These Terms of Service (these “Terms”) are a contract between the business entity you represent, on the one hand (“you”), and Upside Talent, Inc., a Delaware corporation, on the other hand (collectively, the “Company”, “we” or “us”). You must read, agree with and accept all of the terms and conditions contained in these Terms in order to use our websites located at www.upsidetalent.com and related software and services (collectively, the “Platform”). The Company may revise these Terms at any time. If any such amendment results in a material change to these Terms, as determined by the Company in its sole discretion, we will inform you of such changes via a notice on the Site or by sending you an email to the address you have registered with us. Continued use of the Platform after the effective date of any revisions to these Terms constitutes your acceptance of the revised Terms.
YOU UNDERSTAND THAT BY SIGNING UP FOR AND USING THE PLATFORM, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE PLATFORM. BY AGREEING TO THESE TERMS ON BEHALF OF A LEGAL ENTITY: (A) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND ANY REPRESENTATIVES IT ALLOWS TO ACCESS THE PLATFORM OR TO PROVIDE SERVICES VIA THE PLATFORM TO THESE TERMS; (B) SUCH ENTITY IS RESPONSIBLE FOR ANY BREACH OF THIS AGREEMENT BY ANY OF ITS REPRESENTATIVES; AND (C) “YOU” AND “YOUR” AS USED HEREIN WILL REFER AND APPLY TO THAT ENTITY AND THE PERSONS THAT ACCESS THE PLATFORM ON ITS BEHALF.
The Platform provides a venue for you (the “Client”) to meet, review and obtain professional services (“Services”) from independent contractors or recruiting firms (“Contractors”) for one or more projects (“Projects”). Under these Terms, the Company provides services to you in your capacity as a Client, including operating and providing the Platform, curating Contractors and Project bids, and functioning as the payment processor for you and your Contractors. As a Client, you post Projects and invite Contractors to submit a bid. Contractors, in turn, post their professional profile(s) and bid on Projects. If you accept a Contractor’s bid, you may then draft and negotiate a contract, statement of work (SOW), recruiting agreement, or other service or project agreement directly with such Contractor (“Service Contract”), though any such Service Contract you enter into with a Contractor must contain the required terms as further described in Section 1.5 below. The Company reserves the right, either upon your request or in certain cases and with respect to certain Projects, to select the set of bids to forward to you for review.
The Platform is available only to legal entities that are capable of forming legally binding contracts under applicable law. In order to create an account, you must provide us with your business name and contact information, including the name and contact information of a representative authorized to act on your entity’s behalf. In addition, by creating an account, you represent and warrant that your entity is not (a) a citizen of or doing business in a country where the use of or participation in the Platform is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen of, or doing business in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) associated or doing business 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 U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation. In addition, you confirm that you are not prohibited or limited in any way from participating as a Client on the Platform by any contract (e.g., employment, consulting, confidentiality, or non-disclosure agreements) or any similar policies or obligations that limit your conduct or business in any way. Further, to the extent your right to receive Services is limited in any way, you confirm that you have obtained all necessary consents or waivers to receive Services as a Client on the Platform. Notwithstanding the foregoing, the Company may determine your eligibility to create an account on the Platform in its sole discretion.
The Company reserves the right to validate your identity, entity status and other account information at any time. You are responsible for ensuring and maintaining the secrecy and security of your account password, and are responsible for any activities that occur on the Platform under your account. You must notify the Company support immediately if you suspect that your account password has been lost or stolen.
As a Client, you acknowledge and agree that your relationship to the Company is that of an independent contractor and customer receiving professional services, and that (a) you have no authority to act on behalf of the Company; (b) the Company does not, in any way, supervise, direct, or control the performance of the Services by Contractors; and (c) the Company is not a party to any contract you may enter into with Contractors and will not have any liability or obligations whatsoever under any such contracts.
Unless otherwise agreed to in a writing signed by the Company, each Service Contract must contain terms and conditions substantially similar to and at least as protective of the Company as the terms and conditions set forth in Schedule A attached hereto, provided that such terms and conditions do not constitute legal advice from the Company, and you and your Contractors should consult independent counsel in drafting and negotiating any Service Contracts. Once you have executed a Service Contract with a Contractor, you must upload a copy (redacted if necessary to protect any particularly sensitive information) to your Workspace for the applicable Project so that the Company can verify your compliance with Schedule A.
For a period of twelve (12) months from the time you identify a Contractor through the Platform (“Exclusivity Period”), you will use the Platform as your exclusive method to receive all Services and make all payments, directly or indirectly, with that Contractor or arising out of your relationship with that Contractor. Upon expiration of Exclusivity Period, you are free to directly deal with the applicable Contractor outside of the Platform and independently from these Terms.
The Platform may include links to third party websites. The Company has no control over, is not responsible for and does not endorse any such sites, and the Company will have no liability for any damages or losses you incur by visiting or using such third party websites.
By accessing and using the Platform, you agree to abide by the Upside Talent Code of Conduct (“Code of Conduct”), which is incorporated herein by reference.
Subject to your compliance with these Terms, the Company hereby grants you a personal, non-exclusive, non-transferable, revocable, limited license (without the right to sublicense) to access and use the Platform for your internal business purposes only, and subject to the limitations set forth below. The Company reserves any and all rights not expressly granted to you pursuant to these Terms. The limited rights granted to you to access and use the Platform comprise a limited license and do not constitute the sale of any software program or other intellectual property.
You agree that:
you will not use the Platform if you are not fully able and legally competent to agree to these Terms;
you will only use the Platform in full compliance with all applicable laws and these Terms; and
you will not use the Platform for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct. Further, except as specifically permitted herein or approved in advance in writing by the Company, you agree that you will not directly or indirectly:
(i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Platform in any unauthorized manner;
(ii) use the Platform in any service bureau arrangement;
(iii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Platform or any part thereof in any form or manner or by any means;
(iv) harvest or scrape any content or data from the Platform;
(v) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Platform;
(vi) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Platform or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law);
(vii) circumvent any functionality that controls access to or otherwise protects the Platform; or
(viii) permit any third party to engage in any of the foregoing. Any attempt to do any of the foregoing is a material breach of these Terms and a violation of the rights of the Company and its licensors. If you breach these restrictions, you may be subject to prosecution and damages.
The Platform’s “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials are protected under intellectual property laws. You acknowledge and agree that the Company and/or its licensors own all right, title and interest in and to the Platform (including all intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. Any and all: (a) suggestions for correction, change and modification to the Platform and other feedback, information and reports your provide to the Company (collectively “Feedback”); and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by the Company or otherwise relating to the Platform (collectively, “Revisions”), are and will remain the property of the Company. All Feedback and Revisions become the sole and exclusive property of the Company and the Company may use and disclose Feedback and Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest that you may have in and to any and all Feedback and Revisions.
During the course of your Projects, the Company will provide you storage space on the Platform (“Workspace”) for the exchange of documents and other information related to your Projects between you and the applicable Contractor, including any Client Materials and Work Product (as defined in Sections 1.4 and 1.5 of Schedule A, respectively). You agree that the Workspace will be the exclusive means by which you receive Client Materials and deliver the Work Product. The Company reserves the right to delete your Workspace and all data therein thirty (30) days after the end of the associated Project.
You acknowledge and agree that the Company may preserve and/or disclose your Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any of your Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of the Company, its affiliates, officers, employees, representatives and agents, as well as Platform users and the general public.
You are solely responsible for all of your Content, and agree not to upload any Content prohibited by applicable law or the restrictions in this Section. The Company reserves the right to investigate and take appropriate legal action against any Contractors who violates this Section. Specifically, you represent and warrant that none of your Content: (a) constitutes protected health information under the Health Information Portability and Accountability Act; (b) infringes any intellectual property, proprietary, contractual or privacy rights of any party; (c) constitutes material, non-public information about any company and/or constitutes information the disclosure of which would be in violation of securities laws; (d) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “contests”, “sweepstakes”, or any other form of solicitation; (f) is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, or otherwise objectionable; or (g) in the sole judgment of the Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Platform, or which may expose the Company or its users to any harm or liability of any kind. The Company has the right, but not the obligation, to monitor your use of the Platform, your Content and the Services you perform to determine your compliance with the these Terms.
The Company is free to join, and there are no charges to post Projects or review Contractor profiles. Instead, the Company collects fees for each Project that is completed on the Platform. All fees are non-cancelable and non-refundable. If you have further questions about our fees, please contact us at firstname.lastname@example.org.
The Company functions as the payment processor for amounts you pay to Contractors for Services on the Platform. If you elect to pay by credit card, you authorize the Company to (a) run, or have run, credit card authorizations on all credit cards provided by you; (b) store your credit card details as your method of payment for Services; and (c) charge your credit card (or any other form of payment authorized by the Company or mutually agreed to between you and the Company) in payment of any fees you incur on the Platform.
You are required to make all payments relating to or in any way connected with a Project through the Platform. During the Exclusivity Period, you shall not make complete or partial payments to Contractors for Services outside of the Platform, or otherwise circumvent the Company’s role as payment processor or the Platform’s payment methods, and any violation of the foregoing restrictions is a material breach of these Terms. By way of illustration and not in limitation of the foregoing, within the Exclusivity Period you will not: (a) accept proposals from, receive services from, or make payments to any Contractors except via the Platform; or (b) pay or report on the Platform a payment amount lower than that actually agreed between you and a Contractor through the Platform. YOU WILL NOTIFY THE COMPANY IMMEDIATELY IF A CONTRACTOR CONTACTS YOU OR SUGGESTS MAKING PAYMENTS OUTSIDE OF THE PLATFORM WITHIN THE EXCLUSIVITY PERIOD. If you become aware of a breach or potential breach of the disintermediation policy in this Section 4.3, please report the issue to the Company by sending an email message to email@example.com.
As a Client, you agree not to disclose or to attempt to use or personally benefit from (financially or otherwise) any nonpublic or proprietary information of the Company or its Contractors (“Restricted Information”) that is disclosed to or known by you because of your activities on the Platform until such time as the Restricted Information has become publicly available through no action of your own, except to the extent required by law or as expressly permitted by the Company or a Contractor for the purpose of facilitating a particular Project. If you are compelled by order of a court or other governmental or legal body (or have notice that such an order is being sought) to divulge any Restricted Information to anyone, you will promptly notify the Company, unless prohibited from doing so by the express terms of a government subpoena or court order, and will cooperate fully with the Company in protecting such information to the extent possible under applicable law. Upon request by the Company or the applicable Contractor, you agree to return or destroy all Restricted Information in your possession.
THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY 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.
IN NO EVENT WILL THE COMPANY 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 TOTAL AGGREGATE LIABILITY OF THE COMPANY TO YOU FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR USE YOUR OF THE PLATFORM WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU TO THE COMPANY DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
You agree to indemnify and hold harmless the Company and its affiliates, officers, employees, representatives and agents (each, an “Indemnified Party”) from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to: (a) your use of the Platform; (b) your Content; and (c) your violation of these Terms.
Subject to your obligation to pay for Services for which you have received, you have the right to cancel your account at any time upon notice to the Company, and the Company has the unlimited right to terminate or limit your account and/or access to the Platform at any time and for any reason, including, without limitation, for violation of these Terms and/or the Code of Conduct . For the avoidance of doubt, canceling your account does not relieve you of your obligations with respect to the Exclusivity Period set forth in Section 1.6.
Sections 1.5, 1.6, 3.1, 3.3, 4.3, 5, 6, 7, 8, 9.2, 10 and 11 of these Terms will survive any termination thereof.
You agree that in the event of any dispute between you and the Company, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to arbitration under this Agreement.
Any dispute or claim that remains unresolved after the informal dispute resolution described in Section 10.1, except for disputes relating to the infringement of the Company’s intellectual property rights or the access or use of the Platform in violation of these Terms (a “Claim”), will be resolved by binding arbitration, rather than in court, provided that you may assert Claims in small claims court located in San Diego, California if your Claims qualify.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would.
The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes. These rules can be found on the AAA website at www.adr.org.
To begin an arbitration proceeding, you must send us a notice of dispute, in writing, setting forth your name, address and contact information, the facts of the dispute and relief requested. You must send your notice of legal dispute to us at the following address: firstname.lastname@example.org. The Company will send any notice of dispute to you at the contact information we have for you.
The arbitration will be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.
If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, the Company will pay all other AAA and arbitrator’s fees and expenses.
To the fullest extent permitted by applicable law, you and the Company each agree that any proceeding to resolve a Claim will be conducted only in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, consolidated, multiple plaintiff or representative action (“Class Action”). If for any reason a Claim proceeds in court rather than in arbitration, you and the Company each waive any right to a jury trial. You and the Company expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
In no event will any Claim, or any other action or proceeding by you (including arbitration under this Section 10) be instituted more than one (1) year after the cause of action arose.
Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods will have no applicability.
If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and the Company each agree to the exclusive jurisdiction of the Federal and State courts located in San Diego, California, and you and the Company each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.
You may not assign these Terms or any of your rights or obligations hereunder without the Company’s prior written consent. The Company may freely assign these Terms. Any attempted assignment or transfer in violation of this Section 11.1 will be null and void. Subject to the foregoing restrictions, these Terms will inure to the benefit of the successors and permitted assigns of the parties.
These Terms and the Schedules attached hereto set 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.
These Terms and any controversy, dispute or claim arising out of or relating to these Terms will be governed by and construed in accordance with the laws of the California Courts, without regard to its conflict of law provisions.
You consent to the use of electronic means to deliver any notices pursuant to these Terms. Notices will be given: (a) by the Company via email (in each case to the email address that you provide when registering your account); (b) a reasonably prominent posting on the Platform; or (c) by you via email to email@example.com.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
If and to the extent any provision of these Terms is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties.
Contractor will perform the Services in a professional and workmanlike manner and will timely deliver any agreed-upon Work Product.
Client will pay the Company the fees for the Project in accordance with the Agreement.
Client may terminate a Service Contract at any time but may not recover any payments already made to the Company. Contractor may terminate the Service Contract at any time if Client has not yet made any payment for Contractor’s Services. If Client has made a payment, Contractor may terminate only with Clients prior written consent.
Client hereby grants Contractor a limited, non-exclusive, revocable (at any time, at Client's sole discretion) license to use instructions, materials, and information that Client provides to Contractor in connection with a particular Service Contract, and any intellectual property rights contained therein (collectively, the “Client Materials”) solely for Contractor’s performance of the Services. Client reserves all other rights and interest in and to the Client Materials. Upon completion or termination of the Service Contract, or upon written request by Client, Contractor will immediately return all Client Materials to Client and further agrees to purge all copies of Client Materials and Work Product contained in or on Contractor’s premises, systems or any other equipment otherwise under Contractor’s control. Within ten (10) days of Client's request, Contractor agrees to provide written certification to Client that all Client Materials have been returned or purged.
Contractor will make full and prompt disclosure to Client of all inventions, discoveries, designs, developments, methods, modifications, improvements, ideas, products, processes, algorithms, databases, computer programs, formulae, techniques, know-how, trade secrets, graphics or images, and audio or visual works and other works of authorship (collectively, “Developments”), whether or not patentable or copyrightable, that are created, made, conceived or reduced to practice by Contractor for Client during the term of the Service Contract that results from the Services (“Work Product”). Contractor acknowledges that all work performed by Contractor is on a “work for hire” basis, and Contractor hereby assigns and transfers and, to the extent any such assignment cannot be made at present, will assign and transfer, to Client and its successors and assigns all Contractor’s right, title and interest in all Work Product, and all related patents, patent applications, trademarks and trademark applications, service marks and service mark applications, copyrights and copyright applications, and other intellectual property rights in all countries and territories worldwide and under any international conventions. Contractor will cooperate fully with Client, both during and after the term of the Service Contract, with respect to the procurement, maintenance and enforcement of intellectual property rights in, to or that claim or cover the Work Product. Contractor will sign, both during and after the term of the Service Contract, all papers, including without limitation copyright applications, patent applications, declarations, oaths, assignments of priority rights, and powers of attorney, which Client may deem necessary or desirable in order to protect its rights and interests in any Work Product. If Client is unable, after reasonable effort, to secure Contractor’s signature on any such papers, Contractor hereby irrevocably designates and appoints each current and future officer of Client as Contractor’s agent and attorney-in-fact to execute any such papers on Contractor’s behalf, and to take any and all actions as Contractor may deem necessary or desirable in order to protect its rights and interests in any Work Product.
If Contractor incorporates any Development that Contractor has, alone or jointly with others, conceived, developed or reduced to practice prior to the date of the Service Contract that Contractor considers to be Contractor’s property or the property of third parties and that Contractor wishes to have excluded from the scope of the Service Contract (collectively, “Pre-Existing Developments”) into the Work Product, Contractor hereby grants Client and its affiliates a perpetual, irrevocable, paid-up, royalty-free, nonexclusive, worldwide license (with the full right to sublicense directly, or indirectly through multiple tiers) to: (a) copy, distribute, display, perform, and create derivative works of the Pre-Existing Developments, in whole or in part; and (b) use or otherwise practice the Pre-Existing Developments, in whole or in part, including without limitation, the right and license to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Pre-Existing Developments and the right to practice any method covered by or included in the Pre-Existing Developments. Notwithstanding the foregoing, Contractor will not incorporate, or permit to be incorporated, Pre-Existing Developments in any Work Product without Client’s prior written consent.
(a) Confidentiality. “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by a Client or a Contractor (the“Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to a Contractor (in the case of Client as the Disclosing Party) or a Client (in the case of Contractor as the Disclosing Party) (the “Receiving Party”) or which would be apparent to a reasonable person, familiar with Disclosing Party’s business and the industry in which each operates, to be of a confidential or proprietary nature the maintenance of which is important to the Disclosing Party; provided, however, that reports and/or information related to or regarding the Services or Work Product, or a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in the following sentence. Information and data will not be deemed Confidential Information hereunder if such information:
(i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party;
(ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party;
(iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or
(iv) is independently developed by the Receiving Party.
(b) Use of Confidential Information. The Receiving Party acknowledges that it will have access to the Disclosing Party’s Confidential Information. The Receiving Party agrees that it will not:
(i) use any such Confidential Information in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under the Service Contract; or
(ii) disclose any such Confidential Information to any party, other than furnishing such Confidential Information to its (A) employees who are required to have access to the Confidential Information in connection with the exercise of Receiving Party’s rights and performance of its obligations a Services Contract; and (B) professional advisers (e.g., lawyers and accountants); provided, however, that any and all such employees and advisers are bound by agreements or, in the case of professional advisers, ethical duties, to treat, hold and maintain such Confidential Information in accordance with the terms and conditions of this section. The Receiving Party agrees that it will not allow any unauthorized person access to Disclosing Party’s Confidential Information, and that Receiving Party will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information. In the event that the Receiving Party is required by law to make any disclosure of any of Disclosing Party’s Confidential Information, by subpoena, judicial or administrative order or otherwise, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection.
(c) Additional Restrictions. Contractor will not disclose to Client any information that constitutes material, non-public information about any third party, information that Contractor has a duty or obligation to keep confidential (whether by agreement, law, rule, regulation, fiduciary duty, or other similar obligation or restriction), information the disclosure of which would be in violation of securities laws and/or information that is proprietary to a third party (including past or present employers or companies for which Contractor have consulted) and not owned solely by Contractor.
(d) Return. If and when Confidential Information is no longer needed for the performance of Services for the relevant Service Contract, or at Client’s or Contractor’s written request (which may be made at any time at Client’s or Contractor’s sole discretion), Client or Contractor (as the case may be) will promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Client or Contractor, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this section within ten (10) days after the receipt of Disclosing Party’s written request to certify.
(e) Publication. Without limiting the confidentiality obligations set forth in this section, Client and Contractor will not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a Services Contract or except as the Disclosing Party will permit.
Client agrees that:
Client does not in any way supervise, direct, or control Contractor’s Services;
that Client does not, in any way, supervise, direct, or control Contractor’s work hours and location of work; and
Client does not provide Contractor with training or equipment for any Project. Notwithstanding the foregoing, Client assumes all liability for proper classification of Contractors as independent contractors or employees based on applicable legal guidelines. A Service Contract does not create a partnership or agency relationship between Client and Contractor. Contractor does not have authority to enter into written or oral — whether implied or express — contracts on behalf of Client. Client and Contractor 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, in any nation, with respect to Contractor’s performance of the Services. Client may not require an exclusive relationship between Client and Contractor. Contractor, as an independent contractor, is free at all times to provide Services to persons or businesses other than Client, including any competitor of Client.
Client and Contractor each will: (a) create and maintain records to document satisfaction of their obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws; and (b) provide copies of such records to the Company upon request. The Company, or the Companyʼs advisors or agents, will have the right, but not the obligation, to routinely, but no more frequently than annually, audit Contractor’s operations and records to confirm compliance. Nothing in this provision should be construed as providing the Company with the right or obligation to supervise or monitor the actual Services performed by Contractor.
Each Service Contract shall expressly name the Company as an intended third party beneficiary. Clients and Contractors understand and agree that the Company is an intended third party beneficiary of each Service Contract and that the Company has the right to enforce all rights and obligations under the Service Contract on its own behalf.
Clients and Contractors may enter into any supplemental or other written agreements (“Side Agreements”) that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, assignment of rights, etc.). The terms and conditions required by this Schedule A, however, will govern and supersede any term or condition in a Side Agreement that purports to expand the Company’s obligations or restrict the Company’s rights under this Agreement.
The terms and conditions set forth in this Schedule A, together with any additional or different terms expressly agreed to by Client and Contractor (in a Side Agreement or otherwise), will constitute the entire agreement and understanding of Client and Contractor with respect to each Service Contract and will cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.