We are about to embark together on an exciting journey around the globe. It is a legally and logistically complicated trip, and we, at Oyster, are committed to making it as easy and transparent as possible. These Terms and Conditions (“Terms”) are the rules of the road and are non-negotiable. That may sound harsh, but Our job is to help Our Customer Companies expand while largely taking on Your global employment risks. AS SUCH, WE ENCOURAGE YOU TO BECOME FAMILIAR WITH THESE TERMS AS THEY FORM THE BASIS OF OUR CONTRACTUAL RELATIONSHIP. If You feel like any of these terms are patently unfair, let us know. We are always interested in understanding Your concerns and improving Our Services, service model, and contracts.
If We make changes to these Terms, We will update them here, so everyone benefits from the change. We will also send an email outlining the changes to the address provided by You on the Platform. It is important that You review the Terms whenever modified, because continued use of the Platform or Services for thirty (30) days after notification is Your indication that You agree to be bound by the modified Terms. If You do not agree to be bound by the modified Terms, then You must notify Oyster in writing of Your intention to terminate Our business relationship as instructed below. We won’t charge you off boarding fees, and we will make the transition as smooth as possible. Truly, Our job is to empower our Customer Companies, contractors, and Team Members.
Welcome to Us, where the world really is Your oyster. 🦪
“Contractor” is a business or individual that contracts with Oyster, and Customer Company to provide services.
“Customer Company” is a business that contracts with Oyster to provide services. Referred to in this agreement, it includes all of the Customer Company’s subsidiaries and affiliates, their respective directors, officers, employees, licensees, contractors, attorneys, agents, successors and assigns.
“Oyster” is Oyster HR, Inc., a Delaware corporation, along with Oyster’s subsidiaries and affiliates, their respective directors, officers, employees, licensees, contractors, attorneys, agents, successors and assigns.
“Oyster Partner” means any person, firm or company who Oyster contracts with or otherwise engages to assist with or perform the Services or any part of the Services.
“Team Member” is a talented individual who is employed by Oyster and placed with a Customer Company.
The Oyster Terms is a legally binding agreement between Customer Company, Contractor, and Oyster (“Parties”). By (i) clicking the applicable button to indicate Your acceptance of the Terms, or (ii) accessing or using any platform Services, You accept the Terms, and You agree, effective as of the date of such action, to be bound by the Terms.
Each party may disclose confidential information to each other. Such information includes trade secret, proprietary and employee information, and pricing terms. Except as agreed or required by law, both We and You will hold in confidence and not disclose such confidential information to anyone other than Our and Your own employees, agents, contractors or insurance entities who have agreed to preserve the confidentiality.
What is confidential? “Confidential Information” includes all non-public documents and information that have or could have commercial value or other utility. Examples include customer lists, prices and how they are set, intellectual property, employee information, business plans, and/or new ideas and methods for doing business. Information is not confidential if it is publicly known, readily available to the public through no fault of the non-disclosing party, or if You or Oyster specifically allow its disclosure in a written release. But remember, if Confidential Information becomes public because of a party’s violation of these Terms, it is still deemed Confidential Information and still protected by this agreement.
What are my obligations? Parties agree to keep Confidential Information confidential. Parties agree to exercise reasonable care to protect the confidentiality of Confidential Information. Reasonable care means at least the same level of care that You would reasonably use to protect Your own Confidential Information. Parties agree not to disclose Confidential Information to any third party, except as required to fulfill Our engagement together and in that instance, under confidentiality terms that are at least as restrictive as specified under these Terms. You remain fully responsible for any unauthorized disclosure by Your representatives.
Parties agree not to use Confidential Information in competition with each other. Parties agree not to use Confidential Information in any way that harms the other party. Parties agree not to share Confidential Information with competitors, or to otherwise use Confidential Information for Our or Your own business advantage. Some Confidential Information like trade secrets, and certain personally-identifiable information is protected by law. The legal duty to keep that information confidential is independent of these Terms.
What if there is a disclosure? The Parties agree to notify each other immediately of any unauthorized access, disclosure, loss or misuse of Confidential Information, or other breaches. The Parties will also use best efforts to immediately contain and remedy any such unauthorized access, disclosure, loss or misuse. Finally, the Parties will fully cooperate with each other in any effort to enforce rights related to any such unauthorized disclosure. A Party may be required by law, court order, regulatory inquiry, or subpoena to disclose Confidential Information (we’ll call that a “Compelled Disclosure”). If You or Oyster receive a notice of Compelled Disclosure, the recipient will provide the other Party prompt notice, to the extent allowed by law, and will provide reasonable assistance if the decision is made to contest the Compelled Disclosure.
How long does this obligation last? These confidentiality and non-disclosure obligations will continue for three years after Our business relationship ends. However, within thirty (30) business days of termination of Services, each Party must return all documents in their respective possession, custody, or control which contain Confidential Information and/or provide certification that all copies (electronic or hardcopy) have been destroyed. In the instance where documents or data are subject to longer, legal retention requirements, Parties are allowed to retain Confidential Information for as long as required by the relevant law, thereafter returning or destroying it.
Control of Personal Data. In order to provide Our Services, We require control and processing of personal data and sensitive personal data (“Personal Data”) belonging to individuals who are protected under the EU’s General Data Protection Regulation EU 2016/679 (GDPR) and other applicable data protection and privacy laws. Both You and Oyster are separate and independent controllers with respect to Personal Data provided by Team Members and Contractors. Each party is solely responsible for its compliance with applicable data protection laws and for fulfilling any of its related obligations to third parties, including Data Subjects and Supervisory Authorities.
Employment Records. Team Member employment agreements and payslips are considered Personal Data. Oyster will share these documents with You to the extent allowable by law. Likewise, We will retain this information only as long as required to meet Our compliance requirements.
Limited Use of Personal Data. If Oyster receives Personal Data from You to process, Oyster will process that Personal Data only as instructed or initiated by You via the Platform, as necessary to provide the Services and prevent or address technical problems with the Platform or violations of the Oyster Terms, or as required by applicable law. We will limit the sharing and use of Personal Data to the extent necessary to perform and implement Our Services. Oyster will not store or retain any Personal Data except as necessary to perform the Services under the Engagement Agreement or Contractor contract. At the termination of any Engagement Agreement or Contractor contract, and the expiration of any required retention period, Oyster will securely destroy personal data or remove any identifying information from the data (including automatically created archival copies).
Use of Third Parties and Subprocessors. You authorize Oyster to use third parties to process Personal Data, and additionally, You authorize the third parties to engage subprocessors to process Personal Data. Oyster’s use of any specific third party or subprocessor to process Personal Data must be in compliance with applicable data protection laws and must be governed by a contract between Oyster and the third party (and their subprocessors) that requires comparable protections to these Terms. Oyster will provide upon written request a copy of Oyster’s agreements with third parties that process Your Personal Data. Please note, in sharing our third party contracts, all terms unrelated to the Standard Contractual Clauses will be redacted for confidentiality reasons. If after review, You object to the appointment of a particular third party (or subprocessor), You may terminate this agreement in accordance with the Oyster Terms.
Cross-border Transfers of Personal Data. Our data is warehoused in Ireland. However, if We or Our third parties are required to transfer Personal Data out of the European Economic Area to provide Our Services, We ensure a similar degree of protection is afforded to it by ensuring at least one of the following safeguards is implemented: (i) We may use specific contract clauses approved by the European Commission which give Personal Data the same protection it has in Europe; (ii) when transferring Personal Data to the United States or elsewhere, We may transfer data to third parties or subprocessors, if they provide evidence of similar protections to those afforded to Personal Data in the European Union. By using Our Services, You authorize the transfer, storage, use of, and onward transfer of Personal Data to the United States, where We are based, and to other locations where We and/or Our service providers operate.
Protecting Personal Data. Oyster has implemented appropriate technical and organizational measures to protect Personal Data in Our possession against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration, or disclosure. Oyster will ensure that its personnel are bound by confidentiality obligations with respect to Personal Data, and are subject to appropriate training regarding the processing of Personal Data. You and Oyster agree to promptly notify the other if it is no longer able to abide by the rights and obligations attached to the Personal Data, and to cease using that data or otherwise to take appropriate steps to remediate. You and Oyster remain individually responsible for ensuring that Your respective uses and transfers of Personal Data comply with all applicable data protection laws.
Data Loss. In the case of any potential or actual losses of Personal Data (“Incident”), Parties will notify each other as soon as possible and no later than forty-eight (48) hours after identification of an Incident. Quick notice allows us to consider what We need to do to resolve an issue in accordance with the applicable law. When an Incident occurs, Parties agree to help each other in an expeditious and compliant manner.
Cooperation and Audit Rights. Both You and Oyster agree to provide reasonable assistance to each other related to any requests from individuals exercising their rights in Personal Data granted to them under applicable data protection laws. Oyster shall make available to You and Your regulators all information necessary to demonstrate compliance with applicable data protection laws. You and Your regulators shall also have the right to inspect Oyster’s architecture, systems, and documentation which are relevant to the security and integrity of Personal Data, or as otherwise required by a governmental regulator. If You agree to cover the cost, Oyster will allow and cooperate with a data protection impact assessment and a third-party audit initiated by You. You and the auditor agree to avoid causing damage, injury, or disruption to Oyster’s premises, equipment, or business in the course of such audit.
Standard Contractual Clauses. Each party’s signature to the Engagement Agreement, which incorporates these Terms by reference, shall be considered a signature to the Model Clauses. If required by the laws or regulatory procedures of any jurisdiction, the Parties shall execute or re-execute the Model Clauses as separate documents.
We like rules and We follow them. While employment law is Our passion, We require compliance with all applicable bribery, trade, trafficking, and money laundering laws.
Anti-Corruption. Anti-corruption laws prohibit directly or indirectly making, promising, authorizing, or offering any advantage or anything of value to public officials or private persons or corporations to secure an improper advantage, to improperly obtain or retain business, or to direct business to any other person or entity. Parties agree, individually and together, to comply with applicable Anti-Corruption Laws, which may include but are not limited to the US Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act (the “UK Act”), the Singapore Prevention of Corruption Act (“PCA”), the Mexico General Law on the National Anti-Corruption System (“GLAR”), the Canadian Corruption of Foreign Officials Act (“CFPOA”), and all other applicable anti-corruption and anti-bribery laws (collectively, “Anti-Corruption Laws”).
Labor Laws. Oyster takes full responsibility for Our actions and omissions regarding the employment of Your Team Members. However, We are in this together and You also have a role to play with regard to Your Team Members. While the Team Member is placed in your workforce, You agree to comply with applicable workplace and privacy laws and regulations of Team Member’s country of residence. Information about these laws may be provided in these Terms, Engagement Agreement, the Platform and the Site, including Oyster Country Pages. Oyster strives to keep its legal documents accurate, current and up-to-date, but You understand and agree that Oyster is not a law firm or an attorney, and is not the substitute for the advice or Services of an attorney. It is always best practice to consult a licensed attorney, tax, and accounting professional before expanding into new countries.
Policy and Procedures. Both You and Oyster shall maintain policies and procedures designed to ensure order in the workplace, compliance with laws, as well as the safety and wellness of Team Members. You and Oyster agree that neither party shall knowingly take any action that would cause the other party to be in violation of the laws above. Additionally, each party shall immediately notify the other party if such party has any information or suspicion that there may be a violation of any law, regulation, or work rule in connection with the performance of any activities under the Oyster Terms.
Employing in other countries can be difficult. You are hiring Oyster to make it easier. Specifically, We will hire individuals in the country where they live to perform work for You. We call these talented people Team Members. We will also provide You and the Team Members access to Our Platform to make things, like contracting and making payments, easier.
Workforce Services. Oyster agrees to legally retain and place Team Members, identified by You, to work at Your instruction. Team Members may be employees or contractors. Oyster may reasonably reject a proposed Team Member (for example, if proposed Team Member cannot legally work in-country). Because You are identifying the proposed Team Member, Oyster makes no representations about the quality of Team Member’s work. This means that We are not responsible for the Team Member’s professional mistakes, errors, and omissions. We will, however, provide employment practices liability insurance for all employees and contractors employed by Oyster as part of Our Workforce Service. Lastly, as Team Member’s employer of record, Oyster retains the right to dismiss Team Member for cause at any time, with no liability to You. Should We need to dismiss a Team Member, We will do so only after providing notice and in consultation with You.
Contractor Services. Sometimes, rather than working as an employee, a Team Member works independently as a Contractor. Oyster agrees to help contract, onboard, and pay Contractors identified by You. When You choose to engage Contractors directly, Oyster acts as an Agent of Record for Contractors. As with all Team Members, because You are identifying the proposed Team Member, Oyster makes no representations about the quality of the Team Member’s work. This means that We are not responsible for the Team Member’s professional mistakes, errors, and omissions.
Contractor services include vendor due diligence, compliance in regards to tax and labor regulations, the ability for Contractors to create and issue invoices, and the ability to review, dispute, approve, and pay Contractors invoices. Oyster will maintain template agreements for Your ease of contracting, and will also provide for upload and storage of existing and/or externally drafted workforce agreements. Oyster reserves the right to cancel any contractor services managed on its Platform due to violation of these Terms, failure to pay invoices, suspicious behavior, fraud, harassment, unfair, deceptive, or illegal acts or practices, and at the direction of law enforcement or other regulatory authority.
Payment Services. Our Payment Services include payment of wages, salaries, bonuses, commissions, invoices, stipends, benefits, and other earnings to Team Members and Contractors, based on the amount reported and/or approved by You. We will likewise assist with processing and paying approved Team Member and Contractor expenses. Along with their salary and expense reimbursement payments, Team Member will be provided a compliant payslip for each pay period. We will process related third party tax withholding, reporting, remittance, and other social obligation remittance (“Cost of Employment”), where applicable. We will remit these sums under Our account as the employer of record or agent of record, in accordance with applicable law. The total amount of payment to the Team Member and/or Contractor plus the Cost of Employment, plus the Oyster Service Fee is the Monthly Payment Obligation. We will only provide Payroll Services, if You adequately fund the Monthly Payment Obligation.
Agent of Record Services. Contractor hereby appoints Oyster as their limited authorized payment collection agent (“Agent of Record”) to facilitate the receipt of payments from Customer Companies for services provided. Contractor authorizes Oyster as its Agent of Record to hold, disburse and retain payments on behalf of Contractor pursuant to these Terms of Conditions, or otherwise instruct Oyster’s third party payment providers to do so. Contractor agrees that payment received by Oyster from Customer Companies has the same effect as if the payment was made directly to Contractor, regardless of whether Oyster remits or fails to remit the payment. To enable this service, Contractor agrees to maintain accurate records of contract deliverables, expenses, invoices, and any other work-related information We request.
As Oyster serves as Contractor’s agent for payment purposes only, Oyster assumes no liability for any acts or omissions of Contractor related to contracts, these Terms and Conditions, Contractor’s failure to provide services as required by a contract, or Customer Company’s failure to make payments owed to Contractor. Customer Company’s payment obligation to the Contractor will be fulfilled upon Our receipt of payment by Customer Company. At that time, We are responsible for remitting funds to Contractor. Our obligation to pay Contractor is subject to and conditional upon Our actual receipt of payment from Customer Company. Contractors authorize Oyster to delegate its obligations under these Terms to its affiliated entities with the provision that Oyster will ultimately remain liable for discharge of its obligations under these Terms.
Confidentiality and Intellectual Property. We understand how important Your intellectual property is and We protect it four ways. First, by the terms of this Agreement, the Parties agree that intellectual property created by Team Members or Contractors during the term of the engagement with Customer Company are works made for hire and are owned exclusively by Customer Company. Second, you may enter into Your own agreement directly with Team Member regarding confidentiality and intellectual property. If you do not have your own agreement, We have a template agreement You may use to procure Team Member’s contractual commitment to:
This Team Member “Confidentiality and Intellectual Property Agreement” is available on the Platform for enrolled Customer Companies. You understand and agree that any proprietary information Team Member may receive will not be attributable to Oyster, and that We will not be held liable for its disclosure.
Third, We will ensure that Oyster Partner enters into a written agreement with Us that validly assigns to Oyster all intellectual property created by and moral rights imbued in a Team Member placed with Customer Company, and protects the confidentiality of Customer Company’s Confidential Information to the same extent as this Agreement.
Fourth, to the extent by operation of law, We have or receive any right, title, and/or interest of every kind and nature in and to intellectual property created by and moral rights imbued in Team Member placed with Customer Company, We hereby irrevocably assign, transfer, convey, and quitclaim the intellectual property and moral rights to Customer Company. Our assignment, transfer, and conveyance to Customer Company is without any representations or warranties of any kind.
What about Oyster’s intellectual property? You agree that We own all right, title, and interest in Our Intellectual Property. To the extent that We may need to use Customer Company’s intellectual property to provide Services, We understand and agree that Customer Company owns all right, title, and interest in its intellectual property.
Long story short, it’s Your Intellectual Property, We want You to have it.
Equipment. If You choose to provide a Team Member with physical equipment (like a computer) to perform Services, We can include the equipment provisioning in the Engagement Agreement. At Your request, We will require Team Member to sign an agreement accepting responsibility for the proper care and use of the equipment, as well as providing logistics of delivery and return, if applicable. Oyster is not liable for the equipment’s return or condition, but may, at Your direction and where allowable by law, deduct costs for damaged or lost equipment from Team Member’s salary.
Oyster Third Party Providers. We may assign our rights and delegate its obligations under this Agreement to a third party Oyster Partner of Our choosing. To help ensure the best possible provision of Services, We reserve the right to replace an Oyster Partner in Our sole discretion at any time, after providing You reasonable written notice. Oyster Partners are responsible for maintaining the same standards and complying with laws and regulations as if they were Oyster. We further agree to be responsible for the performance of Oyster Partners related to provision of the Services during the Term and Oyster’s use of subcontracting shall not relieve Us of Our obligations hereunder. You agree not to work directly with the Oyster Partner(s) assigned to Your account during the duration of this Agreement and for one year after the termination of this Agreement without prior written consent of Oyster.
If We had to boil it down to one thing We ask of Customer Companies, it is to be a good steward of Our shared Team Members. We are taking care of the logistics of cross border employment, but You are responsible for taking care of the Team Member on a daily basis. Together, We can provide talented Team Members amazing opportunities.
Team Member Management. First, You are responsible for recruiting Your proposed Team Members who are both qualified and eligible to work legally in the country in which they are living. Once You have found a talented candidate and have negotiated a fair and equitable salary, introduce them to Oyster to hire. Even though We employ Team Member, Customer Company exclusively benefits from Team Member’s Services and may supervise Team Member on a day-to-day basis to the extent allowed by law. While Team Member is placed with Customer Company, You agree to only assign tasks that are legal and to treat Team Member ethically, in compliance with these Terms, the Engagement Agreement, and applicable employment and data protection laws.
If Customer Company knows or suspects Team Member has grievances, complaints or employment-status concerns―including changes in legal status to work in-country, Customer Company agrees to notify Oyster immediately. We will do the same. Conversely, if Customer Company has concerns about a Team Member’s performance, please contact Us for assistance as soon as possible and before any changes to the Team Member’s work schedule, salary, or responsibilities are made. That way, We can work together to resolve the issue or minimize any termination costs or other potentially negative consequences. As the employer, Oyster - not Customer Company - must handle any disciplinary actions or termination of the placement. Customer Company understands and agrees to pay all termination costs, including payment in lieu of any required notice, vacation pay, severance pay, and any other termination payments required by law or negotiated between You and Team Member.
Payroll Submission. You agree to submit and approve payroll as outlined in the applicable Engagement Agreement. Specifically, You agree to maintain accurate records of Team Member time worked, and timely transmit that information to us. Additionally, You agree to notify Us in advance of any Team Member scheduling or issues that will affect payroll (for example, overtime, vacation/leaves taken, payroll-reimbursed expenses, etc.). Any changes, additions or deletions after the initial payroll cycle shall be communicated to Us no later than 72 hours before each payroll processing date. You agree that by submitting each payroll:
Payroll amounts are based on accurate time worked and duties performed;
You approve all payroll information that You are submitting; and
Payroll information submitted to Oyster does not knowingly violate any applicable laws, rules, or regulations.
If You are late to submit or approve payroll, or make changes after you initially submit payroll, Oyster will use reasonable efforts to process the payroll with the regularly-scheduled payment. If that is not possible, Oyster will process the payroll no later than the next regularly-scheduled payment. Any late payment penalties incurred by Oyster due to Customer Company’s delay in submitting or approving payroll will be the responsibility of Customer Company to pay.
Contractor Management. Customer Company is responsible for recruiting proposed Contractor who is both qualified and eligible to contract legally in the country in which they are living. Once Contractor is identified, Customer Company negotiates contractual terms including services required, cost of services, time to perform, method and timing of payments. Customer Company may use Oyster templates within the Platform to memorialize the terms of the agreement, or upload their existing agreements to the Platform for easy management of all workforce agreements. Invoices can also be created, uploaded, transmitted, and stored within the Oyster Platform.
Customer Companies should review invoices carefully before making payment. Once payment is initiated, Oyster cannot stop or otherwise change the payment. If a Customer Company owes outstanding payments to a Contractor after completion of work, or if a Customer Company is dissatisfied with the service provided by a Contractor, either party may initiate cancellation of the contract within the Platform. Cancellation simply terminates further obligations, but does not affect any remedies. Once a contract has been cancelled, neither party can alter the contract status or request payment. If there is a dispute regarding the services provided or payments made, Parties must address the dispute directly with each other. Oyster will hold any disputed funds until parties provide a joint, written notification that the dispute has been settled and indicates the manner in which the funds should be dispersed.
Accurate Records. Our Services, Fees, and obligations in this Agreement are conditioned upon Your full and accurate disclosure of all information We request, including any material change to information You previously provided. You maintain full responsibility for verifying the ongoing accuracy of all Platform information. Specifically, Customer Company agrees to maintain accurate records of Team Member time worked, vacation and/or leave taken, salary increases, bonus, and any other work-related information We request. You also agree to timely transmit that information to Us. We rely on such information to provide Our Services and establish Our Fees. If You fail to provide accurate and complete information, We have the right to collect additional amounts from You, change the Services provided and/or the Fees charged, or with thirty (30) days’ notice terminate any active Engagement Agreements or Contractor Contracts.
Performance Assistance. You will enable Oyster to take all necessary steps to effectively perform Our Services. Your assistance in this regard may include Your timely completion of forms or signature on benefits or other registration documents. Oyster shall have no liability for any errors, omissions, or failures relating to the Services to the extent caused by Your failure to assist or Your delay.
Your Business. Our business is to support Your business. But You know Your business, We don’t. Any duties not expressly allocated to Oyster under this Agreement remain Your obligation. Examples of duties for which You remain responsible include: provision of Your services and/or products; compliance with Your professional licensing regulations; and compliance with the standards that pertain to Your specific business, industry, or workplace. If You are, or become, a government contractor, please let Oyster know. You understand and agree that Oyster does not assume any obligations or responsibilities under any government contract.
One of the ways that Oyster makes global employment easier, is by creating a secure homebase where You can manage all of Your Team Members’ needs. However far flung Your distributed team may be, all of their payroll, all of their benefits, all of their contracts are in one place.
Software Licenses. Our Services are offered through a cloud-based software Platform to which Oyster grants You limited, non-transferable, royalty-free licenses to use in accordance with these Terms. In order to access Our Services, internet access and a valid email address are required for every Customer Company, Team Member, and Contractor.
The Platform is not the answer to everything. Information provided via the Website or Platform is meant for informational purposes only and should not be interpreted as professional legal or tax advice. We encourage You to consult a professional that is trained or licensed in the relevant area if You need assistance.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY OYSTER. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OYSTER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. OYSTER DOES NOT WARRANT THAT THE PLATFORM OR OYSTER CONTENT WILL (I) MEET YOUR SPECIFIC EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM UNAUTHORIZED, THIRD-PARTY SYSTEM ERRORS, INTRUSION, BUGS, VIRUSES OR OTHER HARMFUL COMPONENTS NOT CONTROLLED BY US; OR (III) BE FREE FROM INTERRUPTION.
In business, as in life, change is constant. If for one reason or another, You and/or Oyster need to make changes to Our Services, We understand and hope that We can meet each other's needs. You may need to change the Team Member placed with You. We may need to change the Oyster Terms because of a law change in a particular country. The ability to make changes allows Oyster to provide Customer Companies, Contractors, and Team Members with the best possible experience.
Changes due to Compliance Obligations. The laws governing the Employment of Record legal construct or employment in the Team Member’s home country may change. Additionally, union or collective bargaining agreement(s) governing Team Member’s Services are subject to change throughout the duration of this Agreement. You understand and agree that such changes are beyond the control of either party. Such changes may require adjustments to the terms and cost of Team Member’s Services under the applicable Engagement Agreement.
Changes for Convenience. We reserve the right to change the products and Services offered, the manner in which they are delivered, including, but not limited to a transfer of a Team Member to a different Oyster Partner within the country. You may also request modifications to the Services related to all or specific Team Members. Please remember, as the employer of record, only Oyster, or Oyster Partner may perform any action in connection with Team Member’s employment status, including title, salary, and benefits. Therefore it is important that You communicate any request for such actions directly to Oyster, so the Parties shall discuss and mutually agree on a course of action consistent with the local laws of the applicable country. Changes for Convenience may require adjustments to the Terms and cost of Team Member’s Services under the applicable Engagement Agreement.
Effect of Change. If a change is required, as stated above, the party requesting the change will provide the other party reasonable notice of such change and further will ensure a smooth transition of changes as they relate to Team Member. Any transfer to a new Oyster Partner shall not compromise the quality of Services provided and shall not compromise a Team Member’s rights under local law to consent to such transfer.If We are requesting the change, We will provide You written notice of changes. Continued use of Our Platform after thirty (30) days will indicate Your acceptance of any changed Terms.
Termination of Services. We are in this together and while We don’t want You to leave Oyster, if We aren’t the right fit for Your needs, You should be able to make a change. You may terminate Your Engagement Agreement(s) pursuant to these Terms at any time, for any reason or no reason, if You give us thirty (30) days’ written notice to us of Your intent to terminate. Oyster can likewise terminate Your Engagement Agreement(s) at any time, for any reason or no reason, if We give You thirty (30) days’ written notice. Provided however that Oyster shall continue to provide Services under the current Terms, until the actual date Team Member’s placement can be terminated in accordance with applicable law. Of course, Your obligation to pay unpaid invoices and Oyster’s remedies for non-payment survive termination of Your Engagement Agreement(s).
Abandonment. If You cease to use Our Services, without notice to us, by either reporting a payroll cycle of $0.00 or failing to report any payroll information for two consecutive payroll cycles, it will be deemed a termination of Your Engagement Agreement(s), and We will remove any Team Members from Your placement. This will result in us charging You any attendant notice pay or other costs for which the Team Member may be entitled, along with any fees incurred by Oyster.
Breach. In the case of breach of contract, either party may terminate all or some of Your Engagement Agreements and the associated Team Member placements, pursuant to the Oyster Terms, following written notice to the other party and seven (7) calendar days’ opportunity to cure. The cure period will not be extended; as doing so would result in increased payroll and other liabilities.
Oyster believes in transparent pricing. Oyster’s Engagement Agreement is designed to clearly explain the costs, Our fees and timing for payment, along with important information about Your Team Member. Initiate a new Team Member placement in the same or a different country upon executing an additional Engagement Agreement.
Monthly Oyster Service Fee. The Monthly Oyster Service Fee is the fee Oyster charges for access to its software, Platform, and Services. Oyster’s Service Fee is payable monthly and varies based on the Services provided, and, in the case of Team Member Engagements, the country in which Services are provided. Oyster will begin charging its Service Fee, on the first date of the placement or contract. We have no on-boarding or off-boarding fees.
Total Cost of Employment. In addition to the Oyster Service Fee, Customer Company is responsible for paying Team Member’s Total Cost of Employment.
Total Cost of Employment = Team Member’s Monthly Salary + Employer’s Contributions
Team Member’s Monthly Salary includes salary, allowances, commissions, stipends, and bonuses. Employer’s Contribution includes required taxes, benefits, social welfare and other contributions. Total Cost of Employment also includes one-time payments or benefits due to Team Member as a result of termination of employment, and any Liabilities, incurred by or on behalf of Oyster, arising out of employment-related Claims.
You will only be charged the actual amount of the Total Cost of Employment. For instance, If the Team Member is only due wages for one week, Your invoice will reflect the amount earned or one week’s salary, not the full monthly salary. These amounts, along with the Oyster Service Fee, are separately detailed on each Engagement Agreement and every invoice. Oyster Service Fees will not be prorated for partial month payments.
We require a deposit for each Team Member to ensure that regardless of Customer Company’s invoicing schedule, Oyster has funds available to pay Team Member’s salary as it becomes due. The deposit also helps defray any costs surrounding Team Member’s termination, from severance to settling claims.
Amount. The amount of the deposit for each Team Member will be stated in the Engagement Agreement. If Customer Company chooses to offer Team Member notice periods or severance payment terms over and above the statutory minimum required in-country or if the required notice period/severance pay increases over the length of Team Member’s placement, the deposit may be increased by a corresponding amount.
Security Interest. Oyster has a security interest in the deposit, which is perfected by Oyster’s possession and control of the deposit funds. The deposit will be held by Oyster or for the benefit of Oyster until each Team Member’s termination date.
Return of Funds. Any deposit not utilized in providing Services to Team Member will be returned to Customer Company thirty (30) days after all matters related to the termination of Team Member’s placement have been fully and finally resolved.
Timing. Employment-related payment obligations have a much shorter time to fund than typical service contracts. You agree to pay invoices timely, including invoices that charge for incidental or one-time Team Member costs (for example, initial deposit, paid leaves, vacation, separation pay, expenses, Team Member claims attributable to Customer Company, etc.). All undisputed invoices shall be paid within five business days of delivery by Oyster, or as otherwise provided in the Engagement Agreement, which will govern.
Currency. Customer Company may pay Oyster in USD, GBP, or EUR. Oyster pays Team Members in their home country currency, and pays Contractors as specified in their contract. When the currency We receive is different from the currency We are obligated to pay, Oyster will exchange the currencies, so You don’t have to. Oyster calculates its exchange rate using rates from one or more third parties, such as Transferwise and OFX. Our rate is updated regularly, but may not be identical to the real-time market rate. The exchange rate used will be stated in the invoice. We do not charge any fees for currency exchange.
Payment Method. Oyster uses a third party provider to accept and make payments. You acknowledge and agree that You will comply with information requests, terms of service or other requirements necessary to establish or otherwise provide service between You and the third party payment provider. Oyster WILL NOT request funds outside of the normal invoicing process. If You are concerned that a particular request may be fraudulent, please call us directly for confirmation.
You are responsible for paying any insufficient funds fees, overdraft fees, wire transfer fees or other bank fees associated with Your bank incurred in connection with Your transfers or payments, including any payment provider transaction fees, taxes, and any other third-party charges.
Disputes. If You dispute any invoice, You must notify Oyster in writing within seven (7) days of receipt of invoice. Parties will negotiate in good faith to promptly resolve the dispute. If the entire dispute is not resolved before the invoice’s original due date, You agree to pay Oyster all amounts not disputed by the relevant due date. Your failure to pay undisputed invoices when due constitutes a breach of the Oyster Terms.
Late Fees. If any undisputed invoice becomes fifteen (15) days overdue, then without limiting Oyster’s other rights or remedies, We will charge interest on unpaid balances at the rate of 3.0% of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower.
Nonpayment. If Oyster is required to use a collection agency or other means to collect payment due from You, You agree to pay reasonable collection agency fees or reasonable attorney’s fees associated with such collection. In the event You file for bankruptcy during the term of Our Agreement with You or while You are in arrears on invoices issued pursuant to the Oyster Terms, You agree to include Oyster on Your list of preferred vendors, to include all payments due to Oyster in any first day motions filed, to designate Oyster as a priority debtor, or any similar such method of prioritizing Your debt to Oyster, where allowable by law.
Taxes. At all times, You and Oyster shall be solely responsible for paying your own VAT, HST, GST, or similar indirect taxes, if any, and to self-account and self-report for such taxes, as necessary.
Each Party hereby represents and warrants:
(a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization;
(b) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such Party; and
(c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
Oyster further represents and warrants that the Services it provides will be performed and operate in all respects in accordance with the Oyster Terms and with applicable laws, and will be performed in a professional and workmanlike manner at a standard comparable with others in the industry.
You further represent and warrant that You will not task or otherwise involve Team Member in any illegal activity during the Engagement, and that You will comply with all applicable laws relating to the Services, these Terms, and all Engagement Agreements.
Fitness and Malfeasance. Oyster makes no warranties about Team Member or Contractor’s eligibility to work, or fitness for any particular job duties. Oyster is not responsible for the actions, errors, or omissions of any Team Member or Contractor placed in Customer Company’s workforce pursuant to these Terms or any damages resulting from such Team Member or Contractor’s actions, errors, or omissions. Furthermore, Customer Company agrees and acknowledges that Customer Company is wholly responsible for protecting any intellectual property to which Team Member or Contractor has access. Customer Company will hold Oyster harmless for any theft or misappropriation of intellectual property by Team Member or Contractor.
Employment Relationship. Under the Terms, Oyster contracts to be the sole employer of Team Member. In contrast, any Contractor engaged by Customer Company or Oyster is a professional services relationship and is not intended to create an employment relationship. In both cases, however, Customer Company understands and agrees that whether or not a government agency, other regulator, or judicial body ultimately deems Customer Company to be Team Member’s or Contractor’s employer, despite this Agreement, is beyond Oyster’s control. To that end, if a third-party, with authority to do so, determines that You are the employer, in fact, of Team Member or Contractor, You agree to hold Oyster harmless. If that occurs, Oyster will assist in making any required changes to the employment relationship which are required as a result of any such determination.
Permanent Establishment. Whether Customer Company is deemed to be transacting business in a jurisdiction where Team Member or Contractor works― triggering a taxable presence or so-called “permanent establishment”―will be a function of the totality of Customer Company activities in that country. Apart from the Services provided by Oyster, Customer Company agrees that Customer Company retains all responsibility for Customer Company activities, both within and outside of a particular jurisdiction. This includes the Customer Company’s corporate structure, corporate tax matters, hiring decisions, stock issuance, work projects and assignments given to Team Members or Contractors, and/or any other business decision and associated risk incurred in connection with Customer Company international operations. Customer Company acknowledges these activities are beyond Oyster’s control and agrees to hold Oyster harmless for any damages or other negative consequences sustained as result.
Forms. Oyster’s Platform is flexible. We allow You to utilize Your form agreements, policies, and other documents. You may also customize templates that We provide to better reflect Your business needs. The use of Your own forms or altered versions of Oyster’s templates, is at Your own risk and You agree to hold Oyster harmless and indemnify Oyster from any claims arising from use of those documents.
Professional Advice. Oyster does not provide tax, legal or accounting advice. We will do Our best to provide You with the information You need to make Your own decisions about compliance with applicable laws. If You have questions after reviewing the contracts and forms generated by and through the Oyster Platform, the country profile pages, and any other information provided by Oyster, You should consult Your own tax, legal or accounting advisors prior to using those documents, or paying an invoice.
Our behavior affects each other. When one party’s actions or omissions lead to a claim by a third party, the “bad actor” should indemnify the other party for any damages.
Mutual Indemnification. You agree to indemnify, defend and hold Oyster harmless from and against any and all third-party claims, demands, suits, proceedings, or causes of actions (together referred to as “Claims”), damages, liabilities, payments, costs and expenses, including reasonable attorneys' fees, (together referred to as, "Liabilities") arising out of a Claim made against Oyster relating to:
Oyster agrees to indemnify, defend and hold You harmless from and against any and all Claims and Liabilities arising out of a Claim made against You relating to:
Indemnification Process. If You become aware of a claim, and are seeking indemnification, promptly notify us in writing of the claim. We will do the same for You. Each party agrees to cooperate with the other by providing necessary information and assistance as requested in support of efforts to respond and defend any claim, with expenses to be borne by the indemnifying party. As a condition of indemnification, the party seeking indemnification must provide the indemnifying party sole control of the applicable defense and settlement. The indemnified party may participate in its own defense at its sole expense. The indemnifying party may not settle any claim unless such settlement includes a full release of the applicable Claim against the indemnified party. The indemnifying party may not settle any claim without the indemnified party’s written consent, not to be unreasonably withheld, if the settlement imposes a payment, admission of fault or wrongdoing, or other obligation on that party, or if settlement is deemed not to be confidential.
Damages Excluded. To the extent permitted by law, in no event, will either party be liable to the other for special, indirect, incidental, punitive, or exemplary losses, damages, or expenses (including, without limitation, claims for lost business profits or revenue, loss, interruption, or unavailability of data, interruption of business operations, or the cost of the procurement of substitute goods or Services, Your use or inability to use the Oyster Platform or any interruption of such use), even if the You have been advised of the possibility of such damages and regardless of the cause of action (whether in contract, tort, breach of warranty or otherwise).
Liability Limit. To the extent permitted by law, except for the indemnity obligations outlined herein and Liabilities arising as a result of bodily injury or death or damage to tangible property for which You or Oyster is legally liable, in no event, or series of connected events, will either party’s total liability to the other in connection with any particular Engagement Agreement exceed the lesser of twelve (12) times the Total Cost of Employment for the relevant Team Member(s), or twelve (12) times the total amount invoiced by the relevant Contractor for the month immediately preceding the action giving rise to the liability, or one hundred thousand dollars ($100,000).
When something goes wrong between You and Oyster, We believe in trying to work it out. If a dispute arises, let’s agree to timely inform each other about it and cooperate with a view to resolving issues amicably, and in a timely fashion.
Agreement to Arbitrate. If informal attempts to resolve any dispute, relating in any way to Your use of the Services including whether the claims asserted are arbitrable, is unsuccessful, You agree that the matter will be referred to and settled through final and binding arbitration in Your choice of New York, London, Berlin, or Singapore, in the English language, before a single arbitrator (under the ICDR’s International Expedited Procedures, then in effect). The Parties agree that the arbitrator is not empowered to award damages in excess of the limitations of liability specified in the Terms. Judgment upon the award rendered by the arbitrator, including equitable relief, may be entered by any court having jurisdiction thereof.
Class Action and Jury Waiver. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. YOU UNDERSTAND THAT BY AGREEING TO THESE TERMS, YOU AND OYSTER ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND ARE EACH WAIVING THE RIGHT TO BRING OR PARTICIPATE IN ANY DISPUTE ON A CLASS, PRIVATE ATTORNEY GENERAL, REPRESENTATIVE, OR SIMILAR BASIS. ONLY CONSENT TO THESE TERMS IF YOU UNDERSTAND AND AGREE TO THIS PROVISION.
Marketing. Ask first. Neither Oyster, nor You shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use each other’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party.
Electronic Acceptance of Terms. These Terms, and any amendments thereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to indicate acceptance of these Terms; or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
Electronic Notification. Any notices or other communications provided by Oyster, including those regarding modifications to these Terms and Conditions, will be given: (i) via email; and (ii) by posting to the Platform. Notice provided by e-mail will be deemed received on the date such email is sent. Notice provided by posting to the Platform will be deemed received on the date that notice is posted.
No Agency. Except where explicitly provided, the Terms do not create or constitute a partnership, or joint venture between the Parties or make either party an agent of the other. Neither party shall hold itself out contrary to the terms of this paragraph. Nothing contained in these Terms shall be deemed to permit either party to conduct business in the name of or on account of the other party, to incur or assume any expense, debt, obligation, liability, tax or responsibility on behalf of or in the name of the other party or to act on behalf of or bind the other party in any manner whatsoever.
Waiver. No failure or delay by either party to exercise any right or remedy provided under the Oyster Terms or by applicable law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
No Assignment. Except where explicitly provided, neither party may assign rights and obligations under the Oyster Terms, by operation of law or otherwise, without the other party’s prior written consent, which will not be unreasonably withheld. Any attempt to assign or transfer this Agreement, without such consent, will be null and void.
Force Majeure. If performance by either party is delayed, hindered, or prevented from providing Services by reason of war, riot, sabotage, terrorist act, flood, fire, earthquake, hurricane, tornado, radiological emergency, computer virus or worm, governmental or quasi- governmental law, regulation or court order, or any other cause of like nature beyond reasonable control, the party unable to perform will promptly give notice to the other party. As soon as practicable under the circumstances, the non-performing party shall make commercially reasonable efforts to resume full performance.
Severability. If any part of these Terms are found to be invalid or unenforceable, the remainder of the agreement will remain in full force and effect as if the unenforceable part did not exist. The Oyster Terms will be construed in its entirety, giving meaning to its whole, and not strictly for or against Oyster or Customer Company.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of New York, USA without regard to its conflict of law provisions. The UN Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the Parties under this Agreement.
Contacting Oyster. Notice under these Terms or any Engagement Agreement can be provided by email addressed to Legal@OysterHR.com. If You really like snail mail, You can find us at:
Feedback. Oyster was made for You. Our mission is making the international hiring process clean, simple, and affordable for employers, while helping brilliant people build fulfilling careers from anywhere. If You have ideas about how We can do that better, We welcome Your Suggestions. Talk to us at Support@OysterHR.com. We will listen.
1 Please note that in sharing Team Member’s personal information with Us, You are acting as a controller of Team Member’s personal information for the purposes of applicable data protection laws.
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