Users who enter into a Service Work Order on the Site with another User are free to agree to these Optional Service Terms in whole or in part, or to agree to different or additional terms for their Service Work Order(s). However, if and to the extent that the Users who are party to a Service Work Order have not agreed to different terms, then they agree to incorporate these Optional Terms. Users may not, by agreement amongst themselves, alter the rights or responsibilities of Panameer or Payment Escrow, including any provision of the Escrow Instructions, or agree to any terms that would violate the Terms of Service. Neither Panameer, Payment Escrow, nor any affiliate of Panameer is a party to any Service Work Order by or between Users regardless of whether these Optional Terms are incorporated.
You acknowledge and agree that Users have discretion whether to contract with each other and will negotiate and determine the specific terms of their Service Work Orders with each other. The Optional Service Terms is a sample only, which may not be appropriate for all Service Work Orders and which may be adjusted and added to as Users deem appropriate. Users choose whether to use the Optional Service Terms in whole or in part.
1. PARTIES
Service Buyer and Provider identified on the Site under the Service Work Order are the parties to the Services Work Order. The address of each party is the address entered under the tax information on the Site.
Panameer is not a party to the Service Work Order.
2. SERVICES
Service Buyer and Provider agree that the Provider is performing services as an independent contractor and that Provider is not an employee or agent of Service Buyer. Provider will perform the Provider Services in a professional and workmanlike manner in accordance with the professional experience represented by Provider in Provider's profile, proposals, and other communications. The manner and means of performing the Provider Services, including the tools to be used in completing the work, will be determined and controlled by Provider except as expressly limited by Service Buyer’s specifications in the Service Work Order.
Service Buyer and Provider agree to respond to communications relevant to completion of the Service Work Order within 7 days, unless Provider has communicated to Service Buyer that they will be unavailable for an extended period. Provider will timely deliver any agreed upon Work Product within the timeframe agreed upon by Provider and Service Buyer, or will provide a minimum of 24 hours’ advance notice in the event that Provider will not be able to meet the deadline. For hourly Work Orders, Provider agrees to bill Service Buyer only for time spent working on Service Buyer’s Work Orders.
The terms concerning the services to be performed under the Service Work Order described on the Site form part of the Service Work Order. Users agree that, once accepted, the terms of the Service Work Order cannot be modified by a User without obtaining the consent of the other before making changes to the Service Work Order, including by adding additional or different milestones, by closing a Service Work Order, or making other changes to the Service Work Order on the Site. If consent of the other party is not first
obtained, the other party may reject such changes by terminating the Service Work Order or accept such changes by continuing to work on the Service Work Order.
The parties agree that failure to comply with the provisions of this Section may result in a refund of funds to the other party.
3. RESPONSIBILITY FOR EMPLOYEES AND SUBCONTRACTORS, INCLUDING RECRUITER
MEMBERS
If a User subcontracts with or employs third parties to perform Provider Services on behalf of the User for any Engagement, the User represents and warrants that it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations. Further, at all times a User that agreed to perform services under a Services Work Order remains responsible for the quality of the services and represents and warrants that User has entered into agreements with any such employees and subcontractors on confidentiality and intellectual property at least as strong as those in these Optional Service Terms.
4. SERVICE BUYER PAYMENTS AND BILLING
Provider agrees to accurately report hourly invoices by billing hours worked under the Account of the User that worked the hours, including, if applicable, Recruiters billing their Service Buyers for hourly work done by Recruiter Members.
5. TERMINATION OF A SERVICE Work Order
Under Hourly Work Orders, either Service Buyer or Provider has the right to terminate the Service Work Order after providing any agreed-upon notice, or immediately on the end date specified in the Service Work Order terms and/or upon completion of the Provider Services, in the event of a material breach, or with the consent of the other party. Except as required by law or as otherwise may be agreed to by the Parties, Service Buyer remains obligated to pay the Provider Fees for any Provider Services provided prior to termination of the Hourly Work Order.
Under Fixed-Price Work Orders, once a Service Buyer’s Payment Method has been charged to fund the escrow account for the Engagement, absent a full refund to Service Buyer by Provider, the Service Work Order does not terminate until the Provider Services are completed. However, either Service Buyer or Provider has the right to terminate a Fixed-Price Work Order at any time with the consent of the other party or in the event of a material breach. If a Fixed-Price Work Order is terminated, Service Buyer does not have the right to recover any payments already released to Provider from the escrow account for the Engagement.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 THIRD-PARTY RIGHTS
Provider represents and warrants that Provider will not incorporate or use the materials of any third party including those of any other Service Buyer or any employer, in performing the Provider Services that are
not generally available for use by the public or have not been legally transferred to the Service Buyer.
6.2 BACKGROUND TECHNOLOGY
Provider will disclose in the Engagement terms any Background Technology which Provider proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Provider discloses no Background Technology, Provider warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Provider will separately provide, with each delivery of Work Product to Service Buyer, a bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Provider, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Engagement terms, Provider agrees that it will not incorporate into Work Product or otherwise deliver to Service Buyer any software code for which the use or distribution of the code will create (or purport to create) obligations for Service Buyer to grant any rights or immunities under Service Buyer intellectual property to a third-party, including without limitation any obligation that the Work Product or Service Buyer software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.
6.3 SERVICE BUYER MATERIALS
Service Buyer grants Provider a limited, non-exclusive, revocable (at any time, at Service Buyer’s sole discretion) right to use the Service Buyer Materials as necessary solely for the performance of the Provider Services under the applicable Service Work Order. Service Buyer reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Service Buyer Materials. Upon completion or termination of the Service Work Order, or upon Service Buyer’s written request, Provider will immediately return all Service Buyer Materials to Service Buyer and further agrees to destroy all copies of Service Buyer Materials and Deliverables (except for Background Technology as permitted by the Service Work Order) contained in or on Provider’s premises, systems, or any other equipment or location otherwise under Provider’s control. Within ten days of such request from Service Buyer, Provider agrees to provide written certification to Service Buyer that Provider has returned or destroyed all Service Buyer Materials and Work Product as provided in this subsection.
6.4 OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY
Upon Provider’s receipt of full payment from Service Buyer, the Work Product (except for any Background Technology), including without limitation all Intellectual Property Rights in the Work Product (except for any Background Technology), will be the sole and exclusive property of Service Buyer, and Service Buyer will be deemed to be the author thereof. If Provider has any Intellectual Property Rights to the Work Product that are not owned by Service Buyer upon Provider’s receipt of payment from Service Buyer, Provider hereby automatically irrevocably assigns to Service Buyer all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Provider retains no rights to use, and will not challenge the validity of Service Buyer’s ownership in, such Intellectual Property Rights. Provider hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and
to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered and paid for.
6.5 LICENSE TO BACKGROUND TECHNOLOGY
Upon Provider’s receipt of full payment from Service Buyer for delivery of Work Product, Provider hereby automatically grants to Service Buyer an exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated in Work Product delivered for that payment. If payment is made only for partial delivery of Work Product, the license described herein applies only to the portion of Work Product delivered and paid for.
6.6 LICENSE TO OR WAIVER OF OTHER RIGHTS
If Provider has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Service Buyer by Provider, Provider hereby automatically, upon Provider’s receipt of full payment from Service Buyer, unconditionally and irrevocably grants to Service Buyer during the term of such rights, an exclusive, even as to Provider, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Provider has any rights to such Work Product that cannot be assigned or licensed, Provider hereby automatically, upon Provider’s receipt of payment from Service Buyer, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Service Buyer or related to Service Buyer’s customers, with respect to such rights, and will, at Service Buyer’s request and expense, consent to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
6.7 ASSISTANCE
Provider will assist Service Buyer in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Work Order, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Service Buyer is unable, after reasonable effort, to secure Provider’s signature on any document needed in connection with the foregoing, Provider hereby designates and appoints Service Buyer and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Provider.
7. CONFIDENTIAL INFORMATION
7.1 CONFIDENTIALITY
To the extent a Service Buyer or Provider provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s 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 will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Provider Services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Provider); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Provider Services.
7.2 RETURN
If and when Confidential Information is no longer needed for the performance of the Provider Services for a Services Work Order or at Service Buyer’s or Provider’s written request (which may be made at any time at Service Buyer’s or Provider’s sole discretion), the party that received Confidential Information, will, at its expense, promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party’s written request for such certification.
7.3 PUBLICATION
Without limiting Section 7 (Confidentiality), Service Buyer and Provider will not publish, or cause to be published, any other party’s Confidential Information or Work Product, except as may be necessary for performance of Provider Services for a Services Work Order.
7.4 IMMUNITY
A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. Sec. 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
8. DEFINITIONS
The following capitalized terms have the following meanings: “Background Technology” means all Inventions developed by Provider other than in the course of providing Provider Services to Service Buyer under the Service Work Order and all Inventions that Provider incorporates into Work Product.
“Service Buyer” means any person who entered into a Service Work Order to obtain Provider Services from a Provider.
“Service Buyer Deliverables” means requests, intellectual property, and any other information or materials that a Provider receives from a Service Buyer to perform Provider Services.
“Service Buyer Materials” means requests, intellectual property, and any other information or materials that Service Buyer provides to Provider for Provider to perform Provider Services.
“Confidential Information” means Service Buyer Deliverables, Provider Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Work Order or to perform or assist in performing Provider Services, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that is known to the public or that: (a) is generally known by third parties as a result of no act or omission of Provider or Service Buyer; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by 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 another person’s Confidential Information.
“Engagement” means an engagement for Provider Services that a Provider provides to a Service Buyer under a Service Work Order on the Site.
“Escrow Instructions” means the Fixed-Price Escrow Instructions or the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
“Fixed-Price Work Order” means a Service Work Order for which Service Buyer is charged a fixed fee agreed between a Service Buyer and a Provider, prior to the commencement of a Service Work Order, for the completion of all Provider Services contracted by Service Buyer for such Service Work Order.
“Provider” means any person who entered into a Service Work Order to perform Provider services for a Service Buyer.
“Provider Deliverables” means requests, intellectual property, and any other information or materials that a Service Buyer receives from a Provider for a particular Service Work Order.
“Provider Fees” means: (a) for an Hourly Work Order, an amount equal to the number of hours recorded by Provider in any Hourly Invoice, multiplied by the hourly rate set by the Provider; (b) for a FixedPrice Work Order, the fixed fee agreed between a Service Buyer and a Provider; and (c) any bonuses or other payments made by a Service Buyer.
“Provider Services” means all services performed for or delivered to Service Buyers by Providers.
“Hourly Work Order” means a Service Work Order for which Service Buyer is charged based on the hourly rate set by the Provider.
“Hourly Invoice” means the report of hours recorded for a stated period by a Provider for the Provider Services performed for a Service Buyer.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and
techniques and all Intellectual Property Rights therein.
“Service Work Order” means, as applicable, (a) the contractual provisions between a Service Buyer and a Provider governing the Provider Services to be performed by a Provider for Service Buyer for an Engagement; or (b) if you use Panameer Payroll, the contractual provisions between Provider and the Staffing Provider for the provision of services to Service Buyer.
“Work Product” means any tangible or intangible results or deliverables that Provider agrees to create for, or actually delivers to, Service Buyer as a result of performing the Provider Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.