Updated September 19, 2022
The Customer and the Contractor are free to agree to these Standard Service Contract Terms in whole or in part or to negotiate and agree to different terms governing the Service Contract between them. However, if and to the extent that the Customer and the Contractor have not agreed to different terms, they agree to incorporate these Standard Service Contract Terms. The Customer and the Contractor may not include in their Service Contract any term or condition that conflicts with or violates the Terms & Conditions, purports to expand YouTeam’s obligations or restrict YouTeam’s rights.
YouTeam neither has the powers to conclude agreements on behalf of the Contractor nor is a party to the Service Contract between the Customer and the Contractor, even if they have agreed to the Standard Service Contract Terms. These Standard Service Contract Terms are provided to the users of YouTeam Platform as a template only which means that they are not specifically tailored for every Service Contract. Therefore, YouTeam cannot be held liable or accountable for any issues that may arise as a result of using Standard Service Contract Terms. YouTeam hereby expressly disclaims any and all liability with respect to acts or omissions of the Customer or the Contractor resulting from their dealing under this Standard Service Contract Terms.
Standard Service Contract Terms are not intended to be considered legal advice or establish an attorney-client relationship.
PARTIES
Customers can contract with the Contractors by accepting the Service Contract proposal submitted by the Contractor through the YouTeam Platform. Such Contracts are solely between the Customer and the Contractor.
The Customer and the Contractor referred to the Customer by YouTeam or identified by the Customer via YouTeam Platform are the Parties to the Service Contract. The details and address of each Party are the details and address entered in their respective user or company accounts on the YouTeam Platform.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Definitions
Applicable Laws: any country, federal, state, provincial, commonwealth or local government law, statute, rule, requirement, code, regulation, permit, ordinance, authorization by a governmental authority as applicable respectively to the Customer or the Contractor.
Business Day: a day other than a Saturday, Sunday and public holiday in the country of the residence of the Customer or the Contractor.
Contractor: any person or legal entity referred to the Customer by YouTeam or identified by the Customer via YouTeam Platform.
Customer: means any person or legal entity referred to the Contractor by YouTeam, including YouTeam Platform users who learned about the Contractor via YouTeam Platform.
Deliverables: all Documents, products and materials created, developed and delivered to the Customer by the Contractor and their Personnel in relation to the Services in any form.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or another image, tape, disk or other device or record embodying information in any form.
Force Majeure Event: any circumstance or cause beyond a Party’s reasonable control and not caused by such Party or its Personnel, including, without limitation, strikes, lockouts, riots, insurrections, civil disturbances, sabotage, embargoes, blockades, acts of war, acts or failures to act of any governmental or regulatory body (whether civil or military, domestic or foreign), governmental regulations superimposed after the fact, communication line failures, power failures, fires, explosions, floods, accidents, epidemics, earthquakes or other natural or man-made disasters, and all occurrences similar to the foregoing.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighboring and related rights, trademarks and service marks, business names and domain names, rights in get-up, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Personal Data: any personally identifiable information, or information that would allow identifying or contacting a natural person.
Personnel (each individually referred to as the “Consultant”): any directors, officers, shareholders, employees or subcontractors of the Party engaged by them pursuant to the Service Contract.
Project: a particular set of Services that the Contractor provides to the Customer under a Service Contract.
Related Company: in relation to either the Customer or the Contractor, a parent, subsidiary or affiliate of such Party or its ultimate parent company.
Service Contract: the contractual relationship between the Customer and the Contractor governing the provision of Services on a particular Project.
Services: any task, set of tasks, activity or work consisting of software development, design, project management, testing and diagnostics or other professional services the Contractor provides.
YouTeam Platform: YouTeam’s website marketplace for engaging remote development teams, available at youteam.io (the “Site”), and related software and services owned, controlled or offered by YouTeam.
YouTeam: YouTeam Inc., a Delaware corporation operating the YouTeam Platform; authorized to receive payments for the Project from the Customer on behalf of the Contractor and instruct any money transfers required in accordance with the terms of the applicable Service Contract.
2. Services
2.1. The terms concerning a particular Project to be performed for the Customer by the Contractor as outlined in the Party’s account on YouTeam Platform (the “Project Details”) form part of the Service Contract. The Customer and the Contractor agree that once accepted, the Project Details along with the terms of the Service Contract cannot be modified by a Party without obtaining the consent of the other Party prior to making any such changes, including but not limited to altering the scope of Services, modifying Project timelines, changing milestones, Project team composition, applicable rates and task requirements or closing the Service Contract. The Party is entitled to decline the changes made without their prior written consent and initiate the termination of the Service Contract as a result of the other Party’s failure to do so, or approve the changes and continue cooperation under the updated terms.
2.2. Except as otherwise expressly set forth by the Parties in writing, the place of the provision of Services is at the full discretion of the Contractor. Upon request of the Customer, the Services can also be provided on the Customer’s premises or at any other location specified by the Customer, provided the Customer makes available to the Personnel suitable infrastructure and reimburses the Contractor for the reasonable expenses as indicated in the applicable Project Details.
2.3. Unless otherwise agreed by the Parties in writing, the Contractor shall furnish the equipment, supplies, and other materials used to perform the Services. Notwithstanding the foregoing, the Customer agrees to provide the Contractor with access to any information, Documents and Personnel of the Customer, which are reasonably necessary for the purposes of providing the Services.
3. Personnel
3.1. The Contractor shall allocate properly qualified and experienced Personnel to provide the Services under the Service Contract. The Customer shall provide the Contractor with written requirements as to the qualification and experience of Personnel or some of the Consultants in order to ensure that the Services will be provided at the requested level of quality.
3.2. The Contractor shall inform the Customer about reassignment or removal of any Personnel allocated to provide the Services as soon as feasible but no later than 1 month in advance, and shall provide a replacement having the equivalent level of qualification and rate as to those of the Personnel being replaced. Timeline and cost (if any) of training and onboarding of the replacement shall be agreed upon by the Parties.
3.3. The Customer shall inform the Contractor about the intent to remove any Personnel allocated to provide the Services as soon as feasible but no later than 1 month in advance.
3.4. All of the Contractor’s Personnel shall be bound by obligations consistent with the provisions of the Service Contract, and the Contractor shall be responsible for all acts and omissions of their Personnel. The Contractor must provide upon request all agreements and other documentation that regulates the Contractor’s relationship with the Personnel involved.
3.5. The Contractor’s Personnel shall be regarded at all times as employees or subcontractors of the Contractor and no relationship of employer and employee shall arise between the Customer and any of the Contractor’s Personnel under any circumstances.
4. Fees and Payments
4.1. The Customer shall pay the Contractor’s Services. Payment schedule, currency, pricing methodology and associated fees shall be set out under applicable Project Details as outlined in the ‘Contracts’ section of the Party’s account on YouTeam Platform.
4.2. Invoices and payments on YouTeam Platform may be made in US Dollar (USD), Pound sterling (GBP) or Euro (EUR).
4.3. The customer shall pay each invoice issued by the Contractor under the Service Contract by the invoice due date using bank details indicated on the invoice.
4.4. All payments pursuant to the Service Contracts shall be made to and from the client money bank account designated by YouTeam. YouTeam shall have control over funds standing to the credit of that account and will instruct third-party payment processors to make any transfers required in accordance with the terms of the Service Contract. For the avoidance of doubt, payment made by the Customer to the account designated by YouTeam shall satisfy the Customer’s obligation with respect to the payment to the Contractor.
4.5. Advance payment made by the Customer for the Services to be provided in every upcoming period shall be transferred to the Contractor without undue delay if within 5 Business Days (“Objection Period”) after the end of such period the Customer does not communicate in writing their objections regarding the Services provided.
If within the Objection Period the Customer raises written objections regarding the Services provided, the Customer shall have the right to receive a refund for the amount paid in the invoicing period without invoking the dispute resolution procedure, provided the Contractor accepts the refund request.
If the Contractor disputes the refund request, the issue shall be transferred to the YouTeam dispute specialist(s), thus invoking the dispute resolution procedure, where YouTeam dispute specialist conducts an independent assessment of facts and written documents (including by means of electronic communication) pertaining to the case in question and presents the Parties with a written resolution. YouTeam shall transfer the applicable portion of the payment to the Contractor within 10 Business Days after a resolution is presented.
4.6. Fees are exclusive of any state and local sales or equivalent taxes now in force or enacted in the future. The Customer is responsible for any fees, duties, and commissions charged by credit card operators, banks, or any other financial intermediaries, associated with the money transfer, including sending and receiving bank fees (if any). The Customer shall not deduct such fees from the payment owed to the Contractor to satisfy the obligation under the Service Contract.
4.7. In the event that the Customer fails to make payment within the invoice due date, the Contractor shall be entitled to (a) charge interest on the overdue amount at an annual rate of 10% units, and/or (b) halt the provision of the Services until such time as the invoice has been paid in full, and/or (c) permanently dissolve the Personnel allocated to provide the Services under the Service Contract. Interest shall accrue on a daily basis from the due date until the actual payment of the overdue amount. The Customer shall pay the interest together with the overdue amount.
4.8. In the event that the Service Contract is terminated pursuant to Section 13 or as set out in the Project Details, the Contractor shall promptly issue the Customer a refund for the pro-rata portion of any unused pre-paid fees.
5. Customer’s Billings
5.1. Hourly Contract (regular payments based on the hourly rate set by the Contractor and the volume of Services planned to be provided in the upcoming servicing period).
If the Customer and the Contractor decide to enter into an Hourly Contract, invoices shall be issued to the Customer weekly, biweekly or monthly in advance, as more specifically set out in the Project Details.
The amount of the hourly invoice shall be the estimated budget of the Services to be provided during the upcoming servicing period (week/fortnight/month) and shall be calculated as the number of hours planned to be spent by each Consultant allocated to provide the Services under the Service Contract during that period multiplied by the corresponding hourly rate as indicated in the Project Details. The invoice should also include (if any) the balance from the previous period, calculated as the difference between the amount paid on the previous invoice and the final cost of Services delivered during the corresponding servicing period. The final cost of Services is defined as follows: the agreed rate multiplied by the number of hours reported by the Contractor.
Under the Hourly Contract, the Contractor’s Personnel shall provide Services when they have received appropriate tasks from the Customer and in accordance with the priorities established by the Customer. The detailed description of the tasks, requirements and approximate timelines shall be agreed upon by the Parties separately (including by using task tracking software, via email correspondence or other means of electronic communication).
The Contractor agrees to keep track of the time it spends providing the Services under the Hourly Contract and to report such time to the Customer on a basis when the invoices are issued to the Customer.
5.2. Monthly Contract (recurring monthly payment for the full-time Services to be provided in the upcoming month)
If the Customer and the Contractor decide to enter into a Monthly Contract, invoices shall be issued to the Customer monthly in advance, as more specifically set out in the Project Details.
Unless otherwise agreed by the Parties in writing, each Consultant allocated to provide the Services under the Monthly Contract shall dedicate 100% of their working time on the Customer’s Project and provide the Services on a full-time basis within 8 hours per Business Day. The Customer shall be solely responsible for providing the agreed monthly scope of work.
The amount of the monthly invoice shall be the estimated budget of the Services to be provided during the upcoming servicing period and shall be equal to the sum of the applicable monthly rates indicated in the Project Details.
Under the Monthly Contract, the Contractor’s Personnel shall provide Services when they have received appropriate tasks from the Customer and in accordance with the priorities established by the Customer. The detailed description of the tasks, requirements and approximate timelines shall be agreed upon by the Parties separately (including by using task tracking software, via email correspondence or other means of electronic communication).
Standard monthly rates indicated in the Project Details are fixed and may not be decreased by the Customer’s failure to provide the agreed monthly scope of work.
Should the Customer request the Contractor to provide the Services during public holidays in the Consultants’ country of residence or on weekends (“Overtime Services”), the Contractor shall be entitled to charge the Customer in addition to the monthly rates indicated in the Project Details. Overtime Services shall be provided on an Hourly Contract basis and charged at the hourly rates agreed to by the Parties in writing prior to their commencement.
5.3. Fixed-Price Contract (upfront lump sum or milestone-based payments)
In consideration of the Services to be provided under the Fixed-Price Contract, the Customer shall pay a flat fee indicated under the ‘Budget’ section of the Project Details. A flat fee may be split across several payments tied to particular milestones as more specifically agreed by the Parties in writing.
Invoices shall be issued to the Customer before the commencement of Services towards the upcoming milestone as set out in the Project Details. A milestone is the equivalent of a servicing period for the purposes of billing under the Fixed-Price Contract.
Under a Fixed-Price Contract, the Contractor, in conjunction with their Personnel, shall determine the method, details, and means of performing the work to be carried out for the Customer under the Fixed-Price Contract. The Customer shall have no right to, and shall not, control the manner or determine the method of accomplishing such work. The Customer may, however, require the Contractor’s Personnel to observe at all times the security and safety policies of the Customer, provided the Customer had shared the said policies with the Contractor prior to the commencement of the Services.
6. Intellectual Property Rights
6.1. The Contractor hereby assigns to the Customer, with full title guarantee and free from all third party rights, all right, title and interest (including all Intellectual Property Rights and all other rights) in the products of the Services (including the Deliverables) that arise in connection with the Service Contract or as a result of the Service Contract or the use of any Confidential Information of the Customer (“Newly Developed IP”) that had been duly paid for by the Customer. The Contractor agrees to cause their Personnel to enter into an agreement directly with the Customer regarding the assignment of Intellectual Property Rights and protection of the Customer’s Confidential Information as requested by the Customer.
6.2. At the Customer’s expense, the Contractor shall do or procure to be done all such further acts and execute or procure the execution of all such other documents, as the Customer may from time to time reasonably request in order to further evidence, record and perfect the rights assigned.
6.3. The Contractor shall promptly disclose and provide all Newly Developed IP to the Customer subject to the Customer’s payment of all the due invoices. The Customer shall have title to, ownership of, and any proprietary rights in and to the Newly Developed IP, which have been fully compensated by the Customer.
6.4. The Contractor shall request explicit and written permission to (a) refer in portfolios and other marketing materials to the association with the Customer, (b) use the Customer as a reference, publish and speak publicly about the processes and materials developed in the course of the performance of the Service Contract.
6.5. The Contractor hereby irrevocably waives all its moral rights arising out of or in connection with the products of the Services (including the Deliverables, any related work in progress and other materials) that arise in connection or as a result of the Service Contract and all rights or forms of protection of equivalent or similar nature or effect which may exist throughout the world in so far as the Contractor may lawfully do so. To the extent any of the foregoing is ineffective under Applicable Law, the Contractor hereby provides any and all ratifications and consents necessary to accomplish the purposes of the foregoing to the extent possible. If requested by the Customer, the Contractor agrees to obtain the foregoing ratifications, consents and authorizations from their Personnel for the Customer’s exclusive benefit.
6.6. The Contractor shall not incorporate into any Deliverables any intellectual property, software or technology of any third party without the Customer’s prior written approval (to the extent approved, “Approved Third Party IP”) or any intellectual property, software or technology owned by or licensed to the Contractor that is not assigned hereunder without the Customer’s prior written approval (to the extent approved, “Contractor IP”). If any part of the Services, Deliverables or Newly Developed IP is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise exploited without using or violating the Contractor IP, the Contractor hereby grants the Customer and its successors a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable (through multiple tiers) right and license to use, modify, distribute and otherwise fully exploit and exercise all such Contractor IP in connection with the Deliverables or Newly Developed IP (including any modifications, improvements and derivatives thereof) or otherwise in support of the Customer’s receipt of the Services. This license is, for purposes of Section 365(n) of the Bankruptcy Code, a license of rights to “intellectual property” as defined under Section 101(56) of the Bankruptcy Code.
6.7. Without prejudice to anything contained herein or elsewhere in the Service Contract, the Contractor reserves the right to use in any way it thinks fit any skills, knowledge, ideas, concepts, know-how and techniques in software engineering processes or project management methods acquired by it in performing the Services, where those skills, knowledge, ideas, concepts, know-how and techniques do not constitute Deliverables or Confidential Information of the Customer.
7. Confidentiality
7.1. Either Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”), whether orally or in physical form, confidential or proprietary information concerning the Disclosing Party and/or their business, products, services, marketing, promotional or technical information in connection with the Service Contract, which shall include the terms and conditions of the Service Contract, the Deliverables, all Newly Developed IP and Contractor IP (collectively, the “Confidential Information”). For purposes hereof, Confidential Information will not include information (a) which was previously known to the Receiving Party without an obligation of confidentiality; (b) which was acquired by the Receiving Party from a third party which was not, to the Receiving Party’s knowledge, under an obligation to not disclose such information; (c) which is or becomes publicly available through no fault of the Receiving Party; or (d) which the Disclosing Party gave written permission to the Receiving Party for disclosure, but only with respect to such permitted disclosure.
7.2. Except as otherwise required by Applicable Law, each Receiving Party agrees that (a) they will use the Confidential Information of the Disclosing Party solely for the purpose of the Service Contract or to exercise their rights hereunder and (b) they will not disclose the Confidential Information of the Disclosing Party to any third party other than the Receiving Party’s Personnel on a need-to-know basis who are bound by obligations of non-disclosure and limited use at least as strict as those contained herein.
7.3. The Receiving Party will protect the Confidential Information of the Disclosing Party in the same manner that they protect the confidentiality of their own proprietary and confidential information and materials of like kind but in no event less than a reasonable standard of care. The Receiving Party is responsible for any breach of the confidentiality provisions of the Service Contract by their Personnel.
7.4. In the event the Receiving Party receives a subpoena or other validly issued administrative or judicial process demanding the Confidential Information, the Receiving Party will give the Disclosing Party prompt written notice of any disclosure of the Service Contract terms that, in the opinion of their counsel, appears to be required by law, so that the Disclosing Party may assert any defences to disclosure that may be available.
7.5. Upon request by the Disclosing Party, the Receiving Party will destroy or return all copies of any Confidential Information to the Disclosing Party. The Receiving Party agrees to provide written certification to the Disclosing Party of compliance with this clause within 7 Business Days after the receipt of the Disclosing Party’s written request for such certification.
7.6. Confidential Information shall at all times remain the property of the Party disclosing it. Nothing in the Service Contract shall be construed as conveying to the Party: (a) any right, title or interest in or to the other Party’s Confidential Information, or (b) any license to use, sell, exploit, copy or further develop any such Confidential Information.
7.7. For Confidential Information that does not constitute trade secrets under Applicable Law, these confidentiality obligations will expire 3 years after the termination or expiry of the Service Contract.
7.8. The Receiving Party understands that any violation of this Section 7 may cause the Disclosing Party immediate and irreparable harm which monetary damages may not adequately remedy. Accordingly, each Party agrees that the Disclosing Party will have the right to seek equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information, in addition to any other rights and remedies that it may have at law or otherwise.
8. Warranties
8.1. Each of the Parties warrants to the other that: (a) they have full power and authority to enter into and perform the Service Contract; (b) the Service Contract Is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies); (c) they will inform the other Party immediately if any statement set forth herein ceases to be true and correct as of any date after the acceptance of the Service Contract proposal.
8.2. The Contractor warrants to the Customer that: (a) they will provide the Services with reasonable care and skill and in accordance with generally recognized commercial practices and standards; (b) they will not knowingly infringe or violate any copyright or other intellectual property or trade secrets of any third party in providing the Services hereunder; (c) they will not knowingly infringe upon any existing patents of third parties in providing the Services hereunder; (d) the Contractor has the full right to allow it to provide the Customer with the assignments and rights provided for herein; (e) the Deliverables will (i) be the original work of the Contractor (other than the Approved Third Party IP) and (ii) be free and clear of any encumbrances of any kind (other than restrictions on Approved Third Party IP approved in writing by the Customer at the time of approval of the applicable Approved Third Party IP), and (iii) not contain any viruses; (e) the Contractor shall comply with all Applicable Laws, the requirements of the Service Contract in the course of the provision of Services hereunder.
8.3. EXCEPT FOR THE WARRANTIES ABOVE, THE SERVICES AND DELIVERABLES ARE PROVIDED TO THE CUSTOMER ON AN ‘AS IS’ BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. THE CONTRACTOR HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED, OR OTHERWISE, WITH RESPECT TO THE SERVICES AND DELIVERABLES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
PATENT WITH REGARD TO ANY DELIVERABLES AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS.
9. Indemnification
9.1. The Contractor shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim of infringement of Intellectual Property Rights of a third party.
9.2. The indemnity in clause 9.1 is subject to the following conditions: (a) the Customer promptly notifying the Contractor in writing of the claim; (b) the Customer making no admissions or settlements without the Contractor’s prior written consent; (c) the Customer giving the Contractor all information and assistance that the Contractor may reasonably require; (d) the Customer allowing the Contractor complete control over the litigation and settlement of any action or claim.
10. Limitation of Liability
10.1. NOTWITHSTANDING ANYTHING CONTAINED ELSEWHERE HEREIN, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY UNDER THE SERVICE CONTRACT FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND GOODWILL, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. The Parties hereby agree that neither Party’s aggregate liability to the other Party in relation to the Service Contract shall exceed the amounts paid and/or due during the term of such Service Contract.
10.3. Nothing in this Service Contract shall operate to exclude or limit either Party’s liability for (a) death or personal injury caused by its negligence; (b) fraud; (c) the deliberate default or willful misconduct of that Party, their employees or subcontractors; or (d) any other liability which cannot be excluded or limited under Applicable Law.
11. Data Protection
11.1. The Contractor warrants that, to the extent they process any Personal Data on behalf of the Customer: (a) they shall act only on instructions from the Customer; and (b) they have in place appropriate technical and organizational security measures against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
11.2. The Customer warrants that they have obtained all necessary permissions and consents of any individual data subjects to process and provide to the Contractor their Personal Data in connection with the Service Contract.
11.3. In the event of expiry or termination of the Service Contract, the Contractor will, at the Customer’s option, delete or return all Personal Data to the Customer, save where the Contractor is required to retain copies under Applicable Laws in which case it will isolate and protect that Personal Data from any further processing except to the extent required by such Applicable Laws. The Contractor shall promptly send the Customer a written certification acknowledging that all Personal Data has been returned and/or destroyed.
12. Term of the Service Contract
12.1. The term of the Service Contract (the “Term”) will begin on the date the Customer’s authorized representative accepts the Service Contract proposal within their YouTeam account and will continue until the Service Contract (a) expires upon the completion of the Services thereunder or (b) is terminated in accordance with Section 13.
13. Termination of the Service Contract
13.1. Termination of Hourly or Monthly Contract. Hourly or Monthly Contracts may be terminated by either Party’s 1 month’ prior written notice to the other Party, by mutual consent of both Parties or immediately on the end date specified in the Project Details terms (if any). Except as required by law or as otherwise may be agreed to by the Parties, the Customer remains obligated to pay the fees for the Contractor’s Services provided prior to the termination of the Service Contract.
13.2. Termination of a Fixed-Price Contract. Provided all due invoices are paid by the Customer, a Fixed-Price Contract may not be terminated until the Services provided thereunder are completed, unless with the consent of the other Party or in accordance with clauses 13.3 and 13.4 herein.
13.3. Termination for default. Either Party may terminate the Service Contract with immediate effect by giving written notice to the other Party if the other Party commits a material breach of any other term of the Service Contract and fails to remedy that breach within a period of 5 Business Days after being notified in writing to do so.
13.4. Termination for insolvency. Either Party may terminate the Service Contract with immediate effect by giving written notice to the other Party if the other Party becomes insolvent, files a voluntary petition of bankruptcy, suffers or permits the appointment of an administrator or another insolvency practitioner, or becomes subject to any proceedings under bankruptcy or insolvency law in any jurisdiction, or has wound up or liquidated, voluntarily or otherwise. Should any of the above occur, the Party shall immediately notify the other Party of its occurrence.
14. Non-solicitation
14.1. The Customer agrees that during the effective period of the Service Contract and for a period of 1 year after its termination or expiry, the Customer will not directly or indirectly solicit, seek or offer any employment or business cooperation to employees or subcontractors, employed by or working or providing services to the Contractor and involved in any form or capacity in the performance of the Service Contract.
14.2. In the event the Customer breaches their non-solicitation obligation imposed herein, the Parties agree that it would be difficult to determine the actual damages to the Contractor that would result from such material breach. The Customer further agrees that in the event of any such breach, the Customer shall pay the Contractor compensation equal to 300% of the affected Consultant’s monthly rate (or hourly rate multiplied by 168) for each such breach, which is the Parties’ good faith estimate of the damages caused by the breach.
14.3. Compensation thereof shall be due and payable by the Customer within 10 Business Days following the receipt of the applicable invoice from the Contractor. Payment of such compensation does not release the Customer in breach of the above non-solicitation obligations.
15. Miscellaneous
15.1. Capacity. The relationship of the Parties hereto is that of independent contractors. The Customer and the Contractor acknowledge that the Service Contract does not create a partnership or joint venture between them, and is exclusively a contract for service. The Contractor and their Personnel shall not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by the Customer to its employees, and the Customer shall not be responsible for withholding taxes with respect to charges and payment hereunder or making any insurance contributions, including for unemployment or disability.
15.2. Force Majeure. Neither Party shall be liable for any acts or omissions resulting from a Force Majeure Event. The Party affected by a Force Majeure Event, upon giving prompt notice to the other Party, shall be excused from performance hereunder on a day-to-day basis to the extent of such prevention, restriction or interference (and the other Party shall likewise be excused from performance of its obligations on a day-to-day basis to the extent that such obligations relate to the performance so prevented, restricted, or interfered with); provided that the Party so affected shall use all commercially reasonable efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof and both Parties shall resume performance hereunder forthwith upon removal of such cause.
15.3. Notice. All notices, requests or other communications hereunder shall be given in writing, in English and delivered to the Parties via email correspondence to the email addresses entered in the account settings on the Site (unless otherwise changed by written notice).
15.4. Variation. Any amendment or modification of the Service Contract or additional obligation assumed by any Party in connection with the Service Contract will only be binding if evidenced in writing and agreed upon by the Parties (or their authorized representatives).
15.5. Survival. Any provision of the Service Contract that expressly or by its nature contemplates performance or observance subsequent to termination or expiry of the Service Contract shall survive termination or expiry of the Service Contract and continue in full force and effect.
15.6. Waiver. A waiver of any right or remedy under the Service Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a Party to exercise any right or remedy provided under the Service Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Service Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.7. Severability. If one or more provisions of the Service Contract are held to be unenforceable under Applicable Law, the Parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from the Service Contract, (b) the balance of the Service Contract shall be interpreted as if such provision were so excluded and (c) the balance of the Service Contract shall be enforceable in accordance with its terms.
15.8. Assignment. Neither Party may assign any rights or obligations under the Service Contract without the prior written approval of the other Party, such approval not to be unreasonably withheld.
15.9. Governing Law. The Service Contract and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the state of Delaware without regard to its conflict of laws principles. Notwithstanding the foregoing, if any Applicable Laws or governing policy restricts a Party from entering into agreements governed under the laws of the State of Delaware, then the Parties agree that the laws of the defendant shall govern the interpretation of the Service Contract.