Oyster Shell Terms of Use

Oyster Shell Terms of Use 

1. Introduction

1. Oyster Shell is a Platform-enabled contractor misclassification consultancy tool through which You may mitigate the risks associated with a contractor engagement via the Platform.
2. Access to Oyster Shell is made available by Oyster HR, Inc. (“Oyster”) through its proprietary, web-based global employment platform at http://app.oysterhr.com.
3. You are a Customer as defined in the Oyster Terms and Conditions. Collectively, You and Oyster may be referred to as Parties.
4. The Oyster Shell Terms of Use (“Shell Terms”) are an Additional Document as defined in the Oyster Terms and Conditions (“Terms”).
5. All capitalized words in the Shell Terms have the same meaning as provided in the Terms unless otherwise indicated.
6. Your right to access Oyster Shell is contingent upon Your review and agreement to comply with the Shell Terms as evidenced by Your actions in the Platform, which supplement the Terms, the Privacy Policy, Website Terms of Use, and Data Processing Addendum all of which form the Parties’ Agreement.
7. When You click a button, or take any action in the Platform, indicating Your agreement to and acceptance of the Shell Terms, You agree to be bound by the applicable terms and will not challenge the enforceability of any action taken by You, or on Your behalf, by an individual representing themselves as having the authority to take such action.
8. Oyster may, from time to time, update the Shell Terms with 30 days advance notice to You, with notice effective when sent to an account administrator’s email address on the Platform and via a Platform notice.

2. Oyster Shell.

1. Oyster Rights and Obligations.

1. Oyster will maintain and provide You access to Oyster Shell, a technology product, via the Platform, inclusive of a misclassification analyzer tool, to provide You information and analyses regarding the prospective risks of classifying an individual as Your contractor.
2. The technology product is not a substitute for legal and tax advice. The Platform, and any information provided via the Platform, is not Your lawyer or tax advisor.
3. Oyster will grant You access to Oyster Shell subject to You paying the monthly Subscription Fee for accessing the Product.
4. Oyster will use commercially reasonable efforts to update the information and analyses made available via Oyster Shell.
5. You will be an additional insured under any applicable policy insuring the risks of Your use of, and our development of, Oyster Shell.
6. Your inclusion as an additional insured under any applicable Oyster policies does not guarantee that coverage will apply to any claim that You seek to make under an Oyster policy.
7. Oyster will handle all administration of any claims made under its available insurance policies, including any claims that You believe are coveraged pursuant to Your Oyster Shell subscription.
8. Oyster will reimburse any covered claims under its applicable policies arising out of Your Oyster Shell subscription not to exceed the amounts listed on the Platform on Your subscription date.

2. Your Rights and Obligations.

1. To be eligible for Oyster Shell, You will:

1. Use the Oyster standard professional services agreement available via the Platform;
2. Engage contractors only in countries where the risk is characterized as acceptable, or inclusive in Oyster Shell; and
3. Engage contractors only in locations outside of the country where You are headquartered or have a related entity, whether a subsidiary or affiliate.

2. Subject to Your eligibility, You will:

1. Access and use Oyster Shell solely for informational purposes only;
2. Remediate any compliance, sanctions, or anti-money laundering issues identified by Oyster related to any Contractor engagement on the Platform;
3. Input accurate and complete information as to prospective or current contractor’s roles and responsibilities in Oyster Shell to ensure any outputs from Oyster Shell reflect the actual realities of Your contractor engagement;
4. Pay all fees timely to maintain access to, and use of, Oyster Shell;
5. Timely report any potential claim You think may be covered under an applicable Oyster insurance policy for purposes of Oyster evaluating and submitting the claim for coverage to the applicable insurer;
6. Update the information in Oyster Shell if the roles and responsibilities of any contractor engagement changes.
7. Cooperate with Oyster in providing any and all requested information related to a contractor engagement for Oyster to perform its obligations as set out in the Shell Terms.  

3. Intellectual Property.

1. Oyster grants You a revocable, non-exclusive, non-sublicensable, and non-transferable license to access and use Oyster Shell, inclusive of information made available via Your Oyster Shell subscription, provided that You acknowledge, understand and agree that Oyster Shell and the related information in the Platform remains the exclusive property of Oyster. The Platform and related information are protected by copyright, trademark, and other laws of both the United States and each jurisdiction in which Oysters makes the Platform available to You.
2. You have all right, title and interest in any information You submit on the Platform. By submitting any information on the Platform, You grant Oyster and its successors and assigns a worldwide, non-exclusive, royalty-free, perpetual, sub-licensable and transferable license to use, reproduce, adapt, and display such information solely to perform its obligations under the Agreement.
3. Neither Party will use any name or logo of a Party in any marketing or advertising materials without a Party’s prior written consent.

4. Fees.

1. You will pay the monthly Subscription Fee for accessing Oyster Shell in accordance with the Terms, inclusive of the method and timing of payment.
2. The payment amount will be reflected in the Platform and may change month-to-month subject to the applicable 30-day notice period set out in the Shell Terms.

5. Restrictions.

1. Oyster will reimburse the costs of any regulator deeming Your contractor is misclassified in accordance with these Terms and subject to the applicable liability limit.
2. You will not reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any part of the Platform You access as a part of Your Oyster Shell subscription.
3. You will not access or use the Platform in any manner that could disable, overburden, damage, disrupt or impair the Platform or interfere with any other person's access to or use of the Platform or use any device, software or routine that causes the same.
4. You will not attempt to gain unauthorized access to, interfere with, damage or disrupt the Platform.
5. You will not circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Platform.
6. You will not use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Platform to monitor, extract, copy or collect information or data from or through the Platform, or engage in any manual process to do the same.
7. You will not introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful.
8. You will not use the Platform for illegal, harassing, unethical, or disruptive purposes.
9. You will not violate any applicable law or regulation in connection with your access to or use of the Platform.
10. You will not use Oyster trademarks, trade dress, service marks, logo or trade name in connection with any product or service without the prior written consent of Oyster. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Platform. Except as expressly permitted in the Shell Terms, You may not copy, further develop, reproduce, republish, modify, alter download, post, broadcast, transmit or otherwise use the Platform or any information accessed via the Platform for any purpose.
11. You will not use or access any other account or password without permission.
12. You will not access or use the Platform in any way not expressly permitted by the Terms as modified by the Shell Terms.

6. Prohibited Contractor Activities. You will not engage Contractors as part of Your Oyster Shell subscription who engage in transactions:

1. associated with purchases of annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card;
2. associated with the sale of traveler’s checks or money orders;
3. by payment processors to collect payments on behalf of merchants;
4. for the sale of certain items before the seller has control or possession of the item;
5. involving certain credit repair, debt settlement services, credit transactions or insurance activities;
6. involving currency exchanges or check cashing businesses;
7. involving an offer or receipt of payments for the purpose of bribery or corruption;
8. showing the personal information of third parties in violation of applicable law;
9. supporting pyramid or ponzi schemes, matrix programs, other “get rich quick” schemes or certain multi-level marketing programs;
10. violating any law, statute, ordinance or regulation;
11. involving ammunition, firearms, or certain firearm parts or accessories;
12. involving auctions including online auctions and motor vehicles;
13. involving bearer share companies;
14. involving sexually oriented materials or services such as pornographic solicitation or material including telephone, pictures, books, movies, t-shirts, internet adult sites, etc.;
15. involving consulates, diplomatic missions, economic citizenship or citizenship by investment programs;
16. involving crowdfunding, penny stocks or microcap securities;
17. involving drug paraphernalia;
18. involving items that are considered obscene;
19. involving items that encourage, promote, facilitate or instruct others to engage in illegal activity;
20. involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction;
21. involving narcotics, steroids, cannabis, certain controlled substances or other products that present a risk to consumer safety;
22. involving precious metals dealers that purchase metals from pawnbrokers and other secondary sources;
23. involving scholarship programs, universities, and students for online tuition solutions;
24. involving shell banks as defined under US Federal law;
25. involving shipping and general trading companies operating in free trade zones;
26. involving stolen goods including digital and virtual goods;
27. involving the promotion of hate, violence, racial or other forms of intolerance that is discriminatory or the financial exploitation of a crime;
28. involving weapons or knives regulated under applicable law; or
29. involving the sales of products or services identified by government agencies as potentially fraudulent.

7. Termination.

1. Either Party may terminate Your access to Oyster Shell for convenience with 30 days advance written notice.
2. Oyster may terminate Your access to Oyster Shell effective immediately if:

1. You do not timely pay the monthly subscription fee to access and use the Product;
2. You provide inaccurate information in the Platform as part of Your Oyster Shell subscription; or
3. Your breach of these Shell Terms if You fail to cure the breach within 10 days after receiving written notice of the applicable breach.

8. Representations and Warranties.

1. Oyster represents and warrants that:

1. Oyster is lawfully organized to conduct its business in accordance with Delaware law.
2. Oyster Shell does not infringe on the intellectual property rights of any third party.
3. Oyster will maintain applicable insurance coverage permitting You to be included as an additional insured to insure the risks of Your access to, and use of, Oyster Shell, inclusive of the misclassification analyzer tool.

2. You represent and warrant that:

1. You are lawfully organized to conduct Your business in accordance with applicable law.
2. You will comply with all applicable laws relevant to Your engagement of Contractors on the Platform.
3. In accordance with applicable data protection law(s), You have all necessary rights and legal bases to provide Oyster with any non-party personal information that you may submit to the Platform as part of using Oyster Shell
4. You have included accurate and complete information related to Your Contractor engagements as part of Your Oyster Shell subscription.

9. DISCLAIMERS. YOUR USE OF THE PLATFORM, AND ANY, CONTENT OR INFORMATION OBTAINED THROUGH THE PLATFORM IS AT YOUR OWN RISK. THE PLATFORM AND ANY INFORMATION OBTAINED THROUGH THE PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR COURSE OF PERFORMANCE OR ANY OTHER. OYSTER DOES NOT MAKE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE PLATFORM OR INFORMATION OBTAINED BY YOU THROUGH THE PLATFORM. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. OYSTER DOES NOT WARRANT THAT (A) ANY ERRORS OR DEFECTS WILL BE CORRECTED; (B) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (C) THE RESULTS OF USING THE PLATFORM WILL MEET YOUR REQUIREMENTS.
10. Limitation of Liability.

1. You agree not to hold any Oyster employee, officer, director, agent, or lawful assign personally liable for Oyster’s obligations under the Shell Terms, inclusive of Your use of or access to Oyster Shell. Except for (i) any claim or cause of action arising out of or relating to Your failure to pay any invoice or other balance due to Oyster under the Shell Terms; and (ii) the indemnity obligations outlined, and; (iii) any liabilities arising as a result of bodily injury or death or damage to tangible property for which You or Oyster is legally liable, neither Party’s total liability under the Shell Terms will exceed the lesser $50,000.00 USD per covered claim.

1. In no event will Oyster Shell cover a claim or loss related to (1) bodily injury or property damage; (2) hardware replacement expense; (3) contractual liability between You and a Contractor; (4) employment practices, employee benefits liability and discrimination; (5)  false advertising or over redemption and games of chance; (6) fraudulent or intentional misconduct; (7) illegal profit or gain; (8) any sanctions-related or anti-money laundering claim arising out of Your Contractor engagement; (9) claims that intellectual property was misappropriated or infringed arising out of Your contractor engagement;  (10) physical perils arising out of Your Contractor engagement; (11) claims related to any securities transactions, shareholder derivative actions or securities law violations related to Your contractor engagement; (12) unfair competition and antitrust claims; and (13) alleged acts of terrorism.

2. A Party’s aggregate liability for any indemnification Claims arising under the Shell Terms will not exceed $500,000.00 USD.

11. Indemnification.

1. You will indemnify, defend and hold Oyster, its officers, directors, employees, agents, and lawful assigns harmless from and against any and all Claims and any Liabilities arising out of any breach of a representation or warranty.
2. Oyster will indemnify, defend and hold You, Your officers, directors, employees, agents and lawful assigns harmless from and against any and all Claims and any Liabilities arising out of any breach of a representation or warranty.

12. Miscellaneous.

1. The Shell Terms supplement and take precedence over the Terms. In the event of any conflict, the Shell Terms govern and control as applied to Your access and use of Oyster Shell, inclusive of the misclassification analyzer tool.
2. A third-party insurer makes any and all coverage determinations arising out of a claim You assert pursuant to Your Oyster Shell subscription.