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oDesk Marketplace User Agreement

This oDesk Marketplace User Agreement, including the incorporated Policies, (col
lectively, the "Agreement") is entered into by and between the company or indivi
dual specified during this online registration process ("User") and oDesk Corpor
ation, a California corporation with its principal place of business at 4200 Boh
annan Drive, Suite 100, Menlo Park, CA 94025, U.S.A. ("oDesk") for good and valu
able consideration, the receipt and sufficiency of which is hereby acknowledged.
Capitalized terms are defined throughout the Agreement and in Section 13.
1. THE ODESK MARKETPLACE.
1.1 Purpose of the oDesk Marketplace. The oDesk Marketplace is an online portal
and website provided by oDesk where Users may locate Buyers of Services or Provi
ders of Services. In addition, payments for the Services contracted for through
the oDesk Marketplace are made through the oDesk Marketplace. On the oDesk Marke
tplace, Buyers may post Assignments to invite bids by Providers and Providers ma
y post information about their capabilities and bid on Assignments, all subject
to the Policies (as updated from time to time), which are hereby incorporated in
to this Agreement, as well as all other terms of this Agreement. Such Policies a
re updated from time to time, and when they are updated, they become a part of t
his Agreement. User agrees that in case of any inconsistencies between the Polic
ies and the other terms of this Agreement, the latter shall prevail.
1.2 Role of Service Contracts and the Role of oDesk. If a Buyer accepts a Provid
er's bid for an Assignment, a services contract is formed directly between such
Buyer and Provider subject to the terms specified in Section 2 (Service Contract
Terms Between Buyer and Provider) and/or any other terms and conditions that Bu
yer and Provider may agree upon through the oDesk Marketplace ("Service Contract
"). User agrees that, whether acting as a Buyer or Provider, User shall not agre
e on any terms outside the oDesk Marketplace and any attempt to agree on terms o
utside the oDesk Marketplace shall constitute a material breach of this Agreemen
t and be null and void. oDesk is not a party to any Service Contract except to t
he extent oDesk is acting as a Buyer or Provider. oDesk itself does not deliver
any Assignments or Work Product, nor does oDesk guarantee the quality thereof, e
xcept to the extent oDesk is acting as a Provider.
1.3 Acknowledgement of oDesk's Interest in Proper Performance of Service Contrac
ts. Even to the extent oDesk is not a party to a Service Contract, User acknowle
dges and agrees that the reputation and goodwill of oDesk may be adversely affec
ted if, as a Buyer or Provider, the User engages in violations of the Service Co
ntract. User further acknowledges and agrees that oDesk is an intended third-par
ty beneficiary of each Service Contract User enters into and oDesk has the right
to take such legal actions against User as oDesk, in its sole discretion, deems
 necessary to protect the interests of oDesk.
1.4 Payment of oDesk Fee. User agrees that oDesk shall be paid a fee (the "oDesk
Fee") for maintaining the oDesk Marketplace. The amount of such fee and the met
hod of its payment are set forth in the Billing and Payments Policy.
2. SERVICE CONTRACT TERMS BETWEEN BUYER AND PROVIDER.
Unless Buyer and Provider expressly agree otherwise through the oDesk Marketplac
e, User agrees that all Service Contracts between User and any Buyer or Provider
regarding particular Assignments shall be subject to the following terms and co
nditions:
2.1 Services. Provider shall perform Services in a professional and workmanlike
manner. Under Fixed Price Assignments, Provider shall deliver the agreed-upon Wo
rk Product. Under Bill Rate Assignments, Provider shall use reasonable efforts t
o create the desired Work Product. Provider may not subcontract with third parti
es to perform Services on behalf of Provider or assist Provider in performing Se
rvices unless Provider has obtained Buyer's prior written consent to such arrang
ement.
2.2 Fees. Buyer shall pay Provider the agreed-upon fees for time spent (under Bi
ll Rate Assignments) or delivery of the Work Product (under Fixed Price Assignme
nts). All amounts paid by Buyer shall be paid through the oDesk Marketplace as s
et forth in the Billing and Payments Policy.
2.3 Termination. Under Bill Rate Assignments, either party may terminate the Ser
vice Contract at any time for any or no reason, provided that Buyer remains obli
gated to pay for any time Provider spent prior to termination. Fixed Price Assig
nments may only be terminated by mutual agreement.
2.4 Buyer Deliverables. Buyer grants Provider a limited, non-exclusive, revocabl
e (at any time, at Buyer's sole discretion) right to use the Buyer Deliverables
as necessary for the performance of the Services. Buyer reserves all other right
s and interest, including, without limitation, all Proprietary Rights, in and to
the Buyer Deliverables. Upon completion or termination of the Assignment, or up
on request by the Buyer, Provider shall immediately return all Buyer Deliverable
s to the Buyer and purge all copies of Buyer Deliverables and Work Product conta
ined in or on Provider's premises or systems or otherwise under Provider's contr
ol.
2.5 Work Product. Any copyrightable works prepared by Provider in connection wit
h an Assignment for Buyer shall be "works for hire"; consequently, Buyer will be
considered the author and owner of such works. Unless prohibited by applicable
mandatory law, all Proprietary Rights in and to Work Product shall vest in Buyer
upon creation. If under mandatory law, Proprietary Rights do not vest in Buyer
upon creation, Provider hereby assigns all Proprietary Rights to Work Product to
Buyer, effective upon creation. To the extent that under mandatory law, rights
can only be assigned after creation, Provider hereby irrevocably agrees to assig
n, immediately following the creation, all Proprietary Rights to Work Product to
Buyer. To the extent that under mandatory law, Proprietary Rights cannot be ass
igned, Provider hereby irrevocably agrees to grant, and hereby grants, to Buyer
an exclusive (excluding also Provider), perpetual, irrevocable, unlimited, world
wide, fully paid, and unconditional license to use and commercialize Work Produc
t in any manner now known or in the future discovered. To the extent such licens
e grant is not fully valid, effective or enforceable under mandatory law, Provid
er hereby irrevocably agrees to grant, and hereby grants, to Buyer, such rights
as Buyer reasonably requests in order to acquire, as close as possible, all righ
ts equivalent to full legal ownership. In order to ensure that Buyer will be abl
e to acquire, perfect and use such Proprietary Rights, Provider will: (i) transf
er possession, ownership, and title to media, models, and other tangible objects
containing Work Product to Buyer; (ii) sign any documents at Buyer's request to
assist Buyer in the documentation, perfection and enforcement of its rights; an
d (iii) provide Buyer with support and reasonable access to information for reco
rding, perfecting, securing, defending, and enforcing such Proprietary Rights. P
rovider also irrevocably authorizes Buyer to act and sign on Provider's behalf a
nd take any necessary steps in order to perfect Buyer's rights under this Agreem
ent. In case that under mandatory law, Provider retains any rights of paternity,
integrity, disclosure and withdrawal and any other rights that may be known as
or referred to as "moral rights" (collectively "Moral Rights") or other inaliena
ble rights to Work Product or Confidential Information under this Agreement, Pro
vider irrevocably agrees to waive, and hereby waives, all such rights, or, to th
e extent Provider cannot waive such rights, Provider agrees not to exercise such
rights, until Provider has provided prior written notice to Buyer and then only
in accordance with any reasonable instructions that Buyer issues in the interes
t of protecting its rights. Provider agrees to assist Buyer in every proper way
to obtain and enforce the Proprietary Rights and other legal protections for the
Work Product in any and all countries. Provider will sign documents that the Bu
yer may reasonably request for use in obtaining and enforcing such protection, i
ncluding, but not limited to, any assignment deed which the Buyer may select at
its sole discretion. Provider's obligations under this Section 2.5 will continue
even after Provider deregisters from or ceases use of the oDesk Marketplace. Pr
ovider appoints Buyer as Provider's attorney-in-fact to execute documents on Pro
vider's behalf for the purposes set forth in this Section 2.5.
2.6 Pre-existing IP in Work Product. User shall ensure that no Work Product crea
ted or delivered by User as a Provider includes any pre-existing software, techn
ology or other IP, whether such pre-existing IP is owned by User or a third part
y including, without limitation, code written by proprietary software companies
or developers in the open source community, (collectively "Pre-existing IP") wit
hout obtaining the prior written consent of the Buyer to the inclusion of such P
re-existing IP in the Work Product. User acknowledges that, without limiting any
other remedies, User shall not be entitled to payment for, and shall refund any
Provider Fees paid to User for, any Services performed on an Assignment if the
Work Product contains any Pre-existing IP that was not approved in accordance wi
th this Section 2.6.
2.7 General. Service Contracts shall be governed by Sections 5 (Confidential Inf
ormation) 12 (General) and 13 (Definitions) of this Agreement, as applicable eit
her directly or by way of analogy.
2.8 Entire Agreement. The terms and conditions set forth in this Section 2 and/o
r any additional or different terms expressly agreed by Buyer and Provider throu
gh the oDesk Marketplace shall constitute the entire agreement and understanding
of Buyer and Provider with respect to each Service Contract and shall cancel an
d supersede any other prior or contemporaneous discussions, agreements, represen
tations, warranties, and/or other communications between them.
2.9 No Contracts outside the oDesk Marketplace. User, whether as a Buyer or Prov
ider, agrees to use the oDesk Marketplace solely to enter into all contracts wit
h other Users and shall take no steps to use any other means to enter into any c
ontract with any other User that was introduced through the oDesk Marketplace.
3. ACKNOWLEDGMENTS BY USER OF ODESK'S ROLE.
3.1 Service Contracts. User expressly acknowledges, agrees and understands that:
(i) the oDesk Marketplace is merely a venue where Users may act as Buyers or Pr
oviders; (ii) oDesk is not a party to any Service Contracts between Buyers and P
roviders; (iii) oDesk shall not have any liability or obligations under or relat
ed to Service Contracts or any acts or omissions by Users; (iv) oDesk has no con
trol over Providers or over the Services promised or rendered by Providers; and,
(v) oDesk makes no representations as to the reliability, capability, or qualif
ications of any Provider or the quality, security or legality of any Service.
3.2 oDesk Tools. oDesk and its licensors reserve all Proprietary Rights in and t
o the oDesk Tools. User may not use the oDesk Tools except as necessary for the
purposes of discharging its obligations under this Agreement and any Service Con
tract entered into pursuant to this Agreement and on the terms set out in the Li
cense Agreement. oDesk reserves the right to suspend or terminate User's access
to the oDesk Marketplace and oDesk Tools at any time in its sole discretion, and
to withdraw, expand and otherwise change the oDesk Marketplace and oDesk Tools
(including the functionality of the oDesk Tools) at any time in oDesk's sole dis
cretion. Without limiting any provisions contained in the License Agreement, Use
r shall not be entitled to create any "links" to the oDesk Tools, or "frame" or
"mirror" any content contained on, or accessible through, the oDesk Tools, on an
y other server or internet-based device.
3.3 oDesk's Compensation. oDesk is paid its fees for the maintenance of the oDes
k Marketplace. All fees are non-refundable, whether or not Assignments were sati
sfactorily completed.
4. FEES AND PAYMENTS.
4.1 Provider Fees. oDesk shall act as a payment processor for Provider Fees as s
et forth in the Billing and Payments Policy.
4.2 Formal Invoices and Taxes. oDesk shall have no responsibility for determinin
g the necessity of or for issuing any formal invoices, or for determining, remit
ting, or withholding any taxes applicable to Provider Fees. Instead, Provider sh
all be solely responsible for determining whether it is required by applicable l
aw to issue any formal invoices for the Provider Fees and for issuing any invoic
es so required. Provider shall also be solely responsible for: (a) determining w
hether Provider or oDesk is required by applicable law to remit to the appropria
te authorities any value added tax or any other taxes or similar charges applica
ble to the Provider Fees, and remitting any such taxes or charges to the appropr
iate authorities on behalf of itself or oDesk, as appropriate; and (b) determini
ng whether oDesk is required by applicable law to withhold any amount of the Pro
vider Fees, notifying oDesk of any such requirement and indemnifying oDesk (eith
er by permitting oDesk to offset the relevant amount against a future payment of
Provider Fees or by refunding to oDesk the relevant amount, at oDesk's sole dis
cretion) for any requirement to pay any withholding amount to the appropriate au
thorities. oDesk shall have the right, but not the obligation, to audit and moni
tor Provider's compliance with applicable tax laws as required by this Section 4
.2.
4.3 Invoices to Buyer. Buyer will be invoiced for Provider Fees in accordance wi
th the Billing and Payments Policy. If Buyer believes a Bill Rate Assignment cha
rge to be incorrect, Buyer shall notify oDesk within the time period set forth i
n the Billing and Payments Policy, in which case oDesk will investigate the Time
Log to determine, in its sole discretion, whether an adjustment is appropriate.
oDesk's determination shall be final. If Buyer does not notify oDesk within thi
s time, the charge automatically becomes final.
4.4 Payment. Buyer hereby authorizes oDesk to run credit card authorizations on
all credit cards provided by Buyer, to store credit card details as Buyer's meth
od of payment for Services, and to charge Buyer's credit card (or any other form
of payment authorized by oDesk or mutually agreed to between Buyer and oDesk) i
n accordance with the Billing and Payments Policy.
4.5 Dispute Resolution Policy. All disputes between a Provider and a Buyer regar
ding the chargeable nature of the number of hours recorded in the Time Logs shal
l be resolved pursuant to oDesk's Dispute Resolution Policy.
4.6 Assignment Expenses. Provider shall not be entitled to reimbursement for any
expenses incurred in the performance of the Services other than Assignment Expe
nses. oDesk shall reimburse Provider for any Assignment Expenses in the Payment
Period following oDesk's receipt of the Buyer's payment for such Assignment Expe
nses.
4.7 No Direct Payments. Buyer shall make all payments relating to, or in any way
connected with, an Assignment (including, without limitation, bonuses) through
the payment channels provided or specified by oDesk, and shall not make any such
payments directly to a Provider or through any other payment channels. Buyer sh
all immediately notify oDesk if a Provider requests that Buyer make a payment di
rectly to it or through any channels other than those provided or specified by o
Desk. Provider shall not accept any payments relating to an Assignment (includin
g, without limitation, bonuses) from a Buyer directly or through any payment cha
nnels other than those provided or specified by oDesk. Provider shall immediatel
y notify oDesk if a Buyer or any of its agents attempts to make a payment to Pro
vider directly or through any payment channels other than those provided or spec
ified by oDesk.
5. CONFIDENTIAL INFORMATION.
5.1 Confidentiality. Subject to Section 5.4 (Limited Obligations of oDesk), to t
he extent a Buyer provides Confidential Information to a Provider or to oDesk, t
he Provider or oDesk (as the case may be) shall protect the secrecy of the Confi
dential Information with the same degree of care as it uses to protect its own c
onfidential information, but in no event with less than due care, and shall not:
(i) disclose Confidential Information to anyone except, in the case of oDesk, t
o any Provider engaged by Buyer for the Assignment; and (ii) use the Confidentia
l Information, except as necessary for the performance of Services for the relev
ant Assignment (including, without limitation, the storage or transmission of Co
nfidential Information on or through oDesk Tools for use by Provider).
5.2 Return. If and when Confidential Information is no longer needed for the per
formance of Services for the relevant Assignment, or at the Buyer's written requ
est (which may be made at any time at Buyer's sole discretion), Provider or oDes
k (as the case may be) shall promptly destroy or return to Buyer all Confidentia
l Information and any copies thereof contained in or on its premises or systems
or otherwise under its control. Provider and oDesk agree to provide written cert
ification to Buyer of compliance with this Section 5.2 within ten (10) days afte
r the receipt of Buyer's written request to certify.
5.3 Publications. Without limiting Section 5.1 (Confidentiality), neither Provid
er nor oDesk shall publish, or cause to be published, any Confidential Informati
on or Work Product.
5.4 Limited Obligations of oDesk. With respect to maintaining the confidentialit
y of and returning Confidential Information provided to a Provider engaged by Bu
yer for the Assignment, oDesk's obligations shall be limited to requiring such P
rovider to execute an agreement requiring at least the level of confidentiality
specified in Section 5.1 (Confidentiality), the return of Confidential Informati
on in a manner materially similar to Section 5.2 (Return) and a restriction on p
ublishing Confidential Information and Work Product similar to Section 5.3 (Publ
ications).
6. WARRANTY DISCLAIMER.
ODESK MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES
, WORK PRODUCT, ODESK TOOLS, ODESK MARKETPLACE OR ANY ACTIVITIES OR ITEMS RELATE
D TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ODESK DISCLAIMS ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NO
T LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOS
E, AND NON-INFRINGEMENT. SECTION 9.2 (TERMINATION) STATES USER'S SOLE AND EXCLUS
IVE REMEDY AGAINST ODESK WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSAT
ISFACTION.
7. LIMITATION OF LIABILITY.
IN NO EVENT WILL ODESK BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXE
MPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL
COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF ODESK TO ANY USER
FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXC
EED THE GREATER OF: (A) U.S. $2,500; AND (B) ANY ODESK FEES RETAINED BY ODESK WI
TH RESPECT TO ASSIGNMENTS ON WHICH USER WAS INVOLVED AS BUYER OR PROVIDER DURING
THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHA
LL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REM
EDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
8. INDEMNIFICATION.
User shall indemnify and hold harmless (on a monthly basis, as costs are incurre
d) oDesk and its subsidiaries, affiliates, officers, agents, employees, represen
tatives and co-branders or other partners (each an "Indemnified Party" for purpo
ses of this Section 8) from any and all claims, damages, liabilities, costs, and
expenses (including, but not limited to, reasonable attorneys' fees and all rel
ated costs and expenses) incurred by the Indemnified Party as a result of any cl
aim, judgment, or adjudication that any Work Product, Service or action or omiss
ion by such User infringes Proprietary Rights or other rights of such third part
y.
9. TERM AND TERMINATION.
9.1 Term. The term of this Agreement commences on the Effective Date and continu
es in effect until terminated in accordance with Section 9.2 below.
9.2 Termination. Either party may terminate this Agreement at any time, with or
without cause, effective immediately upon written notice to the other party, pro
vided that any such termination for convenience shall not affect the validity of
any Service Contracts that have been concluded prior to termination and this Ag
reement shall continue to apply with respect to such Service Contracts.
9.3 Consequences of Termination. Termination shall not relieve Buyer of the requ
irement to pay for time spent and expenses incurred prior to the effective date
of the termination, which fees and expenses, together with any applicable taxes,
shall be invoiced to Buyer following termination pursuant to Section 4.3 (Invoi
ces to Buyer), and charged to Buyer's credit card or other form of payment pursu
ant to Section 4.4 (Payment). Subject to Section 4.5 (Dispute Resolution Policy)
, oDesk shall pay Provider, in accordance with the provisions of Section 4 (Fees
and Payments), for all time recorded in the Time Logs and Assignment Expenses i
ncurred prior to the effective date of the termination.
9.4 Survival. Sections 3 through 13 of this Agreement shall survive any terminat
ion thereof.
10. AUDIT RIGHTS.
Provider shall create records to document its compliance with this Agreement (in
cluding, but not limited to, compliance with tax laws) and provide copies of suc
h records to oDesk on request. oDesk, or oDesk's advisors or agents, shall have
the right, but not the obligation, to routinely, but no less frequently than ann
ually, audit Provider's operations and records to confirm compliance.
11. ENTIRE AGREEMENT; PREVIOUS AGREEMENTS AND ONGOING ASSIGNMENTS.
11.1 Entire Agreement. This Agreement, including the incorporated Policies, sets
forth the entire agreement and understanding of the parties relating to its sub
ject matter and cancels and supersedes any prior or contemporaneous discussions,
agreements, representations, warranties, and other communications between them.
In particular, this Agreement cancels and supersedes any oDesk Buyer Services A
greement, Freelancer Provider Services Agreement, and/or Affiliate Services Agre
ement that User might have previously entered into with oDesk ("Previous Agreeme
nts"). In case of any inconsistencies between the Policies and the other terms o
f this Agreement, the latter shall prevail.
11.2 Rights and Obligations under Previous Agreements. As of the Transition Date
, User shall have no rights against oDesk under Previous Agreements except that
User remains entitled to any fees for Services which User has become entitled to
receive from oDesk under the terms of such Previous Agreements and which oDesk
has not remitted as of the Transition Date. oDesk remains entitled to payment on
invoices for Assignments commenced under Previous Agreements with User. User's
continued use of the oDesk Marketplace as a Buyer or Provider on or after the Tr
ansition Date shall be solely governed by the terms of this Agreement.
11.3 Ongoing Assignments. Failure by any Buyer to terminate any Assignment comme
nced under a Previous Agreement prior to the Transition Date ("Ongoing Assignmen
t") constitutes an offer to the Provider under such Ongoing Assignment to contin
ue the Ongoing Assignment under a Service Contract with the terms and conditions
set forth in Section 2 (Service Contract Terms Between Buyer and Provider) or a
ny other terms expressly agreed to by the Buyer and the Provider through the oDe
sk Marketplace ("Offer to Continue"). A Provider's continuation of work on any O
ngoing Assignment on or after the Transition Date constitutes the Provider's acc
eptance of the Buyer's Offer to Continue such Ongoing Assignment.
11.4 No Violation of Non-Solicitation Provisions. Under no circumstances shall p
articipation in and interaction with other Users exclusively through the oDesk M
arketplace be viewed as a prohibited solicitation under the terms of any Previou
s Agreement. Without limiting the generality of Section 11.1, any non-solicitati
on and/or no-hire clauses under Previous Agreements are cancelled.
12. GENERAL.
12.1 No Employment. User acknowledges and agrees that this Agreement does not co
nstitute an employment agreement or create or acknowledge an employment relation
ship (neither with oDesk nor with any other User). The parties shall be independ
ent contractors at all times and not partners, joint venturers or otherwise part
icipants in a joint undertaking.
12.2 Limited Privacy. User acknowledges and understands that any Work Product, T
ime Logs, workstation images and any other information (including the terms of t
his Agreement) that User provides or makes available on oDesk Marketplace as a P
rovider may be made available to Buyers and others in accordance with oDesk's Pr
ivacy Policy. User has no expectation of privacy related to Services or any othe
r activities performed as a Provider in connection with this Agreement.
12.3 Compliance. User shall not violate any laws or third party rights on or rel
ated to the oDesk Marketplace. Without limiting the generality of the foregoing,
User agrees to comply with all applicable import and export control laws and th
ird parties' Proprietary Rights.
12.4 Notices. Notices hereunder shall be invalid unless made in writing (fax, em
ail, signed document or electronic communication through oDesk Marketplace suffi
ce).
12.5 Modifications.
(a) oDesk may notify User (including by electronic notice in the oDesk Tools, on
oDesk Marketplace, or on or through any other oDesk programs utilized by User)
of modifications or amendments to the terms of this Agreement and/or the Policie
s. Such modifications or amendments shall take effect from the later of the date
oDesk issues the notice and the date specified by oDesk in the notice.
(b) Except only as permitted by Section 12.5(a), no modification or amendment to
this Agreement shall be binding upon either party unless in a written instrumen
t signed by a duly authorized representative of each party (and, for the purpose
s of this Section 12.5(b), a written instrument shall expressly exclude electron
ic communications such as email and electronic notices but shall include facsimi
les).
12.6 Dates and Timelines. All references to days shall be to business days (Mond
ay to Friday, GMT, excluding bank holidays), except as expressly noted otherwise
.
12.7 No Waiver. The failure or delay of either party to exercise or enforce any
right or claim does not constitute a waiver of such right or claim and shall in
no way affect that party's right to later enforce or exercise it, unless such pa
rty issues an express written waiver, signed by a duly authorized representative
.
12.8 Assignability. User shall not be entitled to assign this Agreement, or any
of its rights or obligations hereunder, without oDesk's prior written consent in
the form of a written instrument signed by a duly authorized representative of
each party (and, for the purposes of this Section 12.8, a written instrument sha
ll expressly exclude electronic communications such as email and electronic noti
ces but shall include facsimiles).
12.9 No 3rd Party Beneficiary Rights. Except as specified in Sections 1 (The oDe
sk Marketplace) and 2 (Service Contract Terms Between Buyer and Provider), this
Agreement shall: (a) create rights and obligations only between oDesk and each i
ndividual User that accepts this Agreement; and (b) not create any rights for an
y other parties. For the avoidance of doubt, without any limitation, no user sha
ll be entitled to enforce the terms of this Agreement as they apply between oDes
k and another user.
12.10 Severability. If and to the extent any provision of this Agreement is held
illegal, invalid, or unenforceable in whole or in part under applicable law, su
ch provision or such portion thereof shall be ineffective as to the jurisdiction
in which it is illegal, invalid, or unenforceable to the extent of its illegali
ty, invalidity, or unenforceability, and shall be deemed modified to the extent
necessary to conform to applicable law so as to give the maximum effect to the i
ntent of the parties. The illegality, invalidity, or unenforceability of such pr
ovision in that jurisdiction shall not in any way affect the legality, validity,
or enforceability of such provision in any other jurisdiction or of any other p
rovision in any jurisdiction.
12.11 Choice of Law. This Agreement and any dispute arising out of or relating t
o this Agreement ("Dispute") shall be governed by and construed in accordance wi
th the laws of the State of California, without regard to its conflict of law pr
ovisions and excluding the United Nations Convention on Contracts for the Intern
ational Sale of Goods (CISG).
12.12 Arbitration. All Disputes shall be finally resolved by binding arbitration
before three (3) arbitrators, selected and proceeding pursuant to the Internati
onal Arbitration Rules of the International Centre for Dispute Resolution (ICDR)
, in the English language, in San Francisco, California, or any other location o
n which all three arbitrators unanimously agree. The arbitrators shall, at eithe
r party's request, give a written opinion stating the factual basis and legal re
asoning for the decision in the English language. The arbitrators so appointed s
hall have the authority to determine issues of arbitrability. The arbitrators sh
all have the authority to award compensatory damages only and shall not award pu
nitive or exemplary damages. The parties, their representatives, other participa
nts and arbitrators shall hold the existence, subject matter and result of arbit
ration in confidence. Notwithstanding the foregoing, either party may, at its so
le discretion, seek injunctive relief in any court of competent jurisdiction (in
cluding, but not limited to, preliminary injunctive relief). The prevailing part
y in any legal proceeding brought by one party against the other party in a Disp
ute shall be entitled to recover its legal expenses, including, but not limited
to, the costs of any court or arbitration proceeding and reasonable attorneys' f
ees.
12.13 Prevailing Language. The English language version of this Agreement shall
be controlling in all respects and shall prevail in case of any inconsistencies
with translated versions, if any.
13. DEFINITIONS.
13.1 "Assignment" means a particular project or set of ongoing tasks for which a
Buyer has requested Services to be performed by a Provider.
13.2 "Assignment Expenses" means any expenses incurred by a Provider in relation
to an Assignment for which Provider obtained Buyer's prior written approval.
13.3 "Bill Rate" for an Assignment means, in respect of a Provider, the hourly r
ate specified in oDesk Marketplace.
13.4 "Bill Rate Assignment" means an Assignment for which Buyer is charged based
on the Bill Rate.
13.5 "Buyer" means any company or individual, including User, utilizing oDesk Ma
rketplace to request Services to be performed by a Provider.
13.6 "Confidential Information" means Buyer Deliverables, Work Product, and any
other information provided to, or created by, a Provider for an Assignment, rega
rdless of whether in tangible, electronic, verbal, graphic, visual or other form
. Confidential Information does not include material or information that: (a) is
generally known by third parties as a result of no act or omission of Provider
or Buyer; (b) subsequent to disclosure hereunder, was lawfully received without
restriction on disclosure from a third party having the right to disseminate the
information; (c) was already known by Provider prior to receiving it from Buyer
and was not received from a third party in breach of that third party's obligat
ions of confidentiality; or (d) was independently developed by Provider without
use of Confidential Information.
13.7 "Buyer Deliverables" means instructions, requests, IP and any other informa
tion or materials that a Provider receives from a Buyer for a particular Assignm
ent.
13.8 "Effective Date" means the date of acceptance of this Agreement.
13.9 "Fixed Price" means a fixed fee agreed between a Buyer and a Provider, prio
r to the commencement of an Assignment, for the completion of all Services reque
sted by Buyer for such Assignment.
13.10 "Fixed Price Assignment" means an Assignment for which Buyer is charged a
Fixed Price.
13.11 "IP" means any computer programs or routines (in object code, source code,
or embedded format, regardless of the medium on which it resides), algorithms,
know-how, hardware and/or software configurations, inventions, documentation, tr
anslations, text and other works of authorship, data, databases, information, de
signs, utility models, symbols, logos, marks, names, procedures, processes, tech
nical improvements and any other intangibles as well as the prototypes, samples,
copies, and other materialized forms of the foregoing intangibles.
13.12 "License Agreement" means the license agreement between User and oDesk rel
ating to use of the oDesk Tools software.
13.13 "oDesk Team" means the online platform accessed using the oDesk Tools soft
ware and through which a Buyer communicates with a Provider in relation to an As
signment once such Assignment has commenced.
13.14 "oDesk Tools" means any software, information and other items provided by
oDesk, including, without limitation, oDesk Team, oDesk share, Mailing List, SVN
Source Code Repository and Bugzilla bug-tracking, subject to change and update
by oDesk from time to time at oDesk's sole discretion.
13.15 "Payment Period" shall mean the four (4) or five (5) week period beginning
on the Monday following the prior Payment Period and ending on the Sunday neare
st to the last day of the relevant month.
13.16 "Policies" means the policies, obligations and guidelines posted at https:
//www.odesk.com/community/odesk_policies, as updated by oDesk from time to time,
which are expressly incorporated into this Agreement.
13.17 "Proprietary Rights" means any and all rights, title, ownership and intere
st in and to copyrights, mask works, industrial designs, trademarks, service mar
ks, trade names, trade secrets, patents, and any other rights to IP, recognized
in any jurisdiction, whether or not perfected.
13.18 "Provider" means any company or individual, including User, utilizing the
oDesk Marketplace to offer Services for Buyers and/or to enter into Service Cont
racts.
13.19 "Provider Fees" means: (a) for a Bill Rate Assignment, an amount equal to
the number of hours recorded by Provider in the Time Logs, multiplied by the Bil
l Rate; (b) for a Fixed Price Assignment, the Fixed Price; and (c) any bonuses p
aid or other payments made by a Buyer for an Assignment, but excluding expenses
to which Section 4.6 applies.
13.20 "Services" means software development and other knowledge-based technology
services.
13.21 "Time Logs" means the number of hours recorded for a stated period by a Pr
ovider in oDesk Team (or such other Tool as oDesk may nominate from time to time
), in compliance with oDesk's Billing and Payments Policy and Policy on Managing
and Working on Assignments, for the Services performed in respect of an Assignm
ent.
13.22 "Transition Date" means the Monday following the end of the last Payment P
eriod under any Previous Agreement between User and oDesk or, if there is no suc
h Previous Agreement, the Effective Date.
13.23 "Work Product" means any tangible or intangible results or deliverables th
at Provider agrees to create for, or actually delivers to, Buyer as a result of
performing the Services on a particular Assignment, including, but not limited t
o, configurations, computer programs or other information, or customized hardwar
e, and any IP developed in connection therewith.

By checking the box below and clicking "Submit," you represent and warrant that
you have read and understood and agree to be bound by this Agreement, including
the incorporated Policies. If you are entering into this Agreement on behalf of
an entity (e.g., a corporation, partnership, or company), you further represent
and warrant that you are fully authorized to bind contractually (whether as an e
mployee, contractor, or agent) such entity, and this Agreement will be between s
uch entity and oDesk. You agree that any provision in any previous agreement wit
h oDesk requiring a written instrument for modifications and/or amendments is he
reby cancelled and effective immediately, oDesk may modify and/or amend this Agr
eement and/or the Policies by notifying you electronically.