GENERAL TERMS AND CONDITIONS AND NON-DISCLOSURE AGREEMENT
WHEREAS, Company has engaged Receiver to provide certain services relating to the testing of its technology on behalf of UNGUESS, and Receiver has agreed to provide such Services;
WHEREAS, UNGUESS operate under the brand UNGUESS or different business partners;
WHEREAS, in connection with the performance of Services, Receiver will acquire information that is confidential and proprietary to Company (as defined below, the “Confidential Information”);
WHEREAS, Receiver and Company desire to set forth Receiver’s nondisclosure and confidentiality obligations with respect to the Confidential Information; and
WHEREAS. The Receiver shall acknowledge its acceptance to the terms and conditions of this Agreement (which is required before Receiver is allowed to provide such Services to Company) by either clicking its acceptance thereto as specified in the specific form shared with Receiver, or by executing this Agreement directly with Company.
NOW, THEREFORE, the parties hereby agree as follows:
- THIS AGREEMENT (the “Agreement”) is made between
- (“Company” or “UNGUESS”) and
- (hereinafter, the “Receiver”, or “Tester”), both together “Parties” or individually “Party” as of this 2 May of 2018.
- As used in this Agreement, “Confidential Information” means all information, regardless of the form in which it is transmitted, pertaining to Company (or another party whose information Company has in its possession under obligations of confidentiality) past, present, or future (i) internal matters, (ii) research (including any information obtained through the newsgathering process), development, or business plans, (iii) operations or systems (including, without limitation, financial data, studies and reports, software, memoranda, drafts, and other information in either tangible or intangible form); (iv)information relating to subscribers (including, but not limited to, any information contained in Company’s subscriber records); (v) information relating to users of Company’s website or any other website under Company’s control and (vi) any other information designated by Company as confidential and/or proprietary. Information shall not be deemed confidential or proprietary for purposes of this Agreement, and Tester shall have no obligation with respect to any such information, which: (a) is already known to Tester at the time of its disclosure; (b) is or becomes publicly known through no wrongful act of Tester; (c) is received from a third party without similar restrictions and without breach of this Agreement; (d) is independently developed by Tester; or (e) is lawfully required to be disclosed to any governmental agency or is otherwise required to be disclosed by law (as long as Tester has acted in accordance with Paragraph 2.A).
- “Confidential Materials” shall mean all tangible materials containing Confidential Information, including without limitation, written or printed documents, electronically transmitted material, and computer disks or tapes, whether machine or user readable. All Confidential Information and Confidential Materials are and shall remain the property of Company. By disclosing information to Tester, Company does not grant any express or implied right to Tester patents, copyrights, trademarks, or trade secret information.
- As used in this agreement, Client (or Customer Company) refers to any present, past or future UNGUESS client who utilises the services provided by UNGUESS in any way. Both online and offline.
- As used in this agreement, Project (or Service) refers to any activity performed by the Tester for UNGUESS. For example (but without limitations) this may include not only the testing of mobile applications but also quality assessments of UNGUESS Clients’ digital products.
- Scope of Application
- UNGUESS with its registered place of business at Via Del Chiesotto 4, 26100 Cremona, Italia has a website offering participants to work as a Testers. Testers operate as independent self-employed or freelance contractors for the Company, and are responsible for complying with the respective statutory provisions, in particular with regard to tax law.
- Specifically, this means that Company offers Testers the technical possibility to register as a Testers on a platform via login, and to independently process projects in the system. Hence, the Tester is free to decide how many projects he would like to process for The Company. The Tester receives a “Credit Note” for his activities based on the respective remuneration for the project.
- The General Terms and Conditions of Business (hereinafter abbreviated as “GTC”) shall apply to all activities performed by the Tester for The Company. The acceptance of a project creates a contractual relationship for the test project: the contract is an occasional collaboration, it will be not longer. By accepting a project, the tester agrees to diligently research and process the accepted project in accordance with the principles of UNGUESS. The General Terms and Conditions shall apply to all contractual relationships between The Company and the Tester.
- Overall collaboration between any Tester and UNGUESS will last less than 30 days within a solar year.
- The respective contractual relationship between the Tester and The Company within these General Terms and Conditions is created with the acceptance by the Tester of an invitation for a project.
- The Company may modify the General Terms and Conditions at any time. The modified GTC will be announced by e-mail no later than two weeks before the effective date. The modified GTC will be deemed as accepted unless contradicted by e-mail within two weeks of receipt of the e-mail containing the modified GTC. Upon announcement of the modified GTC, Tester will be notified of the two-week deadline and of the consequences of a failure to contradict.
- Oral side-agreements do not exist. Modifications to the GTC must be conducted in writing to be valid.
- Setting up a user account for Testers
- The processing of projects by a Tester requires a one-time, free-of-charge creation of a user account and activation by The Company. To be able to create a user account, a Tester must be at least 18 years old. A legal claim to the activation of the user account by The Company does not exist.
- The Tester is obligated to enter the information required for setting up a user account in an orderly and truthful manner. The Company reserves the right to activate a user account conditional to the provision of appropriate documentation for individual cases, proving that the entered data is correct. The Tester is obligated to update the information and to immediately enter necessary adjustments via the user ‘data change’ function. Should The Company be unable to contact the Tester due to the tester’s failure to enter the required changes, The Company shall not be responsible.
- The Tester shall be responsible for keeping the password secure. The Tester entered place of residence will be considered as his company domicile.
- Testers are also not permitted to create several user accounts.
- The Company reserves the right to delete the user account of a Tester and/or to terminate the contractual relationship with the Tester in case of a violation of the Terms and Conditions of Business or other obligations in connection with the contractual relationship. In such case, the Tester will be paid the amounts credited to the user account by The Company for accepted services. A Tester may delete his/her user account at any time. Information and data subject to statutory retention periods (e.g. credit notes) will only be deleted after expiry of the applicable statutory retention period. All other data will be deleted upon deletion of the user account.
- Tester must be a human. Accounts registered by “bots” or other automated methods are not permitted.
- Tester may not use the information shared with the Company for any illegal or unauthorized purpose. Tester must not, in the use of the Service, violate any laws in Tester jurisdiction (including but not limited to copyright or trademark laws).
- Handling of a project
- After registration as a Tester and activation of the user account, the Tester can view the project entered by The Company which comply with his/her qualification and the requirements of the Customer as well as the respective terms. The orders constitute nothing but an “invitation to submit an offer”. Testers can accept the invitation for a project and, by accepting, consent to the terms and conditions offered by The Company for the project.
- If a Tester accepts a project, the “DATA” required for processing the project shall be made available to the Tester just before the activation of the project for the term of the project (e.g. access data, data for ordering goods, and software applications such as apps). The acceptance of a project by the Tester does not create a contractual performance entitlement by The Company with regard to the Tester, that the Tester will process the project in accordance with the prescribed conditions. The Company, on the other hand, shall not be obligated to accept the Tester performance if it does not comply with the requirements and conditions specified in the project description, hence qualifying as improper performance. Performances will, in particular, be rejected if the performance period previously specified by The Company is exceeded. If the Tester delivers the respective performance in due time, the remuneration specified in the project description will be credited under reserve to his/her account. This shall not yet constitute acceptance of the performance nor create a remuneration claim. The final approval will be provided by The Company. Once approval has been received, the Tester user account shall be finally credited with the remuneration amount specified in the order description and paid out in accordance with point
- The tester shall destroy the “Data” made available after completion of the project. This shall also apply to applications which were explicitly made available such as Apps.
- The Tester shall be responsible for paying taxes on the income generated through The Company.
- Secrecy/Rights in the Results of the Tester
- The Tester undertakes to maintain secrecy towards third parties with regard to data and order descriptions transferred in connection with the processing of a project and to use this information for his/her performance for The Company only. If the Tester fails to comply with the secrecy obligation, The Company reserves the right to claim injunction and damages.
- Any work results of the Tester protected under copyright laws shall belong exclusively to The Company. The Tester undertakes to release and make available the work results to The Company at any time the Tester is requested to do so.
- Upon completion of the tester’s activity, the sole right of use shall be transferred to The Company. The remuneration paid shall cover any and all potential copyrights.
- The Tester warrants, that none of the services rendered for The Company include any illegal contents, in particular with regard to third-party copyrights, moral rights or other trademark rights, or are in any form relevant under criminal law. The Tester shall be responsible for reimbursing any costs which might arise for The Company as a result of justified third-party claims with regard to the contents created by the Tester. This shall not apply if the Tester is not responsible for any rights infringed. It is expressly noted that The Company reviews the performances provided by the Tester in the context of quality assurance measures, in particular with regard to the infringement of copyrights.
- The Tester declares that he has been informed of the possible problems which may arise from the Service and by accepting this agreement he undertakes to bear all the relative risks. The Tester declares that he is aware of the additional risks related to the Service and accepts them, also specifically accepting all possible financial and other consequences directly or indirectly related to the Service. In particular, the Parties agree that UNGUESS shall be liable solely for events for which it is directly responsible for fraud or gross negligence, with all other circumstances specifically excluded.
- The Parties agree that UNGUESS shall be obliged to pay compensation for damages pursuant to point 5.e of this Agreement in the form of a sum of money not exceeding, in any case, twice the amount agreed with the Tester as payment for the provision of the Service, regardless of whether the payment is made by UNGUESS or third parties of its choice
- This appointment, which for the Tester is specifically classified as a secondary, occasional line of business serving UNGUESS, shall be fulfilled on an independent basis with no permanency and no form of subordinate employment by UNGUESS or by its Customer Company, with complete freedom to establish the times, the use of his time and organisational matters. The Tester is not awarded any powers of representation and he shall not in any way be authorised to enter into obligations for UNGUESS or its Customer Company in relation to third parties. The parties shall therefore maintain their independence of each other in the fulfilment of their respective obligations, without the creation of any form of employment, association and/or partnership relationship.
- Once an order has been completed by the Tester, a preliminary credit note is issued in accordance with the terms specified in the order description to the Account of the Tester. Upon final approval of the Tester work in connection with the order by The Company pursuant to 4.b, the preliminary credit note is converted into a final credit note on the Tester account in accordance with the remuneration terms specified in the order description.No interest shall apply to credit notes.
- The Tester can verify the status of credit notes on his/her Account at any time.
- The disbursement shall be conditional upon the provision of all legally required billing information by the Tester.
- Data Protection
- The Company shall be entitled to collect, process and use the data received from the Tester as well as the data arising in connection with the order processing for The Company in accordance with the statutory provisions and to the extent required for the proper handling of order processing and the execution of the contractual relationship. No data shall be transferred to third parties by The Company without the express consent of the Tester, unless The Company is entitled or obligated to do so by law.
- Non-Disclosure Agreement
- Obligations and Restrictions
- Tester shall not disclose any Confidential Information to third parties at any time following its disclosure by Company to Tester, except to Receiver’s consultants as provided below. However, the Tester may disclose Confidential Information in accordance with judicial or other governmental order, provided Receiver shall give Company reasonable notice prior to such disclosure such that Company may seek an appropriate protective order or the like, and comply with all applicable protective orders (or equivalent).
- Receiver shall take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential and proprietary information, to keep confidential the Confidential Information. The Tester may disclose Confidential Information or Confidential Material only to Receiver’s employees or consultants on a need-to-know basis. Receiver shall execute or shall have executed appropriate written agreements with its employees and consultants sufficient to enable it to comply with all the provisions of this Agreement.
- Confidential Information and Confidential Materials may be disclosed, reproduced, summarized or distributed only in pursuance of Tester’s business relationship with Company, and only as otherwise provided hereunder. The Tester agrees to segregate all such Confidential Materials from the confidential materials of others in order to prevent commingling.
- The Tester shall not publicize or disclose beyond those persons to whom Confidential Information may be disclosed hereunder the discussions that give rise to this Agreement without the prior written consent of Company.
- Rights and Remedies
- The Tester shall return all originals, copies, reproductions and summaries of Confidential Information or Confidential Materials at Company’s request, or at Company’s option, certify destruction of same.
- Tester acknowledges that Company shall be entitled, without waiving any other rights or remedies, and without the need to post a bond, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of any breach or threatened breach of the provisions of this Agreement.
- Tester shall indemnify and hold Company, its parent, and each of their officers, directors, employees, agents, and licensees harmless from and against any loss, claim, damage, liability, costs, and expenses (including reasonable attorneys’ fees) that in any way arise out of or result from a breach or alleged breach of any of the provisions of this Agreement.
- Company shall have sole authority to (i) choose outside counsel to defend any suit relating to the foregoing, and (ii) control and manage such outside counsel, the litigation, and any settlement. In addition, Tester shall provide Company with all assistance requested by Company (including all relevant documentation and information) and otherwise cooperate with Company in connection with any claim or litigation.
- Obligations and Restrictions
- Independent Contractor
Nothing in this Agreement shall be construed to constitute either party hereto as a partner, joint venturer, agent or employee of any other party, nor shall either party have the authority to bind the other in any respect, it being intended that each party shall remain an independent contractor responsible for its own actions.
- Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the parties hereto and each of their respective successors and assigns. No party hereto may assign its rights or obligations hereunder without the prior written consent of all other parties hereto. Any assignment in contravention of this provision shall be void.
- Entire Agreement; Amendment
This Agreement represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings between such parties with respect to the subject matter hereof. This Agreement may be modified or amended only by a written instrument executed by all parties hereto
Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal, or unenforceable in any other jurisdiction.
- Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the state of Italy without regard to its provisions regarding conflicts of law.
- Section Headings.
The section headings are for the convenience of the parties and in no way alter, modify, amend, limit, or restrict the contractual obligations of the parties.
No delay or omission on the part of either party to this Agreement in requiring performance by the other party hereunder, or in exercising any right hereunder, shall operate as a waiver of any provision hereof or of any right or rights hereunder; and the waiver or omission or delay in requiring performance or exercising any right hereunder on one occasion shall not be construed as a bar to or waiver of such performance or right, or of any right or remedy under this Agreement, on any future occasion.
Any notices or other communications required or permitted hereunder shall be sufficiently given if delivered personally or sent by overnight mail or registered or certified mail, postage prepaid, addressed as follows or to such other address of which the parties may have given notice:
via del Chiesotto 4,
26100 Cremona (CR),
Unless otherwise specified herein, such notices or other communications shall be deemed received (a) on the date delivered, if delivered personally or by overnight mail, or (b) three business days after being sent, if sent by registered or certified mail.
The provisions of paragraphs 2, 3, 4, 5, 6, 7, 8, 9 and 10 shall survive the termination or expiration of this Agreement