SILVERYFROG may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after SILVERYFROG provides notice of the Changes, whether such notice is provided through the Site user interface, is sent to the email address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
Your access to and use of the SILVERYFROG Platform is also governed by information, guidelines and policies made available on the Site, including but not limited to the SILVERYFROG Privacy Policy, which can be accessed at pickSILVERYFROG.com/privacy. To the extent that there are any conflicts between the terms and conditions of this Agreement and the Site, the terms and conditions of this Agreement will govern.
YOU UNDERSTAND THAT BY USING THE SILVERYFROG PLATFORM, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SILVERYFROG PLATFORM. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IN THAT EVENT, “USER”, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY.
1. The SILVERYFROG Platform
1.1 Purpose of the SILVERYFROG Platform. The SILVERYFROG Platform enables Users to buy and sell Services online. Clients post jobs and invite Contractors to apply. Contractors post profile links and apply to jobs. If a Client accepts a Contractor’s job application, a Service Contract is formed directly between such Client and Contractor subject to the terms specified in Section 3 (Service Contract Terms Between Client and Contractor). SILVERYFROG collects payment from the Client on behalf of the Contractor.
1.2 Eligibility. The SILVERYFROG Platform is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law.
User agrees that User is not (a) a citizen or resident of a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes, including without limitation Cuba, Iran, North Korea, Sudan and Syria; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to CDN or U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.
2. SILVERYFROG Policies
2.1 SILVERYFROG Fee. SILVERYFROG charges Contractors a fee for the use of the SILVERYFROG Platform and the services it provides (the “SILVERYFROG Fees”). This fee is equal to 15% of Client’s payments, unless SILVERYFROG advises the User in advance as to a different fee.
SILVERYFROG uses a third-party payment processor (the “Payment Processor”) to link your credit card account to the SILVERYFROG Platform. The processing of payments or credits, as applicable, in connection with your use of the SILVERYFROG Platform will be subject to the terms, conditions and privacy policies of the Payment Processor and your credit card issuer in addition to this Agreement. SILVERYFROG is not responsible for any errors by the Payment Processor.
2.2 General User Obligations. SILVERYFROG has created a marketplace to connect Clients and Contractors using the SILVERYFROG Platform. SILVERYFROG is not a service company and does not provide Services or manage individual Contractors or their work, in any manner. SILVERYFROG expects a consistent and high level of courtesy, respect and professionalism from all of its Users toward each other. Users agree to use good judgment when posting information, comments, or other content regarding other Users, SILVERYFROG or any third party anywhere within the SILVERYFROG Platform. Users may be held legally responsible for damages suffered by other Users, SILVERYFROG or any third party as a result of legally actionable or defamatory comments, remarks, or other information or content posted to the SILVERYFROG Platform. All Clients and Contractors are to comply with all laws applicable to them or to their activities, and with all posted SILVERYFROG Policies, which are hereby incorporated into this Agreement by reference. These policies may be modified from time to time at SILVERYFROG’s discretion, and the currently effective policies will be deemed to be part of this Agreement.
SILVERYFROG is not legally responsible for any remarks, information or other content posted or made available on the SILVERYFROG Platform by any User or third party, even if such information or content is defamatory or otherwise legally actionable. SILVERYFROG is not responsible for and does not monitor or censor content for accuracy or reliability. However, SILVERYFROG reserves the right to remove or restrict access to any information or content posted or made available on the SILVERYFROG Platform if ordered to do so by a government authority or if SILVERYFROG considers such information or content to be in violation of this Agreement, or to be unlawful, immoral or harmful.
When submitting any content to or otherwise using the SILVERYFROG Platform, you agree not to post or transmit to or from the SILVERYFROG Platform: (i) any unlawful, hateful, racially or ethnically offensive, threatening, libelous, defamatory, obscene, pornographic, or other material or content that would violate rights of publicity and/or privacy or that would violate any law; (ii) any material or content that infringes, misappropriates or violates any third party rights, including but not limited to copyright, trademark, patent right or other proprietary right of any third party; (iii) any falsehoods or misrepresentations that could damage us, our users or any third party; (iv) any private information concerning another person, without their permission; (v) anything which impersonates another person or represents yourself as affiliated with us, our staff or other industry professionals; (vi) anything which solicits a user’s password or other account information; (vii) anything which harvests user names, addresses, or email addresses for any purpose; and (viii) any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems.
You will not access (or attempt to access) the SILVERYFROG Platform by any means other than the interface provided, and you will not use information from the SILVERYFROG Platform for any purpose other than the purpose for which it was made available. You will not engage in any activity that interferes with or disrupts the functioning of the SILVERYFROG Platform. You will not upload or attach an invalid or malicious or unknown file. You will not insert any external links that may be malicious or unknown to you, or used for offering any goods or services other than Services.
You do further hereby agree to use the SILVERYFROG Platform for lawful purposes only, and not for any immoral or harmful activities. You agree that you will not do any of the following while using or accessing the SILVERYFROG Platform: (i) attempt to access or search the SILVERYFROG Platform or download content from the SILVERYFROG Platform through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by us or other generally available third party web browsers; (ii) access, tamper with, or use non-public areas of the SILVERYFROG Platform, our computer systems, or the technical delivery systems of our providers; (iii) gather and use information, such as other users’ names, real names, email addresses, available through the SILVERYFROG Platform to transmit any unsolicited advertising, junk mail, spam or other form of solicitation; (iv) use the SILVERYFROG Platform for any commercial purpose or for the benefit of any third party or in any manner not by this Agreement; (v) violate any applicable law or regulation; or (vi) advocate, encourage, or assist any other individual to doing any of the foregoing. We reserve the right to investigate and prosecute violations of any of the above and/or involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement.
2.3 Identity and Account Security. All identity information associated with a SILVERYFROG User account must be real and verifiable. Each SILVERYFROG User account must be used by only one person, and each person is allowed to use only one User account. SILVERYFROG reserves the right to validate User information at any time, including but not limited to validation against third party databases or the verification of one or more official government or legal documents that confirm the User’s identity. You authorize SILVERYFROG, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial instruments. Failure to provide information about you and your business when requested is a violation of this Agreement. The User is solely responsible for ensuring and maintaining the secrecy and security of the User’s SILVERYFROG account password. User agrees not to disclose this password to any third party and shall be solely responsible for any use of or action taken through the use of such password on SILVERYFROG. You must notify SILVERYFROG Support immediately if you suspect that your password has been lost or stolen. By using your SILVERYFROG User account, you acknowledge and agree the SILVERYFROG’s account security procedures are commercially reasonable. You may not allow third parties to use this password to perform any action, including but not limited to, posting jobs, applying for jobs or performing Services under your SILVERYFROG User account.
2.4 Job Postings and Applications.
2.4.1 Posting a Job. All jobs posted to SILVERYFROG must be in English and not contain any information enabling or requesting contact or payment outside of the SILVERYFROG Platform. Job postings must be of a professional nature and accurately describe the Services requested. They should be free of offensive language or advertisements for other products or services. Job postings may not request any service that is illegal or violates intellectual property rights, copyrights or the terms of service of another service, product or website. Job postings related to the creation of adult or explicit content or those that involve modeling or acting are prohibited. Job postings that involve exposure to content of an adult or potentially offensive nature should notify potential readers in the title of the job posting.
2.4.2 Applying to a job. All information provided in a job application must be true, accurate and complete. SILVERYFROG reserves the right (but has no obligation) to verify any and all information provided on a User’s profile or job application. By applying to a job, the User is attesting that he/she/it has the skills and ability to perform the requested Services by the deadline stated in the job posting. SILVERYFROG does not verify the skill and ability of the Contractor.
2.5 Managing and Working on Contracts.
2.5.1 Managing Contracts. Clients agree to respond promptly to communications with and requests for information from the Contractor.
2.5.2 Working on Contracts. The Contractor is responsible for providing all tools and resources necessary to complete the Contract, unless explicitly stated in advance by the Client. Contractors agree to respond to all Client communications and requests for information within one business day. If the Contractor will be unable to meet this requirement due to an absence, he is expected to notify the Client at least 2 weeks prior. After the completion of a Contract, the Contractor can provide timely, honest and objective feedback on the Client.
2.6 Billing and Payments.
2.6.1 Fixed-Priced Contracts. Contractors agree that there is no guarantee of payment for Fixed-Price Contracts. Subject to Section 2.7, Clients may determine, acting reasonably, whether a Contractor has completed a Fixed-Price Contract and whether to pay the Contractor. Subject to Section 2.7, SILVERYFROG does not verify whether a Fixed-Price Contract has been completed.
2.6.2 Disintermediation. Except pursuant to the Buyout Policy in Section 2.6.3 below, Client shall make all payments relating to, or in any way connected with, a Contract (including, without limitation, bonuses) through the SILVERYFROG Platform. Any action that encourages or solicits complete or partial payment outside of the SILVERYFROG Platform is a violation of this Agreement. Should a Client be found in violation of this section of this Agreement, it will owe SILVERYFROG fees equal to the greater of a) $2,500; or b) the applicable fees had the payments been processed through the SILVERYFROG Platform plus 18%. Client shall immediately notify SILVERYFROG if a Contractor requests that Client make a payment directly to it or through any channels other than those provided or specified by SILVERYFROG. Contractor shall not accept any payments relating to a Contract (including, without limitation, bonuses) from a Client directly or through any payment channels other than the SILVERYFROG Platform. Contractor shall immediately notify SILVERYFROG if a Client attempts to make a payment to Contractor directly or through any payment channels other than those provided or specified by SILVERYFROG.
2.6.3 Buyout Policy. Notwithstanding the provisions set forth above, Users may agree to provide or receive Services outside of the SILVERYFROG Platform with Users identified through the SILVERYFROG marketplace, but only on the terms set forth in this Section. If the Services are rendered more than three (3) years after the Client identifies the Contractor through the SILVERYFROG Platform, no SILVERYFROG Fees or buyout provisions apply. If Services are rendered outside of the SILVERYFROG Platform less than three (3) years after the Client identifies the Contractor through SILVERYFROG the SILVERYFROG Platform, payments for such Services will not be subject to the SILVERYFROG Fees, provided that the Client pays SILVERYFROG a “Buy-Out” fee in accordance with the procedure set forth below:
Prior to contracting outside of the SILVERYFROG Platform to receive Services from a User identified through the SILVERYFROG Platform, the Client will notify SILVERYFROG in writing of its intent to pay the Buy-Out fee in lieu of paying through the SILVERYFROG Platform.
Together with such notice, the Client will provide a good faith estimate of the then anticipated amount to be paid to the Contractor for such Services during the fifty-two week period immediately following the date of such notice.
Together with such notice, the Client will pay or authorize SILVERYFROG to deduct from its account the greater of: (i) fifteen percent (15%) of the good faith estimate described above; (ii) fifty-two (52) times the “Average Weekly SILVERYFROG Fees”; or (iii) five hundred dollars ($500). For purposes of the foregoing, the “Average Weekly SILVERYFROG Fees” means the average weekly amount of SILVERYFROG Fees that became due to SILVERYFROG based upon work performed for Client by the Contractor over the four (4) weeks immediately preceding the buy-out notice described above, not counting any weeks in which no SILVERYFROG Fees became due.
2.7 Payment accounts. Each Contractor must properly discharge and credit its Client for all payments SILVERYFROG receives from such Client. Each User understands and agrees that:
The transmission of funds in the manner described herein is not a separate and discrete service that SILVERYFROG provides in addition to its SILVERYFROG Platform services. Rather, transmission of funds in an auditable manner is an integral part of the SILVERYFROG Platform services that SILVERYFROG is providing.
The SILVERYFROG payment account is a custodial account administered by SILVERYFROG to facilitate disbursement of the Client’s payment to the Contractor.
SILVERYFROG acts as agent of the Contractor and not as a trustee or fiduciary with respect to payments received through SILVERYFROG. The duties of SILVERYFROG as agent shall be entirely administrative and not discretionary, save as expressly set forth herein.
SILVERYFROG holds funds delivered to it in a commingled account at a bank, and may include in the titling of that account “SILVERYFROG for the benefit of others” or similar words. SILVERYFROG will not voluntarily make your funds available to its creditors in the event of bankruptcy.
You agree that you will not receive interest or other earnings on the funds that SILVERYFROG handles as your agent and places in commingled accounts. In consideration for your use of the SILVERYFROG Platform, you irrevocably transfer and assign to SILVERYFROG any ownership right that you may have in any interest that may accrue on funds held in commingled accounts. This assignment applies only to interest earned on your funds, and nothing in this Agreement grants SILVERYFROG any ownership right to the principal of the funds you maintain with SILVERYFROG. In addition to or instead of earning interest on commingled accounts, SILVERYFROG may receive a reduction in fees or expense charged for banking services by the banks that hold your funds.
In the event of any dispute regarding the amounts held by SILVERYFROG, SILVERYFROG shall have the right (in addition to all other rights it may have) to deposit all funds held pursuant to this Agreement into the courts of Quebec.
Additionally, in the event that Client and Contractor cannot agree upon whether a contract (including but not limited to a Fixed-Price Contract) has been completed, and one of such parties advises SILVERYFROG that there is a dispute in that regard, then SILVERYFROG may determine if the contract has been substantially completed and release the amounts it holds to either of Client and Contractor, as it deems appropriate, in its sole and absolute discretion, and without any liability of SILVERYFROG to any party whatsoever. Client and Contractor do hereby irrevocably authorize SILVERYFROG to determine whether the contract has been completed, and to disburse the amounts it is holding on behalf of Contractor and Client as it so determines to the party that it so determines.
2.8 Non-payment. If Client fails to pay amounts due under this Agreement, whether by cancelling Client’s credit card, initiating an improper chargeback, or any other means, any work-in-progress will be stopped. Without limiting other available remedies, Client must reimburse Contractor for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, Contractor may setoff amounts due against other amounts received from or held for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
2.9 Hold on funds. SILVERYFROG reserves the right, in its sole discretion, to place a hold on funds for Client payments to clear or if SILVERYFROG suspects monies may be subject to charge back or if fraud is suspected. SILVERYFROG will release a hold as soon as deemed appropriate. In cases of fraud, abuse or violation of this Agreement, the SILVERYFROG payment guarantee shall be revoked and all monies in a SILVERYFROG account may be held and/or reclaimed, not just those from the Contract(s) under investigation.
2.10 Agencies and Agency Contractors. An “Agency” is an organization seeking to make money on SILVERYFROG by selling the Services of Agency Contractors. An “Agency Contractor” is a Contractor under contract to do work on the SILVERYFROG Platform on behalf of an Agency. An Agency must have a manager responsible for the actions of all its members, including its Agency Contractors, administrators in charge of maintaining the Agency’s finances, roster, and profile, and staffing managers in charge of finding and supervising Contracts. One User may serve in all or multiple roles. Every person who will do work for an Agency must have an individual User account and Contractor profile associated with that person’s Agency on SILVERYFROG. If an Agency Contractor is no longer working for an Agency, the Agency may not use the Contractor’s profile in any way. Contractors leaving an Agency must contact the Agency manager to remove their association. Agencies may not refuse to release an Agency Contractor. When leaving the Agency, Agency Contractors keep their profiles. Their histories are meant to reflect work done by them. The Agency’s work will retain the Contracts of Contractors who have since left the Agency. An Agency that requests the immediate suspension of a Contractor must provide the documents and supporting legal authority that prove, to SILVERYFROG’s satisfaction, that the Contractor has breached a non-compete agreement or a SILVERYFROG policy.
2.11 Enforcement of User Agreement and Policies. SILVERYFROG has the right, but not the obligation, to suspend or cancel your access to the SILVERYFROG Platform if it believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting SILVERYFROG’s other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the SILVERYFROG Platform to you if: (i) you breach any terms and conditions of this Agreement or other written policies and procedures posted on the Site; (ii) we are unable to verify or authenticate any information you provide to us; or (iii) we believe that your actions may cause legal liability for you, our Users or for SILVERYFROG. Once suspended or terminated, you MAY NOT continue to use the SILVERYFROG Platform under a different account or reregister under a new account. If you attempt to use the SILVERYFROG Platform under a different account, we reserve the right to reclaim available funds in that account and/or use an available payment methods to pay for any amounts outstanding. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. When your User account is cancelled, you may no longer have access to any parts of the SILVERYFROG Platform, including data, messages, files and other material you keep on SILVERYFROG. All intellectual property provided by Clients for the purposes of completing Contracts will be returned by Contractors immediately upon termination.
3. Service contract terms between client and contractor
User agrees that all Service Contracts between any Client and Contractor shall: (i) include the terms and conditions provided in Sections 3.1 through 3.10 below (“Standard Terms”); (ii) name SILVERYFROG as an express third party beneficiary under the Service Contract (but not as a party to that agreement); and (iii) make no representations or warranties or enter into any contracts on behalf of SILVERYFROG. Client and Contractor may agree to additional terms in their Service Contract materially different than the Standard Terms; however, nothing in such Service Contract will in any way limit or modify SILVERYFROG’s rights.
3.1 Services. Contractor shall perform Services in a professional and workmanlike manner. Under Fixed-Price Contracts, Contractor shall deliver the agreed-upon Work Product.
3.2 Agency. Contractor and Agency agree and acknowledge that Agency’s employees or contract personnel are not employees of SILVERYFROG or Client. Agency is solely responsible for all wages, costs, and expenses of Agency’s employees or contract personnel and has the sole and exclusive right to supervise and control them. Neither Client, nor SILVERYFROG, will require Agency’s contract personnel to devote full time to performing the Contracts entered into by Agency as required by this Agreement. Furthermore, both Contractor and Agency acknowledge and agree that neither it, nor any of its employees or agents, shall have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits of any kind from SILVERYFROG or Client.
3.3 Fees. Client shall pay Contractor the agreed-upon fees for delivery and acceptance of the Work Product (under Fixed-Price Contracts). All amounts paid by Client shall be paid through the SILVERYFROG Platform to SILVERYFROG as the Contractor’s agent, and Client’s obligation of payment to Contractor is met when payment is made to SILVERYFROG.
3.4 Termination of a Service Contract. For Fixed-Price Contracts, the Client may terminate at any time but may not recover any payments made to the Contractor unless mutually agreeable. The Contractor may terminate a Fixed-Price Contract at any time if no payment has been made. If a payment has been made on a Fixed Price Contract, the Contractor may terminate only with written agreement from the Client or after the payment has been refunded.
3.5 Client Owned Items. Client grants Contractor a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Owned Items as necessary for the performance of the Services. Client reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Client Owned Items. Upon completion or termination of the Service Contract, or upon written request by the Client, Contractor shall immediately return all Client Owned Items to the Client and further agrees to purge all copies of Client Owned Items and Work Product contained in or on Contractor’s premises, systems, or any other equipment otherwise under Contractor’s control. Contractor agrees to provide written certification to the Client certifying the return or purging of Client Owned Items within ten (10) days after the receipt of the Client’s written request to certify.
3.6 Work Product. Any copyrightable works or works for hire prepared by Contractor in connection with a Fixed-Price Contract for Client shall be owned by the Contractor until payment has been made by the Client and accepted by the Contractor. If the Client pays an amount less than the amount agreed to in the Service Contract, the Contractor may refund the amount paid within two (2) weeks of the payment date and retain ownership of the Work Product.
To the extent that under applicable law, Proprietary Rights cannot be assigned, Contractor hereby irrevocably agrees to grant, and hereby grants, to Client an exclusive (excluding also Contractor), perpetual, irrevocable, unlimited, worldwide, fully paid, and unconditional license to use and commercialize Work Product in any manner now known or in the future discovered. To the extent such license grant is not fully valid, effective or enforceable under applicable law, Contractor hereby irrevocably agrees to grant, and hereby grants, to Client, such rights as Client reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal ownership. In order to ensure that Client will be able to acquire, perfect and use such Proprietary Rights, Contractor will: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to Client; (ii) sign any documents at Client’s request to assist Client in the documentation, perfection and enforcement of its rights; and (iii) provide Client with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Proprietary Rights. Contractor also irrevocably authorizes Client to act and sign on Contractor’s behalf and take any necessary steps in order to perfect Client’s rights under this Agreement. In the case that under applicable law, Contractor retains any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights” (collectively “Moral Rights”) or other inalienable rights to Work Product or Confidential Information under this Agreement, Contractor irrevocably agrees to waive and renounce, and hereby waives and renounces, in favour of the Client, all such rights, or, to the extent Contractor cannot waive such rights, Contractor agrees not to exercise such rights, until Contractor has provided prior written notice to Client and then only in accordance with any reasonable instructions that Client issues in the interest of protecting its rights. Contractor agrees to assist Client in every proper way to obtain and enforce the Proprietary Rights and other legal protections for the Work Product in any and all countries. Contractor will sign all documents that the Client may reasonably request for use in obtaining and enforcing such protection, including, but not limited to, any assignment deed which the Client may select at its sole discretion. Contractor’s obligations under this Section 3.6 will continue even after Contractor deregisters from or ceases use of the SILVERYFROG Platform. Contractor appoints Client as Contractor’s attorney-in-fact to execute documents on Contractor’s behalf for the purposes set forth in this Section 3.6.
3.7 Pre-existing Intellectual Property in Work Product. Contractor shall ensure that no Work Product created or delivered by Contractor includes any pre-existing software, technology or other intellectual property, whether such pre-existing intellectual property is owned by Contractor or a third party including, without limitation, code written by proprietary software companies or developers in the open source community (collectively “Pre-existing IP”) without obtaining the prior written consent of the Client to the inclusion of such Pre-existing IP in the Work Product. Contractor acknowledges that, without limiting any other remedies, Contractor shall not be entitled to payment for, and shall refund any payments made to Contractor for, any Services performed on a Contract if the Work Product contains any Pre-existing IP that was not approved in accordance with this Section 3.7.
3.8 Worker classification. Client assumes all liability for proper classification of workers as independent contractors or employees based on applicable legal guidelines. This Agreement 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.
Contractor acknowledges that SILVERYFROG does not, in any way, supervise, direct, or control Contractor’s work or Services performed in any manner. SILVERYFROG does not set Contractor’s work hours and location of work. SILVERYFROG will not provide Contractor with training or any equipment, labor or materials needed for a particular Contract.
SILVERYFROG will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. 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 with respect to Contractor’s performance of Services.
For Contracts classified as independent contractor relationships, Client may not require an exclusive relationship between Client and Contractor. A Contractor classified as 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 agree to indemnify, hold harmless and defend the Indemnified Parties (as hereinafter defined) from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Contractor was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Contractor was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that SILVERYFROG was an employer or joint employer of Contractor, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.
3.9 Audit Rights . Client and Contractor each shall: (i) create and maintain records to document satisfaction of its obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to SILVERYFROG upon request. SILVERYFROG, or SILVERYFROG’s advisors or agents, shall have the right, but not the obligation, to routinely, but no less frequently than annually, audit Contractor’s operations and records to confirm compliance. Nothing in this provision should be construed as providing SILVERYFROG with the right or obligation to supervise or monitor the actual Services performed by Contractor.
3.10 Entire Agreement. The terms and conditions set forth in this Section 3 and any additional or different terms expressly agreed by Client and Contractor shall constitute the entire agreement and understanding of Client and Contractor with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them. Notwithstanding the foregoing, the Client and Contractor shall always remain subject to the terms of the SILVERYFROG Labs Inc. User Agreement.
4. Acknowledgements by User of SILVERYFROG’s role.
4.1 Service Contracts. User expressly acknowledges, agrees and understands that: (i) the SILVERYFROG Platform is merely a venue where Users may act as Clients or Contractors; (ii) SILVERYFROG is not a party to any Service Contracts between Clients and Contractors; (iii) User recognizes, acknowledges and agrees that User is not an employee of SILVERYFROG and that SILVERYFROG does not, in any way, supervise, direct, or control User’s work or Services; (iv) SILVERYFROG shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (v) SILVERYFROG has no control over Contractors or over the Services promised or rendered by Contractors; and, (vi) SILVERYFROG makes no representations as to the reliability, capability, or qualifications of any Contractor or the quality, security or legality of any Services, and SILVERYFROG disclaims any and all liability relating thereto.
4.2 Proprietary Rights. SILVERYFROG and its licensors reserve all Proprietary Rights in and to the SILVERYFROG Platform and SILVERYFROG. User may not use the SILVERYFROG Platform except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement and on the terms set out in the License Agreement. SILVERYFROG reserves the right to withdraw, expand and otherwise change the SILVERYFROG Platform at any time in SILVERYFROG’s sole discretion. User shall not be entitled to create any “links” to the SILVERYFROG Platform, or “frame” or “mirror” any content contained on, or accessible through, the SILVERYFROG Platform, on any other server or internet-based device. SILVERYFROG alone (and its licensors, where applicable) shall own all right, title and interest, including all related Proprietary Rights, in and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the SILVERYFROG Platform and SILVERYFROG. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the SILVERYFROG Platform and SILVERYFROG, or any Proprietary Rights owned by SILVERYFROG. SILVERYFROG’s name, logo, and the product names associated with SILVERYFROG or the SILVERYFROG Platform are trademarks of SILVERYFROG or third parties, and no right or license is granted to use them.
4.3 SILVERYFROG’s Compensation. All SILVERYFROG Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.
5. Fees and Payments.
5.1 Formal Invoices and Taxes. SILVERYFROG shall have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Contractor Fees. Instead, Contractor shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Contractor Fees and for issuing any invoices so required. Contractor shall also be solely responsible for: (i) determining whether Contractor or SILVERYFROG is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Contractor Fees, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or SILVERYFROG, as appropriate; and (ii) determining whether SILVERYFROG is required by applicable law to withhold any amount of the Contractor Fees, notifying SILVERYFROG of any such requirement and indemnifying the Indemnified Parties (either by permitting SILVERYFROG to offset the relevant amount against a future payment of Contractor Fees or by refunding to SILVERYFROG the relevant amount, at SILVERYFROG’s sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. SILVERYFROG shall have the right, but not the obligation, to audit and monitor Contractor’s compliance with applicable tax laws as required by this Section 5.1. Further, in the event of an audit of SILVERYFROG, Contractor agrees to promptly cooperate with SILVERYFROG and provide copies of Contractor’s tax returns, and other documents as may be reasonably requested for purposes of such audit.
5.2 Billing Client. For Fixed-Price payments, Client is billed immediately.
5.3 Payment. Client hereby authorizes SILVERYFROG to run credit card authorizations on all credit cards provided by Client, to store credit card details as Client’s method of payment for Services, and to charge Client’s credit card (or any other form of payment authorized by SILVERYFROG or mutually agreed to between Client and SILVERYFROG).
6. Confidential Information.
6.1 Confidentiality. To the extent a Client or Contractor provides Confidential Information to the other and/or to SILVERYFROG, the recipient shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not: (i) disclose Confidential Information to anyone except, in the case of SILVERYFROG, to any Client or Contractor engaged in a Contract; and (ii) use the Confidential Information, except as necessary for the performance of Services for the relevant Contract (including, without limitation, the storage or transmission of Confidential Information on or through SILVERYFROG Platform for use by Contractor).
6.2 Return. If and when Confidential Information is no longer needed for the performance of Services for the relevant Contract, or at the 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) shall 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 6.2 within ten (10) days after the receipt of disclosing party’s written request to certify.
6.3 Publications. Without limiting Section 6.1 (Confidentiality), Client, Contractor and SILVERYFROG shall not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a relevant Contract.
7. Warranty Disclaimer.
NOTWITHSTANDING ANYTHING ELSE STATED ON THE WEBSITE OR BY ANY OF SILVERYFROG’S REPRESENTATIVES, SILVERYFROG MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SAFETY, ACCURACY OR COMPLETENESS OF THE SERVICES, WORK PRODUCT, SILVERYFROG PLATFORM, QUALITY OR CAPACITY OF THE CLIENT OR CONTRACTOR, OR ANY ITEMS OR ACTIVITIES RELATING TO THIS AGREEMENT (COLLECTIVELLY THE “DISCLAIMED ITEMS”). SILVERYFROG DOES NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SILVERYFROG PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (ii) THE DISCLAIMED ITEMS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (iii) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF THE DISCLOSED ITEMS, AS WELL AS ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SILVERYFROG PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (v) ERRORS OR DEFECTS IN THE DISCLAIMED ITEMS WILL BE CORRECTED, OR (vi) THE SILVERYFROG PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE DISCLAIMED ITEMS ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY AND MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SILVERYFROG. SILVERYFROG MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE DISCLAIMED ITEMS, AS WELL AS ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE DISCLAIMED ITEMS. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF THE DISCLAIMED ITEMS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
SILVERYFROG’S PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SILVERYFROG IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES OF WHATSOEVER NATURE RESULTING FROM SUCH PROBLEMS.
8. Limitation of Liability.
IN NO EVENT SHALL SILVERYFROG’S AGGREGATE LIABILITY EXCEED THE GREATER OF: (i) CDN $2,500; AND (ii) ANY SILVERYFROG FEES RETAINED BY SILVERYFROG WITH RESPECT TO CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR CONTRACTOR DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. IN NO EVENT SHALL SILVERYFROG BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). SILVERYFROG SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BY NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE DISCLAIMED ITEMS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SILVERYFROG PLATFORM OR AS TO THE QUALITY OR CAPACITY OF THE CLIENT OR CONTRACTOR, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SILVERYFROG PLATFORM OR IS REFERRED BY SILVERYFROG OR THE SILVERYFROG PLATFORM, EVEN IF SILVERYFROG HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING THE SERVICES AND WORK PRODUCT OFFERED VIA THE SILVERYFROG PLATFORM RESTS SOLELY WITH YOU. WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY SUCH CLIENT OR CONTRACTOR OR OTHER THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE SILVERYFROG FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE SILVERYFROG PLATFORM, OR IN ANY WAY RELATED TO THE CLIENT, CONTRACTOR OR THIRD PARTIES INTRODUCED TO YOU BY THE SILVERYFROG PLATFORM, OR WITH RESPECT TO THE PERFORMANCE OF ANY CONTRACTUAL OBLIGATIONS WITH ANY CLIENT AND CONTRACTOR, AS WELL AS ALL LOSSES RELATING THERETO.
9. Indemnification.
9.1 Proprietary Rights. Each User shall indemnify, defend and hold harmless SILVERYFROG and its subsidiaries and affiliates, and each of their shareholders, directors officers, agents, employees, representatives and agents (each an “Indemnified Party”, and collectively the “Indemnified Parties”)) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, judgment, or adjudication that any Work Product, Services or action or omission by such User infringes Proprietary Rights or other rights of any third party.
9.2 Indemnification by Client. Each Client shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to: (i) such Client’s use of Services, including without limitation claims by or on behalf of any Contractor for Worker’s Compensation or unemployment benefits; (ii) any Service Contract entered into between such Client and a Contractor; or (iii) any breach of their obligations set forth herein.
9.3 Indemnification by Contractor. Each Contractor shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to: (i) such Contractor’s provision of Services, (ii) any Service Contract entered into between such Contractor and a Client; or (iii) any breach of their obligations set forth herein.
9.4 Extended Meaning. Any indemnity in favour of SILVERYFROG, and any release of SILVERYFROG, shall also be construed as being an indemnity or release, as the case may be, of the Indemnified Parties.
10. Term and Termination.
10.1 Term. The term of this Agreement commences on the Effective Date and continues in effect until terminated in accordance with Section 10.2 below.
10.2 Termination. Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or by terminating or suspending User’s account), provided, that any such termination for convenience shall not affect the validity of any Service Contracts that have been executed prior to termination and this Agreement shall continue to apply with respect to such Service Contracts.
10.3 Consequences of Termination. Termination shall not relieve Client of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, shall be invoiced to Client following termination pursuant to Section 5.2 (Billing Client), and charged to Client’s credit card or other form of payment pursuant to Section 5.3 (Payment). All terms set forth herein which by their nature survive termination shall survive the termination of this Agreement, including, but not limited to, the provisions of Articles 7, 8 and 9 (and any indemnity or release set forth elsewhere in this Agreement).
11. General.
11.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
11.2 Side Agreements. Section 11.1 notwithstanding, Clients and Contractors may enter into any supplemental or other written agreement that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, assignment of rights, etc.), but which for greater certainty SILVERYFROG will not be a party to. The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand SILVERYFROG’s obligations or restrict SILVERYFROG’s rights under this Agreement.
11.3 Compliance. User shall not violate any laws or third party rights on or related to the SILVERYFROG Platform. Without limiting the generality of the foregoing, User agrees to comply with all applicable import and export control laws and third parties’ Proprietary Rights.
11.4 Notices: Consent to Electronic Notice. You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the SILVERYFROG Platform. Notices hereunder shall be invalid unless made in writing and given (a) by SILVERYFROG via email (in each case to the address that you provide), (b) a posting on the SILVERYFROG Site or (c) by you via email to [email protected] or to such other addresses as SILVERYFROG may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
11.5 Modifications. No modification or amendment to this Agreement shall be binding upon SILVERYFROG unless in a written instrument signed by a duly authorized representative of SILVERYFROG. For the purposes of this Section 11.5, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles.
11.6 No Waiver. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
11.7 Assignability. User may not assign this Agreement, or any of its rights or obligations hereunder, without SILVERYFROG’s prior written consent in the form of a written instrument signed by a duly authorized representative of SILVERYFROG (and, for the purposes of this Section 11.7, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). SILVERYFROG may freely assign this Agreement without consent of User. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
11.8 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
11.9 Choice of Law. This Agreement and any action, dispute, controversy or claim related thereto will be governed by the laws of the Province of Quebec without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action in relation to this Agreement will be the District of Montreal and each of the parties hereto waives any objection to jurisdiction and venue in such courts. However, in the event of the actual or threatened infringement, misappropriation or violation of SILVERYFROG’s Proprietary Rights, SILVERYFROG may, at its discretion, institute legal proceedings in any jurisdiction (s) which is (are) deemed necessary or advisable.
11.10 Independent Legal Advice. You acknowledge that SILVERYFROG is not providing any legal advice, and that you have been afforded an opportunity to obtain independent legal advice with respect to this Agreement and the Service Contract, and that you understand the nature and the consequences of this Agreement and the Service Contract.
11.11 Language. The parties hereto acknowledge that they have requested and are satisfied that this Agreement be drawn up in English; Les parties aux présentes reconnaissent qu’elles ont exigé que ce contrat soit rédigé en anglais et s’en déclarent satisfaites.
The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
12. Definitions.
12.1 “Client” means any User utilizing the SILVERYFROG Platform to request Services to be performed by a Contractor. From time to time, SILVERYFROG may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to SILVERYFROG when acting in this way.
12.2 “Client Owned Items” means instructions, requests, intellectual property and any other information or materials that a Contractor receives from a Client for a particular Contract.
12.3 “Confidential Information” means Client or Contractor Owned Items, Work Product, and any other information provided to, or created by, a User for a Contract, regardless of whether in tangible, electronic, verbal, graphic, visual or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Contractor or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of Confidential Information.
12.4 “Contract” means a particular project or set of ongoing tasks for which a Client has requested Services to be performed by a Contractor and the Contractor has agreed on the SILVERYFROG Platform.
12.5 “Contractor” means any company or individual User utilizing the SILVERYFROG Platform to offer Services to Clients.
12.6 “Contractor Owned Items” means instructions, requests, intellectual property and any other information or materials that a Client receives from a Contractor for a particular Contract.
12.7 “Contractor Fees” means: (a) for a Fixed-Price Contract, the Fixed-Price; and (b) any bonuses paid or other payments made by a Client for a Contract.
12.8 “Effective Date” means the date of acceptance of this Agreement.
12.9 “Fixed-Price” means a fixed fee agreed between a Client and a Contractor, prior to the commencement of a Contract, for the completion of all Services requested by Client for such Contract.
12.10 “Fixed-Price Contract” means a Contract for which Client is charged a Fixed-Price.
12.13 “Proprietary Rights” means any and all rights, title, ownership and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.
12.14 “Services” means web development, software development, writing, translation, administrative, marketing, design customer service, sales, data entry, general business services and other knowledge-based or online services.
12.15 “Work Product” means any tangible or intangible results or deliverables that Contractor agrees to create for, or actually delivers to, Client as a result of performing the Services on a particular Contract, including, but not limited to, configurations, computer programs or other information, or customized hardware, and any intellectual property developed in connection therewith.
Should you have any questions or comments concerning the Terms and Conditions, please do not hesitate to contact us at [email protected]
