Terms and Conditions

Customer Terms & Conditions

These Customer Terms & Conditions (“Terms”) set out the Parties’ rights and obligations for the provision of services by Oyster HR, Inc. (“Oyster”, “Us”, “We”). Oyster provides its services (“Services”) through its proprietary, web-based global employment enablement platform located at http://app.oysterhr.com (“Platform”) and the website http://www.oysterhr.com (together with any other websites owned or provided by Oyster, the “Website”).

These Terms form the basis of Oyster’s relationship with users of the Services (“Customer”, “You”, “Your”). When You create an account as a customer, You agree to these Terms. Further, You agree to do business electronically. ACCORDINGLY, YOU ARE RESPONSIBLE FOR READING AND UNDERSTANDING THESE TERMS AS THEY FORM THE BASIS OF THE PARTIES’ CONTRACTUAL RELATIONSHIP. BY CREATING A CUSTOMER ACCOUNT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AS THEY APPLY TO THE PLATFORM AND THE SERVICES.

Additional terms of any Services that You agree to use will be set out in a service-specific order form or an individual service agreement accessible via the Platform for those Services (“Service Agreements”). Each Service Agreement will incorporate these Terms, along with Oyster’s Privacy Policy, Website Terms of Use, Data Processing Addendum, and any Additional Documents. When You agree, execute, and accept a Service Agreement (including by clicking any button indicating Your acceptance or taking an action on the Platform), or use the Services, You agree to be bound by these Terms. Anything accepted electronically will be treated as an original contract and will have the same binding legal effect as if it were a physical version, delivered in person. The Website Terms of Use and Privacy Policy apply to Your use of the Website, regardless of whether You agree to these Terms or enter into a Service Agreement.

1. Our Platform and Services

1. Governing Agreements

To access the Services, You must agree to the Terms and may be required to enter into a Service Agreement. You may enter into multiple Service Agreements from time-to-time for the provision of different Services by Oyster. The Terms, the Service Agreement (if any), and the following documents will form the “Agreement” between You and Oyster for the provision of the Services referred to in the relevant Service Agreement:

1. Privacy Policy;

2. Website Terms of Use;

3. Data Processing Addendum; and

4. any additional terms or addenda (“Additional Documents”).

        

To the extent of any inconsistency, the Service Agreement and Additional Documents will prevail over all other parts of the Agreement, including the Terms. The Additional Documents will thereafter prevail over any Service Agreement to the extent of any inconsistency. These documents form the entire agreement between the Parties and replace any prior understanding or communication (whether written or oral) related to, or regarding, the subject matter of the Agreement.

2. Core Services

As part of the Services, Oyster makes the following core services available through the Platform:

1. Team Member Service; and

2. Contractor Service,

(each, a “Core Service”) on the terms set out in Section 2 (Core Service - Team Member Service) and Section 3 (Core Service - Contractor Service) respectively, below. Your timely payment of a Subscription Fee as set out in these Terms entitles You only to the delivery of the relevant Core Service. We reserve the right to charge additional fees with proper notice under these Terms for any services outside of the Core Services.

3. Add-On Services

From time-to-time, as part of the Services, Oyster may make certain additional services available, which are not Core Services (“Add-On Services”). Add-On Services may include premium services or any other non-Core Services. You may obtain those Add-On Services in the same manner as set out in Section 1.1 (Governing Agreements) by entering into a relevant Service Agreement or agreeing to any Additional Documents for the Add-On Services, which will either be provided to You directly or published on the Website or Platform and will take precedence over these Terms to the extent of any inconsistency.

4. Beta Services
   

From time-to-time, Oyster may invite You to participate in, or grant You access to, certain beta services outside of the Core Services and Add-On Services (“Beta Services”). Such Beta Services will be clearly designated as beta services, or otherwise as a pilot, pre-production, non-production, or other similar service. You may decline any invitation to use Beta Services. Beta Services are provided for evaluation purposes only and may contain bugs and errors. We reserve the right to provide Beta Services subject to additional terms. For the avoidance of doubt, Beta Services are not “Services” for the purposes of these Terms and are provided “as-is” with no express or implied warranty whatsoever.

5. Delivery via Platform

Services will be delivered to You through the Platform unless indicated otherwise. Subject to continued compliance with these Terms (and any applicable Agreement), Oyster grants You a limited, non-transferable, non-sublicensable, non-exclusive, royalty-free license to access and use the Platform, solely in connection with Your receipt of the Services and the performance of Your obligations under these Terms.

2. Core Service - Team Member Service

6. Team Member Service

After You agree to be bound by the terms of a Service Agreement for the Team Member Service, and contingent on You satisfying Your obligations set out in this Section, You may access an Oyster Team Member to render certain consulting services to You, pursuant to the details set out in the Service Agreement and as may otherwise be agreed in writing by the Parties.

7. Oyster’s Team Member Service Obligations and Responsibilities

Oyster, one of its subsidiaries, or a third party service provider, as permitted under these Terms, is the Team Member’s employer and is solely and exclusively responsible for the employment and engagement of the Team Member and, without limitation:

1. (Pay) the payment of wages, salaries, bonuses and other employment-related earnings (howsoever described) in accordance with all applicable laws, rules and regulations, as well as the compliant processing of tax withholding, reporting, remittance and other requirements of a similar nature, where applicable and as required by law;

2. (Management Issues and Termination) handling and determining all matters relating to Management Issues, including any disciplinary actions, performance management and any and all matters and communications related to managing or terminating the Team Member’s employment;

3. (Intellectual Property) upon Your reasonable request, facilitating the execution of any appropriate confidentiality and intellectual property assignment documents with the Team Member to ensure that any Resulting IP is assigned or assignable to You;

4. (Documentation) determining the form and substance of documents governing the Team Member’s employment, including offer letters and employment contracts, which Oyster is solely responsible for sending and communicating. While Oyster may consult with You on such matters, Oyster remains exclusively responsible for the final form and decisions regarding such documentation; and

5. (Employment Claims) investigating, negotiating, and conducting the defense and settlement of any Employment Claims (in relation to which Oyster will also consult with You to the extent reasonably possible and permissible in the circumstances). For the avoidance of doubt, Your disagreement as to Oyster’s  manner or method of settling an Employment Claim does not relieve Your obligation to pay the Transition Costs.

8. Customer’s Team Member Service Obligations and Responsibilities

Notwithstanding that Oyster is solely and exclusively responsible for the employment and engagement of the Team Member and acts as the Team Member’s employer:

1. (Day-to-Day Operations) You must:

1. at all times treat the Team Member ethically, act lawfully toward the Team Member, and provide a safe work environment to the Team Member;

2. communicate with the Team Member on the day-to-day provision of their services to You in conjunction with the Team Member Service;

3. not require or direct the Team Member to take unlawful or unethical action (or inaction, as the case may be);

4. not take any action, or communicate in a manner suggesting that You will take action, to manage or terminate a Team Member’s employment, as such action is reserved exclusively for Oyster; and

5. require the Team Member to submit expenses for reimbursement to Oyster via the Platform, and not direct the Team Member to use any other  expense management tool or system without Oyster’s prior written consent, with You bearing all the risks and consequences of directing a Team Member to submit, or processing, expenses outside the Platform;

2. (Training) You may provide instruction to Team Members in relation to the following topics (“Training”):

6. Your policies in relation to data protection and privacy;

7. access to and appropriate and permitted use of Your network, IT assets, and any of Your other assets and resources;

8. Your policies or codes in relation to conduct, anti-bribery, and other similar policies solely to the extent such policies comply with applicable law and do not conflict with any Oyster training;

9. security, safety, and health policies and procedures; and

10. appropriate standards and delivery of the Team Member’s services.

You agree and acknowledge that Oyster is not responsible for the content of the Training and is not liable for any acts, failures, or omissions of Team Members or any other damage or loss occasioned in connection with the Training. Training does not include any instruction that is required to be provided by the employer of the Team Member due to any law or regulation. The Training does not affect Oyster’s status as employer of the Team Member as described in Section 2.2 (Oyster’s Team Member Service Obligations and Responsibilities). Oyster reserves the right to review and to require You to modify or stop the Training, or require Team Members to undertake additional or supplementary instruction;

3. (Management Issues) You must:

11. immediately and without delay, notify Oyster of any Management Issues relating to a Team Member which include (but are not limited to) their performance, conduct, misconduct, legal claim, incident, injury or their engagement by Oyster;

12. should any Management Issues arise, provide Your complete cooperation to Oyster and follow Oyster’s directions regarding the Team Member; and

13. upon Oyster’s request, cooperate and provide Oyster with any requested information, documentation, system or premises access (only to the extent reasonably necessary) and employees solely to the extent Oyster’s request relates to the investigation or resolution of any Management Issues;

4. (Team Member Role and Responsibilities) without limitation, You may only engage a Team Member to perform services as agreed in writing between the Parties at the time a Service Agreement is entered into or otherwise set out in a Service Agreement, and, therefore, You will immediately notify Oyster of the following matters in relation to a Team Member:

14. if You require or anticipate that a Team Member will need to travel in connection with the Team Member Service, You will notify Oyster of any such requirement before entering into a Service Agreement for the Team Member Service, where possible; and

15. if the Team Member’s work, role, location, or services materially change (or You anticipate such a change);
    

5. (Team Member Information) in addition to the matters set out in paragraph (4) above, You will, subject always to Section 10 (Termination) provide Oyster with 7 days’ advance written notice of any changes that You may request which affect the engagement of the Team Member, including but not limited to matters such as one-off payments, changes to the calculation of the Service Fee, working arrangements and modifications to Team Member information; and

6. (Cooperation) You must respond in a timely manner to communication from Oyster and provide full cooperation, including following any instructions given by Oyster as to Your contact, communication or other liaison with the Team Member in connection with any Management Issues, Employment Claims or termination of a Team Member’s employment.

9. Past Service
   
   If Team Member has, at any point in time before being engaged by Oyster, provided services to You in any capacity (“Past Service”):

1. You are solely responsible for any claim, obligation or amounts owed to the Team Member arising out of their Past Service; and

2. You represent and warrant that You have disclosed that Past Service to Oyster.

3. Core Service - Contractor Service

1. Contractor Service

Oyster provides You with access to the Platform in order to assist You with contracting with, managing the administration of, and effectuating payment to, Contractors. The Contractor Service allows:

1. You to:

1. review, dispute, approve and pay invoices issued to You by Contractors via the Platform;  

2. subject always to Section 12.6 (Forms and Templates), access template contractor or other agreements which You may use in order to engage with Contractors;

3. securely store and manage Your agreements with Contractors;

2. Contractors that You engage with to:

4. create and issue invoices to You; and

5. manage and update certain information or details as may be relevant to their relationship with You.

11. Limitations of Contractor Service

1. You acknowledge that under the Contractor Service Oyster acts in a limited capacity as payment agent for the Contractor. In connection with this, You agree and acknowledge that:

1. Oyster does not have or owe any fiduciary duties of any kind whatsoever in relation to the Contractor Service, whether to You or the Contractor; and

2. Oyster’s role as payment agent is solely mechanical and administrative in nature.

2. Apart from the provision of the Platform features referred to in Section 3.1 (Contractor Service), Oyster’s sole obligation under the Contractor Service is to receive payments owed by You to a Contractor and to remit those payments to the Contractor in the currency and via the method selected by the Contractor. Oyster cannot and will not remit payments to the Contractor until it has successfully received funds from You in a timely manner and assumes no responsibility for Your delay or failure to pay Contractors in these circumstances.

3. Oyster is not responsible for:

3. negotiating the terms of any engagement with a Contractor;

4. determining whether a Contractor is qualified, eligible, legally entitled, or otherwise suitable, to provide services to You under a contract;

5. any disputes between You and the Contractor, including where You or the Contractor choose to cancel a contract on the Platform; or

6. any other matter in relation to Your relationship with a Contractor, including (but not limited to) any service performance issues, compliance with laws, conduct, or any other acts, failures, or omissions.

4. Customer's General Obligations

        You must, at all times:

1. (Performance Assistance) provide Oyster with all timely and reasonable assistance required for Oyster to provide Services to You, including (but not limited to) timely responses to questions from Oyster and Your review and execution of certain documents (including benefits and registration documents). You agree and acknowledge that Oyster relies on Your assistance for such matters. As such, Oyster will have no liability for any errors, omissions, failures, or delays relating to the provision of Services if the liability relates to Your failure to assist in any manner;

2. (Sanctions and Trade Restrictions) without limiting the generality of paragraph (1), above, immediately and without delay notify Oyster of any matters that could affect Your Sanctions status or could mean You are the target of Sanctions (whether immediately or in the foreseeable future);

3. (Your Business) perform all duties not expressly the responsibility of Oyster under these Terms, including but not limited to compliance with Your own business and licensing obligations and any industry standards relevant to Your business;

4. (Government Contracts) promptly advise Oyster if You are or become an entity owned by a governmental, or quasi-governmental, body or who provides services pursuant to contracts with any government (or government-controlled entity) (a “Government Contracting Entity”). You agree and acknowledge that Oyster does not provide services to Government Contracting Entities and that Oyster may cease providing Services in the event You become, or have the appearance of being, a Government Contracting Entity; and

5. (Status of Business) promptly notify Oyster if You take, or consider that You will imminently take steps to file for bankruptcy, insolvency (or other such analogous process), appoint a receiver, administrator or liquidator (or have one appointed to You) or avail Yourself of any process relating to the legal compromise of creditor claims, or otherwise take steps to wind down Your business.

5. Fees, Payment and Invoicing

1. Fees - Team Member Service

Where Oyster provides the Team Member Service, You will pay Oyster the following Fees for provision of the Team Member Service. Each of the following Fees will be set out in a Service Agreement and invoiced accordingly:

1. (Subscription Fee - Team Member) the Subscription Fee, as consideration for Oyster providing access and license to the Platform and Team Member Service on a monthly basis. The Subscription Fee is fixed unless changed in accordance with these Terms;

2. (Service Fee) the Service Fee, which is determined by the Services provided and the monthly cost or rate of a Team Member, on a monthly basis. The Service Fee is not a fixed figure and is subject to change;

3. (Administrative Costs) the Administrative Costs, which include all of Oyster’s other costs associated with the employment, care, and administration of an engaged Team Member. Without limitation, Administrative Costs may include:

1. any periodic or regular taxes, foreign exchange fees, benefits, social welfare and other contributions, whether required by law or voluntarily provided; and

2. any one-off or non-periodic payments, awards, and Transition Costs (or other payments associated with conclusion of a Team Member’s employment or any Employment Claims).

Administrative Costs set out in a Service Agreement are estimates, are not fixed figures, and are subject to change; and

4. (Team Member Expenses) any expenses incurred by a Team Member in connection with the Team Member Service to provide services to You as submitted on Our Platform and previously approved by You. For the avoidance of doubt, this may include travel expenses of a Team Member, where required. The Team Member Expenses may accordingly change from month-to-month and are not fixed.

13. Fees - Contractor Service

Where Oyster provides the Contractor Service, You will pay Oyster the following Fees for the provision of the Contractor Service. These fees will be due and payable when You submit a Contractor on the Platform for the Contractor Service, or otherwise as set out in a Service Agreement, and will be invoiced accordingly:

1. (Subscription Fee - Contractor) the Subscription Fee, as consideration for Oyster providing access and license to the Platform and Contractor Service, on a monthly basis;

2. (Invoice Amount) the Invoice Amount, being the amount of any invoice issued by the Contractor on the Platform. The Invoice Amount may change from month-to-month. This Invoice Amount will include all amounts payable by You to the Contractor. Any expenses submitted for reimbursement by Contractor will be invoiced and payable by You to the Contractor once approved by You on the Platform; You may receive an off-cycle invoice for expense payments; and

3. (Administrative Costs) the Administrative Costs, which include (without limitation) all of Oyster’s other costs associated with the administration of the Contractor Service in relation to each Contractor. The Administrative Costs may change from month-to-month and are not fixed.

14. Fees - Add-On Services

Where Oyster provides Add-On Services, You agree to pay Fees on the basis set out in the relevant Service Agreement or Additional Document executed by You.

15. Deposits
    

In connection with any Services, Oyster requires:

1. before the commencement of any Services under a Service Agreement, an initial deposit, which will be notified to You and vary for each Service Agreement, subject to Oyster’s sole and exclusive discretion (but in no case less than an amount equal to one month of the Fees owed in respect of the Service Agreement); and

2. from time-to-time, a supplementary deposit (on 5 days written notice) in connection with:

1. any increased monthly costs, such as an increase in the monthly Service Fee, or anticipated costs, such as, anticipated Transition Costs;

2. any failure to direct debit Your account in accordance with these Terms;

3. any previous amount deposited having been applied, reduced, or exhausted in accordance with the Terms,

as determined by Oyster in its reasonable opinion

(each deposit described in paragraphs (1) and (2) above being a “Deposit”).

Oyster’s obligation to perform under these Terms or provide any Service is conditioned on, and contingent upon, Your timely payment of any required Deposit. Once paid, Oyster will have a security interest in the Deposit. Deposits will be held by Oyster for its own benefit until the date upon which there are no amounts owing from You to Oyster and may be applied by Oyster in connection with Section 10.5 (Effect of Terminating a Service Agreement) to pay for any Transition Costs in connection with the Team Member Service or amounts overdue and outstanding from You. To the extent not applied toward outstanding and overdue amounts, Deposits will be returned to You within 60 days of Oyster having received all amounts owing to it from You, or confirming that all amounts have been paid by You, whichever is later.

16. Invoicing - General

1. (Payment Terms) all of Oyster’s invoices are due and payable in accordance with their terms. If a date for payment is not listed on an invoice, You agree to pay all invoices  within 5 days of issuance via the Platform (or via email, as the case may be). Failure to pay invoices in accordance with their terms is a material breach of the Terms.

2. (Direct Debit) Direct debit is the default payment method. Where direct debit is supported, You authorize Oyster to withdraw all invoice amounts from Your bank account on and from the final day of payment for an invoice issued by Oyster. Where direct debit fails, Oyster may take steps to attempt further direct debits from Your account (without limiting Oyster’s other rights and remedies). Notwithstanding the foregoing, Oyster may agree to an alternative payment method with You. You acknowledge that alternative payment methods may carry additional administrative fees and costs, for which You will be responsible.

3. (Currency) Oyster may:

1. issue invoices in any currency, which will be as agreed and set out in the Service Agreement; and

2. apply an exchange rate and any fees as provided to Oyster by a currency exchange  if Oyster makes payment in connection with an invoice in a different currency than that received under the relevant invoice. The exchange rate will be set out in each monthly invoice. 

4. (Enablement of Payment) If paying via direct debit, You agree to:

3. do all such acts and things necessary or desirable to give effect to any direct debit payments, at Your own expense, including setting up necessary direct debit authorizations (including but not limited to ACH, BACS, PAD or SEPA direct debit methods);

4. provide complete, accurate and not-misleading information to Oyster in connection with any direct debit, including information provided via the Platform;

5. comply with all information requests, terms of service or other requirements of Your bank, financial institution or payment provider, to ensure that Oyster can access Your account for direct debit purposes at all times;

6. pay any and all fees, charges, taxes, demands, or other payments in connection with any direct debit and maintenance of Your bank accounts; and

 

7. ensure that there are sufficient clear funds available for Oyster to make direct debit payments accordingly.

5. (Change of Information) You may change any payment information by updating the details directly in the Platform. All changes to such information will be effective 7 days from the date the changes are made in the Platform. To the extent that any such changes cause or contribute to failure or delay in payment or funding, Oyster may charge You an administration fee.

17. Invoicing - Methodology

Without limiting the invoices that Oyster may issue to You, Oyster may issue the following monthly invoices in respect of the Services for in a calendar month:

1. (Pre-Funding Invoice) on or after the 11th day of the calendar month, a non-disputable preliminary invoice which will include:

1. any Service Fee (in respect of any Team Member Service) and Invoice Amount (in respect of any Contractor Service); and

2. the amount of estimated Administrative Costs for that calendar month;

2. (Settlement Invoice) in the first week of the following calendar month, a disputable settlement invoice, towards which any amount paid under the corresponding Pre-Funding Invoice will be credited, which will include confirmed final amounts for:

3. any Subscription Fee;

4. the Service Fee and/or Invoice Amount;

5. the finalized Administrative Costs; and

6. any Team Member Expenses (to the extent applicable).

To the extent the amount paid for any Pre-Funding Invoice exceeds the corresponding Settlement Invoice, Oyster will automatically apply a credit to a future invoice; and

3. (Off-Cycle Invoice) at any time, a supplementary or other invoice to take account of any items not captured in other invoices, including Transition Costs, certain Add-On Services or any other expenses or items, including (but not limited to) off-cycle payments and other one-off charges.

18. Disputes and Non-Payment

1. (Invoice Disputes) You agree that:

1. only Settlement Invoices may be disputed;

2. to dispute a Settlement Invoice, You must notify Oyster within 5 days of receiving that Settlement Invoice, providing details of the charges disputed and detailed reasons for the dispute. Any dispute without these details will not be considered a valid dispute; and
3. Your failure to dispute a Settlement Invoice in accordance with sub-paragraph (b) deems the relevant Settlement Invoice to be approved by You.

Where a Settlement Invoice has been validly disputed, the Parties will negotiate in good faith and cooperate diligently and promptly to resolve the charges disputed in the relevant Settlement Invoice and come to a final and binding agreement. If You dispute an amount and it is deemed that You were charged in error, the disputed amount will be credited from a future invoice.

The dispute of any part of an invoice does not relieve Your payment obligation of the undisputed amounts.

2. (Late Fees) where an invoice becomes 3 or more days overdue (and where applicable, any direct debit payments have failed), then without limiting Oyster’s rights or remedies, Oyster will charge interest on overdue amounts at the lesser of:

4. a rate of 1.5% of the overdue amount per day; and

5. the maximum rate allowable under applicable law,

and such amounts will compound monthly (or at the maximum compounding rate allowable at law, if the maximum allowable rate is lesser).

3. (Non-Payment) if:

6. You fail to pay any invoices, Oyster may use any method that it deems appropriate to collect any unpaid amounts and may charge You for any and all amounts reasonably incurred in connection with collecting or recovering any unpaid amounts from You;

7. You fail to dispute the amounts in accordance with these Terms, the amounts will be due and payable with You waiving any and all defenses You have, or may have, in a forum of competent jurisdiction when Oyster seeks to enforce its rights under these Terms to collect the undisputed, unpaid amount; and

8. You file for bankruptcy, insolvency (or other such analogous process) during the term of the Agreement, or are otherwise in arrears, You will take all steps to the extent allowable at law, to designate Oyster as a preferred or priority creditor with a degree of preference or priority equivalent to that of Your employees, including by listing Oyster on Your list of preferred vendors or creditors and/or designating Oyster as a priority creditor.

19. Taxes

1. Oyster’s fees do not include any taxes, levies, duties or governmental assessments of any nature, including but not limited to value-added, goods-and-services, sales, use or withholding taxes, assessable by any local, state, provincial, federal or any jurisdiction of any nature (collectively, “Taxes”) assessed against You arising out of Your engagement of the Services through the Platform. Any such Taxes are Your responsibility to be paid in connection with Your use of Oyster’s Services and Platform. However, in the event that Oyster incurs Taxes, such as a value added tax, in the course of provisioning the Services to You, such Taxes are payable by You and will be billed as Administrative Costs, along with any Taxes that Oyster is legally required to pay, collect or withhold in the provisioning of Services, including but not limited to Oyster’s employment of a Team Member.

2. Notwithstanding paragraph (1) above, Oyster will pay any taxes assessable against Oyster which are based solely on Oyster’s own business and operations.

6. Intellectual Property

20. Your IP Rights and Your Ownership of Resulting IP

Oyster understands the importance of Your Intellectual Property and agrees that You own all right, title, and interest in and to Your Intellectual Property. The Parties agree that all Works created by Team Members or Contractors (a) at Your request, or (b) within the scope of and during the term of the Team Member’s placement with You (the “Resulting IP”), and all rights in and to such Resulting IP (the “Resulting IP Rights”), should be owned exclusively by You to the fullest extent allowed under applicable law.

21. Transfer and Assignment of Resulting IP Rights

To the extent that Oyster (by contract or operation of law) has or receives any Resulting IP Rights, Oyster hereby permanently and irrevocably transfers and assigns to You all such Resulting IP Rights. Such Resulting IP Rights are transferred and/or assigned to You in full, from the moment of creation. Oyster’s assignment, transfer, and conveyance to You is without any representations or warranties of any kind.

If any Oyster third party service provider has or receives any Resulting IP Rights, Oyster will ensure that the third party service provider enters into a written agreement with Oyster that validly assigns to Oyster all such Resulting IP Rights. Any Resulting IP Rights assigned to Oyster in this manner are immediately assigned and transferred to You as provided above.

22. Further Assurances

Oyster will do everything in its power to assist You, at Your expense, to evidence, record, and perfect any assignments of Resulting IP Rights, and to perfect, obtain, maintain, enforce, and defend any Resulting IP Rights owned by or assigned to You.

23. Limited License

Oyster may provide You with Services that require a Team Member to use Your Intellectual Property. To facilitate this use, You hereby grant Oyster a worldwide, non-exclusive, perpetual, non-transferable and non-sublicensable (except in connection with the permitted assignment of this Agreement), and royalty-free license to use Your Intellectual Property solely for the purpose of providing Services to You in accordance with these Terms and any applicable Service Agreement.

24. Use of non-Oyster IP Agreements

To facilitate the transfers and assignments set forth above, Oyster offers template Confidentiality and Intellectual Property Agreements that You may use to directly procure a Team Member’s or a Contractor’s contractual commitment to keep Your proprietary information confidential and to secure Your ownership of Resulting IP Rights (“CIPA Template”).

You may choose to enter into Your own intellectual property assignment agreement directly with any Team Member or Contractor. If You choose to use Your own agreement instead of Oyster’s CIPA Template, any such agreement must be directly between You and the Team Member or Contractor. Oyster will not be a party to any such agreement. Further, Oyster cannot (and will not) review or approve the legality or enforceability of any such agreement. Likewise, Oyster cannot (and does not) represent or warrant that the terms of Your own agreement are sufficient to protect Your ownership of any Resulting IP or related IP Rights under applicable law.

25. Feedback

You may choose to give Oyster any suggestions, comments or feedback in relation to the Services, Platform and how they may be upgraded, enhanced, or otherwise improved (“Feedback”). In providing Feedback, You agree and acknowledge that Oyster has full right and title to any such Feedback and may use, incorporate, develop upon, and otherwise exploit any Feedback You provide to Oyster in connection with the Platform and Services without reference to You.

7. Confidentiality

26. Introduction

Each Party may disclose Confidential Information to the other, such as trade secrets, proprietary and employee information, and pricing terms. Except as agreed or required by law, the Parties will hold in confidence and not disclose such Confidential Information to anyone other than their employees, agents, contractors, or insurance entities only if the receiving party has agreed to preserve the confidentiality of any disclosed Confidential Information.

27. Definition of Confidential Information

1. “Confidential Information” includes all non-public documents and information that have or could have commercial value. Examples include customer lists, prices and how they are set, intellectual property, moral rights, employee information, business plans, and/or new ideas and methods for doing business. Information is not confidential if it is already known on a non-confidential basis by the receiving party, publicly known, readily available to the public via a lawful publication, developed independently without reference to the Confidential Information, or if the Parties specifically allow its disclosure in a written release.

2. If Confidential Information becomes public because of either Party’s violation of these Terms, it is still deemed Confidential Information and still protected as such by the Terms.

28. Mutual Obligations

The Parties will keep Confidential Information confidential. The Parties agree to exercise reasonable care to protect the confidentiality of Confidential Information and in any case no less than the same level of care that the Party would use to protect its own Confidential Information. The Parties will not disclose Confidential Information to any third party, except as required to perform their obligations set out in the Terms and in that instance, only on the basis that the disclosing party remains fully responsible for any unauthorized disclosure and that the third party agrees to confidentiality terms that are at least as restrictive as specified under these Terms. The Parties will not:

1. use Confidential Information:

1. in competition with each other; or

2. in any way that harms the other Party.

2. share Confidential Information with competitors (including Direct Competitors), or use the other Party’s Confidential Information for their 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 the Terms.

29. Disclosure of Confidential Information

1. The Parties will:

1. notify each other immediately of any unauthorized access, disclosure, loss, or misuse of Confidential Information, or other potential breaches of this section;

2. use best efforts to contain and remedy any such unauthorized access, disclosure, loss, or misuse with time being of the essence; and

3. fully cooperate with each other in any effort to enforce rights related to an unauthorized disclosure.

2. A Party may be required by law, court order, regulatory inquiry, or subpoena to disclose Confidential Information (“Compelled Disclosure”). If either Party receives notice of a Compelled Disclosure, the receiving party will provide the other Party prompt notice and will provide reasonable assistance if the decision is made to contest the Compelled Disclosure to the fullest extent allowed under applicable law.

30. Term

These confidentiality and non-disclosure obligations will continue for three years after termination of Your last engagement on the Platform. Upon request, each Party will return all documents in their respective possession, custody, or control which contain Confidential Information or provide certification that all copies (electronic or hardcopy) have been destroyed (to the extent technically practicable). If documents or data are subject to longer, legal retention requirements, either Party may retain Confidential Information for as long as required by the relevant law, thereafter returning or destroying it.

8. Compliance

31. Data Privacy and Processing

Oyster agrees that it will comply with application data protection laws and regulations when providing the Services and access to the Platform, including but not limited to the The EU General Data Protection Regulation (EU-GDPR); The UK General Data Protection Regulation (UK-GDPR); Lei Geral de Proteção de Dados Pessoais (LGPD); The Personal Information Protection and Electronic Documents Act (PIPEDA); The California Consumer Privacy Act (CCPA); and The California Privacy Rights Act (CPRA). Nevertheless, each Party is solely responsible for its compliance with applicable data protection laws and for fulfilling all of its related obligations to third parties, including data subjects (e.g. Team Members) and supervisory authorities.

As such, You agree that you will comply with all data protection laws applicable to Your use of the Services and the Platform, including but not limited to Your use of any Third-Party Integrations. Additional details and provisions regarding the processing of personal data are included in Oyster’s Privacy Policy and Data Processing Addendum (“DPA”), which are incorporated herein. In the event of any conflict between these Terms and the Privacy Policy or the DPA, the Privacy Policy and the DPA control.

32. Anti-Corruption

Each Party will comply with applicable anti-corruption and anti-bribery laws, howsoever described, including (but not limited to) the US Foreign Corrupt Practices Act, the UK Bribery Act, the Singapore Prevention of Corruption Act, the Mexico General Law on the National Anti-Corruption System, and the Canadian Corruption of Foreign Officials Act.

33. Sanctions

You acknowledge that Oyster is required to comply with sanctions imposed by certain governing bodies, including but not limited to those imposed by the US Department of Treasury, the US Office of Foreign Assets Control and the Council of the European Union (“Sanctions’) and other equivalent bodies. You agree and acknowledge that:

1. You will fully, and without delay, comply with any request relating to sanctions and Oyster’s compliance with them, including requests for information or documentation in relation to any such matter; and

2. Oyster may deny service, terminate any Agreement, or take any other step it deems appropriate to comply with any Sanctions imposed, or threatened to be imposed, and will not be liable for any actions taken by it (or any results thereof) to ensure compliance with any Sanctions.
   

1. Delegation

1. Oyster may assign its rights and/or delegate its obligations under these Terms and any Service Agreement to a related party or a third party service provider of its choosing, on the basis that Oyster is responsible for the provision of Services by any such party and is not relieved of its obligations to You under these Terms by reason of delegation or assignment of rights or obligations to the third party service provider.

2. Oyster may in its sole and exclusive discretion replace any third party service provider and will provide You with written notice of such replacement. If You object to Oyster’s substitution of a third party service provider, Your sole remedy is the termination of any relevant Service Agreements with Oyster in accordance with these Terms.

2. Third Party Integrations

Through the Oyster Platform, and for the purpose of providing the Services, Oyster may provide You with access to certain Third-Party Integrations that allow You to transfer data to or from the Oyster Platform, including but not necessarily limited to Team Member data. You agree that Oyster bears no responsibility or liability in relation to any Third Party Integrations, including any unavailability of a related third-party system or service or any mistakes, damages, losses, or other liability arising out of Your use of a Third Party Integration, irrespective of the circumstances. Further, by using any Third-Party Integration, You represent and warrant that You have all appropriate authority or consent that may be necessary under applicable law, including any law governing the processing of Team Member data, to transfer such data between the Oyster Platform and the third-party system or services through the Third Party Integration.

9. Changes

3. Compliance Changes

The laws governing:

1. Oyster’s Services, including those relating to consulting services, and the legal frameworks which may affect operation of the Platform; and

2. the employment of Team Members, as well as union or collective bargaining agreements and other regulations affecting a Team Member’s employment,

may change from time to time and are beyond the control of the Parties. You agree that changes of this nature may necessitate changes to the Terms, the Agreement or the costs of Services and, in such an event, Oyster may make any such changes as required to comply with any such laws (of which notice will be given to You) which will have immediate effect.

 

4. Changes Generally

Oyster may change the Subscription Fees, products, Services offered and the manner in which they are delivered, from time to time, without compromising the quality of Services provided. Oyster may change the Terms or the Agreement at any time in order to facilitate such changes.

5. Effect of Change

If Oyster changes the Agreement:

1. pursuant to Section 9.1 (Compliance Changes), then You will be provided with notice of the changes as soon as reasonably possible, which will take effect immediately; and

2. other than as referred to in paragraph (1), above, Oyster will notify You that material changes have been made to the Agreement (or any part of it, as the case may be) and any such changes will become effective no earlier than 30 days after the date upon which notice is provided to You.

Your continued use of the Platform and any Services after 30 days will constitute Your acceptance of any changes to the Agreement. If You do not agree to any such changes, You may not use or access the Platform or Services, and We may take any and all steps necessary to terminate the Services in a lawful manner. You will be responsible for all resulting costs of terminating Your access to the Platform and Services.

10. Termination

6. Termination for Convenience

Subject to Section 10.5 (Effect of Terminating a Service Agreement), both You and Oyster may terminate the Agreement (or any Service Agreement) at any time, for any reason or no reason at all, on 30 days written notice.

7. Termination for Breach

Without affecting any right that a Party may have to cancel or suspend the whole or any part of the Agreement or any obligations that the Party may have (including those set out at Section 10.4 (Cancellation of Services or Suspension of Access to the Platform) below:

1. (Termination by Customer) You may terminate the Agreement (or any Service Agreement) by written notice if Oyster is in breach of any term of this Agreement, and Oyster fails to cure the breach after You have provided Oyster with written notice of the breach and no less than 10 days within which to cure the breach with such termination proceeding in accordance with Section 10.5;

2. (Termination by Oyster) Oyster may terminate the Agreement (or any Service Agreement) by written notice if You are in breach of:

1. any:

1. obligation as to payment; or

2. matter under Section 2 (Core Service - Team Member Service) or Section 4 (Customer’s General Obligations)

and fail to cure that breach after You have been provided with written notice of the breach and no less than 5 days within which to cure the breach; and

2. a term of the Agreement other than as referred to in sub-paragraph (a) above and fail to cure that breach after You have been provided with written notice of the breach and no less than 10 days within which to cure the breach.

3. (Termination for Insolvency / Bankruptcy) a Party may immediately terminate the Agreement by written notice if any Party becomes insolvent, bankrupt, makes a general assignment for the benefit of creditors, is subject to administration or the appointment of a receiver or other professional liquidator for its business or assets, or otherwise avails itself of (or is subject to) any process or proceeding relating to bankruptcy, insolvency or the protection of creditors with such termination proceeding in accordance with Section 10.5.

8. Continuing Obligations

Notwithstanding the issuance of any notice of breach by You to Oyster under this Section, You agree that You will continue performing all of Your obligations under the Agreement. No Party’s breach will relieve another Party’s obligation to continue performing their obligations under the Agreement, including paying any invoices or other amounts due and payable. The Parties’ sole and exclusive remedies are those set out in these Terms.  

9. Cancellation of Services or Suspension of Access to the Platform

In addition to any other provision of the Terms, Oyster may cancel any Services with notice and subject to the cure period, or without notice, suspend Your access to the Platform if:

1. Oyster determines in good faith that:

1. You have materially breached or threatened to materially breach any of Your obligations in a manner that is impossible to cure;

2. Your use of the Services or Platform is for an unlawful purpose;

3. Your use of the Services or Platform threatens the security, integrity, or availability of the Services or Platform;

4. You have failed to make any payments required under an Agreement;

5. You have ceased to use the Services or the Platform; or

6. any representation or warranty made by You, or information You have provided Oyster is untrue, inaccurate, or incomplete; or

2. Oyster is directed to by law enforcement or other regulatory authority, or in connection with any investigation.

10. Effect of Terminating a Service Agreement

1. (Termination Process) In the event that:

1. notice of termination is given for an individual Service Agreement for the Team Member Service in accordance with the Terms; or

2. a Team Member provides notice of termination of their employment or otherwise ceases to provide services pursuant to the Team Member Service,

then:

3. within 30 days of such notice or occurrence, and so long as Oyster does not have another available role for the Team Member, Oyster will commence the process of terminating the employment of the relevant Team Member and will do so in accordance with the laws applicable to Oyster’s employment of the Team Member;

4. Oyster will consult with You, but Oyster will determine in its sole discretion (but in utmost good faith) the method, manner, and timing of the termination of employment of the Team Member in accordance with all applicable laws and regulations (including without limitation, by written agreement with the Team Member);

5. You will fully cooperate with Oyster and follow all of Oyster’s instructions as to the termination of the Team Member, and each Party will continue to perform their respective obligations under Sections 2.2 (Oyster’s Team Member Service Obligations and Responsibilities) and 2.3 (Customer’s Team Member Service Obligations and Responsibilities);

 

6. Oyster will continue employing the Team Member, the Team Member Service will continue to be provided, and the underlying Service Agreement will continue until the Team Member’s employment is lawfully terminated by Oyster (at which time the relevant Service Agreement will terminate), which may extend beyond the 30-day period within which You provided notice to terminate a Service Agreement beginning the process of Oyster separating a Team Member from their employment in accordance with applicable law; and

7. You will remain responsible and will be invoiced for all Fees, inclusive of any Transition Costs, as set out in Section 5 (Fees, Payment and Invoicing) associated with the Team Member Service incurred after notice of termination is provided until the date the relevant Service Agreement actually terminates.
   

2. (Transition Costs) if a Team Member ceases to provide services to You for any reason (whether at Your request, the Team Member’s request, or due to other termination of the engagement of the Team Member or a Service Agreement for the Team Member Service), You will pay all Transition Costs in connection with that Team Member. Oyster will invoice You for those Transition Costs in accordance with Section 5 (Fees, Payment and Invoicing), unless such Transition Costs arise solely out of Oyster’s fraudulent or grossly negligent conduct.

11. Representation and Warranties

11. Mutual Representation and Warranty

Each Party represents and warrants that:

1. it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization;

2. the execution and performance of the Terms will not conflict with, or breach, any other agreement binding the Parties, any order, judgment, decree, or other applicable restriction; and

3. the Terms will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

12. Oyster Representation and Warranty

Oyster represents and warrants that:

1. the Services, including the provision of contracts, will be performed and operate in all respects in accordance with the Terms and with all applicable laws;

2. applicable insurance policies insuring the risks of operating the Platform and employing Team Members as determined by Oyster in its discretion will be obtained and maintained with premiums timely paid, and that upon Your reasonable request, redacted copies of available policies will be provided; and

3. the Services will be performed in a professional and workmanlike manner at a standard comparable with others in the industry.

13. Customer Representations and Warranties

You represent and warrant on an ongoing basis that in accessing the Platform and using Oyster’s Services, You:

1. will provide Oyster with accurate information and access reasonably required or requested by Oyster and that You will upload all information related to Your performance under this Agreement on the Platform.  For the avoidance of doubt, such information includes, but is not limited to, information related to any changes to the Service Fee owed to the Team Member; any information related to the amount of time a Team Member is rendering services to You; and any other information related to Oyster’s calculation of Administrative Costs, inclusive of any Transition Costs, under these Terms.

2. will comply with all laws applicable to You;

3. will comply with laws related to Your engagement of a Team Member via the Platform or any other laws related to Oyster’s provision of Services to You;

4. will comply with the Terms;

5. will not involve a Team Member or Contractor in any illegal activity;

6. will not engage or propose for engagement any Team Member via the Platform in the same country or state where You, or a related company, have an incorporated presence with ongoing economic activity;

7. are not prohibited from receiving or using the Services and Platform by the laws of any jurisdiction;

8. are not the target of any Sanctions and are not engaged in any sanctioned activities, including but not limited to having an executive-level person or owner of Your company listed as a “Specially Designated National” by the Office of Foreign Assets Control or other similar entity;

9. will not pay for Services via government funds or engage Oyster in a role requiring Oyster to be a licensed or registered government subcontractor, included in any list of government subcontractors or vendors, or otherwise subject to any obligations specific to government contractors, subcontractors, or vendors in any country; and

10. will obtain any additional insurance, upon Oyster’s reasonable request, and ensure such insurance remains in force and effect, to insure any particular or specialized risks based on Your use of the Platform and Services.

14. Trade Sanctions and Export Control Compliance

Your use of the Services and Platform are subject to laws, restrictions, and regulations of the United States and other jurisdictions that: (a) govern the import, export, and use of the Services and Platform; and (b) may prohibit Oyster from providing the Services and Platform to You without notice. By using the Services and Platform, You warrant that You will comply with all such laws, restrictions, and regulations.

12. Disclaimers

15. Disclaimer of Warranties
    

EXCEPT AS OTHERWISE EXPRESSLY STATED IN THESE TERMS, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES, THE PLATFORM, WEBSITES, CONTENT, AND ANY WORK UNDERTAKEN BY TEAM MEMBERS 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 SERVICES, THE PLATFORM, WEBSITE, OYSTER CONTENT, OR ANY WORK UNDERTAKEN BY TEAM MEMBERS 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.

16. No Professional Advice

You agree, acknowledge, and understand that Oyster is not a law firm, accountancy firm, or other professional advisory firm (or lawyer, accountant, tax or professional advisor) and accordingly does not provide any legal, financial, accounting, tax, compliance, or other professional advice. Information provided by Oyster in the course of the Services (including any template documents) is intended for general use only. Any information provided by Oyster is not a substitute for the advice or services of a legal, accounting, tax, or other professional advisor and You acknowledge that You are responsible for seeking independent professional advice before making any decisions or taking any actions with respect to Your business including Your use of the Platform. Ultimately, You are solely responsible for any actions taken by You on the basis of any information provided by Oyster.

17. Access to Platform and Services

Oyster’s Platform (and its Services):

1. may only be accessed by individuals who are legally permitted to do so and who are over the age of 18. You agree that You will not authorize or provide access to the Platform to any individual who does not meet these conditions and You are responsible for ensuring this. To the extent this inadvertently occurs, You agree to immediately notify Oyster of any such unauthorized access; and

 

2. may not be accessed:

1. by You in the event that You are Controlled by any Direct Competitor of Oyster, except with Oyster’s prior written consent;

2. for the purposes of monitoring availability, performance, functionality, benchmarking, or other intelligence or information gathering, or other competitive purpose; and

3. for the purpose of damaging or negatively impacting the Platform and/or Services, or for any fraudulent, illegal, deceptive or other dishonest purpose (as reasonably determined by Oyster); and

3. may not be re-sold, rented, sublicensed, or leased without Oyster’s prior written consent.

18. Employment Relationship

You acknowledge that:

1. when using the Team Member Service, all Team Members are employed by Oyster (or  Our subsidiary or third party service provider);

2. when using the Contractor Service, all Contractors are engaged by You directly in a professional services or contractor relationship, and Oyster has no control over Contractors or any employment relationship with them; and

3. Oyster is not liable for any damages or other consequences if any government agency, regulator, judicial, or other body deems or determines that You are the employer or co-employer of a Team Member or Contractor.

19. Permanent Establishment

You agree and acknowledge that whether You are deemed to be transacting business or have a permanent establishment or taxable presence (“Permanent Establishment”) in a jurisdiction where Oyster provides Services or Team Members to provide services to You is a function of the totality of Your corporate or business activities.

You agree and acknowledge that, in combination with other factors, the provision of services by Team Members can increase the likelihood of a Permanent Establishment finding. You also agree and acknowledge that You retain all responsibility for Your activities, globally, including (but not limited to) Your corporate structure, tax matters, hiring decisions, issuance of any stock, equity or benefits, and projects and assignments (including those provided to Team Members or Contractors), each of which can contribute to a finding of Permanent Establishment. You agree that You will be solely responsible for the results or consequences of any Team Member or other such activities and of any determination in relation to a Permanent Establishment, to the exclusion of Oyster.

20. Forms and Templates

As part of the Core Services, Oyster may also make available certain sample agreements, policies or other documents for Your use or review (“Forms”), or permit You to customize those Forms or use Your own documents. If permitted and You modify the Forms or Your own documents are used, such use is at Your own risk and You will hold Oyster harmless and indemnify Oyster from any claims arising out of the use of Your documents or any modified Forms.

21. Artificial Intelligence

Oyster may incorporate artificial intelligence (“AI Systems”) and other advanced technologies into Our product offerings, striving to deliver the best user experience possible. These systems have a lot of potential, but they are still developing and are not without their complexities.

Like any technology, AI Systems and related Third-Party Integrations may not always function as intended. While Oyster works diligently to maintain the highest standards of performance, there may be times when these systems encounter glitches or performance issues. As such, You agree that Oyster cannot be held liable for any errors, complications, or other undesirable outcomes resulting from the use of AI Systems or any related Third-Party Integrations, whether or not incorporated into the Services or Your use of the Platform. This includes any issues that may arise from system malfunctions, unexpected behavior of AI, or failure of related Third-Party Integrations to perform as intended.

Further, You acknowledge that any use of AI involves inherent risks, such as bias risk, security risk, privacy risk, lack of transparency, misleading messaging, improper use by end users, and unpredictable system behavior. Oyster’s use of data is set forth in the applicable Privacy Notices, available on Our Trust Center. Oyster takes all reasonable precautions to mitigate other risks through internal policies and procedures and compliance with applicable law. Nevertheless, Oyster cannot provide a guarantee that nothing will go wrong. As such, by using any of Oyster’s AI-related services, if and when available, You acknowledge and accept these risks and agree not to hold Oyster responsible for any related issues.

13. Indemnification

22. Indemnification by Customer

You will indemnify, defend and hold Oyster, its officers, directors, employees, agents, and lawful assigns harmless from and against any and all third-party claims, demands, suits, proceedings, or causes of actions (together, “Claims”) and any connected or related damages, liabilities, payments, costs and expenses, including reasonable attorneys’ fees (together, “Liabilities”) arising out of or relating to any of the following matters:

1. (Breach) Your breach of any obligation, warranty, representation, or agreement under the Agreement;

2. (Gross negligence, wilful misconduct and fraud) Your fraud, gross negligence or wilful misconduct in relation to the performance of the Agreement;

3. (Past Services) Your pre-existing relationship with, or Past Services provided by, the Team Member;

4. (Restraints) any attempts by a Team Member’s former employer to enforce any non-compete or restrictive covenant;

5. (Employment) any employment, termination of employment, or classification of Team Members or Contractors, unless caused by Oyster’s fraud, gross negligence, or wilful misconduct;
   
6. (Permanent Establishment) Your permanent establishment or any tax-related liability in a country where Oyster provides Services to You;
   
7. (Data Processing) any data processing that You may undertake, including but not limited to the transfer of any data through use of a Third Party Integration; and

8. (Intellectual Property) Your use of an IP assignment agreement other than the unmodified CIPA Template, as referred to in Section 6.5 (Use of non-Oyster IP Agreements).  

23. Indemnification by Oyster

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 connected or related Liabilities arising out of any of the following matters:

1. (Breach) Oyster’s breach of any obligation, warranty, representation, or agreement under the Agreement;

2. (Gross negligence, wilful misconduct and fraud) Oyster’s fraud, gross negligence or wilful misconduct in relation to the performance of the Agreement;

3. (Employment) any employment, termination of employment, or classification of Team Members or Contractors only if caused by Oyster’s fraud, gross negligence or wilful misconduct;

4. (Data Processing) any data processing that Oyster may undertake, provided however, that any data processing performed by Oyster at Your direction is subject to the terms of the DPA.  

24. Indemnification Process

A Party claiming indemnification under this Section must promptly provide written notice to the other Party of the relevant Claim. The Party claiming indemnification agrees to:

1. cooperate with the other Party, including by providing necessary information and assistance as requested in support of any efforts to respond to and defend any Claim (at cost to the indemnifying Party); and

2. allow the indemnifying Party to have exclusive control over the defense and settlement of any Claim, provided that the indemnifying Party may not settle a Claim without the written consent of the Party seeking indemnification (such consent not to be unreasonably withheld), if any settlement or defense would impose a payment, admission of fault or wrongdoing, or other obligation on that Party, or if any settlement is not deemed to be confidential.

14. Duty to Mitigate Losses

Each Party will take reasonable steps, including all steps required under applicable law, to mitigate any loss it may suffer or incur as a result of an event that may give rise to a Claim under these Terms, whether by way of a third-party claim triggering an indemnity obligation or a first party claim arising out of a breach of the Agreement.

15. Limitation of Liability

25. Damages Excluded

TO THE EXTENT PERMITTED BY LAW, NO PARTY WILL BE LIABLE TO THE OTHER IN RESPECT OF ANY CLAIM ARISING OUT OF THE SERVICES (NO MATTER HOW SUCH CLAIM ARISES) FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) ANY ERROR OR SERVICE INTERRUPTION, OR INABILITY TO ACCESS THE DEVELOPER PORTAL OR USE THE DEVELOPER TOOLS; (C) THE COST OF OBTAINING REPLACEMENT OR SUBSTITUTE SERVICES OR GOODS; (D) ANY DAMAGES RELATED TO LOSS OR CORRUPTION OF ANY FORM OR DATA OR CONTENT, HOWSOEVER DESCRIBED; OR (E) ANY LOSS OF PROFITS, REVENUE, GOODWILL, OR OTHER LOSSES OF A SIMILAR INTANGIBLE NATURE. THESE LIMITATIONS OF LIABILITY APPLY IRRESPECTIVE OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND REGARDLESS OF THE CAUSE OF ACTION.

26. Limitation of Liability

You agree not to hold any Oyster employee, officer, director, agent, or lawful assign, including Team Member, personally liable for Oyster’s obligations under the Agreement. To the extent permitted by law, 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 these Terms; (ii) the indemnity obligations outlined herein (which are subject to the separate indemnity liability limited below) and; (iii) 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 Service Agreement exceed the lesser of $100,000 USD or 12 times the Subscription Fee and Service Fee for the relevant Team Member(s) or 12 times the Subscription Fee for the relevant Contractor(s), as the case may be, for the month immediately preceding the action giving rise to the liability. For the avoidance of doubt, nothing in Section 15.2 is intended to, or shall prevent Oyster, from recovering the full balance due under any unpaid invoices, such as a Settlement Invoice, Off-Cycle Invoice, or any other invoice pursuant to which You owe Oyster funds under these Terms.

Each Party’s aggregate liability for any indemnification Claims arising under the Terms will not exceed $1,000,000 USD.

16. Dispute Resolution

27. Dispute Resolution

1. The Parties agree that they will attempt to resolve any disputed matters between themselves in good faith. If any such attempts to resolve a dispute between the Parties as to the Agreement, Services, or Platform are unsuccessful, You agree:

6. any dispute, claim or controversy arising out of or relating to this Agreement, Services, or Platform, or arising hereunder, including but not limited to breach, termination, enforcement, or validity thereof, shall be governed by and construed in accordance with, the substantive law of the State of New York;
7. to irrevocably submit to the sole and exclusive jurisdiction of the courts of New York State and the Federal courts of the Southern District of New York, situated in the City, County and State of New York;
8. to irrevocably consent to the exercise of personal jurisdiction by such courts and waive any right to plead, claim or allege that New York is an inconvenient forum, venue, or jurisdiction; and
9. to irrevocably consent that the Commercial Division, New York State Supreme Court’s accelerated procedures will apply. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

2. No damages may be awarded in excess of the limitations of liability specified in these Terms. Judgment, including equitable relief, may be entered by any court having jurisdiction thereof. The judge will have the power to enforce, to the fullest extent allowed under the law, including any default judgment entered against You arising out of Your non-payment of invoices.

3. Where an invoice is due and payable under the Terms but has not been disputed in accordance with these Terms, the amount is deemed due and payable and You waive any right to dispute that amount. You further agree that Oyster may in those circumstances take any steps it determines necessary to recover those undisputed amounts, including using a collections agency or entering a judgment against You establishing any undisputed and unpaid amount and including all late fees and costs incurred by Oyster in relation to the undisputed and unpaid amounts (including their recovery).

3. Waiver of Service: THE PARTIES STIPULATE AND AGREE TO WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS ISSUED IN ANY ACTION UNDER THESE TERMS. Specifically, the Parties stipulate and agree that for any litigation arising out of or in any way relating to these Terms, to waive compliance with all rules, regulations, statutes, laws, or other requirements relating to service of process, including, without limitation, all state and federal rules of civil procedure and all requirements of the Hague Convention. As a result of such waiver, a Party initiating a legal action under these Terms is not required to follow or comply with any service of process rules, regulations, statutes, laws, or other requirements. Instead, the Parties agree that service of process will be fully, properly, and lawfully effectuated if a Party sends the legal filing (e.g., summons, complaint, or petition) to the opposing Party as follows:

6. Service on Oyster: Customer Company will (1) send an electronic copy to legal@oysterhr.com and (2) mail a hard copy to Legal Department, Oyster HR, Inc. at 307 W. Tremont Avenue, Suite 200, Charlotte, NC 28203 USA.
7. Service on You: Oyster will send (1) a hard copy via United States Mail, Federal Express, United Parcel Service, DHL or other recognized overnight carrier to Customer Company at the address listed on the most recently executed Service Agreement; and (2) an electronic copy to the email address listed on the most recently executed Service Agreement. If, for any reason, an address or email address is not listed on the most recent Service Agreement, then Oyster can effectuate service by sending a hard copy to the Customer Company’s last known mailing address and an email to the person who executed the most recent Service Agreement using that person’s last known email address.
8. A summons, arbitration demand, complaint, or other process shall be deemed served as of the date it was sent via email.
9. If You want to change the mailing address or email address where it receives service of process, You must do so in writing via email to legal@oysterhr.com. The Parties stipulate, acknowledge, and agree that they bear the burden of providing written notice of any change of street address or email address and the failure to do so may result in them not receiving timely or any notice of an action under these Terms.

28. Injunctive Relief

If You or others’ access to or use of the Services or Platform are in violation of the Terms, You agree that Oyster is entitled to apply for injunctive remedies (or an equivalent type of urgent legal or equitable relief) in any court of competent jurisdiction to remedy the immediate, irreparable harm arising out of Your unauthorized access to or use of the Services or Platform.

29. Class Action and Jury Waiver

Any action under these Terms will take place on an individual basis – class actions are not permitted. YOU UNDERSTAND THAT BY AGREEING TO THE OYSTER TERMS, THE PARTIES EACH WAIVE THE RIGHT TO TRIAL BY JURY AND 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.

17. Definitions

In these Terms, the following capitalized terms have the following meanings, unless stated otherwise:

1. Additional Document has the meaning given in Section 1.1(4) (Governing Agreements) of the these Terms;

2. Administrative Costs has the meaning given in Sections 5.1(3) (Fees - Team Member Service) and 5.2(3) (Fees - Contractor Service)  of these Terms;

3. Confidential Information has the meaning given in Section 7.2 (Definition of Confidential Information);

4. Contractor means an third party who provides services to You on a contractor basis and whose contract and payment You manage through the Contractor Service on the Platform;
   
5. Direct Competitor is any business entity that offers products or services identical or substantially similar to the Platform or Services;

6. DPA has the meaning given in Section 8.1 (Data Privacy and Processing);

7. Employment Claims means any claims, actions, lawsuits, concerns, allegations, grievances, inspections, investigations, or regulatory matters related to or arising from the employment, termination, or employment agreement of a Team Member;

8. Intellectual Property or IP includes but is not necessarily limited to patents, rights to inventions, utility model rights, trade marks, business names and domain names, rights in get-up and trade dress, design rights, semiconductor topography rights, integrated circuit topography rights, plant variety rights, database rights, copyright and related rights (including all rights of paternity, integrity, disclosure, and withdrawal, and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively “Moral Rights”)), mask work rights, rights in goodwill and the right to sue for passing off or unfair competition, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) and all other intellectual property of any kind, whether registered or unregistered, including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, registrations, and all similar or equivalent rights that exist or will exist in any part of the world.  For avoidance of doubt, copyrights include but are not necessarily limited to the full rights of reproduction, adaptation (including but not limited to the right to create derivative works), publication, performance, and display.

9. Management Issues means all those matters relating to the employment of a Team Member requiring action, investigation, or decisions by Oyster as the employer, including in particular (by way of illustration only and without limitation) issuing and sending employment offer letters; deciding on and paying sign-on or other bonuses, appraisals, and performance issues; pay reviews and the award of other payments and benefits under the employment agreement; periods of annual, sick, or other leave; absence of the Team Member for any other reason; any complaint about the Team Member; disciplinary action; termination; and any complaint or grievance raised by the Team Member or another party (whether or not that would be dealt with under Oyster's grievance procedure);

10. Liabilities has the meaning given in Section 13.1 (Indemnification by Customer);

11. Marks means trademarks, service marks images, branding, logos, business names, distinguishing characteristics and other key indicia use in connection with the business of a Party;

12. Party means either of Oyster or the Customer;

13. Past Service has the meaning given in Section 2.4 (Past Service) of these Terms;

14. Pre-Funding Invoice means an invoice inclusive of the anticipated monthly Service Fee and Administrative Costs of a Team Member engagement through the Platform which cannot be disputed;

15. Resulting IP has the meaning given in Section 6 (Intellectual Property) of these Terms;

16. Sanctions has the meaning given in Section 8.3 (Sanctions) of the Terms;  

17. Settlement Invoice means a final invoice inclusive of the true-up costs for the monthly Service Fee and Administrative Costs for a Team Member engagement and the Subscription Fee payable to Oyster, portions of which may be disputed only as allowed in Section 5.7 (Disputes and Non-Payment);

18. Subscription Fee means the recurring monthly fee payable by You to Oyster in consideration for Oyster granting You access to the Services through the Platform, including, but not limited to the Core Services.

19. Team Member means an Oyster employee (or employee of our subsidiary or third party service provider) who provides consultancy services to You through the Platform and who is a consultant to You;

20. Team Member Expenses has the meaning given in Section 5.1(4) (Team Member Expenses) of these Terms;

21. Third-Party Integration means a system or service provided by a third party that is connected to the Oyster Website through an API or other technical means and (a) allows data, including but not limited to personal data, to be transmitted to or from the Oyster Platform, or (b) provides additional functionality to the Website.

22. Transition Costs means all costs incurred in connection with a Team Member ceasing to provide services to You for any reason, after having been engaged in connection with the Team Member Service. Transition Costs include, but are not limited to, items such as payment in lieu of notice; accrued vacation pay; severance pay; any periodic or one-time compensation for non-compete and other post-termination restrictions; any other payments associated with the end of a Team Member’s employment, whether required by law or otherwise agreed between Oyster and the relevant Team Member; and any amounts related to the defense, settlement, management, or compromise of any Employment Claims in relation to the Team Member, including reasonable legal fees; and

23. Works includes but is not limited to inventions (whether or not patentable), works of authorship, discoveries, designs, specifications, developments, methods, modifications, improvements, processes, know-how, techniques, ideas, algorithms, databases, computer software and code, mask works, formulae, techniques, graphics, audio or visual works, materials that document design or design processes, materials that document research or testing, schematics, diagrams, product specifications, literary works, artistic works and works of any other nature or any works expressed in any medium or format.

18. General

30. Marketing

1. Subject to paragraph (2) below, neither Oyster nor Customer will make any public statement or any sort, or undertake any publicity, advertising or marketing activities (howsoever described) or use any of the other Party’s Marks without that Party’s prior written consent.

2. Oyster may use Your Marks solely in connection with general marketing activities to indicate that Oyster is providing professional services to You.

31. Electronic Acceptance

These Terms, and any amendments thereto, by whatever means accepted, will be treated in all manner and respects as an original contract and will be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither Party will 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 these Terms was transmitted or communicated through electronic means; and each Party forever waives any related defense.

32. Notices

1. (Notices from Oyster) any notices from Oyster to You (including those regarding modifications to these Terms), will be given by email and by posting to the Platform. Both forms of notice will be provided and will be deemed to have been received on the date sent and posted, respectively.

2. (Notices to Oyster) Notice to Oyster as required under these Terms or any Agreement will be provided by email addressed to legal@oysterhr.com, and by post to Oyster HR, Inc. 307 W. Tremont Avenue, Suite 200, Charlotte NC 28203, USA. The foregoing notwithstanding:

1. general communications and correspondence; and

2. notices for the termination of a Service Agreement for the Team Member Service only,

can be sent to Oyster through the Platform here without the need to provide written notice by email or post.

33. 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 will hold itself out contrary to the terms of this paragraph. Nothing contained in these Terms will 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.
    
34. No Waiver
    
    No failure or delay by either Party to exercise any right or remedy provided under the Terms or by applicable law will constitute a waiver of that or any other right or remedy, nor will 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 will preclude or restrict the further exercise of that or any other right or remedy.
    
35. No Assignment
    
    Except where explicitly provided, neither Party may assign its rights and obligations under the 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 the Agreement, without such consent, will be null and void. This prohibition does not apply to any assignment by a Party to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets except in the case of an assignment to a Direct Competitor.

36.  Third Party Rights
    
    Except as expressly provided in the Terms, these Terms do not give rise to any rights for third parties to enforce any provision of the Terms.

37. Force Majeure
    
    If either Party is delayed, hindered, or prevented from performing its obligations under this agreement 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 will make commercially reasonable efforts to resume full performance.

38. 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 Terms will be construed in its entirety, giving meaning to the whole, and not strictly for or against Oyster or You.

39. Survival
    
    Any provision of the Terms that expressly or by implication is intended to come into or continue in force on or after termination of the Terms including:

1. Section 6 (Intellectual Property);

2. Section 7 (Confidentiality);

3. Section 8 (Compliance);

4. Section 10 (Termination);

5. Section 11 (Representations and Warranties);

6. Section 12 (Disclaimers);

7. Section 13 (Indemnification);

8. Section 15 (Limitation of Liability);

9. Section 16 (Dispute Resolution);

10. Section 18 (General); and

11. any and all payment obligations owed by You (including as to taxes) under these Terms including Section 5 (Fees, Payment and Invoicing), will remain in full force and effect.

40. Governing Law
    
    The Agreement will 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 will not govern this agreement or the rights and obligations of the Parties under the Agreement.