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Semblr Terms And Conditions
This Semblr Marketplace User Agreement, (the "Agreement") is entered into by and between the company or individual specified during this online registration process ("User") and Teknatus Solutions LLC, a Delaware corporation with its registered address at 3500 South Dupont Highway, Dover, DE 19901, U.S.A. ("Semblr") for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. Capitalized terms are defined throughout the Agreement and in Section 13. The policies, terms and conditions below limit Semblr's liability and obligations to you and allow Semblr to change, suspend or terminate your access to and use of the Semblr Marketplace. We urge you to carefully read the following terms and conditions, and all policies referenced below or elsewhere within the Semblr Marketplace. The policies and rules located at Semblr Rules & Policies or made available elsewhere on the Site (collectively, the "Policies") are incorporated into this Agreement by reference and provide additional terms and conditions governing your use of the Semblr Marketplace. The Policies include but are not limited to the following: the Billing and Payments Policy; Community Forums Policy; Community Forums Usage Policy; Dispute Resolution Policy; General User Obligations; Guidelines on Enforcement of Policies; Semblr Community Values; Job Openings and Applications Policy; Policy on Managing and Working on Assignments; Privacy Policy; and Ratings and Feedback Policy. To the extent that there are any conflicts between the terms or conditions in such Policies and this Agreement, the terms and conditions of this Agreement will govern. YOU UNDERSTAND THAT BY Checking the box and clicking the "Submit" button, BY USING THE SEMBLR MARKETPLACE (INCLUDING ANY CONTENT PROVIDED THEREIN) OR YOUR SEMBLR ACCOUNT, HAVING ANY FORM OF COMMUNICATION WITH A BUYER OR PROVIDER OR BY POSTING ANY ASSIGNMENTS VIA THE SEMBLR MARKETPLACE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT (INCLUDING THE INCORPORATED POLICIES). IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SEMBLR MARKETPLACE. IF YOU AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT BUSINESS. 1. THE SEMBLR MARKETPLACE. 1.1 Purpose of the Semblr Marketplace. The Semblr Marketplace is an online portal and website located at semblr.com (the "Site") provided by Semblr where Users may locate Buyers of Services or Providers of Services and access and use the Semblr Tools (collectively, the "Semblr Marketplace"). In addition, payments for the Services contracted for through the Semblr Marketplace are made through the Semblr Marketplace. On the Semblr Marketplace, Buyers may post Assignments to invite bids by Providers and Providers may post information about their capabilities and bid on Assignments. 1.2 Eligibility. The Semblr Marketplace is available only to persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. Without limiting the foregoing, the Semblr Marketplace is not available to temporarily or indefinitely suspended Users. Users are not employees, agents or contractors of Semblr. You will not use or access the Semblr Marketplace if you are located or reside in a country (a) in which use or participation is prohibited by law, decree, regulation, treaty or administrative act or (b) that is prohibited from entering into trade relations with the United States or its citizens. Such countries include, without limitation, Cuba, Iran, North Korea, Sudan and Syria. 1.3 Role of Service Contracts and the Role of Semblr. If a Buyer accepts a Provider's bid for an Assignment, a services contract is formed directly between such Buyer and Provider subject to the terms specified in Section 2 (Service Contract Terms Between Buyer and Provider) and/or any other terms and conditions that Buyer and Provider may agree upon through the Semblr Marketplace ("Service Contract"). Subject to and in accordance with the "Buy-Out" provision set forth in the Billing and Payments Policy, User agrees that, whether acting as a Buyer or Provider, User shall not agree on any terms outside the Semblr Marketplace and any attempt to agree on terms outside the Semblr Marketplace shall constitute a material breach of this Agreement and be null and void. Semblr is not a party to any Service Contract between Buyers and Providers and Semblr itself does not deliver any Assignments or Work Product, nor does Semblr make any representations regarding the quality thereof, except as may be otherwise explicitly set forth by Semblr. . 1.4 Acknowledgement of Semblr's Interest in Proper Performance of Service Contracts. Even to the extent Semblr is not a party to a Service Contract, User acknowledges and agrees that the reputation and goodwill of Semblr may be adversely affected if, as a Buyer or Provider, the User engages in violations of the Service Contract. User further acknowledges and agrees that Semblr is an intended third-party beneficiary of each Service Contract User enters into and Semblr has the right to take such legal actions against User as Semblr, in its sole discretion, deems necessary to protect the interests of Semblr. 1.5 Payment of Semblr Fee. User agrees that Semblr shall be paid a fee (the "Semblr Fee") for maintaining the Semblr Marketplace. The amount of such fee and the method of its payment are set forth in the Billing and Payments Policy. 2. SERVICE CONTRACT TERMS BETWEEN BUYER AND PROVIDER. User agrees that all Service Contracts between User and any Buyer or Provider regarding particular Assignments shall: (i) unless Buyer and Provider expressly agree otherwise through the Semblr Marketplace, contain substantially the same terms and conditions provided in Sections 2.1 through 2.10 below ("Standard Terms"); (ii) name Semblr as an express third party beneficiary under the Service Contract; and (iii) make no representations or warranties on behalf of Semblr. Notwithstanding the foregoing, to the extent that Buyer and Provider agree to terms in their Service Contract different than the Standard Terms, nothing in such Service Contract will in any way limit or modify Semblr's rights. 2.1 Services. Provider shall perform Services in a professional and workmanlike manner. Under Fixed Price Assignments, Provider shall deliver the agreed-upon Work Product. Under Bill Rate Assignments, Provider shall use reasonable efforts to create the desired Work Product. Provider may not subcontract with third parties to perform Services on behalf of Provider or assist Provider in performing Services unless Provider has obtained Buyer's prior written consent to such arrangement. 2.2 Fees. Buyer shall pay Provider the agreed-upon fees for time spent (under Bill Rate Assignments) or delivery of the Work Product (under Fixed Price Assignments). All amounts paid by Buyer shall be paid through the Semblr Marketplace as set forth in the Billing and Payments Policy. 2.3 Termination. Under Bill Rate Assignments, either party may terminate the Service Contract at any time for any or no reason, provided that Buyer remains obligated to pay for any time Provider spent prior to termination. Fixed Price Assignments may only be terminated by mutual agreement. 2.4 Buyer Deliverables. Buyer grants Provider a limited, non-exclusive, revocable (at any time, at Buyer's sole discretion) right to use the Buyer Deliverables as necessary for the performance of the Services. Buyer reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Buyer Deliverables. Upon completion or termination of the Assignment, or upon request by the Buyer, Provider shall immediately return all Buyer Deliverables to the Buyer and purge all copies of Buyer Deliverables and Work Product contained in or on Provider's premises or systems or otherwise under Provider's control. 2.5 Work Product. Any copyrightable works prepared by Provider in connection with an Assignment for Buyer shall be "works for hire"; consequently, Buyer will be considered the author and owner of such works. Unless prohibited by applicable mandatory law, all Proprietary Rights in and to Work Product shall vest in Buyer upon creation. If under mandatory law, Proprietary Rights do not vest in Buyer upon creation, Provider hereby assigns all Proprietary Rights to Work Product to Buyer, effective upon creation. To the extent that under mandatory law, rights can only be assigned after creation, Provider hereby irrevocably agrees to assign, immediately following the creation, all Proprietary Rights to Work Product to Buyer. To the extent that under mandatory law, Proprietary Rights cannot be assigned, Provider hereby irrevocably agrees to grant, and hereby grants, to Buyer an exclusive (excluding also Provider), perpetual, irrevocable, unlimited, worldwide, fully paid, and unconditional license to use and commercialize Work Product in any manner now known or in the future discovered. To the extent such license grant is not fully valid, effective or enforceable under mandatory law, Provider hereby irrevocably agrees to grant, and hereby grants, to Buyer, such rights as Buyer reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal ownership. In order to ensure that Buyer will be able to acquire, perfect and use such Proprietary Rights, Provider will: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to Buyer; (ii) sign any documents at Buyer's request to assist Buyer in the documentation, perfection and enforcement of its rights; and (iii) provide Buyer with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Proprietary Rights. Provider also irrevocably authorizes Buyer to act and sign on Provider's behalf and take any necessary steps in order to perfect Buyer's rights under this Agreement. In case that under mandatory law, Provider retains any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights" (collectively "Moral Rights") or other inalienable rights to Work Product or Confidential Information under this Agreement, Provider irrevocably agrees to waive, and hereby waives, all such rights, or, to the extent Provider cannot waive such rights, Provider agrees not to exercise such rights, until Provider has provided prior written notice to Buyer and then only in accordance with any reasonable instructions that Buyer issues in the interest of protecting its rights. Provider agrees to assist Buyer in every proper way to obtain and enforce the Proprietary Rights and other legal protections for the Work Product in any and all countries. Provider will sign documents that the Buyer may reasonably request for use in obtaining and enforcing such protection, including, but not limited to, any assignment deed which the Buyer may select at its sole discretion. Provider's obligations under this Section 2.5 will continue even after Provider deregisters from or ceases use of the Semblr Marketplace. Provider appoints Buyer as Provider's attorney-in-fact to execute documents on Provider's behalf for the purposes set forth in this Section 2.5. 2.6 Pre-existing IP in Work Product. User shall ensure that no Work Product created or delivered by User as a Provider includes any pre-existing software, technology or other IP, whether such pre-existing IP is owned by User or a third party including, without limitation, code written by proprietary software companies or developers in the open source community, (collectively "Pre-existing IP") without obtaining the prior written consent of the Buyer to the inclusion of such Pre-existing IP in the Work Product. User acknowledges that, without limiting any other remedies, User shall not be entitled to payment for, and shall refund any Provider Fees paid to User for, any Services performed on an Assignment if the Work Product contains any Pre-existing IP that was not approved in accordance with this Section 2.6. 2.7 Independent Contractor. Provider's relationship with Buyer will be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Provider acknowledges and agrees that neither it nor any of its employees or agents shall have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, or employee benefits of any kind from Buyer. Provider acknowledges and agrees that Buyer will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee and that and that Provider will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Provider's performance of Services. Provider agrees to accept exclusive liability for complying with all applicable state and federal laws, including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on payment of Provider Fees by Buyer. Buyer will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers' compensation insurance on Provider's behalf. Provider hereby agrees to indemnify and defend Buyer against any and all such taxes or contributions, including penalties and interest. Provider agrees to provide proof of payment of appropriate taxes on any fees paid to Provider under this Agreement upon reasonable request of Buyer. 2.8 General. Service Contracts shall be governed by Sections 5 (Confidential Information) 12 (General) and 13 (Definitions) of this Agreement, as applicable either directly or by way of analogy. 2.9 Entire Agreement. The terms and conditions set forth in this Section 2 and/or any additional or different terms expressly agreed by Buyer and Provider through the Semblr Marketplace shall constitute the entire agreement and understanding of Buyer and Provider with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them. 2.10 No Contracts outside the Semblr Marketplace. User, whether as a Buyer or Provider, agrees to use the Semblr Marketplace to enter into all contracts with other Users and except pursuant to the "Buy Out" provision set forth in the Billing and Payments Policy, shall take no steps to use any other means to enter into any contract with any other User that was introduced through the Semblr Marketplace. 3. ACKNOWLEDGMENTS BY USER OF SEMBLR'S ROLE. 3.1 Service Contracts. User expressly acknowledges, agrees and understands that: (i) the Semblr Marketplace is merely a venue where Users may act as Buyers or Providers; (ii) Semblr is not a party to any Service Contracts between Buyers and Providers; (iii) Semblr shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (iv) Semblr has no control over Providers or over the Services promised or rendered by Providers; and, (v) Semblr makes no representations as to the reliability, capability, or qualifications of any Provider or the quality, security or legality of any Service, and Semblr disclaims any and all liability relating thereto. 3.2 Semblr Tools. Semblr and its licensors reserve all Proprietary Rights in and to the Semblr Tools. User may not use the Semblr Tools except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement and on the terms set out in the License Agreement. Without limiting the terms of Section 12.5, Semblr reserves the right to suspend or terminate User's access to the Semblr Marketplace and Semblr Tools at any time in its sole discretion, and to withdraw, expand and otherwise change the Semblr Marketplace and Semblr Tools (including the functionality of the Semblr Tools) at any time in Semblr's sole discretion. Without limiting any provisions contained in the License Agreement, User shall not be entitled to create any "links" to the Semblr Tools, or "frame" or "mirror" any content contained on, or accessible through, the Semblr Tools, on any other server or internet-based device. 3.3 Semblr's Compensation. Semblr is paid its fees for the maintenance of the Semblr Marketplace. All fees are non-refundable, whether or not Assignments were satisfactorily completed. 4. FEES AND PAYMENTS. 4.1 Provider Fees. Semblr shall act as a payment processor for Provider Fees as set forth in the Billing and Payments Policy. 4.2 Formal Invoices and Taxes. Semblr shall have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Provider Fees. Instead, Provider shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Provider Fees and for issuing any invoices so required. Provider shall also be solely responsible for: (a) determining whether Provider or Semblr 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 Provider Fees, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or Semblr, as appropriate; and (b) determining whether Semblr is required by applicable law to withhold any amount of the Provider Fees, notifying Semblr of any such requirement and indemnifying Semblr (either by permitting Semblr to offset the relevant amount against a future payment of Provider Fees or by refunding to Semblr the relevant amount, at Semblr's sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. Semblr shall have the right, but not the obligation, to audit and monitor Provider's compliance with applicable tax laws as required by this Section 4.2. 4.3 Invoices to Buyer. Buyer will be invoiced for Provider Fees in accordance with the Billing and Payments Policy. If Buyer believes a Bill Rate Assignment charge to be incorrect, Buyer shall notify Semblr within the time period set forth in the Billing and Payments Policy, in which case Semblr will investigate to determine, in its sole discretion, whether an adjustment is appropriate. Semblr's determination shall be final. If Buyer does not notify Semblr within this time, the charge automatically becomes final. 4.4 Payment. Buyer hereby authorizes Semblr and any of it's agents to run credit card or online payment authorizations on all credit cards and/or online payment platform credentials provided by Buyer, to store credit card and/or online payment details as Buyer's method of payment for Services, and to charge Buyer's credit card (or any other form of payment authorized by Semblr or mutually agreed to between Buyer and Semblr) in accordance with the Billing and Payments Policy. 4.5 Dispute Resolution Policy. All disputes between a Provider and a Buyer regarding the chargeable nature of the number of hours recorded in the Time Logs shall be resolved pursuant to Semblr's Dispute Resolution Policy. 4.6 No Direct Payments. Except pursuant to the "Buy-Out" provisions set forth in the Billing and Payments Policy, Buyer shall (i) make all payments relating to, or in any way connected with, an Assignment (including, without limitation, bonuses) through the payment channels provided or specified by Semblr, and (ii) not make any such payments directly to a Provider or through any other payment channels. Buyer shall immediately notify Semblr if a Provider requests that Buyer make a payment directly to it or through any channels other than those provided or specified by Semblr. Provider shall not accept any payments relating to an Assignment (including, without limitation, bonuses) from a Buyer directly or through any payment channels other than those provided or specified by Semblr. Provider shall immediately notify Semblr if a Buyer or any of its agents attempts to make a payment to Provider directly or through any payment channels other than those provided or specified by Semblr. 5. CONFIDENTIAL INFORMATION. 5.1 Confidentiality. To the extent a Buyer provides Confidential Information to a Provider or to Semblr, the Provider or Semblr (as the case may be) shall protect the secrecy of the 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 shall not: (i) disclose Confidential Information to anyone except, in the case of Semblr, to any Provider engaged by Buyer for the Assignment; and (ii) use the Confidential Information, except as necessary for the performance of Services for the relevant Assignment (including, without limitation, the storage or transmission of Confidential Information on or through Semblr Tools for use by Provider). 5.2 Return. If and when Confidential Information is no longer needed for the performance of Services for the relevant Assignment, or at the Buyer's written request (which may be made at any time at Buyer's sole discretion), Provider or Semblr (as the case may be) shall promptly destroy or return to Buyer all Confidential Information and any copies thereof contained in or on its premises or systems or otherwise under its control. Provider and Semblr agree to provide written certification to Buyer of compliance with this Section 5.2 within ten (10) days after the receipt of Buyer's written request to certify. 5.3 Publications. Without limiting Section 5.1 (Confidentiality), neither Provider nor Semblr shall publish, or cause to be published, any Confidential Information or Work Product. 6. WARRANTY DISCLAIMER. SEMBLR MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, SEMBLR TOOLS, SEMBLR MARKETPLACE OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SEMBLR DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 9.2 (TERMINATION) STATES USER'S SOLE AND EXCLUSIVE REMEDY AGAINST SEMBLR WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION. 7. LIMITATION OF LIABILITY. IN NO EVENT WILL SEMBLR BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF SEMBLR TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (A) U.S. $2,500; AND (B) ANY SEMBLR FEES RETAINED BY SEMBLR WITH RESPECT TO ASSIGNMENTS ON WHICH USER WAS INVOLVED AS BUYER OR PROVIDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. 8. INDEMNIFICATION. 8.1 Proprietary Rights. Each User shall indemnify, defend and hold harmless (on a monthly basis, as costs are incurred) Semblr and its subsidiaries, affiliates, officers, agents, employees, representatives and co-branders or other partners (each an "Indemnified Party" for purposes of this Section 8) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to any claim, judgment, or adjudication that any Work Product, Services or action or omission by such User infringes Proprietary Rights or other rights of any third party. 8.2 Indemnification by Buyer. Each Buyer shall indemnity, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Buyer's use of Services, including without limitation claims by or on behalf of any Provider for Worker's Compensation or unemployment benefits, or (ii) any Service Contract entered into between such Buyer and a Provider. 8.3 Indemnification by Provider. Each Provider shall indemnity, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Provider's provision of Services, or (ii) any Service Contract entered into between such Provider and a Buyer. 9. TERM AND TERMINATION. 9.1 Term. The term of this Agreement commences on the Effective Date and continues in effect until terminated in accordance with Section 9.2 below. 9.2 Termination. Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party, provided that any such termination for convenience shall not affect the validity of any Service Contracts that have been concluded prior to termination and this Agreement shall continue to apply with respect to such Service Contracts. 9.3 Consequences of Termination. Termination shall not relieve Buyer of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, shall be invoiced to Buyer following termination pursuant to Section 4.3 (Invoices to Buyer), and charged to Buyer's credit card or other form of payment pursuant to Section 4.4 (Payment). Subject to Section 4.5 (Dispute Resolution Policy), Semblr shall pay Provider, in accordance with the provisions of Section 4 (Fees and Payments), for all time recorded in the Time Logs incurred prior to the effective date of the termination. 9.4 Survival. Sections 3 through 13 of this Agreement shall survive any termination thereof. 10. AUDIT RIGHTS. Buyer and Provider each shall (i) create and maintain records to document satisfaction of its obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to Semblr upon request. Semblr, or Semblr's advisors or agents, shall have the right, but not the obligation, to routinely, but no less frequently than annually, audit Provider's operations and records to confirm compliance. 11. ENTIRE AGREEMENT; PREVIOUS AGREEMENTS AND ONGOING ASSIGNMENTS. 11.1 Entire Agreement. This Agreement, including the incorporated Policies, sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them. In particular, this Agreement cancels and supersedes any Semblr Buyer Services Agreement, Freelancer Provider Services Agreement, and/or Affiliate Services Agreement that User might have previously entered into with Semblr ("Previous Agreements"). In case of any inconsistencies between the Policies and the other terms of this Agreement, the latter shall prevail. 11.2 Rights and Obligations under Previous Agreements. As of the Transition Date, User shall have no rights against Semblr under Previous Agreements except that User remains entitled to any fees for Services which User has become entitled to receive from Semblr under the terms of such Previous Agreements and which Semblr has not remitted as of the Transition Date. Semblr remains entitled to payment on invoices for Assignments commenced under Previous Agreements with User. User's continued use of the Semblr Marketplace as a Buyer or Provider on or after the Transition Date shall be solely governed by the terms of this Agreement. 11.3 Ongoing Assignments. Failure by any Buyer to terminate any Assignment commenced under a Previous Agreement prior to the Transition Date ("Ongoing Assignment") constitutes an offer to the Provider under such Ongoing Assignment to continue the Ongoing Assignment under a Service Contract with the terms and conditions set forth in Section 2 (Service Contract Terms Between Buyer and Provider) or any other terms expressly agreed to by the Buyer and the Provider through the Semblr Marketplace ("Offer to Continue"). A Provider's continuation of work on any Ongoing Assignment on or after the Transition Date constitutes the Provider's acceptance of the Buyer's Offer to Continue such Ongoing Assignment. 11.4 No Violation of Non-Solicitation Provisions. Under no circumstances shall participation in and interaction with other Users exclusively through the Semblr Marketplace be viewed as a prohibited solicitation under the terms of any Previous Agreement. Without limiting the generality of Section 11.1, any non-solicitation and/or no-hire clauses under Previous Agreements are cancelled. 12. GENERAL. 12.1 No Employment. User acknowledges and agrees that this Agreement does not constitute an employment agreement or create or acknowledge an employment relationship (neither with Semblr nor with any other User). The parties shall be independent contractors at all times and not partners, joint venturers or otherwise participants in a joint undertaking. 12.2 Limited Privacy. User acknowledges and understands that any Work Product, Time Logs, workstation images and any other information (including the terms of this Agreement) that User provides or makes available on the Semblr Marketplace as a Provider may be made available to Buyers and others in accordance with Semblr's Privacy Policy. User has no expectation of privacy related to Services or any other activities performed as a Provider in connection with this Agreement. 12.3 Compliance. User shall not violate any laws or third party rights on or related to the Semblr Marketplace. Without limiting the generality of the foregoing, User agrees to comply with all applicable import and export control laws and third parties' Proprietary Rights. 12.4 Notices; Consent to Electronic Notice. You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Semblr Marketplace. Notices hereunder shall be invalid unless made in writing and given (a) by Semblr via email (in each case to the address that you provide), (b) a posting on the Semblr Site or (c) by you via email to support@semblr.com or to such other addresses as Semblr may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted. 12.5 Modifications. (a) Semblr reserves the right in its sole discretion to amend this Agreement without advance notice. Modifications to this Agreement or any Policies will be posted on the Site or made in compliance with any notice requirements set forth in this Agreement. Subject to Section 9, if any modification is not acceptable to you, your only recourse is to cease using the Semblr Marketplace. By continuing to use the Semblr Marketplace after Semblr has posted any modifications on the Site or provided any required notices, you accept and agree to be bound by the modifications. (b) Except only as permitted by Section 12.5(a), no modification or amendment to this Agreement shall be binding upon either party unless in a written instrument signed by a duly authorized representative of each party (and, for the purposes of this Section 12.5(b), a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). 12.6 Dates and Timelines. All references to days shall be to business days (Monday to Friday, GMT, excluding bank holidays), except as expressly noted otherwise. 12.7 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 shall 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. 12.8 Assignability. User may not assign this Agreement, or any of its rights or obligations hereunder, without Semblr's prior written consent in the form of a written instrument signed by a duly authorized representative of each party (and, for the purposes of this Section 12.8, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). Semblr may freely assign this Agreement without consent of User. For the purposes of this Agreement an assignment will be deemed a "Change of Control." Any attempted assignment or transfer in violation of this Section will be null and void. A "Change of Control" means (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties. 12.9 No 3rd Party Beneficiary Rights. Except as specified in Sections 1 (The Semblr Marketplace) and 2 (Service Contract Terms Between Buyer and Provider), this Agreement shall: (a) create rights and obligations only between Semblr and each individual User that accepts this Agreement; and (b) not create any rights for any other parties. For the avoidance of doubt, without any limitation, no user shall be entitled to enforce the terms of this Agreement as they apply between Semblr and another user. 12.10 Provider Restrictions. Certain countries are currently on the list of sanctioned countries imposed by the US Department of Treasury (http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml). A few other countries are not serviced by our payment processing partners. Persons located in these countries cannot be accepted into the Semblr network at this time. If you are living in the United States, you need to be a permanent resident or a citizen to work as a provider on Semblr. Holders of various VISAs, such as F-1, J-1, H-1, H1-B, H-4, L-2, are not eligible to work on Semblr as providers. 12.11 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall 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 shall 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. 12.12 Choice of Law. This Agreement and any dispute arising out of or relating to this Agreement ("Dispute") shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). 12.13 Arbitration. All Disputes shall be finally resolved by binding arbitration before three (3) arbitrators, selected and proceeding pursuant to the International Arbitration Rules of the International Centre for Dispute Resolution (ICDR), in the English language, in New York, New York, or any other location on which all three arbitrators unanimously agree. The arbitrators shall, at either party's request, give a written opinion stating the factual basis and legal reasoning for the decision in the English language. The arbitrators so appointed shall have the authority to determine issues of arbitrability. The arbitrators shall have the authority to award compensatory damages only and shall not award punitive or exemplary damages. The parties, their representatives, other participants and arbitrators shall hold the existence, subject matter and result of arbitration in confidence. Notwithstanding the foregoing, either party may, at its sole discretion, seek injunctive relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). The prevailing party in any legal proceeding brought by one party against the other party in a Dispute shall be entitled to recover its legal expenses, including, but not limited to, the costs of any court or arbitration proceeding and reasonable attorneys' fees. 12.14 Prevailing Language. The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any. 13. DEFINITIONS. 13.1 "Assignment" means a particular project or set of ongoing tasks for which a Buyer has requested Services to be performed by a Provider. 13.2 "Bill Rate" for an Assignment means, in respect of a Provider, the hourly rate specified for that Provider in the Semblr Marketplace. 13.3 "Bill Rate Assignment" means an Assignment for which Buyer is charged based on the Bill Rate. 13.4 "Buyer" means any company or individual, including User, utilizing the Semblr Marketplace to request Services to be performed by a Provider. 13.5 "Confidential Information" means Buyer Deliverables, Work Product, and any other information provided to, or created by, a Provider for an Assignment, 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 Provider or Buyer; (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 Provider prior to receiving it from Buyer and was not received from a third party in breach of that third party's obligations of confidentiality; or (d) was independently developed by Provider without use of Confidential Information. 13.6 "Buyer Deliverables" means instructions, requests, IP and any other information or materials that a Provider receives from a Buyer for a particular Assignment. 13.7 "Effective Date" means the date of acceptance of this Agreement. 13.8 "Fixed Price" means a fixed fee agreed between a Buyer and a Provider, prior to the commencement of an Assignment, for the completion of all Services requested by Buyer for such Assignment. 13.9 "Fixed Price Assignment" means an Assignment for which Buyer is charged a Fixed Price. 13.10 "IP" means any computer programs or routines (in object code, source code, or embedded format, regardless of the medium on which it resides), algorithms, know-how, hardware and/or software configurations, inventions, documentation, translations, text and other works of authorship, data, databases, information, designs, utility models, symbols, logos, marks, names, procedures, processes, technical improvements and any other intangibles as well as the prototypes, samples, copies, and other materialized forms of the foregoing intangibles. 13.11 "License Agreement" means the license agreement between User and Semblr relating to use of the Semblr Tools software. 13.12 "Semblr Team" means the online platform accessed using the Semblr Tools software and through which a Buyer communicates with a Provider in relation to an Assignment once such Assignment has commenced. 13.13 "Semblr Tools" means any software, information and other items provided by Semblr, including, without limitation, Semblr Team, Semblr share, Mailing List, SVN Source Code Repository and Bugzilla bug-tracking, subject to change and update by Semblr from time to time at Semblr's sole discretion. 13.14 "Payment Period" shall mean the four (4) or five (5) week period beginning on the Monday following the prior Payment Period and ending on the Sunday nearest to the last day of the relevant month. 13.15 "Proprietary Rights" means any and all rights, title, ownership and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to IP, recognized in any jurisdiction, whether or not perfected. 13.16 "Provider" means any company or individual, including User, utilizing the Semblr Marketplace to offer Services for Buyers and/or to enter into Service Contracts. 13.17 "Provider Fees" means: (a) for a Bill Rate Assignment, an amount equal to the number of hours recorded by Provider in the Time Logs, multiplied by the Bill Rate; (b) for a Fixed Price Assignment, the Fixed Price; and (c) any bonuses paid or other payments made by a Buyer for an Assignment. 13.18 "Services" means software development and other knowledge-based technology services. 13.19 "Time Logs" means the number of hours recorded for a stated period by a Provider in Semblr Team (or such other Tool as Semblr may nominate from time to time), in compliance with Semblr's Billing and Payments Policy and Policy on Managing and Working on Assignments, for the Services performed in respect of an Assignment. 13.20 "Transition Date" means the Monday following the end of the last Payment Period under any Previous Agreement between User and Semblr or, if there is no such Previous Agreement, the Effective Date. 13.21 "Work Product" means any tangible or intangible results or deliverables that Provider agrees to create for, or actually delivers to, Buyer as a result of performing the Services on a particular Assignment, including, but not limited to, configurations, computer programs or other information, or customized hardware, and any IP developed in connection therewith.
I Agree