This Space Chimp User Agreement (the “Agreement”) is a contract between you (the “User”) and Space Chimp Media, a Texas incorporated corporation (“Space Chimp”, “we” or “us”) with its principal place of business at 600 Congress Ave., Austin, TX 78701. You must read, agree with and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.spacechimp.io (the “Site”) and related software and services (collectively with the Site, the “Space Chimp Platform”).
Space Chimp may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after Space Chimp 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.
YOU UNDERSTAND THAT BY USING THE Space Chimp 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 Space Chimp 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.
1.1 Purpose of the Space Chimp Platform. The Space Chimp 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. The Space Chimp team then hand selects the best talent we find to be the best fit for your project. 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). Space Chimp collects payment from the Client on behalf of the Contractor.
1.2 Eligibility. The Space Chimp 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.
2.1 Space Chimp Fee. Space Chimp adds a fee to the Contractor’s hourly rate for the use of the Space Chimp Platform and the services it provides (the “Space Chimp Fees”) the client. This fee is equal to 30% of the Contractor’s hourly rate, unless Space Chimp advises the User in advance as to a different fee.
Space Chimp uses a third-party payment processor (the “Payment Processor”) to link your credit card account to the Space Chimp Platform. The processing of payments or credits, as applicable, in connection with your use of the Space Chimp 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. Space Chimp is not responsible for any errors by the Payment Processor.
2.2 General User Obligations. Space Chimp has created a marketplace to connect Clients and Contractors using the Space Chimp Platform. Space Chimp is not a service company and does not provide Services. Space Chimp 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, Space Chimp or any third party anywhere within the Space Chimp Platform. Users may be held legally responsible for damages suffered by other Users, Space Chimp or any third party as a result of legally actionable or defamatory comments, remarks, or other information or content posted to the Space Chimp Platform. All Clients and Contractors are to comply with all laws applicable to them or to their activities, and with all posted Space Chimp Policies, which are hereby incorporated into this Agreement by reference. These policies may be modified from time to time at Space Chimp’s discretion, and the currently effective policies will be deemed to be part of this Agreement.
Space Chimp is not legally responsible for any remarks, information or other content posted or made available on the Space Chimp Platform by any User or third party, even if such information or content is defamatory or otherwise legally actionable. Space Chimp is not responsible for and does not monitor or censor content for accuracy or reliability. However, Space Chimp reserves the right to remove or restrict access to any information or content posted or made available on the Space Chimp Platform if ordered to do so by a government authority or if Space Chimp 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 Space Chimp Platform, you agree not to post or transmit to or from the Space Chimp 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 Space Chimp Platform by any means other than the interface provided, and you will not use information from the Space Chimp 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 Space Chimp 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 Space Chimp 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 Space Chimp Platform: (i) attempt to access or search the Space Chimp Platform or download content from the Space Chimp 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 Space Chimp 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 Space Chimp Platform to transmit any unsolicited advertising, junk mail, spam or other form of solicitation; (iv) use the Space Chimp 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 Space Chimp User account must be real and verifiable. Each Space Chimp User account must be used by only one person, and each person is allowed to use only one User account. Space Chimp 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 Space Chimp, 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 Space Chimp 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 Space Chimp. You must notify Space Chimp Support immediately if you suspect that your password has been lost or stolen. By using your Space Chimp User account, you acknowledge and agree the Space Chimp’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 Space Chimp User account.
2.4 Job Postings and Applications.
2.4.1 Posting a Job. All jobs posted to Space Chimp must be in English and not contain any information enabling or requesting contact or payment outside of the Space Chimp 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. Space Chimp 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. Space Chimp does its best to verify the skill and ability of the Contractor before they are given an account.
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 Time and Material Contracts. Contractors agree that there is no guarantee of payment for Time and Material Contracts. Subject to Section 2.7, Clients may determine, acting reasonably, whether a Contractor has completed work based on best practices for Time and Material Contracts and whether to pay the Contractor. Subject to Section 2.7, Space Chimp does not verify whether a Time and Material 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 Space Chimp Platform. Any action that encourages or solicits complete or partial payment outside of the Space Chimp Platform is a violation of this Agreement. Should a Client be found in violation of this section of this Agreement, it will owe Space Chimp fees equal to the greater of a) $2,500; or b) the applicable fees had the payments been processed through the Space Chimp Platform plus 18%. Client shall immediately notify Space Chimp if a Contractor requests that Client make a payment directly to it or through any channels other than those provided or specified by Space Chimp. 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 Space Chimp Platform. Contractor shall immediately notify Space Chimp if a Client attempts to make a payment to Contractor directly or through any payment channels other than those provided or specified by Space Chimp.
2.6.3 Buyout Policy. Notwithstanding the provisions set forth above, Users may agree to provide or receive Services outside of the Space Chimp Platform with Users identified through the Space Chimp 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 Space Chimp Platform, no Space Chimp Fees or buyout provisions apply. If Services are rendered outside of the Space Chimp Platform less than three (3) years after the Client identifies the Contractor through Space Chimp the Space Chimp Platform, payments for such Services will not be subject to the Space Chimp Fees, provided that the Client pays Space Chimp a “Buy-Out” fee in accordance with the procedure set forth below:
2.7 Payment accounts. Each Contractor must properly discharge and credit its Client for all payments Space Chimp receives from such Client. Each User understands and agrees that:
Additionally, in the event that Client and Contractor cannot agree upon whether a contract (including but not limited to a Time and Material Contract) has been completed, and one of such parties advises Space Chimp that there is a dispute in that regard, then Space Chimp may determine if the work has been substantially completed and demand the amount in dispute to be released by either of Client and Contractor, as it deems appropriate, in its sole and absolute discretion, and without any liability of Space Chimp to any party whatsoever. Client and Contractor do hereby irrevocably authorize Space Chimp 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. Space Chimp reserves the right, in its sole discretion, to place a hold on funds for Client payments to clear or if Space Chimp suspects monies may be subject to charge back or if fraud is suspected. Space Chimp will release a hold as soon as deemed appropriate. In cases of fraud, abuse or violation of this Agreement, Space Chimp account may be held and/or reclaimed, not just those from the Contract(s) under investigation.
2.10 Enforcement of User Agreement and Policies. Space Chimp has the right, but not the obligation, to suspend or cancel your access to the Space Chimp 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 Space Chimp’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 Space Chimp 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 Space Chimp. Once suspended or terminated, you MAY NOT continue to use the Space Chimp Platform under a different account or reregister under a new account. If you attempt to use the Space Chimp 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 Space Chimp Platform, including data, messages, files and other material you keep on Space Chimp. All intellectual property provided by Clients for the purposes of completing Contracts will be returned by Contractors immediately upon termination.
User agrees that all Service Contracts between any Client and Contractor shall: (i) include the terms and conditions provided in Sections 3.1 through 3.9 below (“Standard Terms”); (ii) name Space Chimp 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 Space Chimp. 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 Space Chimp’s rights.
3.1 Services. Contractor shall perform Services in a professional and workmanlike manner. Under Time and Material Contracts, Contractor shall deliver the agreed-upon Work Product.
3.2 Fees. Client shall pay Contractor the hours worked upon acceptance of the Work Product (under Time and Material Contracts). All amounts paid by Client shall be paid through the Space Chimp Platform to Space Chimp as the Contractor’s agent, and Client’s obligation of payment to Contractor is met when payment is made to Space Chimp.
3.3 Termination of a Service Contract. For Time and Material 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 Time and Material Contract at any time if no payment has been made. If a payment has been made on a Time and Material Contract, the Contractor may terminate only with written agreement from the Client. If there is an outstanding balance upon termination of the agreement, the outstanding amount must be paid so long as the work is satisfactory based on industry best practices. If the work is deemed to be poor quality based on industry best practices then the Contractor has up to two (2) weeks to remedy the disputed issues. Client must provide supporting evidence that the quality is of poor standard.
3.4 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.
3.5 Work Product. Any copyrightable works or works for hire prepared by Contractor in connection with a Time and Material Contract for Client shall be owned by the Contractor until payment has been made by the Client and accepted by Space Chimp.
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 Space Chimp 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.
3.6 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.
3.7 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 Space Chimp does not, in any way direct, or control Contractor’s work or Services performed in any manner. Space Chimp does not set Contractor’s work hours and location of work. Space Chimp will not provide Contractor with training or any equipment, labor or materials needed for a particular Contract.
Space Chimp 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 Space Chimp 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.
3.8 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 Space Chimp upon request. Space Chimp, or Space Chimp’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 Space Chimp with the right or obligation to supervise or monitor the actual Services performed by Contractor.
3.9 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 Space Chimp Labs Inc. User Agreement.
4.1 Service Contracts. User expressly acknowledges, agrees and understands that: (i) the Space Chimp Platform is merely a venue where Users may act as Clients or Contractors; (ii) Space Chimp 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 Space Chimp and that Space Chimp does not, in any way, supervise, direct, or control User’s work or Services; (iv) Space Chimp shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (v) Space Chimp has no control over Contractors or over the Services promised or rendered by Contractors; and, (vi) Space Chimp makes no representations as to the reliability, capability, or qualifications of any Contractor or the quality, security or legality of any Services, and Space Chimp disclaims any and all liability relating thereto.
4.2 Proprietary Rights. Space Chimp and its licensors reserve all Proprietary Rights in and to the Space Chimp Platform and Space Chimp. User may not use the Space Chimp 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. Space Chimp reserves the right to withdraw, expand and otherwise change the Space Chimp Platform at any time in Space Chimp’s sole discretion. User shall not be entitled to create any “links” to the Space Chimp Platform, or “frame” or “mirror” any content contained on, or accessible through, the Space Chimp Platform, on any other server or internet-based device. Space Chimp 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 Space Chimp Platform and Space Chimp. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Space Chimp Platform and Space Chimp, or any Proprietary Rights owned by Space Chimp. Space Chimp’s name, logo, and the product names associated with Space Chimp or the Space Chimp Platform are trademarks of Space Chimp or third parties, and no right or license is granted to use them.
4.3 Space Chimp’s Compensation. All Space Chimp Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.
5.1 Formal Invoices and Taxes. Space Chimp 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 Space Chimp 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 Space Chimp, as appropriate; and (ii) determining whether Space Chimp is required by applicable law to withhold any amount of the Contractor Fees, notifying Space Chimp of any such requirement and indemnifying the Indemnified Parties (either by permitting Space Chimp to offset the relevant amount against a future payment of Contractor Fees or by refunding to Space Chimp the relevant amount, at Space Chimp’s sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. Space Chimp 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 Space Chimp, Contractor agrees to promptly cooperate with Space Chimp 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 Time and Material payments, Client is billed immediately.
5.3 Payment. Client hereby authorizes Space Chimp 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 Space Chimp or mutually agreed to between Client and Space Chimp).
6.1 Confidentiality. To the extent a Client or Contractor provides Confidential Information to the other and/or to Space Chimp, 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 Space Chimp, 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 Space Chimp 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 Space Chimp 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.
NOTWITHSTANDING ANYTHING ELSE STATED ON THE WEBSITE OR BY ANY OF Space Chimp’S REPRESENTATIVES, Space Chimp MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SAFETY, ACCURACY OR COMPLETENESS OF THE SERVICES, WORK PRODUCT, Space Chimp PLATFORM, QUALITY OR CAPACITY OF THE CLIENT OR CONTRACTOR, OR ANY ITEMS OR ACTIVITIES RELATING TO THIS AGREEMENT (COLLECTIVELLY THE “DISCLAIMED ITEMS”). Space Chimp DOES NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE Space Chimp 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 Space Chimp PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (v) ERRORS OR DEFECTS IN THE DISCLAIMED ITEMS WILL BE CORRECTED, OR (vi) THE Space Chimp 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 Space Chimp. Space Chimp 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.
Space Chimp’S PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Space Chimp IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES OF WHATSOEVER NATURE RESULTING FROM SUCH PROBLEMS.
IN NO EVENT SHALL Space Chimp’S AGGREGATE LIABILITY EXCEED THE GREATER OF: (i) CDN $2,500; AND (ii) ANY Space Chimp FEES RETAINED BY Space Chimp 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 Space Chimp 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). Space Chimp 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 Space Chimp 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 Space Chimp PLATFORM OR IS REFERRED BY Space Chimp OR THE Space Chimp PLATFORM, EVEN IF Space Chimp 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 Space Chimp 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 Space Chimp FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE Space Chimp PLATFORM, OR IN ANY WAY RELATED TO THE CLIENT, CONTRACTOR OR THIRD PARTIES INTRODUCED TO YOU BY THE Space Chimp PLATFORM, OR WITH RESPECT TO THE PERFORMANCE OF ANY CONTRACTUAL OBLIGATIONS WITH ANY CLIENT AND CONTRACTOR, AS WELL AS ALL LOSSES RELATING THERETO.
9.1 Proprietary Rights. Each User shall indemnify, defend and hold harmless Space Chimp 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 Space Chimp, and any release of Space Chimp, shall also be construed as being an indemnity or release, as the case may be, of the Indemnified Parties.
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).
11.1 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 Space Chimp 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 Space Chimp’s obligations or restrict Space Chimp’s rights under this Agreement.
11.3 Compliance. User shall not violate any laws or third party rights on or related to the Space Chimp 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 Space Chimp Platform. Notices hereunder shall be invalid unless made in writing and given (a) by Space Chimp via email (in each case to the address that you provide), (b) a posting on the Space Chimp Site or (c) by you via email to email@example.com or to such other addresses as Space Chimp 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 Space Chimp unless in a written instrument signed by a duly authorized representative of Space Chimp. 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 Space Chimp’s prior written consent in the form of a written instrument signed by a duly authorized representative of Space Chimp (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). Space Chimp 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 Space Chimp’s Proprietary Rights, Space Chimp 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 Space Chimp 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.
12.1 “Client” means any User utilizing the Space Chimp Platform to request Services to be performed by a Contractor. From time to time, Space Chimp may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to Space Chimp 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 Space Chimp Platform.
12.5 “Contractor” means any company or individual User utilizing the Space Chimp 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 Time and Material Contract, the Time and Material; 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 “Time and Material” means the hourly 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 “Time and Material Contract” means a Contract for which Client is charged based on the actual time worked multiplied by Contractor’s hourly rate.
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 firstname.lastname@example.org.