o-DeskMarketplace
User Agreement:
User Agreement:
This oDesk Marketplace User Agreement, (the “Agreement”) is entered into by and between thecompany or individual specified during this online registration process (“User”) and oDeskCorporation, a California corporation with its principal place of business at 4200 BohannanDrive, Suite 100, Menlo Park, CA 94025, U.S.A. (“oDesk”) for good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged. Capitalized terms are defined
throughout the Agreement and in Section 13.
The policies, terms and conditions below limit oDesk’s liability and obligations to you and allow
oDesk to change, suspend or terminate your access to and use of the oDesk Marketplace. We
urge you to carefully read the following terms and conditions, and all policies referenced below
or elsewhere within the oDesk Marketplace. The policies and rules located at oDesk Rules &
Policies or made available elsewhere on the Site (collectively, the “Policies”) are incorporated
into this Agreement by reference and provide additional terms and conditions governing your use
of the oDesk Marketplace. The Policies include but are not limited to the following: the Billing
and Payments Policy; Community Forums Policy; Community Forums Usage Policy; Dispute
Resolution Policy; General User Obligations; Guidelines on Enforcement of Policies; oDesk
Community Values; Job Openings and Applications Policy; Policy on Managing and Working
on Assignments; Privacy Policy; and Ratings and Feedback Policy. To the extent that there are
any conflicts between the terms or conditions in such Policies and this Agreement, the terms and
conditions of this Agreement will govern.
YOU UNDERSTAND THAT BY CHECKING THE BOX AND CLICKING THE “SUBMIT”
BUTTON, BY USING THE ODESK MARKETPLACE (INCLUDING ANY CONTENT
PROVIDED THEREIN) OR YOUR ODESK ACCOUNT, HAVING ANY FORM OF
COMMUNICATION WITH A BUYER OR PROVIDER OR BY POSTING ANY
ASSIGNMENTS VIA THE ODESK MARKETPLACE, YOU ARE AGREEING TO BE
BOUND BY THIS AGREEMENT (INCLUDING THE INCORPORATED POLICIES). IF
YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS
OR USE THE ODESK MARKETPLACE. IF YOU AGREE TO THESE TERMS AND
CONDITIONS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT
YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT AND
YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF
THE BUSINESS. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO
THAT BUSINESS.
1. THE ODESK MARKETPLACE.
1.1 Purpose of the oDesk Marketplace. The oDesk Marketplace is an online portal and
website located at www.odesk.com (the “Site”) provided by oDesk where Users may locate
Buyers of Services or Providers of Services and access and use the oDesk Tools (collectively, the
“oDesk Marketplace”). In addition, payments for the Services contracted for through the oDesk
Marketplace are made through the oDesk Marketplace. On the oDesk Marketplace, Buyers may
post Assignments to invite bids by Providers and Providers may post information about their
capabilities and bid on Assignments.
081120 – OMUA.12
1.2 Eligibility. The oDesk Marketplace is available only to persons who are at least eighteen
(18) years old and are otherwise capable of forming legally binding contracts under applicable
law. Without limiting the foregoing, the oDesk Marketplace is not available to temporarily or
indefinitely suspended Users. Users are not employees, agents or contractors of oDesk.
You will not use or access the oDesk Marketplace if you are located or reside in a country (a) in
which use or participation is prohibited by law, decree, regulation, treaty or administrative act or
(b) that is prohibited from entering into trade relations with the United States or its citizens.
Such countries include, without limitation, Cuba, Iran, North Korea, Sudan and Syria.
1.3 Role of Service Contracts and the Role of oDesk. If a Buyer accepts a Provider’s bid for
an Assignment, a services contract is formed directly between such Buyer and Provider subject
to the terms specified in Section 2 (Service Contract Terms Between Buyer and Provider) and/or
any other terms and conditions that Buyer and Provider may agree upon through the oDesk
Marketplace (“Service Contract”). Subject to and in accordance with the “Buy-Out”
provision set forth in the Billing and Payments Policy, User agrees that, whether acting as a
Buyer or Provider, User shall not agree on any terms outside the oDesk Marketplace and any
attempt to agree on terms outside the oDesk Marketplace shall constitute a material breach of
this Agreement and be null and void. oDesk is not a party to any Service Contract between
Buyers and Providers and oDesk itself does not deliver any Assignments or Work Product, nor
does oDesk make any representations regarding the quality thereof, except as may be otherwise
explicitly set forth by oDesk. .
1.4 Acknowledgement of oDesk’s Interest in Proper Performance of Service Contracts. Even
to the extent oDesk is not a party to a Service Contract, User acknowledges and agrees that the
reputation and goodwill of oDesk may be adversely affected if, as a Buyer or Provider, the User
engages in violations of the Service Contract. User further acknowledges and agrees that oDesk
is an intended third-party beneficiary of each Service Contract User enters into and oDesk has
the right to take such legal actions against User as oDesk, in its sole discretion, deems necessary
to protect the interests of oDesk.
1.5 Payment of oDesk Fee. User agrees that oDesk shall be paid a fee (the “oDesk Fee”) for
maintaining the oDesk Marketplace. The amount of such fee and the method of its payment are
set forth in the Billing and Payments Policy.
2. SERVICE CONTRACT TERMS BETWEEN BUYER AND PROVIDER.
User agrees that all Service Contracts between User and any Buyer or Provider regarding
particular Assignments shall: (i) unless Buyer and Provider expressly agree otherwise through
the oDesk Marketplace, contain substantially the same terms and conditions provided in Sections
2.1 through 2.10 below (“Standard Terms”); (ii) name oDesk as an express third party
beneficiary under the Service Contract; and (iii) make no representations or warranties on behalf
of oDesk. Notwithstanding the foregoing, to the extent that Buyer and Provider agree to terms in
their Service Contract different than the Standard Terms, nothing in such Service Contract will in
any way limit or modify oDesk’s rights.
2.1 Services. Provider shall perform Services in a professional and workmanlike manner.
Under Fixed Price Assignments, Provider shall deliver the agreed-upon Work Product. Under
Bill Rate Assignments, Provider shall use reasonable efforts to create the desired Work Product.
Provider may not subcontract with third parties to perform Services on behalf of Provider or
assist Provider in performing Services unless Provider has obtained Buyer’s prior written consent
to such arrangement.
2.2 Fees. Buyer shall pay Provider the agreed-upon fees for time spent (under Bill Rate
Assignments) or delivery of the Work Product (under Fixed Price Assignments). All amounts
paid by Buyer shall be paid through the oDesk Marketplace as set forth in the Billing and
Payments Policy.
2.3 Termination. Under Bill Rate Assignments, either party may terminate the Service
Contract at any time for any or no reason, provided that Buyer remains obligated to pay for any
time Provider spent prior to termination. Fixed Price Assignments may only be terminated by
mutual agreement.
2.4 Buyer Deliverables. Buyer grants Provider a limited, non-exclusive, revocable (at any
time, at Buyer’s sole discretion) right to use the Buyer Deliverables as necessary for the
performance of the Services. Buyer reserves all other rights and interest, including, without
limitation, all Proprietary Rights, in and to the Buyer Deliverables. Upon completion or
termination of the Assignment, or upon request by the Buyer, Provider shall immediately return
all Buyer Deliverables to the Buyer and purge all copies of Buyer Deliverables and Work
Product contained in or on Provider’s premises or systems or otherwise under Provider’s control.
2.5 Work Product. Any copyrightable works prepared by Provider in connection with an
Assignment for Buyer shall be “works for hire”; consequently, Buyer will be considered the
author and owner of such works. Unless prohibited by applicable mandatory law, all Proprietary
Rights in and to Work Product shall vest in Buyer upon creation. If under mandatory law,
Proprietary Rights do not vest in Buyer upon creation, Provider hereby assigns all Proprietary
Rights to Work Product to Buyer, effective upon creation. To the extent that under mandatory
law, rights can only be assigned after creation, Provider hereby irrevocably agrees to assign,
immediately following the creation, all Proprietary Rights to Work Product to Buyer. To the
extent that under mandatory law, Proprietary Rights cannot be assigned, Provider hereby
irrevocably agrees to grant, and hereby grants, to Buyer an exclusive (excluding also Provider),
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 mandatory law,
Provider hereby irrevocably agrees to grant, and hereby grants, to Buyer, such rights as Buyer
reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal
ownership. In order to ensure that Buyer will be able to acquire, perfect and use such Proprietary
Rights, Provider will: (i) transfer possession, ownership, and title to media, models, and other
tangible objects containing Work Product to Buyer; (ii) sign any documents at Buyer’s request to
assist Buyer in the documentation, perfection and enforcement of its rights; and (iii) provide
Buyer with support and reasonable access to information for recording, perfecting, securing,
defending, and enforcing such Proprietary Rights. Provider also irrevocably authorizes Buyer to
act and sign on Provider’s behalf and take any necessary steps in order to perfect Buyer’s rights
under this Agreement. In case that under mandatory law, Provider 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, Provider irrevocably agrees to waive, and
hereby waives, all such rights, or, to the extent Provider cannot waive such rights, Provider
agrees not to exercise such rights, until Provider has provided prior written notice to Buyer and
then only in accordance with any reasonable instructions that Buyer issues in the interest of
protecting its rights. Provider agrees to assist Buyer in every proper way to obtain and enforce
the Proprietary Rights and other legal protections for the Work Product in any and all countries.
Provider will sign documents that the Buyer may reasonably request for use in obtaining and
enforcing such protection, including, but not limited to, any assignment deed which the Buyer
may select at its sole discretion. Provider’s obligations under this Section 2.5 will continue even
after Provider deregisters from or ceases use of the oDesk Marketplace. Provider appoints Buyer
as Provider’s attorney-in-fact to execute documents on Provider’s behalf for the purposes set
forth in this Section 2.5.
2.6 Pre-existing IP in Work Product. User shall ensure that no Work Product created or
delivered by User as a Provider includes any pre-existing software, technology or other IP,
whether such pre-existing IP is owned by User 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 Buyer to the
inclusion of such Pre-existing IP in the Work Product. User acknowledges that, without limiting
any other remedies, User shall not be entitled to payment for, and shall refund any Provider Fees
paid to User for, any Services performed on an Assignment if the Work Product contains any
Pre-existing IP that was not approved in accordance with this Section 2.6.
2.7 Independent Contractor. Provider’s relationship with Buyer will be that of an independent
contractor, and nothing in this Agreement should be construed to create a partnership, joint
venture, or employer-employee relationship. Provider acknowledges and agrees 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, or
employee benefits of any kind from Buyer. Provider acknowledges and agrees that Buyer will
not deduct any amount for withholding, unemployment, Social Security, or other taxes as it
would in the case of an employee and that and that Provider 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 Provider’s performance of Services. Provider agrees to accept exclusive liability
for complying with all applicable state and federal laws, including laws governing self-employed
individuals, if applicable, such as laws related to payment of taxes, social security, disability, and
other contributions based on payment of Provider Fees by Buyer. Buyer will not withhold or
make payments for social security, unemployment insurance or disability insurance
contributions, or obtain workers’ compensation insurance on Provider’s behalf. Provider hereby
agrees to indemnify and defend Buyer against any and all such taxes or contributions, including
penalties and interest. Provider agrees to provide proof of payment of appropriate taxes on any
fees paid to Provider under this Agreement upon reasonable request of Buyer.
2.8 General. Service Contracts shall be governed by Sections 5 (Confidential Information)
12 (General) and 13 (Definitions) of this Agreement, as applicable either directly or by way of
analogy.
2.9 Entire Agreement. The terms and conditions set forth in this Section 2 and/or any
additional or different terms expressly agreed by Buyer and Provider through the oDesk
Marketplace shall constitute the entire agreement and understanding of Buyer and Provider 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.
2.10 No Contracts outside the oDesk Marketplace. User, whether as a Buyer or Provider,
agrees to use the oDesk Marketplace to enter into all contracts with other Users and except
pursuant to the “Buy Out” provision set forth in the Billing and Payments Policy, shall take no
steps to use any other means to enter into any contract with any other User that was introduced
through the oDesk Marketplace.
3. ACKNOWLEDGMENTS BY USER OF ODESK’S ROLE.
3.1 Service Contracts. User expressly acknowledges, agrees and understands that: (i) the
oDesk Marketplace is merely a venue where Users may act as Buyers or Providers; (ii) oDesk is
not a party to any Service Contracts between Buyers and Providers; (iii) oDesk shall not have
any liability or obligations under or related to Service Contracts or any acts or omissions by
Users; (iv) oDesk has no control over Providers or over the Services promised or rendered by
Providers; and, (v) oDesk makes no representations as to the reliability, capability, or
qualifications of any Provider or the quality, security or legality of any Service, and oDesk
disclaims any and all liability relating thereto.
3.2 oDesk Tools. oDesk and its licensors reserve all Proprietary Rights in and to the oDesk
Tools. User may not use the oDesk Tools 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. Without limiting the terms of
Section 12.5, oDesk reserves the right to suspend or terminate User’s access to the oDesk
Marketplace and oDesk Tools at any time in its sole discretion, and to withdraw, expand and
otherwise change the oDesk Marketplace and oDesk Tools (including the functionality of the
oDesk Tools) at any time in oDesk’s sole discretion. Without limiting any provisions contained
in the License Agreement, User shall not be entitled to create any “links” to the oDesk Tools, or
“frame” or “mirror” any content contained on, or accessible through, the oDesk Tools, on any
other server or internet-based device.
3.3 oDesk’s Compensation. oDesk is paid its fees for the maintenance of the oDesk
Marketplace. All fees are non-refundable, whether or not Assignments were satisfactorily
completed.
4. FEES AND PAYMENTS.
4.1 Provider Fees. oDesk shall act as a payment processor for Provider Fees as set forth in
the Billing and Payments Policy.
4.2 Formal Invoices and Taxes. oDesk 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 Provider Fees. Instead, Provider shall be solely responsible for determining
whether it is required by applicable law to issue any formal invoices for the Provider Fees and
for issuing any invoices so required. Provider shall also be solely responsible for: (a) determining
whether Provider or oDesk 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 Provider Fees, and
remitting any such taxes or charges to the appropriate authorities on behalf of itself or oDesk, as
appropriate; and (b) determining whether oDesk is required by applicable law to withhold any
amount of the Provider Fees, notifying oDesk of any such requirement and indemnifying oDesk
(either by permitting oDesk to offset the relevant amount against a future payment of Provider
Fees or by refunding to oDesk the relevant amount, at oDesk’s sole discretion) for any
requirement to pay any withholding amount to the appropriate authorities. oDesk shall have the
right, but not the obligation, to audit and monitor Provider’s compliance with applicable tax laws
as required by this Section 4.2.
4.3 Invoices to Buyer. Buyer will be invoiced for Provider Fees in accordance with the
Billing and Payments Policy. If Buyer believes a Bill Rate Assignment charge to be incorrect,
Buyer shall notify oDesk within the time period set forth in the Billing and Payments Policy, in
which case oDesk will investigate the Time Log to determine, in its sole discretion, whether an
adjustment is appropriate. oDesk’s determination shall be final. If Buyer does not notify oDesk
within this time, the charge automatically becomes final.
4.4 Payment. Buyer hereby authorizes oDesk to run credit card authorizations on all credit
cards provided by Buyer, to store credit card details as Buyer’s method of payment for Services,
and to charge Buyer’s credit card (or any other form of payment authorized by oDesk or
mutually agreed to between Buyer and oDesk) in accordance with the Billing and Payments
Policy.
4.5 Dispute Resolution Policy. All disputes between a Provider and a Buyer regarding the
chargeable nature of the number of hours recorded in the Time Logs shall be resolved pursuant
to oDesk’s Dispute Resolution Policy.
4.6 No Direct Payments. Except pursuant to the “Buy-Out” provisions set forth in the Billing
and Payments Policy, Buyer shall (i) make all payments relating to, or in any way connected
with, an Assignment (including, without limitation, bonuses) through the payment channels
provided or specified by oDesk, and (ii) not make any such payments directly to a Provider or
through any other payment channels. Buyer shall immediately notify oDesk if a Provider
requests that Buyer make a payment directly to it or through any channels other than those
provided or specified by oDesk. Provider shall not accept any payments relating to an
Assignment (including, without limitation, bonuses) from a Buyer directly or through any
payment channels other than those provided or specified by oDesk. Provider shall immediately
notify oDesk if a Buyer or any of its agents attempts to make a payment to Provider directly or
through any payment channels other than those provided or specified by oDesk.
5. CONFIDENTIAL INFORMATION.
081120 – OMUA.17
5.1 Confidentiality. To the extent a Buyer provides Confidential Information to a Provider or
to oDesk, the Provider or oDesk (as the case may be) 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 oDesk, to any Provider engaged by Buyer for the Assignment; and
(ii) use the Confidential Information, except as necessary for the performance of Services for the
relevant Assignment (including, without limitation, the storage or transmission of Confidential
Information on or through oDesk Tools for use by Provider).
5.2 Return. If and when Confidential Information is no longer needed for the performance of
Services for the relevant Assignment, or at the Buyer’s written request (which may be made at
any time at Buyer’s sole discretion), Provider or oDesk (as the case may be) shall promptly
destroy or return to Buyer all Confidential Information and any copies thereof contained in or on
its premises or systems or otherwise under its control. Provider and oDesk agree to provide
written certification to Buyer of compliance with this Section 5.2 within ten (10) days after the
receipt of Buyer’s written request to certify.
5.3 Publications. Without limiting Section 5.1 (Confidentiality), neither Provider nor oDesk
shall publish, or cause to be published, any Confidential Information or Work Product.
6. WARRANTY DISCLAIMER.
ODESK MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD
TO THE SERVICES, WORK PRODUCT, ODESK TOOLS, ODESK MARKETPLACE OR
ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, ODESK DISCLAIMS ALL EXPRESS OR IMPLIED
CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT
LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 9.2 (TERMINATION)
STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST ODESK WITH RESPECT
TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.
7. LIMITATION OF LIABILITY.
IN NO EVENT WILL ODESK BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL,
INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION
COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION
OR PROFIT. THE LIABILITY OF ODESK TO ANY USER FOR ANY CLAIM ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE
GREATER OF: (A) U.S. $2,500; AND (B) ANY ODESK FEES RETAINED BY ODESK
WITH RESPECT TO ASSIGNMENTS ON WHICH USER WAS INVOLVED AS BUYER OR
PROVIDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE
CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED
REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
081120 – OMUA.18
8. INDEMNIFICATION.
8.1 Proprietary Rights. Each User shall indemnify, defend and hold harmless (on a monthly
basis, as costs are incurred) oDesk and its subsidiaries, affiliates, officers, agents, employees,
representatives and co-branders or other partners (each an “Indemnified Party” for purposes of
this Section 8) 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.
8.2 Indemnification by Buyer. Each Buyer shall indemnity, 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 Buyer’s use of Services, including without limitation claims by or on behalf
of any Provider for Worker’s Compensation or unemployment benefits, or (ii) any Service
Contract entered into between such Buyer and a Provider.
8.3 Indemnification by Provider. Each Provider shall indemnity, 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 Provider’s provision of Services, or (ii) any Service Contract
entered into between such Provider and a Buyer.
9. TERM AND TERMINATION.
9.1 Term. The term of this Agreement commences on the Effective Date and continues in
effect until terminated in accordance with Section 9.2 below.
9.2 Termination. Either party may terminate this Agreement at any time, with or without
cause, effective immediately upon written notice to the other party, provided that any such
termination for convenience shall not affect the validity of any Service Contracts that have been
concluded prior to termination and this Agreement shall continue to apply with respect to such
Service Contracts.
9.3 Consequences of Termination. Termination shall not relieve Buyer 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 Buyer following
termination pursuant to Section 4.3 (Invoices to Buyer), and charged to Buyer’s credit card or
other form of payment pursuant to Section 4.4 (Payment). Subject to Section 4.5 (Dispute
Resolution Policy), oDesk shall pay Provider, in accordance with the provisions of Section 4
(Fees and Payments), for all time recorded in the Time Logs incurred prior to the effective date
of the termination.
9.4 Survival. Sections 3 through 13 of this Agreement shall survive any termination thereof.
10. AUDIT RIGHTS.
Buyer and Provider 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
oDesk upon request. oDesk, or oDesk’s advisors or agents, shall have the right, but not the
obligation, to routinely, but no less frequently than annually, audit Provider’s operations and
records to confirm compliance.
11. ENTIRE AGREEMENT; PREVIOUS AGREEMENTS AND ONGOING
ASSIGNMENTS.
11.1 Entire Agreement. This Agreement, including the incorporated Policies, 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. In particular, this Agreement cancels and supersedes
any oDesk Buyer Services Agreement, Freelancer Provider Services Agreement, and/or Affiliate
Services Agreement that User might have previously entered into with oDesk (“Previous
Agreements”). In case of any inconsistencies between the Policies and the other terms of this
Agreement, the latter shall prevail.
11.2 Rights and Obligations under Previous Agreements. As of the Transition Date, User
shall have no rights against oDesk under Previous Agreements except that User remains entitled
to any fees for Services which User has become entitled to receive from oDesk under the terms
of such Previous Agreements and which oDesk has not remitted as of the Transition Date. oDesk
remains entitled to payment on invoices for Assignments commenced under Previous
Agreements with User. User’s continued use of the oDesk Marketplace as a Buyer or Provider on
or after the Transition Date shall be solely governed by the terms of this Agreement.
11.3 Ongoing Assignments. Failure by any Buyer to terminate any Assignment commenced
under a Previous Agreement prior to the Transition Date (“Ongoing Assignment”) constitutes an
offer to the Provider under such Ongoing Assignment to continue the Ongoing Assignment
under a Service Contract with the terms and conditions set forth in Section 2 (Service Contract
Terms Between Buyer and Provider) or any other terms expressly agreed to by the Buyer and the
Provider through the oDesk Marketplace (“Offer to Continue”). A Provider’s continuation of
work on any Ongoing Assignment on or after the Transition Date constitutes the Provider’s
acceptance of the Buyer’s Offer to Continue such Ongoing Assignment.
11.4 No Violation of Non-Solicitation Provisions. Under no circumstances shall participation
in and interaction with other Users exclusively through the oDesk Marketplace be viewed as a
prohibited solicitation under the terms of any Previous Agreement. Without limiting the
generality of Section 11.1, any non-solicitation and/or no-hire clauses under Previous
Agreements are cancelled.
12. GENERAL.
12.1 No Employment. User acknowledges and agrees that this Agreement does not constitute
an employment agreement or create or acknowledge an employment relationship (neither with
oDesk nor with any other User). The parties shall be independent contractors at all times and not
partners, joint venturers or otherwise participants in a joint undertaking.
12.2 Limited Privacy. User acknowledges and understands that any Work Product, Time
Logs, workstation images and any other information (including the terms of this Agreement) that
User provides or makes available on the oDesk Marketplace as a Provider may be made
available to Buyers and others in accordance with oDesk’s Privacy Policy. User has no
expectation of privacy related to Services or any other activities performed as a Provider in
connection with this Agreement.
12.3 Compliance. User shall not violate any laws or third party rights on or related to the
oDesk Marketplace. Without limiting the generality of the foregoing, User agrees to comply with
all applicable import and export control laws and third parties’ Proprietary Rights.
12.4 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 oDesk
Marketplace. Notices hereunder shall be invalid unless made in writing and given (a) by oDesk
via email (in each case to the address that you provide), (b) a posting on the oDesk Site or (c) by
you via email to support@odesk.com or to such other addresses as oDesk may specify in writing.
The date of receipt will be deemed the date on which such notice is transmitted.
12.5 Modifications.
(a) oDesk reserves the right in its sole discretion to amend this Agreement without
advance notice. Modifications to this Agreement or any Policies will be posted on the Site or
made in compliance with any notice requirements set forth in this Agreement. Subject to Section
9, if any modification is not acceptable to you, your only recourse is to cease using the oDesk
Marketplace. By continuing to use the oDesk Marketplace after oDesk has posted any
modifications on the Site or provided any required notices, you accept and agree to be bound by
the modifications.
(b) Except only as permitted by Section 12.5(a), no modification or amendment to
this Agreement shall be binding upon either party unless in a written instrument signed by a duly
authorized representative of each party (and, for the purposes of this Section 12.5(b), a written
instrument shall expressly exclude electronic communications such as email and electronic
notices but shall include facsimiles).
12.6 Dates and Timelines. All references to days shall be to business days (Monday to Friday,
GMT, excluding bank holidays), except as expressly noted otherwise.
12.7 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.
12.8 Assignability. User may not assign this Agreement, or any of its rights or obligations
hereunder, without oDesk’s prior written consent in the form of a written instrument signed by a
duly authorized representative of each party (and, for the purposes of this Section 12.8, a written
instrument shall expressly exclude electronic communications such as email and electronic
notices but shall include facsimiles). oDesk may freely assign this Agreement without consent
of User. For the purposes of this Agreement an assignment will be deemed a “Change of
Control.” Any attempted assignment or transfer in violation of this Section will be null and void.
A “Change of Control” means (a) the direct or indirect acquisition of either (i) the majority of
voting stock of such party or (ii) all or substantially all of the assets of such party, by another
entity in a single transaction or a series of transactions; or (b) the merger of such party with
another entity. Subject to the foregoing restrictions, this Agreement will inure to the benefit of
the successors and permitted assigns of the parties.
12.9 No 3rd Party Beneficiary Rights. Except as specified in Sections 1 (The oDesk
Marketplace) and 2 (Service Contract Terms Between Buyer and Provider), this Agreement
shall: (a) create rights and obligations only between oDesk and each individual User that accepts
this Agreement; and (b) not create any rights for any other parties. For the avoidance of doubt,
without any limitation, no user shall be entitled to enforce the terms of this Agreement as they
apply between oDesk and another user.
12.10 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.
12.11 Choice of Law. This Agreement and any dispute arising out of or relating to this
Agreement (“Dispute”) shall be governed by and construed in accordance with the laws of the
State of California, without regard to its conflict of law provisions and excluding the United
Nations Convention on Contracts for the International Sale of Goods (CISG).
12.12 Arbitration. All Disputes shall be finally resolved by binding arbitration before three (3)
arbitrators, selected and proceeding pursuant to the International Arbitration Rules of the
International Centre for Dispute Resolution (ICDR), in the English language, in San Francisco,
California, or any other location on which all three arbitrators unanimously agree. The arbitrators
shall, at either party’s request, give a written opinion stating the factual basis and legal reasoning
for the decision in the English language. The arbitrators so appointed shall have the authority to
determine issues of arbitrability. The arbitrators shall have the authority to award compensatory
damages only and shall not award punitive or exemplary damages. The parties, their
representatives, other participants and arbitrators shall hold the existence, subject matter and
result of arbitration in confidence. Notwithstanding the foregoing, either party may, at its sole
discretion, seek injunctive relief in any court of competent jurisdiction (including, but not limited
to, preliminary injunctive relief). The prevailing party in any legal proceeding brought by one
party against the other party in a Dispute shall be entitled to recover its legal expenses, including,
but not limited to, the costs of any court or arbitration proceeding and reasonable attorneys’ fees.
12.13 Prevailing Language. 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.
13. DEFINITIONS.
13.1 “Assignment” means a particular project or set of ongoing tasks for which a Buyer has
requested Services to be performed by a Provider.
13.2 “Bill Rate” for an Assignment means, in respect of a Provider, the hourly rate specified
for that Provider in the oDesk Marketplace.
13.3 “Bill Rate Assignment” means an Assignment for which Buyer is charged based on the
Bill Rate.
13.4 “Buyer” means any company or individual, including User, utilizing the oDesk
Marketplace to request Services to be performed by a Provider.
13.5 “Confidential Information” means Buyer Deliverables, Work Product, and any other
information provided to, or created by, a Provider for an Assignment, 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 Provider or 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 Provider prior to receiving it from Buyer and was not
received from a third party in breach of that third party’s obligations of confidentiality; or (d)
was independently developed by Provider without use of Confidential Information.
13.6 “Buyer Deliverables” means instructions, requests, IP and any other information or
materials that a Provider receives from a Buyer for a particular Assignment.
13.7 “Effective Date” means the date of acceptance of this Agreement.
13.8 “Fixed Price” means a fixed fee agreed between a Buyer and a Provider, prior to the
commencement of an Assignment, for the completion of all Services requested by Buyer for
such Assignment.
13.9 “Fixed Price Assignment” means an Assignment for which Buyer is charged a Fixed
Price.
13.10 “IP” means any computer programs or routines (in object code, source code, or
embedded format, regardless of the medium on which it resides), algorithms, know-how,
hardware and/or software configurations, inventions, documentation, translations, text and other
works of authorship, data, databases, information, designs, utility models, symbols, logos, marks,
names, procedures, processes, technical improvements and any other intangibles as well as the
prototypes, samples, copies, and other materialized forms of the foregoing intangibles.
13.11 “License Agreement” means the license agreement between User and oDesk relating to
use of the oDesk Tools software.
081120 – OMUA.113
13.12 “oDesk Team” means the online platform accessed using the oDesk Tools software and
through which a Buyer communicates with a Provider in relation to an Assignment once such
Assignment has commenced.
13.13 “oDesk Tools” means any software, information and other items provided by oDesk,
including, without limitation, oDesk Team, oDesk share, Mailing List, SVN Source Code
Repository and Bugzilla bug-tracking, subject to change and update by oDesk from time to time
at oDesk’s sole discretion.
13.14 “Payment Period” shall mean the four (4) or five (5) week period beginning on the
Monday following the prior Payment Period and ending on the Sunday nearest to the last day of
the relevant month.
13.15 “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 IP, recognized in any jurisdiction, whether or not
perfected.
13.16 “Provider” means any company or individual, including User, utilizing the oDesk
Marketplace to offer Services for Buyers and/or to enter into Service Contracts.
13.17 “Provider Fees” means: (a) for a Bill Rate Assignment, an amount equal to the number of
hours recorded by Provider in the Time Logs, multiplied by the Bill Rate; (b) for a Fixed Price
Assignment, the Fixed Price; and (c) any bonuses paid or other payments made by a Buyer for an
Assignment.
13.18 “Services” means software development and other knowledge-based technology services.
13.19 “Time Logs” means the number of hours recorded for a stated period by a Provider in
oDesk Team (or such other Tool as oDesk may nominate from time to time), in compliance with
oDesk’s Billing and Payments Policy and Policy on Managing and Working on Assignments, for
the Services performed in respect of an Assignment.
13.20 “Transition Date” means the Monday following the end of the last Payment Period under
any Previous Agreement between User and oDesk or, if there is no such Previous Agreement, the
Effective Date.
13.21 “Work Product” means any tangible or intangible results or deliverables that Provider
agrees to create for, or actually delivers to, Buyer as a result of performing the Services on a
particular Assignment, including, but not limited to, configurations, computer programs or other
information, or customized hardware, and any IP developed in connection therewith.
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