service Provider a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Materials as necessary solely for the performance of the Seller Services under the applicable Service Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Service Contract, or upon Client’s written request, Service Provider will immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables (except for Background Technology as permitted by the Service Contract) contained in or on Service Provider’s premises, systems, or any other equipment or location otherwise under Service Provider’s control. Within ten days of such request from Client, Service Provider agrees to provide written certification to Client that Service Provider has returned or destroyed all Client Materials and Work Product as provided in this subsection.
OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY
Upon Service Provider’s receipt of full payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Service Provider has any Intellectual Property Rights to the Work Product that are not owned by Client upon Service Provider’s receipt of payment from Client, Service Provider hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Service Provider retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual Property Rights. Service Provider hereby, to the extent permitted under applicable law, waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered.
LICENSE TO OR WAIVER OF OTHER RIGHTS
If Service Provider has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Client by Service Provider, Service Provider hereby automatically, upon Service Provider’s receipt of full payment from Client, unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Service Provider, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Service Provider has any rights to such Work Product that cannot be assigned or licensed, Service Provider hereby automatically, upon Service Provider’s receipt of payment from Client, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or related to Client’s customers, with respect to such rights, and will, at Client’s request and expense, consent to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
ASSISTANCE
Service Provider will assist Client in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Contract, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Client is unable, after reasonable effort, to secure Service Provider’s signature on any document needed in connection with the foregoing, Service Provider hereby designates and appoints Client and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Service Provider.
9.7 WORKER CLASSIFICATION
Client is responsible and assumes all liability for determining whether Service Provider are independent contractors or employees and engaging them accordingly; Otivr disclaims any liability for such determination or the related Engagement. The Terms of Service do not create a partnership or agency relationship between Users. Service Provider does not have authority to enter into written or oral (whether implied or express) contracts on behalf of Otivr. For Service Contracts classified as independent contractor relationships, Client may not require an exclusive relationship. A Service Provider classified as an independent contractor is free at all times to provide Seller Services to persons or businesses other than Client, including any competitor of Client.
10 RECORDS OF COMPLIANCE
Users will each (1) create and maintain records to document satisfaction of their respective obligations under this Agreement; any Service Contract, including, without limitation, their respective payment obligations and compliance with tax and employment laws; and (2) provide copies of such records to Otivr upon request. Nothing in this subsection requires or will be construed as requiring Otivr to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Service Contract.
11 RELATIONSHIP WITH OTIVR
Otivr does not, in any way, supervise, direct, or control Service Provider or Service Provider’s work. Otivr does not set Service Provider’s work hours, work schedules, or location of work for a Service Contract. Otivr will not provide Service Provider with training or any equipment, labor, or materials needed for a particular Service Contract. Otivr does not provide the premises at which the Service Provider will perform the work. Otivr makes no representations about, and does not guarantee the quality, safety, or legality of, the Seller Services; the truth or accuracy of Service Provider’s listings on the Site; the qualifications, background, or identities of Users; the ability of Service Providers to deliver the Seller Services; the ability of Clients to pay for the Seller Services; or that a Client or Service Provider can or will actually complete a transaction.
Otivr does not deduct any amount for withholding, unemployment, social contributions or other taxes for Client or Service Provider, each of which is solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority in any nation with respect to Service Provider’s performance, and Client’s acceptance, of Seller Services.
Otivr is not required to and may not verify any feedback or information given to us by Service Providers or Clients, nor does Otivr perform background checks on Service Providers or Clients.
You hereby acknowledge and agree that Otivr may provide information on the Site about a Service Provider or Client, such as feedback, composite feedback, including a strength or risk score, geographical location, or verification of identity or credentials. However, such information is based solely on data that Service Providers or Clients voluntarily submit to Otivr and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Otivr; Otivr provides such information solely for the convenience of Users.
12 THIRD-PARTY BENEFICIARY
Users appoint Otivr as a third-party beneficiary of their Service Contracts, where applicable, for purposes of enforcing any obligations owed to, and any benefits conferred on, Otivr hereunder. For example, Section 6.1(a) and Section 6.1(b) of this Agreement prohibit certain terms in any Service Contract and Otivr is hereby made a third-party beneficiary for purposes of enforcing such prohibitions. Users further agree that Otivr has the right to take such actions with respect to their Accounts, including, without limitation, suspension, termination, or legal actions, as we, in our sole discretion, deem necessary to enforce our rights as a third-party beneficiary under the Service Contracts.
The Terms of Service and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between Users and Otivr, except and solely to the extent expressly stated in this Agreement.
13 COMMUNICATIONS FROM YOU TO OTIVR
All notices to Otivr or our Affiliates intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: Developers in Nordic AB, Sankt Eriksgatan 85A, 113 32 Stockholm, Sweden; or (c) in writing via email to support@Otivr.com. All such notices are deemed effective upon receipt by Otivr. Otivr does not accept service of any legal process by email or mail; all such service should occur by hand delivery on Otivr or its registered agent for service of process.
14 OTIVR’S ROLE
14.1 SERVICE CONTRACTS
You expressly acknowledge, agree, and understand that: (a) the Site is merely a venue where Users may act as Clients and/or Service Providers; (b) you are not an employee of Otivr, and Otivr does not, in any way, supervise, direct, or control the Service Providers or Seller Services; (c) Otivr has no control over Service Providers or the Seller Services offered or rendered by Service Providers; and (d) Otivr makes no representations as to the reliability, capability, or qualifications of any Service Provider or the quality, security, or legality of any Seller Services, and Otivr disclaims any and all liability relating thereto.
15 LICENSES AND THIRD-PARTY CONTENT
15.1 SITE LICENSE AND INTELLECTUAL PROPERTY RIGHTS
Subject to and conditioned on compliance with the Terms of Service, Otivr grants you a limited license to access and, if you have created an Account, to use the Site for the purpose of using the Site Services. You must not access (or attempt to access) the Site or Site Services by any means other than the interface provided, and you will not use information from the Site or Site Services for any purposes other than the purposes for which it was made available. You agree not to use the Site or Site Services for offering any goods or services other than Seller Services as permitted by this Agreement. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Site Services in any way for any public or commercial purpose without Otivr’s prior written consent. You must not use any content of the Site or Site Services on any other website or in a networked computer environment for any purpose except your own viewing without Otivr’s prior written consent. You must not frame or link to the Site or Site Services except as permitted in writing by Otivr. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law. You will not access Site Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Site Services. Otivr and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The Otivr logos and names are trademarks of Otivr and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in the Terms of Service confers any license under any of Otivr’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
15.2 USER CONTENT LICENSE
When you post User Content on the Site or through the Site Services or provide Otivr with User Content, you represent and warrant that you have the right, power, and authority to post that User Content and grant the licenses specified below. You further represent and warrant that by posting or providing such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that Otivr may exercise the rights to your User Content granted under the Terms of Service without any liability or obligation for any payment.
You retain all ownership rights in any User Content you post on Otivr. To the extent permitted by applicable law, you also grant to Otivr and our successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Site and Otivr’s (and our successors’ and Affiliates’) business, including, without limitation, for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User a non-exclusive license to access your User Content through the Site and to use, reproduce, distribute, display, and perform such User Content to the extent permitted through the normal functionality of the Site and subject to all applicable confidentiality and other provisions of this Agreement, our Privacy Policy, and applicable law.
Notwithstanding the foregoing paragraph, Otivr will only use or disclose User Content you post to any non-public area of the Site to the extent necessary to provide Site Services to you as further described in our Privacy Policy.
The licenses to User Content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your User Content from the Site, except that you grant Otivr and our successors and Affiliates the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
You may submit comments or ideas about the Site and Site Services, including without limitation about how to improve the Site or Site Services (collectively, “Ideas”). By submitting any Ideas, you agree that: (a) your disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place Otivr under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties, and (c) we are free to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission, Otivr does not waive any rights to use similar or related ideas known or developed by Otivr or obtained from sources other than you.
15.3 UNAUTHORIZED ACCESS AND USE; SITE INTERFERENCE; MALICIOUS SOFTWARE
You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual content available on the Site for any purpose or in any manner other than streaming. You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of Otivr and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of Otivr or any third party.
15.4 THIRD-PARTY VERIFICATION
The Site makes available various services provided by third parties to verify a User’s credentials and provide other information. Any information or content expressed or made available by these third parties or any other Users is that of the respective author(s) or distributor(s) and not of Otivr. Otivr neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than Otivr’s authorized employees acting in their official capacities.
15.5 LINKS AND APPLICATIONS
The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their licensors. Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and agree that Otivr is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. You are responsible for deciding if you want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
15.6 MOBILE AND OTHER DEVICES
When using our mobile applications, please be aware that your carrier’s normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications may not contain the same functionality available on the Site.
15.7 SITE UPDATES
We may from time to time in our sole discretion develop and provide Site Services updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You will promptly download and install all Updates and acknowledge and agree that Site Services or portions thereof may not work properly should you fail to do so. You further agree that all Updates will be subject to the terms of the Terms of Service, unless otherwise provided in terms associated with such Update. Otivr reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without notice. You agree Otivr will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.
16 CONFIDENTIAL INFORMATION
16.1 CONFIDENTIALITY
To the extent a Client or Service Providers provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Seller Services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Service Provider); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Seller Services.
16.2 RETURN
If and when Confidential Information is no longer needed for the performance of the Seller Services for a Services Contract or at Client’s or Service Provider’s written request (which may be made at any time at Client’s or Service Provider’s sole discretion), the party that received Confidential Information, will, at its expense, promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party’s written request for such certification.
16.3 PUBLICATION
Without limiting Section 16.1 (Confidentiality), Client, Service Provider, and Otivr will not publish, or cause to be published, any other party’s Confidential Information or Work Product, except as may be necessary for performance of Seller Services for a Services Contract.
17 WARRANTY DISCLAIMER
You agree not to rely on the Site, the Site Services, any information on the Site or the continuation of the Site. The Site and the Site Services are provided ”as is” and on an ”as available” basis. Otivr makes no express representations or warranties with regard to the Site, the Site Services, Work Product, or any activities or items related to this Agreement or the terms of service. To the maximum extent permitted by applicable law, Otivr disclaims all express and implied conditions, representations and warranties including, but not limited to, the warranties of merchantability, accuracy, fitness for a particular purpose, title and non-infringement. Some jurisdictions may not allow for all of the foregoing limitations on warranties, so to that extent some or all of the above limitations may not apply to you. Section 21 (term and termination) states user’s sole and exclusive remedy against Otivr with respect to any defects, non-conformances, or dissatisfaction.
18 LIMITATION OF LIABILITY
Otivr is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
– your use of or your inability to use our Site or Site Service;
– delays or disruptions in our Site or Site Services;
– viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
– glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
– damage to your hardware device from the use of the Site or Site Services;
– the content, actions, or inactions of third parties’ use of the Site or Site Services;
– a suspension or other action taken with respect to your account;
– your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
– your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Claims of compensation cannot be held if claim have not been raised within one (1) month from the day the User became aware or should have been aware of the circumstances the claim is based upon. The User cannot make any other claims towards Otivr than what’s stated in these terms.
Additionally, in no event will Otivr, our Affiliates, our licensors, or our third-party service providers be liable for any special, consequential, incidental, punitive, exemplary, or indirect costs or damages, including but not limited to, litigation costs, installation and removal costs, or loss of data, production, profit, or business opportunities. The liability of Otivr, our Affiliates, our licensors, and our third-party service providers to any user for any claim arising out of or in connection with this Agreement or the other terms of service will not exceed the lesser of: (a) USD 2,500; or (b) any fees retained by Otivr with respect to Service Contracts on which User was involved as Client or Service Provider during the six (6) months period preceding the date of the claim. These limitations will apply to any liability arising from any cause of action whatsoever arising out of or in connection with this Agreement or the other terms of service, whether in contract, strict liability, or otherwise, even if advised of the possibility of such costs or their essential purpose. Some jurisdictions do not allow for all of the foregoing exclusions and limitations, so to that extent, some or all of these limitations and exclusions may not apply to you.
The Otivr liability to pay damages is under all circumstances limited to the cover of the applicable indemnity insurance, but no more than an amount corresponding to three (3) Swedish base amounts.
19 RELEASE
In addition to the recognition that Otivr is not a party to any Hourly Contract between Users, you hereby release Otivr, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees 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 any dispute you have with another User, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Seller Services provided to Client by a Seller and requests for refunds based upon disputes.Procedures regarding the handling of certain disputes between Users are discussed in subsection 9.4 (Dispute Resolution).
This release will not apply to a claim that Otivr failed to meet our obligations under the Terms of Service.
20 INDEMNIFICATION
You will indemnify, defend, and hold harmless Otivr, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Site and the Site Services by you or your agents, including any payment obligations incurred through use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Seller as an independent contractor; the classification of Otivr as an employer or joint employer of Seller; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents.
21 AGREEMENT TERM AND TERMINATION
The Terms of Service as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Site and will remain in effect for the duration of your use of the Site or Site Services. Unless both you and Otivr expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to support@Otivr.com. In the event you properly terminate this Agreement, your right to use the Site is automatically revoked, and your Account will be closed; however, (a) if you have any open Engagements when you terminate this Agreement, you will continue to be bound by this Agreement and the other Terms of Service until all such Engagements have closed on the Site; (b) Otivr will continue to perform those Site Services necessary to complete any open Engagement or related transaction between you and another User; and (c) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Engagements, whichever is later, to Otivr for any Site Services and to any Sellers for any Seller Services. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you, any User with whom you have entered into a Service Contract, or Otivr from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of the Terms of Service necessary to implement the foregoing survive termination of this Agreement for any reason.
Without limiting Otivr’s other rights or remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Otivr or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity. If your Account is suspended or closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without Otivr’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
Without limiting Otivr’s other rights or remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed Otivr or our Affiliates under the Terms of Service, you must pay Otivr, and you authorize Otivr or its Affiliate to charge you, for all fees owed to Otivr and our Affiliates and reimburse Otivr for the Opt-Out Fee, if applicable, all losses and costs (including any and all time of Otivr’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees. In addition, violations of the Terms of Service may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
If your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable or required by law, Otivr will retain this information along with all your previous posts and proposals for a period of up to five years from the date of closure. However, you understand that any closure of your Account may involve deletion of any content stored in your Account for which Otivr will have no liability whatsoever.
21.1 ENFORCEMENT OF AGREEMENT
Otivr has the right, but not the obligation, to suspend or revoke your access to the Site and Site Services if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Terms of Service or violated our rights or those of another party. Without limiting Otivr’s other rights or remedies, we may suspend or close your Account, use self-help in connection with our rights to reclaim funds, and refuse to provide any further access to the Site or the Services to you if (a) you breach any terms and conditions of this Agreement or other Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, other Users, or Otivr.
21.2 CONSEQUENCES OF AGREEMENT TERMINATION
Termination of this Agreement and/or closing of your Account will not relieve Client of the requirement to pay for Seller Services performed prior to the Effective Date of the termination or thereafter for any Service Contracts executed before termination of this Agreement, which fees and expenses, together with any applicable taxes, Client hereby authorizes Otivr to charge to its Payment Method pursuant to Section 7 (Payment Terms). Subject to the applicable Dispute Resolution Procedures, Otivr will pay Seller, in accordance with the provisions of Section 7 (Payment Terms) for any Service Contracts executed before termination of this Agreement.
Except as otherwise required by applicable law, we will notify you if we close your Account, unless we believe, in our sole judgment, that giving notice may cause damage. You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF OTIVR DECIDES TO SUSPEND OR CLOSE YOUR ACCOUNT, OTIVR HAS THE RIGHT BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR CLOSED ACCOUNT STATUS, AND (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT SUSPENSION OR CLOSURE.
21.3 SURVIVAL
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting Confidential Information, requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement, severability and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
22 CANCELLATIONS, REFUNDS, AND DISPUTES
22.1 DISPUTE PROCESS AND SCOPE
If a dispute arises between you and Otivr or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, Otivr, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with Otivr (including any claimed employment with Otivr or one of its Affiliates or successors), the termination of your relationship with Otivr, or the Site Services (each, a “Claim”) in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the Terms of Service, any Service Contract, escrow payments or agreements, any payments or monies you claim are due to you from Otivr or its Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination or harassment and claims otherwise arising under applicable law.
You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration and Class Action/Jury Trial Waiver.”
22.2 CHOICE OF LAW
This Agreement, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of Sweden, without regard to its conflict of law provisions.
22.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you agree to first notify Otivr of the Claim at Developers in Nordic AB, Sankt Eriksgatan 85A, 113 32 Stockholm, Sweden, or by email to support@otivr.com, and Otivr agrees to provide to you a notice at your email address on file (in each case, a “Notice”) and seek informal resolution of the Claim. Any Notice from you must include your name, pertinent account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Any Notice from Otivr must include pertinent account information, a brief description of the Claim, and Otivr’s contact information, so that you may evaluate the Claim and attempt to informally resolve the Claim. Both you and Otivr will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
22.4 DISPUTE RESOLUTION
In the unlikely event the parties are unable to resolve a Claim within 30 days of the receipt of the applicable Notice, you, Otivr, and our Affiliates agree that any dispute from this Agreement shall, if disputed amount is less than 15 price base amounts (Sw. prisbasbelopp) under the Swedish Social Code (2010:110), or if the User has used the service for private use, be solved by public court of law. If the dispute is on an amount larger than 15 price base amounts, the dispute shall be solved by arbitration according to the Rules of Arbitration at the Stockholm Chamber of Commerce. The matter shall be solved in Stockholm and the language to be used during the proceedings shall be Swedish.
23 GENERAL
23.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Otivr relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though Otivr drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Otivr because of the authorship of any provision of the Terms of Service.
23.2 SIDE AGREEMENTS
Notwithstanding subsection 23.1 (Entire Agreement), Clients, Service Providers and Sellers may enter into any supplemental or other written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.). The terms and conditions of the Terms of Service, however, will govern and supersede any term or condition in a side agreement that purports to expand Otivr’s obligations or restrict Otivr’s rights under the Terms of Service.
23.3 COMPLIANCE
User will not violate any applicable foreign or local laws or third-party rights on or related to the Site. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to, import and export control laws and third parties’ Intellectual Property Rights.
23.4 MODIFICATIONS
No modification or amendment to the Terms of Service will be binding upon Otivr unless in a written instrument signed by a duly authorized representative of Otivr. For the purposes of this subsection, a written instrument will expressly exclude electronic communications, such as email and electronic notices, but will include facsimiles. This Section 23.4 (Modifications) does not apply to amendments to the Terms of Service posted by Otivr to the Site from time to time.
23.5 NO WAIVER
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.
23.6 ASSIGNABILITY
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Otivr’s prior written consent in the form of a written instrument signed by a duly authorized representative of Otivr (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). Otivr may freely assign this Agreement or the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and permitted assigns of the parties.
23.7 SEVERABILITY
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
23.8 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party will be extended by the period of such delay. Irrespective of any extension of time, if an event of Force Majeure occurs and its effect continues for a period of 60 days, either the party may give to the other a 30-day notice of termination. If, at the end of the 30-day period, the effect of the Force Majeure continues, the Agreement and the other Terms of Service will terminate, except as provided in Section 21.3.
23.9 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from Sweden on servers located within the EU/EEA. Otivr makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign and local laws and regulations, including, but not limited to, export and import regulations.
24 GENERAL DATA PROTECTION REGULATION
In accordance with the provisions of EU REGULATION (EU) 2016/679 (“GDPR Regulation”) where processing is to be carried by the User (“Processor”) out on behalf of Otivr, the User hereby agree to provide sufficient guarantees to implement appropriate technical and organizational measures in such a manner that processing will meet the requirements of the GDPR Regulation and ensure the protection of the rights of the data subject.
24.1 PROCESSOR
The Processor shall not engage another processor without prior specific or general written authorization of Otivr. In the case of general written authorization, the Processor shall inform Otivr of any intended changes concerning the addition or replacement of other processors, thereby giving Otivr the opportunity to object to such changes.
By this Agreement the User agrees to: (a) process personal data only on documented instructions from Otivr, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Union or Member State law to which the Processor is subject; in such a case, the Processor shall inform Otivr of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest; (b) ensures that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (c) takes all measures required pursuant to Article 32 of the GDPR Regulation; (d) respects the conditions referred to in paragraphs 2 and 4 of the GDPR Regulation for engaging another processor; (e) taking into account the nature of the processing, assists Otivr by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Otivr’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR Regulation; (f) assists Otivr in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR Regulation taking into account the nature of processing and the information available to the Processor; (g) at the choice of Otivr, deletes or returns all the personal data to Otivr after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data; (h) makes available to Otivr all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR Regulation and allow for and contribute to audits, including inspections, conducted by Otivr or another auditor mandated by Otivr.
With regard to point (h) of this paragraph, the Processor shall immediately inform Otivr if, in its opinion, an instruction infringes the GDPR Regulation or other Union or Member State data protection provisions.
24.2 STANDARD CONTRACTUAL CLAUSES
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, Otivr (“the data exporter”), and User (“the data importer”), each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1 Definitions
For the purposes of the Clauses: (a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(1); (b) ‘the data exporter’ means the controller who transfers the personal data; (c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC; (d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract; (e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established; (f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
(1) Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone
Clause 2 Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3 Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary. 2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. 3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses. 4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4 Obligations of the data exporter
The data exporter agrees and warrants: (a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State; (b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses; (c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract; (d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation; (e) that it will ensure compliance with the security measures; (f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; (g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension; (h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information; (i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and (j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5 Obligations of the data importer (1)
The data importer agrees and warrants: (a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; (b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; (c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred; (d) that it will promptly notify the data exporter about: (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; (ii) any accidental or unauthorized access; and (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so; (e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred; (f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority; (g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter; (h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent; (i) that the processing services by the sub-processor will be carried out in accordance with Clause 11; (j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
(1) Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognized sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
Clause 6 Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered. 2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities. 3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7 Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject: (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority; (b) to refer the dispute to the courts in the Member State in which the data exporter is established. 2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8 Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law. 2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law. 3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
Clause 9 Governing law
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely the laws of Sweden.
Clause 10 Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11 Sub-processing
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses(1). Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement. 2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses. 3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely the laws of Sweden. 4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
(1) This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.
Clause 12 Obligation after the termination of personal data-processing services
1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore. 2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
Hereby the data exporter and the data importer acknowledge and agree to all the provisions of 24.2 Standard Contractual Clauses and this Agreement.
24.3 Appendix 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and agreed by the parties. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
Data exporter
The data exporter is a seller and buyer of software development services.
Data importer
The data importer is a service provider of software development services.
Data subjects
The personal data transferred concern the following categories of data subjects:
1. Employees of the Client, 2. Natural Persons present in the Client’s database subject to processing in a Service Contract
Categories of data
The personal data transferred concern the following categories of data: 1. Name, 2. Email, 3. Phone number or other contact id, 4. Location, 5. Employer, 6. Job title, 7. Other categories of personal data may be transferred only after consent from the Client, based on our instructions and in compliance with our Privacy Policy and any other appropriate confidentiality and security measures.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data: Not applicable.
Processing operations
The personal data transferred will be subject to the following basic processing activities: 1. To ensure performance of a contract, 2. To handle the relationship with the Client and communicate with the Client, 3. To protect the vital interests of the Client in a Service Contract
Hereby the data exporter and the data importer acknowledge and agree to all the provisions of 24.3 Appendix 1 to the Standard Contractual Clauses and this Agreement.
25 CONTACTING US
If you have questions or need assistance, please contact Customer Support.
