Updated 21 September 2018
This CUSTOMER AGREEMENT (the “Agreement”) is a contract between you (“you” or the “Customer”) and YouTeam Inc. (“YouTeam”, “we” or “us”) and our affiliate YouTeam Ltd, each, a “Party” and, collectively, the “Parties”.
Subject to the conditions set forth herein, YouTeam, at its sole discretion, may amend or modify this Agreement at any time by posting a revised version on the Site or by sending notice to the email address associated with you. Notwithstanding the foregoing, the updated Terms & Conditions will apply to your continued use of YouTeam Platform two (2) weeks after the date of the notice. The date of last modification is stated at the beginning of each document.
YOU UNDERSTAND THAT BY CLICKING “I AGREE”, YOU ACCEPT THE TERMS AND CONDITIONS SET OUT HEREIN, ENTER INTO THE AGREEMENT WITH YOUTEAM WITH THE EFFECT FROM THIS DATE AND AGREE TO BE BOUND BY THIS AGREEMENT, EVEN THOUGH IT IS ELECTRONIC AND IS NOT PHYSICALLY SIGNED BY YOU AND YOUTEAM. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE YOUTEAM PLATFORM. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THE AGREEMENT. IN THAT EVENT, “YOU”, THE “CUSTOMER” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY.
THE PARTIES HEREBY AGREE AS FOLLOWS:
(a) Approved Contractor: any legal entity referred to the Customer by YouTeam or identified by the Customer via YouTeam Platform.
(b) Business Day: a day other than a Saturday, Sunday and public holiday in the country of the residence of the Customer, the Approved Contractor or YouTeam.
(c) Confidential information: any data or information relating to the Party which discloses it, whether business or personal, which would reasonably be considered to be private or proprietary to that Party and that is not generally known. Confidential Information shall not include any information that the receiving Party can demonstrate: (a) is or becomes a matter of public knowledge through no fault of the receiving Party; (b) was or becomes available to the receiving Party on a non-confidential basis from a third party, provided that such third party is not known or reasonably suspected by the receiving Party to be bound by an obligation of confidentiality to the disclosing Party with respect to such Confidential Information; (c) was independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information; or (d) the disclosing Party agrees in advance in writing does not constitute Confidential Information.
(d) Force Majeure Event: any circumstance or cause beyond a Party’s reasonable control and not caused by such Party, its employee, subcontractor, consultant, agent or representative, 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.
(e) Personnel: any subcontractor, employee, consultant or representative of the Party.
(f) Project: a particular project or set of ongoing tasks for which the Customer has requested Services to be provided by the Approved Contractor and the Approved Contractor has agreed to provide such Services to the Customer.
(g) Related Company: in relation to either YouTeam or the Customer, a parent, subsidiary or affiliate of such Party or its ultimate parent company.
(h) Services: any task, activity or service consisting of software development, design, project management, testing and diagnostics or other professional services the Approved Contractor provides.
1.2. Clause and paragraph headings shall not affect the interpretation of this Agreement.
1.3. Unless the context otherwise requires, words in the singular may include the plural and in the plural shall include the singular.
1.4. A reference to any Party shall include that Party’s authorized representatives, successors and permitted assigns.
1.5. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the last revision of this Agreement.
1.6. A reference to writing or written includes fax and email.
1.7. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. YouTeam Platform
2.1. YouTeam is a curated matchmaking platform designed for referring independent contractors who provide software development, design, project management, testing and diagnostics or other professional services (the “Approved Contractor” and the services they provide, the “Services”) to the Customers.
2.2. For that purpose, YouTeam provides the following services:
(a) pre-vetting of the Approved Contractors;
(b) receiving payments from the Customer on behalf of the Approved Contractor;
(c) general project governance via Customer Success Manager position;
(d) acting as a mediator in case of a dispute between the Customer and Approved Contractor; and
(e) acting as a source code escrow (optional).
3. Requirements for using YouTeam Platform
3.1. The Customer represents that:
(a) the Customer is a legal entity or an individual who is at least 18 years old and capable of forming legally binding agreements under applicable law;
(b) all information associated with the Customer’s account is real, accurate and verifiable;
(c) the Customer is not a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to CDN or U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.
3.2. The Customer agrees to provide the Approved Contractor with access to any information, materials and Personnel, which the Approved Contractor may deem necessary for the purpose of providing the Services.
3.3. The Customer warrants that it has obtained all necessary permissions and consents of any individual data subjects to process and provide to YouTeam their personally identifiable information in connection with this Agreement.
4. Provision of Services and Payment Arrangements
4.1. YouTeam takes reasonable care in referring the Approved Contractor to the Customer; however, it is the Customer’s responsibility to decide whether to engage the Approved Contractor for the provision of the Services.
4.2. Should the Customer decide to engage the Approved Contractor for the provision of the Services, a contract (the “Service Agreement”) will be formed directly between such Customer and the respective Approved Contractor. The terms and conditions of this Agreement, however, will govern and supersede any term or condition in the Service Agreement that purports to expand YouTeam’s obligations or restrict YouTeam’s rights under this Agreement.
4.3. Payment processing services on YouTeam platform are provided by third party payment processors. All payments pursuant to Service Agreements shall be made to and from client money bank account. YouTeam shall have control over funds standing to the credit of that client money account and will instruct third party payment processor to make any transfers required in accordance with the terms of this Agreement.
4.4. Advance payment made by the Customer for the Services to be provided in every coming period shall be transferred to the Approved Contractor without undue delay if within 5 Business Days (“Objection Period”) after the end of such period the Customer neither requests to submit payment nor communicates in writing his objections regarding the Services provided. For the avoidance of doubt, payment made by the Customer to client money bank account held by third party payment processors shall satisfy the Customer’s obligation with respect to payment to the Approved Contractor.
If within the Objection Period the Customer raises written objection regarding the Services provided, the Customer shall have the right to receive refund for the amount paid in the invoicing period without invoking the dispute resolution.
Alternatively, if the Customer decides to invoke the dispute resolution the parties to the Service Agreement are encouraged to resolve the dispute between themselves. The Customer Success Manager assigned to the project by YouTeam shall act as a mediator helping the Customer and the Approved Contractor resolve the dispute amicably, if instructed by the Customer. YouTeam shall transfer the payment to the Approved Contractor only after the dispute is resolved.
4.5. Any action that encourages or solicits payment directly to the Approved Contractor or through any channels other than those provided or specified by YouTeam is a violation of this Agreement. The Customer shall immediately notify YouTeam if the Approved Contractor requests that the Customer make any such payment as described in this clause.
4.6. In the event the Approved Contractor breaches the terms of the Service Agreement, upon the Customer’s request YouTeam will replace such Approved Contractor within 2 months with those having similar qualifications and experience, provided all due invoices are paid in full by the Customer.
5.1. Although YouTeam may facilitate or take control of the contracting process as an agent of the Approved Contractor, YouTeam shall not have the powers to conclude any agreements or make any covenants to the Customer on behalf of the Approved Contractor. The Customer hereby disclaims any right it may have to bring claim against YouTeam in relation to any loss or damage that result from any dealings between the Customer and any Approved Contractor.
5.2. The Parties agree and acknowledge that the Approved Contractor is not a subcontractor or employee of YouTeam. YouTeam accepts no liability for the quality of the Services provided by the Approved Contractor and/or any breach of contract or law (including intellectual property infringement) by, or on behalf of, the Approved Contractor.
5.3. YOUTEAM PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND YOUTEAM EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
5.4. YOUTEAM DOES NOT CHARGE THE CUSTOMER FOR THE SERVICES IT PROVIDES. THE CUSTOMER HEREBY AGREES THAT YOUTEAM WILL NOT BE LIABLE TO THE CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR THE LIKE), WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE CUSTOMER’S USE OR INABILITY TO USE THE YOUTEAM PLATFORM OR ANY INTERRUPTION OF SUCH USE, EVEN IF THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE).
6.1. YouTeam undertakes not to disclose, divulge, reveal, report or use, for any purpose, any Confidential Information of the Customer which YouTeam has obtained, except as authorized by the Customer or for the provision of the Services by the Approved Contractor.
6.2. YouTeam may subsequently share the Customer’s Confidential Information with its Personnel and the Approved Contractor for the purposes consistent with the terms and conditions set out in this Agreement.
6.3. The Customer undertakes not to disclose, divulge, reveal, report or use, for any purpose, any Confidential Information of YouTeam which the Customer has obtained, except as authorized by YouTeam.
All written, oral, machine-readable or graphic information and materials disclosed or provided by YouTeam to the Customer under this Agreement is Confidential Information regardless of how it was provided to the Customer.
7. Non-solicitation and non-circumvention
7.1. The Customer agrees that during the effective period of this Agreement and for a period of one (1) year after its termination (or after cancelling the Customer’s account), the Customer will not solicit, seek or offer any employment or business cooperation to employees or subcontractors, who were at the time of the effective period of this Agreement, employed by or working or providing Services for the Approved Contractor or were involved in any form or capacity in the performance of the Service Agreement.
7.2. The Customer agrees that during the effective period of this Agreement and for a period of one (1) year after its termination (or after cancelling the Customer’s account), the Customer will not provide or accept services, solicit or seek business in any form or capacity, in each case whether directly or indirectly, from any Approved Contractor, to whom the Customer was introduced or referred to in connection with this Agreement without YouTeam’s prior written consent.
8. Term and termination
8.1. The term of this Agreement (the “Term”) will begin on the date of acceptance of this Agreement and will remain in full force and effect until terminated by either Party upon giving to the other Party not less than 10 Business Days’ prior written notice (or by suspending or cancelling the Customer’s account), provided that any such termination shall not affect the validity of any Service Agreements that have been executed prior to termination and this Agreement shall continue to apply with respect to such Service Agreements.
9.1. Any provision of this Agreement that expressly or by its nature contemplates performance or observance subsequent to termination of this Agreement shall survive termination of this Agreement and continue in full force and effect.
10. No partnership
10.1. Nothing in this Agreement is intended to, or shall be deemed to establish any partnership or joint venture between the Parties.
11. Force Majeure
11.1. Neither Party shall be liable for any acts or omissions resulting from a Force Majeure Event. The Party affected by an 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.
12. Electronic Notice
12.1. The Customer hereby agrees to the use of:
(a) electronic means to complete this Agreement and deliver any notices under this Agreement; and
(b) electronic records to store information related to this Agreement or the Customer’s use of YouTeam Platform.
12.2. All notices or other communications hereunder shall be given in writing, in English and delivered to the Parties as follows:
(a) by YouTeam via email (to the email address provided by the Customer) or a posting on the Site;
(b) by the Customer via email to firstname.lastname@example.org or to such other addresses as YouTeam may specify in writing.
13.1. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
13.2. A failure or delay by a Party to exercise any right or remedy provided under this Agreement 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 this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be removed. Any modification to or removal of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
14.2. If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
15. Entire Agreement
15.1. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.1. Any amendment or modification of this Agreement will only be binding upon YouTeam if evidenced in writing signed by a duly authorized representative of YouTeam.
17.1. The Approved Contractor may not assign any rights or obligations under this Agreement without YouTeam’s prior written approval. YouTeam may, at its sole discretion, assign this Agreement to any present or future affiliate without the Approved Contractor’s consent. This Agreement will be binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the Parties.
18. Governing law and jurisdiction
18.1. This Agreement 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 California.