Current version. Last updated - [10.11.2020]
IMPORTANT! PLEASE READ THIS AGREEMENT CAREFULLY AS IT MAY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS.
Smartcat means Smartcat Europe B.V. a legal entity registered in the Netherlands with registered address at Rouboslaan 36 B, 2252 TR, Voorschoten, the Netherlands, registration № 859832880
2. Change in The Terms of ServiceBack
We reserve the right at all times to discontinue or modify any part of this Agreement as we deem necessary. When we revise this Agreement, we change the “Last updated” date above and post the amended and restated Agreement at www.smartcat.com. We shall notify you by e-mail or via the Platform about the amended and restated Agreement to ensure that you stay informed of any such amendments and restatements. Your use of the Platform and application for Service Tasks after the date of notification or the effective date of changes indicated in the notification shall mean your acceptance of the amended and restated Agreement, unless you accepted them otherwise earlier. In case you use a corporate account, only the administrator of that corporate account will be notified. The administrator of the corporate account and not Smartcat is solely responsible for further notification of changes to other members of the corporate account.
3. Overview and Key DefinitionsBack
We provide an online platform that is made available at the Smartcat’s website located at www.smartcat.com and represents itself as a technology platform for translation workflow automation allowing a registered user to automate translation processes and make use of technologies such as (but not limited to) Translation Memory (as further defined at www.smartcat.com), Glossary Management (as further defined at www.smartcat.com), QA checks, etc., as well as tools for collaboration between customers and language professionals, including, but not limited to translators (collectively the above stated definition is hereinafter referred to as the “Platform”). The Platform also enables a customer that registered on the Platform and wishes to receive translation, interpreting and related services (such as, but not limited to editing and post-editing, proofreading, desktop publishing, etc.) (a “Customer”) to enter into services agreement with Smartcat and place a service order (the “Service Task”) that contains the description of its terms, including language of the original text, translation language, scope of work, deadline and rate per unit (word, character, page or hour, etc.). Suppliers will express interest in available projects via the Platform to perform the content translation, interpreting or related services. A supplier can be any individual freelancer or legal entity, including you, that registered on the Platform (a “Supplier”) and wishes to perform the Service Task.
“Content” means any document, information, data, text, images, software, music, videos, sound, photographs, graphics, messages or other materials, including any text and/or oral communication, that a Customer wishes Smartcat to translate or process in the agreed way, submits it for translation/processing by way of uploading, e-mailing, posting, assigning a task, publishing or displaying (hereinafter, “upload”) it on the Platform and that the Supplier will commit to performing as a project in the form of the Service Task.
“Exploit”, “Exploitation” or “Exploiting” in respect of the Completed content and/or any intellectual property rights in any such Completed content, means produce, reproduce, use, exploit, communicate, make available, sell, distribute, prepare, proofread, edit, change, amend, update, revise, translate, retranslate, commercialise, license, sub–license, assign, waive, copy, issue copies of such Completed content to the public, rent or lend such Completed content to the public, perform, show or play such Completed content in public, communicate such Completed content to the public, make an adaption of such Completed content or do any of the above in relation to an adaption of such Completed content or do (or permit or authorise others to do) anything which is or may be otherwise restricted by the copyright in such Completed content or otherwise use, exploit and/or deal with all or any part of such Completed content in any form or manner (including online, offline, and/or in any digital or electronic book form) and anywhere in the world, including (without any limitation) by preparing sound recording incorporating the whole or part of such Completed content (or an adaption thereof), by producing and selling any other devices capable of storing sound including but not limited to electronic or digital files for transmission over the internet or via other wireless means, by publishing any extracts or an abridgement of such Completed content in any newspapers (including the online form of any such newspapers) books, periodicals, in volume or elsewhere (including any maps, diagrams or illustrations from the Completed content), by publishing an edition with editorial apparatus or an edition with a limited vocabulary for sale on educational terms by educational sales methods; and/or by any readings from the text of such Completed content on radio or television or otherwise, by transcription of such Completed content into Braille and/or the recording of such Translation as a “talking book” for the use of the blind or otherwise.
“Completed content” means the result of your work made with the Content according to the Service Task.
“User” means a Customer or a Supplier (depending on the context) registered on the Platform.
4. Registration with the PlatformBack
To access and use the Platform as a Supplier, you must be a legal entity or an individual of eighteen (18) years of age or older who can enter into legally binding contracts. To become a Supplier, you must accept this Agreement. Once you accept the Agreement you must not access and use the Platform if you (a) are a competitor of ours, or (b) you reside or have business activities in a territory included in the economic and financial sanctions lists maintained by OFAC and/or EU, or are subject to such sanctions in any other way, or (c) if we have previously banned you from accessing and using the Platform and/or closed your account on the Platform. We reserve the right, in our sole discretion, to refuse, suspend, or terminate access to the Platform pursuant to Section 10.
You must create an account and provide certain information about yourself in order to access and use the Platform. You agree to provide true, accurate and complete information as prompted by the registration form and all forms you access on the Platform, and to update this information to maintain its truthfulness, accuracy and completeness. You are responsible for maintaining confidentiality of your account password. You are also responsible for all activities that occur in connection with your account. You warrant and undertake to us that any person using the Platform with your username and password is you or is authorized to act for you. You agree to notify us immediately if you suspect any unauthorized use of your account.
C. Vetting process
We may, but are under no obligation to, subject you, other Suppliers or Customers using the Platform to an extensive vetting process before they can register and during their use of the Platform, including but not limited to verification of identity and comprehensive criminal background check, at the regional, national and local level, using third party services as appropriate. You hereby give us consent to conduct background checks as often as required in compliance with applicable laws and regulations, as well as our internal policies without any notice.
Although we may perform background checks of you, other Suppliers or Customers using the Platform, as outlined above, we cannot confirm that each person using the Platform is who he, she or it claims to be and therefore, we cannot and do not assume any responsibility for the accuracy or reliability of the identity or background check information or any other information provided through the Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people whom you do not know. Neither Smartcat nor its affiliates or licensors shall be responsible for the conduct, whether online or offline, of any User of the Platform and you hereby release Smartcat and its affiliates or licensors from any liability related thereto. Smartcat, its affiliates and licensors will not be liable for any claim, injury or damage arising in connection with your use of the Platform.
5. Engaging You for Service TasksBack to top
A. Scope of engagement
As a general rule a Customer may assign a Service Task to Smartcat. If you are indicated in the Service Task Smartcat shall further instruct you as the Supplier to perform the Service Task for Smartcat. You shall be responsible before Smartcat for performing the Service Task and Smartcat shall be paying you a Fee for the Service Task in accordance with this Agreement.
B. Service Task
The Service Task given to you by Smartcat shall include: scope of task and other task details as applicable (such as language of the original text, translation language), deadline and rate per unit (such as word, character, page, hour, etc.), task acceptance, payment and dispute resolution terms as specified by the Smartcat Customer in each specific Customer account, as well as specific requirements to performance of the task by you, if any. The Service Task is made available to you in your account on the Platform.
C. Scope, term and quality standards
Once you accept the Service Task:
- you are obliged to render Service Task within the agreed scope and term and it should be of proper quality and satisfy the specific Customer requirements as indicated in the Service Task or in each specific Customer account, or, where no specific requirements are indicated, consistent with standard industry practices for such services;
- you are obliged to use your own software, equipment, workplace and premises in order to provide the services, and you acknowledge that Smartcat shall not provide such software, equipment, workplace and premises unless you independently obtain such resources from Smartcat;
- you are entitled to independently choose working hours under no control of Smartcat in order to provide the services;
- you are not restricted from providing similar services to any other customer including competitors of Smartcat;
- if you do not deliver the results of the Service Task within the agreed scope, term and quality, we reserve the right, at our sole consideration, to decrease or revoke your fee for the Service Task, or, depending on the specific circumstances, to stop offering you any or all Service Tasks from this or other Customers, though you will be still allowed to continue using the Platform subject to terms of Section 9 herein.
D. Undertakings and covenants
For the purpose of performing any Service Task you hereby covenant and undertake to Smartcat as follows:
- (a) to be bound by confidentiality provisions contained in this Agreement;
- (b) to use any Content solely for the performance of a specific Service Task;
- (c) upon written request of Smartcat or the relevant Customer who disclosed the Content to you, to delete (destroy) the Content as well as the Completed content from the workspace in your account on the Platform, as well as any copies, whether in paper or electronic form;
- (d) report immediately to Smartcat if the Content contradicts the applicable ethical or legislative norms (contains calls for terrorism, coup, etc.);
- (e) to protect the Content and Completed content from unauthorized access of third parties by way of installing and maintaining market standard anti-virus protection software on your computer/notebook and using market standard password protection system for access to your computer/notebook, your personal account on the Platform and any other software or internet application that may be linked to your personal account on the Platform;
- (f) that the Content on the Platform and/or the Completed content created in the process of performance of the specific Service Task is not transferred anywhere, not displayed nor given for use to others, except to Smartcat and the Customer that ordered the Service Task and provided the Content;
- (g) in case you are an individual freelancer to perform the Service Task personally without derogating any of its part to anyone else or in case you are a legal entity to perform the Service Task only with the attraction of your employees, contractors or affiliated entities provided that each employees, contractors or affiliated entities attracted for the performance of the Service Task should bind themselves by substantially similar confidentiality and Completed content assignment provisions as contained herein;
- (h) any Content you upload on the Platform is in full compliance with Regulation (EU) 2016/679 of the European Parliament and of the Counsel of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC ( “GDPR”) and other applicable personal data protection laws whereby if such Content contains any personal data of data subjects (as defined in GDPR) you have properly and duly received the consent for its use, storage, processing and cross-border transfer from the relevant data subject and comply with all GDPR requirements set forth for a controller (as defined in GDPR) and applicable to you;
- (i) you comply with the requirements imposed on you by GDPR whenever you collect or receive from data subjects any Content that contains personal data of such data subjects;
- (j) whenever you receive any Content containing personal data of data subjects from third parties you did receive similar covenants as contained in this subsection D from such third parties that they are fully compliant with GDPR and other applicable personal data protection laws in relation to the Content containing personal data of data subjects.
E. Independent contractor relations
You acknowledge and agree that your relationship with Smartcat is that of independent contractor. You as any other Supplier shall perform services to Smartcat as an independent contractor. Nothing in this Agreement shall be deemed to create a partnership, joint venture, agency or employer-employee relationship between you and the Customer or between Smartcat and yourself. You will be solely responsible for, and Smartcat shall not provide or be liable for, typical employee benefits (including but not limited to, health and disability insurance, vacation and/or paid time off, etc.). You will remain free to perform services for parties other than the Company; provided, that such services will not conflict or interfere with the performance of services hereunder, and will not compete with the current or future business of Smartcat. You further agree and acknowledges that: (a) your relationship with Smartcat is not an employment relationship; (b) you are solely responsible for determining the method and means by which you will accomplish the services and otherwise fulfill your obligations hereunder and are free from the control and direction of Smartcat in the performance of the work; and (c) you will be solely responsible for the professional performance of the services, and will receive no training, assistance, direction or control from Smartcat. You shall be solely responsible for obtaining, at your expense and in your name, disability, worker’s compensation or other insurance as well as all licenses and permits usual or necessary for conducting the services hereunder. You represent that you have the qualifications, skills, and ability to perform the services in a professional manner, without the advice, control or supervision of Smartcat. Nothing contained in this Agreement shall be construed to place the parties in the relationship of partners or joint venturers and neither party shall have any right to obligate or bind the other in any manner. You agree that you will not hold yourself out as an authorized agent with power to bind Smartcat in any manner.
6. Procedure for acceptance of Completed contentBack
A. At the moment when the Service Task is completed by you and the Completed content is available for review, the Customer that ordered the Service Task is informed about completion of the Service Task by e-mail or through its Сorporate account on the Platform and reviews the Completed content.
B. The Service Task shall be deemed duly completed and the Completed content accepted by Smartcat if no complaint was brought by the Customer that ordered the Service Task and the Customer accepted the Service Task using the special interface on the Platform within the timeframe specified in the Service Task.
C. In case the Customer has any complaint regarding the Completed content and brought it to your attention via the Platform, you are obliged to rectify the deficiencies within 2 days from the date the complaint was brought to your attention. If the Customer is not satisfied with how their complaints were addressed by you, and if the same complaints are brought to you after two rectification attempts via the Platform, we reserve the right, at our sole consideration, to conclude that the results of the Service task were not delivered by you in accordance with Section 5 above.
7. Fee and PaymentBack
A. The fee for each Service Task is calculated according
to the rate indicated for such Service Task in your
profile on the Platform. The fee in respect of each
Service Task duly completed by you and accepted by
Smartcat is accrued in a currency in which your rate is
set for each specific Service Task (“Service Task
Your account on the Platform means a special section on the Platform where the Content is uploaded for the performance of Service Task, you input and store your Completed content.
Once the Service Task is completed by you and is accepted in accordance with Section 6 above, you will be paid your fee for the completed Service Task following receipt of the money by Smartcat for the completed Service Task from the Customer but in any case you will receive your fee no later than 60 (sixty) days following the end of the calendar month in which the Completed content was accepted by Smartcat.
B. We have the right to seek reimbursement from you, and you will reimburse us, if we discover a fraudulent transaction, erroneous or duplicate transaction.
C. You will be liable for any individual taxes required to be paid on your income received from Smartcat, as required by the legislation of the country you are subject to. You must pay your taxes independently and will provide Smartcat with documentation of such payment upon request. Smartcat shall not be responsible for any of them. Smartcat shall not be responsible to withhold from your payments nor remit to the tax authorities any payroll or other tax, social security or Medicare contribution, or any other tax or contribution. You further agree to indemnify and hold Smartcat harmless from and against liability for any and all such payments. Nevertheless, you agree that Smartcat may withhold from payment to you any amounts which Smartcat determines it is required to withhold by applicable law.
D. In case you accept the Service Task from the Customer that allocated such Service Task to you via the Platform, you agree to interact with such Customer, including receiving any payments, exclusively via the Platform, whether first-time, repeatedly or on a follow-on basis, except for the cases when you worked with such Customer outside the Platform before you received the first Service Task from them via the Platform, and this may be proved either by you or by the Customer. You also agree not to take any action directly or indirectly to circumvent the Platform or any associated fees.
E. The Platform operates in various currencies, the list of which is available at your profile on the Platform. We are not responsible for currency fluctuations that occur when billing or crediting a credit or debit card denominated in a currency other than the Service Task currency, nor are we responsible for currency fluctuations that occur when receiving or sending payment via wire transfer, check or automated clearinghouse to and from your bank account, credit card account, PayPal account or any other payment method specified by you. Foreign currency conversion is processed at a foreign currency conversion rate that is set in the Platform. The exchange rate is updated on a daily basis, but may not be identical to the real-time market rate.
F. The Platform operates with different payment systems and payment providers, therefore you acknowledge and agree that you may receive payment for each Service Task from any of our affiliates, depending on the type of payment selected on the Platform.
8. Service ChargesBack
9. User License Grant for PlatformBack
You are free to use the Platform for your own internal
purposes except for the cases when you use the Platform
to find and perform Service Tasks from any Customers
registered on the Platform.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferrable, freely revocable license to use the Platform for your personal use and commercial purpose. We reserve all rights not expressly granted herein in the Platform.
10. Termination and Suspension of Agreement and LicenseBack
This Agreement shall become effective once you have created an account (registered) on the Platform and shall continue until your account is terminated by you or us as provided for under the terms of this section.
We may terminate or suspend your right to access and license to use the Platform at any time by providing you with email notice of such termination in the following cases:
- upon the demand of a state authority;
- in case of your violation of the applicable legislation;
- in case your identity or any other information provided by you on registration or during your use of the Platform is reasonably deemed by us to be falsified or substantially inaccurate;
- if the content you upload onto the Platform or Completed content you create on the Platform contradicts the applicable ethical or legislative norms (contains calls for terrorism, coup, etc.);
- breach of confidentiality provisions as well as covenants and undertakings under this Agreement.
We may also terminate or suspend your right to access and license to use the Platform in the following cases:
- in case of your violation of the restrictions as to direct transactions between you and other Users as defined in Section 7;
- if you defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including our staff;
- in case of fraud or suspected fraud as reasonably determined by us;
- in case of violation of other provisions of this Agreement;
provided that we notified you about such termination or suspension by way of sending a notification of termination or suspension via e-mail and gave you 7 calendar days to eliminate such violation and you failed to eliminate such violation within the said term, where such violation can be eliminated. In case of fraud or suspected fraud, as reasonably determined by us, we reserve the right to suspend your right to access and license to use the Platform immediately without any prior notification to you and until resolution.
Termination or suspension of your right of access also means termination or suspension of your license to use the Platform given to you in accordance with section 9 of this Agreement.
If we terminate your right to use the Platform for any of these reasons, you will not be entitled to any refund of unused balance in your account. If we terminate your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, unless we give express consent hereto. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Even after your right to access and/or use the Platform is terminated or suspended, this Agreement will remain enforceable against you.
You may terminate this Agreement at the completion of any project by ceasing all access and use of the Platform by sending an e-mail termination notice to [email protected]. This will also mean your waiver of the license to use the Platform. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
When your account is terminated for any reason, you may no longer have access to any data, messages, files and other materials you keep on the Platform. The materials may be deleted along with all your previous content posted on the Platform.
11. Copyright Matters and Translated Content AssignmentBack
A. We respect the intellectual property of others and expect you to do the same. If you believe, in good faith, that any Content provided to you in connection with the Service Task infringes any intellectual property rights of any third party, please send the following information to the Smartcat’s copyright agent at [email protected]:
- A description of the copyrighted work that you think has been infringed, including the URL (Internet address) or another specific location on the Platform where the material you think to be infringed is located. Include enough information to allow us to locate the materials and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you know the real copyright owner or authorized to act on the copyright owner's behalf;
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
B. Upon receipt of the fee for the Service Task that resulted in the creation of the Completed content, you hereby unconditionally and irrevocably assign to Smartcat absolutely to the fullest extent permitted by the applicable law the following rights throughout the world:
- (a) all your rights and benefits to Exploit the Completed content;
- (b) the entire copyright and all other rights in the nature of copyright subsisting in the Completed content; and
- (c) without prejudice to any of the foregoing, all intellectual property rights and other rights and benefits of yours in the Completed content of whatever nature, whether now known or created in the future, to which you are now, or at any time after the date of this Agreement may be, entitled by virtue of the laws in force in any part of the world, in each case:
- (d) for the whole term including any renewals, reversions, revivals and extensions and together with all related rights and powers arising or accrued, including the right to bring, make, oppose, defend, appeal and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of these assigned rights, whether occurring before, on or after the date of this deed.
C. You hereby unconditionally and irrevocably waive all moral rights in the Completed content done by you under this Agreement for the relevant Customer, to which you are now or may in the future be entitled under the Copyright, Designs and Patents Act 1988 (as amended from time to time) and under all similar legislation in force from time to time anywhere in the world.
12. Public Areas. Acceptable UseBack
The Platform may contain profiles, e-mail systems, blogs, message boards, chat areas, newsgroups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow a User to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum.
Without limitation, while using the Platform, you may not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including our staff.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information.
- Use the Platform for any purpose, including, but not limited to posting, including the translated or any other Completed Content, in violation of local, state, national, or international law.
- Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Platform, except as expressly authorized by us.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojans, corrupted files, or any other similar software that may damage the operation of another computer.
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- Advertise or offer to sell any goods or services for any commercial purpose through the Platform which are not relevant to the services offered through the Platform.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or a User or allow any other person or entity (without authorization) to use your identification to post or view comments.
- Restrict or inhibit any other User from using and enjoying the Public Areas.
- Imply or indicate that any statements you make are endorsed by us, without our prior written consent.
- Use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Platform.
- Reverse engineer any portion of the Platform.
- Hack or interfere with the Platform, its servers or any connected networks or disobey any requirements, procedures, policies or regulations of networks connected to the Platform.
- Adapt, alter, license, sublicense or translate the Platform for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by us.
- Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
- Use the Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to the use of the Platform as set forth herein.
- Use the Platform to collect usernames and/or email addresses of Users by electronic or other means.
- Register under different usernames or identities, after your account has been suspended or terminated.
- Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Platform or features that enforce limitations on the use of the Platform.
Users are solely responsible for their Content uploaded on the Platform.
Smartcat is not responsible for the Content uploaded by a specific User, however Smartcat reserves the right to investigate and take appropriate legal action against anyone who, in Smartcat’s sole discretion, violates this Agreement, including without limitation, removing the offending Content from the Platform, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.
Under no circumstances do you get any intellectual property rights to any Content uploaded by a Customer via the Platform whether or not it was done for the purpose of performing the specific Service Task by you.
Any User that uploads its Content on the Platform acknowledges and agrees that Smartcat may preserve the content and may also disclose the 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 processes, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of us and the public. Each User understands that the technical processing and transmission of the Platform, including such User’s Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Each User’s Content is encrypted as follows: Platform uses an HTTPS/TLS protocol to protect data in transit between your computer and our servers, and a 256-bit Advanced Encryption Standard (AES) to protect data at rest.
For purposes of this Agreement, "Confidential Information" shall mean all information in any and all medium, including but not limited to the Content that has been or will be disclosed to you on the Platform and the Completed content that has been created or will be created by you including, without limitation, text, data, technology, source code, know-how, inventions, discoveries, designs, processes, formulations, models, equipment, algorithms, software programs, documents, specifications, information concerning research and development work, and/or trade and business secrets.
Confidential Information shall not include any information which:
- a) is already known to you or is publicly available at the time of disclosure;
- b) becomes known to the general public after disclosure not through any act of yours in breach of this Agreement;
- c) is disclosed by a third party who is not, to your knowledge, in breach of an obligation of confidentiality or engaged in any other wrongdoing; or
- d) was or is independently developed by you without use of the Confidential Information disclosed by the Customer.
Each Party hereto receiving or otherwise obtaining Confidential Information (the "Receiving Party") from the other Party (the "Disclosing Party"), undertakes to the Disclosing Party to protect the Confidential Information.
The Receiving Party shall not disclose or otherwise provide any Confidential Information to any third party without prior written consent of the Disclosing Party.
The Receiving Party undertakes to the Disclosing Party to (i) use the Confidential Information solely for the purpose of performing the Service Task or evaluating the Service Task (“Permitted Purpose”), (ii) not, without the prior written consent of the Disclosing Party, disclose to any third party the Confidential Information, other than furnishing such Confidential Information to its employees, agents, contractors or affiliated entities who need to have access to such Confidential Information in connection with the Permitted Purpose and subject to the condition that such employees, agents, contractors or affiliated entities have signed the confidentiality agreements with the Receiving Party on the terms substantially similar to those in this Agreement, (iii) use reasonable care to protect the confidentiality of the Confidential Information, and (iv) in the event that the Receiving Party is required by law to make any disclosure of any of the Confidential Information, by subpoena, judicial or administrative order or otherwise, the Receiving Party will use commercially reasonable efforts to give the Disclosing Party notice of such requirement (to the extent legally permissible) and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information.
Neither Party under any circumstances shall obtain ownership rights or other intellectual property rights under this Agreement in respect of the Confidential Information given to it by the Disclosing Party, including rights to the Content uploaded via Platform.
Each Party’s obligations with respect to the Confidential Information shall remain in perpetuity and survive termination of this Agreement.
You are hereby notified that, pursuant to the federal Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
15. Smartcat Intellectual PropertyBack
All Smartcat intellectual property rights such as text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Platform is owned by us, excluding the User Content that we have the right to solely use for the purposes of this Agreement. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. We own all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a collective work under the applicable intellectual property legislation. The Proprietary Material is protected by the domestic and international laws on copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Platform without our express prior written consent and, if applicable, the holder of the rights to the User Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without our prior permission and, if applicable, the holder of the rights to the User Content.
Our service marks and trademarks, including without limitation our logos are service marks owned by us. Any other trademarks, service marks, logos and/or trade names appearing on the Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
16. Disclaimer of WarrantyBack
YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
UNLESS OTHERWISE PROVIDED BY THE PLATFORM LICENSE AND SERVICES AGREEMENT THAT MAY BE ADDITIONALLY CONCLUDED BETWEEN US AND YOU, WE MAKE NO WARRANTY THAT (I) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (II) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY (UP-TO-DATE), OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OR FITNESS OF ANY DOCUMENTS, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS.
THE PLATFORM IS SECURED BY TAKING APPROPRIATE ADMINISTRATIVE, PHYSICAL, AND TECHNICAL MEASURES FOR PROTECTION OF THE SECURITY, CONFIDENTIALITY AND INTEGRITY OF YOUR DATA, INCLUDING, BUT NOT LIMITED TO USING CERTIFIED SECURED DATA PROTOCOLS AND ENCRYPTING SENSIBLE DATA (“SMARTCAT SECURITY”). THE SMARTCAT SECURITY IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND SMARTCAT MAKES NO WARRANTIES THAT THE LEVEL OF SMARTCAT SECURITY SHALL BE RESISTANT TO POSSIBLE DDOS AND ANY OTHER TYPES OF ATTACKS ON PLATFORM AND CONSECUTIVELY BEARS NO LIABILITY WHATSOEVER IF THE AVAILABLE LEVEL OF SMARTCAT SECURITY IS NOT SUFFICIENT TO WITHSTAND ANY OF THE ABOVE MENTIONED ATTACKS.
17. Limitation of LiabilityBack
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, INFORMATION PROVIDERS, AGENTS, LICENSEES, LICENSORS (COLLECTIVELY, “RELEASED PARTIES”) WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE PLATFORM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; OR (V) ANY OTHER MATTER RELATING TO THE PLATFORM. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PLATFORM OR WITH THIS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE THE USE OF THE PLATFORM.
If you have a dispute with another User, you shall release the Released Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
This clause is applicable to you only if you are registered and/or reside in North America, South America or Japan: IF THIS AGREEMENT IS CONCLUDED BY YOU WITH PLATFORM INC., YOU HEREBY WAIVE CALIFORNIA CIVIL CODE §1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR".
You are responsible for maintaining confidentiality of your account and password(s). You are also responsible for all activities that occur under your account. Therefore, you agree to indemnify, defend and hold Smartcat and its affiliates, employees, officers, directors, owners, information providers, agents, licensees, licensors (the “Indemnified Parties”) harmless from and against any and all liabilities, claims, costs, including reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any third party demand, claims, action, suit, or loss arising as a result of (a) any breach by you of this Agreement or claims arising from your account or any other use by you of the Platform; (b) any fraud or manipulation by you; (c) any third-party claim, action or allegation of infringement based on information, data, files or other content submitted by you; (d) any claims of credit card fraud based on any information released by you; (e) any claims for breach of payment terms by any Customer; or (f) from the damage or destruction of any work or properties, attributable to or resulting from your performance of the services under this Agreement. You agree to use your best efforts to cooperate with us in the defense of any demand, claim, action or suit. We reserve the right to assume the exclusive defense of any matter subject to indemnification by you at our own expense.
20. Your Information and Personal DataBack
20.2. Legitimate interestsBack
We have a number of lawful reasons why and when we can use (process) your personal data. One of the lawful reasons under the applicable Data Protection Legislation is the so called «legitimate interests».
The availability of legitimate interests implies that we can process your personal data provided that we (i) have a genuine and legitimate reason and (ii) are not harming any of your rights and interests and (iii) informed you about our legitimate interests.
Before processing your personal data for legitimate interests we will carefully consider and balance any potential impact on you and your rights. Our legitimate business interests do not automatically override your interests – we will not use your personal data for activities where our interests are overridden by the impact on you (unless we have your consent or are otherwise required or permitted to by law).
We will process the personal data you have supplied to us to improve the Platform and enhance its services and features and as a result give you the most appropriate marketing, information, service and features and provide the best and most secure experience. These are what we consider to be our legitimate Interests.
Here are the cases when we use the legitimate interests approach to process your personal data:
- Maintaining the security of the Platform and fraud prevention. We are processing your personal data to protect you against possible personal data fraud when transacting on the Platform and to ensure the Platform is secure.
- Direct marketing. We will send you marketing e-mails which aim to understand better the Platform and get more familiar with new services and features of the Platform. We try to make sure our marketing materials are relevant for you and to the extent possible tailored to your interests however you always have the right to unsubscribe from them.
- Data analytics enhancing, modifying or improving services and features of the Platform. We process your personal data for the purposes of user analysis, assessment, profiling and direct marketing, on a personalised or aggregated basis, to help us with enhancing, modifying or improving services and features of Platform and to the extent possible provide you with the most relevant information as long as this does not harm any of your rights and interests.
- Research. We process your personal data to determine the effectiveness of our workshops, campaigns, programs, forums or events and to further develop services and features of the Platform and relationship with you.
- Due Diligence. We may need to process your personal data to conduct investigations and determine if there were any cases of offences such as fraud, bribery and corruption.
Please note that we do not have to get your consent for processing your personal data under our legitimate interests but it is our duty to inform you about the availability of our legitimate interests to do so.
In practice you will receive e-mails from us from time to time informing you about new services and features of the Platform, news about the Platform, workshops, campaigns, programs, forums or events carried out on the Platform or otherwise connected with the Platform.
We respect your preferences for being contacted by us. That being said you can always unsubscribe from such e-mails by logging to your account on the Platform or by clicking on the «unsubscribe» button in an e-mail you receive from us unless the e-mail we are sending contains some important notification about the Platform.
20.3. Third PartiesBack
Service Providers: We may outsource some of our technical and customer support, quality assurance testing, payment processing functions, and other services to third parties.
Investigations: We may investigate and disclose information from or about you if we have a good faith belief that such investigation or disclosure is (a) reasonably necessary to comply with legal process and law enforcement instructions and orders, such as a search warrant, subpoena, statute, judicial proceeding, or other legal process served on us; (b) helpful to prevent, investigate, or identify possible wrongdoing in connection with the Platform; or (c) protect rights, reputation, property of Smartcat or any of its affiliates, or rights, reputation, property of other suppliers or customers, or the public in general.
Links: the Platform may contain links to unaffiliated third party websites. Except as set forth herein, we do not share your personal information with them, and are not responsible for their privacy practices. We suggest you read the privacy policies on all such third party websites.
20.4. Third Party ServicesBack
If you register on the Platform through third party social networking services, such as Facebook, LinkedIn, and other third party services that allow you to sign in to other services like our Platform with the personal data shared with these services, we will use the personal data you provided to such third party services to create your account on the Platform.
Platform is not for use by children. You are eligible to
use the Platform if you are 16 years and older.
However, it is prohibited to create a Supplier profile for an individual who has not reached the age of 18 for the purposes of performing a Services Task.
An individual who has not reached the age of 18 but is
16 years old or older is able to use the Platform for
educational and non-commercial purposes only.
Please do not submit on the Platform any personal data of children below the age of 16 unless express permission of their parents or legal guardians was duly obtained.
A. If you are registered and/or reside in Europe, Asia (excluding Japan) or Africa, any dispute (“Dispute”) arising from or relating to the subject matter of this Agreement shall be finally settled by LCIA arbitration in London, the United Kingdom, using the English language in accordance with the LCIA rules (“LCIA”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of LCIA arbitrators in accordance with the LCIA rules.
If you are registered and/or reside in North America, South America or Japan, any dispute (“Dispute”) arising from or relating to the subject matter of this Agreement shall be finally settled by ICC arbitration in Boston, Massachusetts, U.S.A., using the English language in accordance with the ICC arbitration rules (“ICC”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of ICC arbitrators in accordance with the ICC rules of arbitration.
Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
This clause below is applicable to you only if you are registered and/or reside in North America, South America or Japan:
Any arbitration under this Agreement will take place on an individual basis: class, collective, and representative arbitrations and class, collective, and representative actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND US ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION. Notwithstanding the foregoing, each party shall have the right to institute an action at any time in a court of proper jurisdiction for injunctive or other equitable relief.
B. This Arbitration provision is a full and complete agreement relating to the formal resolution of disputes covered by this Arbitration provision. In the event any portion of this Arbitration provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
This clause below is applicable to you only if you are registered and/or reside in North America, South America or Japan:
If the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and we agree that this Arbitration provision is otherwise silent as to any party's ability to bring a class, collective or representative action in arbitration.
This sub-clause C below is applicable to you only if you are registered and/or reside in North America, South America or Japan:
C. THIS ARBITRATION PROVISION AFFECTS YOUR ABILITY TO PARTICIPATE IN CLASS, COLLECTIVE OR REPRESENTATIVE ACTIONS. BOTH YOU AND WE AGREE TO BRING ANY DISPUTE IN ARBITRATION ON AN INDIVIDUAL BASIS ONLY, AND NOT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS ON BEHALF OF OTHERS. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD OR ARBITRATED AS A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION, OR AS A MEMBER IN ANY SUCH CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). THE CLASS ACTION WAIVER DOES NOT APPLY TO ANY RIGHTS TO BRING CLASS, COLLECTIVE, OR REPRESENTATIVE ACTIONS THAT MAY NOT BE WAIVED AS A MATTER OF LAW. NOTWITHSTANDING ANY OTHER PORTION OF THIS ARBITRATION PROVISION OR THE JAMS RULES, DISPUTES REGARDING THE VALIDITY, ENFORCEABILITY OR BREACH OF THE CLASS ACTION WAIVER MAY BE RESOLVED ONLY BY A CIVIL COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR. IN ANY CASE IN WHICH (1) THE DISPUTE IS FILED AS A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AND (2) A CIVIL COURT OF COMPETENT JURISDICTION FINDS ALL OR PART OF THE CLASS ACTION WAIVER UNENFORCEABLE, THE CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION TO THAT EXTENT MUST BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION, BUT THE PORTION OF THE CLASS ACTION WAIVER THAT IS ENFORCEABLE SHALL BE ENFORCED IN ARBITRATION. YOU AND WE AGREE THAT YOU WILL NOT BE RETALIATED AGAINST, DISCIPLINED OR THREATENED WITH DISCIPLINE AS A RESULT OF EXERCISING YOUR RIGHTS UNDER SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT BY FILING OR PARTICIPATING IN A CLASS, COLLECTIVE OR REPRESENTATIVE ACTION IN ANY FORUM. HOWEVER, THE COMPANY MAY LAWFULLY SEEK ENFORCEMENT OF THIS ARBITRATION PROVISION AND THE CLASS ACTION WAIVER UNDER THE FEDERAL ARBITRATION ACT AND SEEK DISMISSAL OF SUCH CLASS, COLLECTIVE OR REPRESENTATIVE ACTIONS OR CLAIMS. THE CLASS ACTION WAIVER SHALL BE SEVERABLE IN ANY CASE IN WHICH THE DISPUTE IS FILED AS AN INDIVIDUAL ACTION, AND SEVERANCE IS NECESSARY TO ENSURE THAT THE INDIVIDUAL ACTION PROCEEDS IN ARBITRATION.
22. Entire Agreement / Severability / AmendmentBack
This Agreement constitutes the entire agreement between you and us concerning the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, whether written or oral, between the parties with respect thereto. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
This Agreement may be amended only in writing signed by both parties. Failure by either party to enforce at any time any of the provisions of this Agreement, or to require at any time performance by the other party of any of the provisions hereof, shall in no way be construed as a waiver of such provisions in any other circumstance or a waiver of any other provision.
23. No WaiverBack
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Supplier may not assign or transfer its rights or obligations under this Agreement, and any attempt to do so is void. Smartcat may assign or transfer any of its rights, obligations and licenses under the Agreement without restriction or notice.
25. Third Party LinksBack
We may provide notices, whether such notices are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to You, provided that you may opt out of certain means of notification as described in this Agreement.
27. Governing LawBack
If you are registered and/or reside in Europe, Asia (excluding Japan) or Africa, the laws of England and Wales, excluding its conflicts-of-law rules, govern this Agreement.
If you are registered and/or reside in North America, South America or Japan, the laws of State of Massachusetts, excluding its conflicts-of-law rules, govern this Agreement.
28. Contact UsBack
In case of technical or performance issues, please contact us at [email protected].
Should you have any questions or should you require support in relation to receiving payments, please contact us at [email protected]