Terms Of Agreement and User Agreement (master)
Terms of Service and User AgreementThese Terms of Service constitute a legally binding agreement between you and Swiss Monkey, Inc (“Swiss Monkey) governing your use of the services and technology platforms provided by Swiss Monkey including it website, any mobile applications (the “Apps” ), and related services, information and communications are collectively referred to as “Swiss Monkey.” The use of all personal data you submit to the Swiss Monkeyor which we collect about you is governed by our Global Privacy Policy ( “Privacy Policy” ). A copy of our Privacy Policy is available on http://swissmonkey.io You acknowledge that by using the Swiss Monkey you have reviewed the Privacy Policy.
This Agreement (“Agreement”) contains important information about your legal rights, remedies, and obligations, and is a legally binding agreement between you (“you” or “User” “Client” “Contractor” or or “Freelancer” and “Front Desk Team Member”) and Swiss Monkey Inc. (“Swiss Monkey,” “we”, or “us”), governing your use of Swiss Monkey’s Site and Site Services (collectively, “Services”).You understand that by using the Swiss Monkey Site or Site Services (which generally means using in any way our work marketplace or platform www.SwissMonkey.io or our applications), and by clicking accept or signing below when prompted on the Site or via electronic signature, you agree to be bound by all agreements which constitute Swiss Monkey’s Terms of Service, and you agree that the “Terms of Service” means every agreement linked herein and this Contractor Agreement, including arbitration agreement and class action waiver that applies to claims brought against Swiss Monkey in the United States. You should read all of our terms carefully because you are promising not to break any agreements in the Terms of Service.
If you want to use our work marketplace or any of our services (which we refer to altogether as Services), whether just by looking around or by registering an account, you must first read and agree to this Agreement (including the dispute resolution and arbitration provisions). If you don’t understand this Agreement or you don’t agree to all of its terms and conditions, you may not use our Services. If you do not understand or agree to this Agreement, do not sign below, click to accept this Agreement, “Sign Up”, “Create My Account”, or similar, and do not visit www.SwissMonkey.io, use our mobile applications, or otherwise use our Services. If you are using our Services on behalf of a business or legal entity, you may only do so if you have authority to agree to the Terms of Service on behalf of that business or legal entity.
To make these terms a little easier to understand, we capitalize certain terms and capitalizing them means they have a special meaning. Section 16 provides the definitions of some capitalized terms and others are defined throughout the Terms of Service (look for quotation marks and bold font).
Terms of Service and User Agreement
CLIENT ACCOUNT
You must register for an account to have full access to our Services, and your registration is subject to our approval.
You must register for an account with us (“Account”) to access and use certain portions of our Services. Registered users of our Services are “Users”, and unregistered users are “Site Visitors”. Your Account registration is subject to approval by Swiss Monkey. We reserve the right to decline a registration either to join Swiss Monkey or to add an Account of any type, for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.
You can register for an Account or add an Account Type to use the Services as a Client (a “Client Account”). Client Account Types have a feature that allows the account owner to give permissions to other Users (“Team Members”) to act on behalf of the Client Account. Each Team Member must have their own Account to be added as a Team Member on the Client Account.
We offer two types of accounts (“Account Types”): Client or Freelancer (“Contractor”).Once you register for an Account, you can add Account Types without re-registering. You promise to register for only one Account that requires a unique log in. This Account will house all of your Account Types. Never share your Account password with anyone; you can give permissions to other Users to act under your Account Types as Team Members or Agency Members if needed.
We offer several different Account Types. Once you register for your Account (only one per User), you can add other Account Types under the same username and password. For example, if you already have a Freelancer Account Type (defined below), you can add a Client Account Type (defined below) to your Account without re-registering. You agree not to register for or maintain more than one Account and Profile without express written permission from us.
User acknowledges that Swiss Monkey is a marketplace service that helps connect Clients (i.e. dental practices, dental healthcare organizations, dental providers or organizations or individuals needing assistance with administrative tasks, or similar organizations or individuals) and Contractor (also known as Freelancers and Front Desk Staff - i.e. individuals looking to perform various front desk and administrative tasks.) Client has sole determination if they want to engage with a Contractor. Contractors also have sole determination if they want to engage with a Client.
Swiss Monkey offers the Services for your business purposes only and not for personal or consumer use. By registering for an Account or by using our Services, you represent that you: (a) are doing business under your own name as a self-employed individual/sole proprietor or are an employee or agent of an independent business (such as a corporation, limited liability company, or other entity); (b) will use our Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and any offering or provision of Freelancer Services; and (d) are either a legal entity or an individual who is at least 18 years old (or the age of majority in your country if the age of majority is over 18), and that you can form legally binding contracts.
User Profile/Application
To register for an Account to use our Services, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, to be shown to the public. You agree to provide accurate and complete information on your Profile—and on all registration and other forms you access while using our Services or provide to us—and you agree to keep that information current. You agree not to provide any false or misleading information about your identity or location, your business, the beneficial owner(s) of your business, your skills, or the services your business provides, and you agree to correct any information that is or becomes false or misleading. We reserve the right to suspend or terminate the Account, or access to our Services, of anyone who provides false, inaccurate, or incomplete information in creating, marketing, or maintaining a Profile or an Account.
Account Activity
You agree not to request or allow another person to create an Account for you, your use, or your benefit, except that authorized employees or agents may create an Account on behalf of your business. When you register for an Account and periodically thereafter, your Account may be subject to verification, including but not limited to validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on Swiss Monkey. You authorize Swiss Monkey, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your business, email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes providing official government or legal documents, and cooperating with other reasonable requests we make to verify your identity. During verification some Account features may be temporarily limited but will be restored if verification is successfully completed.
USERNAMES AND PASSWORDS
You will keep your username and passwords secret and will not share them, and you will not use anyone else’s username and password.
Each person who uses our Services must register for their own Account with a username and password. You are responsible for safeguarding and maintaining the confidentiality of your username and password, and agree not to share your username or password with anyone. You are responsible for safeguarding your username and password and for any use of our Services with your username and password. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password. You further agree not to use the Account or log in with the username and password of another User.
Purpose of Swiss Monkey
Swiss Monkey provides a marketplace where Clients and Users/Freelanders can identify each other and advertise, buy, and sell Freelancer Services online. Subject to the Terms of Service, Swiss Monkey provides the Services to Users, including hosting and maintaining the Swiss Monkey Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those contracts. When a User enters a Service Contract, the User agrees to use the Services exclusively to invoice, receive, and pay any amounts owed under the Service Contract.
Relationship with Swiss Monkey
We offer a work marketplace: an online platform for Users to find and connect with each other. We are not involved directly in your negotiations or the delivery of Freelancer Services and are not a party to any agreements you may make with other Users or Clients. You are solely responsible for your content published on Swiss Monkey and for your agreements with other Users and Clients, including vetting each other and performance under the agreements.
Swiss Monkey offers a platform and service that enables Users to find one another, enter into service relationships and agreements, receive and provide Freelancer Services, and make and receive payments through escrow. You acknowledge and agree that Swiss Monkey does not supervise, direct, control, or monitor Users in the performance of any contractual obligations they may have under a Service Contract and agree that: (a) Swiss Monkey is not responsible for ensuring the accuracy or legality of any User Content, for which Users are solely responsible; (b) Swiss Monkey is not responsible for the offering, performance, or procurement of Freelancer Services, (c) Swiss Monkey does not make any representations about or guarantee any particular User’s offered services, and (d) nothing will create an employment, agency, or joint venture relationship between Swiss Monkey and any User offering services. While Swiss Monkey may provide certain badges on Freelancer or Client profiles, such badges are not guarantees, including of quality or ability or willingness of the badged Freelancer or Client to complete a Service Contract.
You further acknowledge and agree that Users, and not Swiss Monkey, are solely responsible for (a) evaluating and determining the suitability of any Project, Client, or Freelancer; (b) assessing whether to enter into a Service Contract or Direct Contract with another User and for verifying any information about another User, including Composite Information; (c) deciding whether to enter into a Service Contract or Direct Contract on Swiss Monkey as well as the contract terms, and (d) negotiating, agreeing to, and executing any terms or conditions of the contracts and for performing and monitoring performance under them. All Service and Direct Contracts between Users are directly between the Users and Swiss Monkey is not a party to those contracts.
Nothing in this Agreement is intended to or does prohibit or discourage any User from engaging in any other business activities or providing any services through any other channels they choose, provided, if applicable, Users comply with the Opt Out provisions. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
As part of our constant effort to improve our Services for our customers, we may test or otherwise temporarily offer certain features and beta tools for your use. We will generally flag on the Site or in related customer forums when a particular tool is being tested and how the feature works, but we do not guarantee that the Site, or any of its tools or features, will be available at any given time.
TAXES AND BENEFITS
Freelancers are responsible for paying their own taxes, obtaining their own insurance, and ensuring they comply with applicable laws and regulations.
Freelancer acknowledges and agrees that Freelancer is solely responsible for: (a) all tax liability associated with payments received from Freelancer’s Clients and through Swiss Monkey, and that Swiss Monkey will not withhold any taxes from payments to Freelancer unless required to under applicable law; (b) obtaining any liability, health, workers’ compensation, disability, unemployment, or other insurance needed or required by law, and that Freelancer is not covered by or eligible for any insurance from Swiss Monkey; (c) determining and fulfilling Freelancer’s obligations under applicable laws and regulations with respect to invoicing and reporting, collecting, or remitting any applicable taxes or charges; and (d) if outside of the United States, determining if Swiss Monkey is required by applicable law to withhold any amount of the Freelancer Fees and notifying Swiss Monkey of any such requirement and indemnifying Swiss Monkey for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Swiss Monkey, Freelancer agrees to promptly cooperate with Swiss Monkey and provide copies of Freelancer’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Freelancer is engaging in an independent business as represented to Swiss Monkey.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
Users publish and ask Swiss Monkey to publish information and feedback on the Site. We are not responsible for that content, and your publication or use of it is at your own risk.
You acknowledge and agree that Users publish and request Swiss Monkey to publish on their behalf information on the Site such as feedback, composite feedback, or geographical location. Such information is based on data that Freelancers or Clients voluntarily submit to Swiss Monkey and does not constitute an introduction, endorsement, or recommendation by Swiss Monkey. You agree that Swiss Monkey is not responsible for verifying such information and provides it solely for the convenience of Users, but providing false or misleading information violates this Agreement and may result in revocation of your access to use the Site Services.
You acknowledge and agree that User feedback benefits the marketplace and its Users, and you specifically request and agree that Swiss Monkey may make available to other Users individual and composite feedback about Users, including you. You acknowledge and agree that any feedback results for you, including job metrics (e.g. such as collected through the Productivity Log reports) and other User Content highlighted by Swiss Monkey on the Site or otherwise (“Composite Information”), may include User comments, User ratings, indicators of User satisfaction, and other feedback left by other Users. Swiss Monkey is not responsible for monitoring, influencing, contributing to or censoring these opinions. You agree to notify Swiss Monkey of any error or inaccurate statement in your feedback results, including the Composite Information, and you agree that Swiss Monkey may rely on the accuracy of such information if you do not. Swiss Monkey provides its feedback system as a means for Users to share their working experiences with and opinions of other Users publicly, and you acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
By using the Services, you may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive or otherwise harmful. Swiss Monkey generally does not review or monitor User Content. You agree that we are not responsible for User Content. We cannot always prevent the misuse of our Services, and you agree that we are not responsible for any such misuse. Swiss Monkey reserves the right (but is under no obligation) to remove posted feedback or information that Swiss Monkey determines violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of Swiss Monkey.
CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND FREELANCER
This section discusses the relationships you may decide to enter into with another User, including contracts to buy or sell Freelancer Services with another User.
SERVICE CONTRACTS AND DIRECT CONTRACTS
Users, not Swiss Monkey, are responsible for deciding whether to enter into agreements with other Users and for determining what the terms of those agreements will be.
If a Client and a Freelancer decide to enter into a Service Contract, the contract is a contractual relationship directly between the Client and the Freelancer; Swiss Monkey is not responsible for and is not a party to any Service Contract and under no circumstances will any such contract create an employment or any service relationship between Swiss Monkey and any User.
With respect to any Service Contract, Clients and Freelancers may enter into any agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.), provided that those agreements do not conflict with, narrow, or expand Swiss Monkey’s rights and obligations under the Terms of Service.
DISPUTES AMONG USERS
You agree to try to resolve your disputes with other Users by following the dispute resolution process that apply to your contract. For disputes arising between Clients and Freelancers, you agree to abide by the dispute resolution process. If that process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that Swiss Monkey will not and is not obligated to provide alny further dispute resolution assistance.
If Freelancer or Client seeks an order from an arbitrator or court that might direct Swiss Monkey, it’s employees or our Affiliates to take or refrain from taking any action with respect to an Account, that party will (a) give us at least five (5) business days’ prior notice of the hearing on the order; (b) include in any such order a provision that, as a precondition to any obligation affecting Swiss Monkey, we be paid in full for any amounts to which we would otherwise be entitled; and (c) include in any such order a provision that, as a precondition to any obligation affecting Swiss Monkey, Swiss Monkey be paid for the reasonable value of the services the order obligates us to undertake.
CONFIDENTIAL INFORMATION
Users can agree to their own confidentiality terms. If they do not, these terms apply. Users agree to keep other Users’ confidential information a secret.
Users may agree to any terms they deem appropriate. If Users do not agree to their own confidentiality terms, this Section applies.
To the extent a User provides Confidential Information to another User, the recipient will take reasonable steps to keep that information confidential. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies of it contained in or on its premises, systems, or any other equipment otherwise under its control. Users specifically agree that this section applies to information exchanged for purposes relating to evaluating whether to enter into a Service Contract, even if such contract is never agreed to.
WORKER CLASSIFICATION AND Swiss Monkey PAYROLL
Users determine whether a Freelancer is an employee or independent contractor and agree to use Swiss Monkey payment systems for relationships.
WORKER CLASSIFICATION
Clients, not Swiss Monkey, are responsible for deciding whether to engage Freelancers as employees or independent contractors.
Client is solely responsible for and assumes all liability for determining whether Freelancers should be engaged as independent contractors or employees and engaging them accordingly. Client warrants its decisions regarding classification are correct and its manner of engaging Freelancers complies with applicable laws, regulations, and rules. Swiss Monkey is not responsible for worker classification as between Client and Freelancer, and nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Swiss Monkey and a User..
FEES
$599/month to cover Recruitment Support, Remote Technology Infrastructure and Remote Technology Training/Onboarding Support for one Remote Dental Professional/Contractor/Freelancer
Remote Technology includes: Remote access to one (1) workstations, one (1) dedicated phone line, HIPAA compliant messaging software, practice repository and communications platform for 1 location and 1 remote professional, recruitment support for up to three (3) front desk positions in a given 12 month period including initial recruitment of first position. Client may request additional recruitment, wherein Client will automatically billed at $599/month/position for their recruitment team and support. Ad dollars may be needed and charged at cost..
Billed upon agreement signed
Each additional Contractor: $299/month/each additional user to cover technology infrastructure and technology/training and onboarding support. Recruitment fee will be applied if Client exceeds recruitment coverage of up to 3 positions per year.
Receipt will be sent to client.
As needed: Client may elect to additional technology and software and may make the request via verbally or in written form. Additional remote access to workstations are automatically billed at $10/month, additional phone lines at $5/line, additional remote monitoring platforms ($45/user/month), Productivity Logs ($9/month/user), Practice Vault ($29/location/month), Messaging Software Access ($45/user/month). Prices may be subject to change. Client will receive an email update on price notifications as needed.
Once client selects their Contractor/Freelancer/Front Desk Team Member, a second contract/agreement will be sent with their hourly rate.
VAT AND OTHER TAXES
Swiss Monkey Fees are exclusive of taxes. Swiss Monkey does not collect taxes it is not required to collect, but Swiss Monkey may be required by applicable law to collect certain taxes or levies, including income tax or VAT (which some jurisdictions refer to as GST or local sales taxes). These collection requirements and rates may change based on changes to the law in your area. Any amounts Swiss Monkey is required to collect or withhold for the payment of any such taxes shall be collected in addition to the fees owed to Swiss Monkey under the Terms of Service.
PAYMENT TERMS AND ESCROW SERVICES
This section describes how Swiss Monkey’s Escrow Services work and discusses your agreement to pay Freelancer Service Fees on Service Contracts and Direct Contracts, what happens if a Client doesn’t pay, and related topics.
PAYMENT PROCESSING SERVICES
Swiss Monkey provides services to Users to deliver, hold, and receive payment for a Project or Service, and to pay fees to Swiss Monkey. A Freelancer agrees to accurately and truthly record the hours worked and provide the necessary documentation if requested regarding services provided. Freelancer will invoice Client through Swiss Monkey. Both Client and Freelancers understand, acknowledge, agree and authorize Swiss Monkey to withdraw service processing fees based on hours or work Freelancer provides at a rate of 18% of services charged by Freelancer to Client. To the extent permitted by applicable law, we may modify this Agreement, or payment Instructions it contains, without prior notice to you, and any revisions to the Agreement will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates. Freelancers will receive payment within 10 business days after Client has paid the invoice.
Freelancers authorize Swiss Monkey to act for them to collect and hold payments from Clients.
If you are a Freelancer and you request payment related to an Hourly Contract, you hereby appoint Swiss Monkey as your agent to obtain funds on your behalf and credit them to your Freelancer Account. Because Swiss Monkey is Freelancer’s agent, Freelancer must, and hereby does, fully discharge and credit Freelancer’s Client for all payments and releases of funds that Swiss Monkey Escrow receives on Freelancer’s behalf from or on behalf of such Client.
CLIENT PAYMENTS ON SERVICE CONTRACTS
This section describes when and how Client payments are made on their contracts with Freelancers.
Hourly Contracts. Freelancer agrees to accurately track and invoice their time, document work and invoice Client for Freelancer Fees. Freelancer agrees to use Swiss Monkey time tracking software and documentation platforms through Swiss Monkey unless otherwise agreed by in writing by Swiss Monkey. Client will automatically be charged the hourly rate plus servicing fees. Client will be charged bi-monthly to cover services provided by the 1-15th and 16-31st of each month. Swiss Monkey reserves the right to change this schedule at any time by providing Users reasonable notice. Client may request access to Freelancers timecard and must dispute any hours or services within 5 days of the end of the billing cycle. If Client does not dispute timecard, Client automatically and irrevocably authorizes and instructs Swiss Monkey or its affiliates to charge Client’s Payment Method for the Freelancer Fees including service processing fees and any related disbursement fees.
Client acknowledges and agrees that for both Hourly Contracts and Fixed-Price Contracts, failure by Client to decline or dispute an Invoice for hours is an authorization and instruction to release payment. Freelancer Fees become available to Freelancers no later than following the expiration of the five-day period and dispute period.
Except as prohibited by applicable law, Swiss Monkey Escrow may refuse to process, may hold the disbursement of the Freelancer Fees or any other amounts and offset amounts owed to us, or take such other actions with respect to the Account as we deem appropriate in our sole discretion if: (a) we require additional information, such as Freelancer’s tax information, government-issued identification or other proof of identity, address, or date of birth; (b) we have reason to believe the Freelancer Fees may be subject to dispute or chargeback; (c) we suspect a User has committed or attempted to commit fraud or other illicit acts on or through the Site or is using the Site unlawfully; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service; or (e) we deem it necessary in connection with any investigation, required by applicable law, or necessary due to circumstances outside of our control after a commercially reasonable effort has been made by us due to such circumstances. If, after investigation, we determine that the hold on the disbursement of the Freelancer Fees is no longer necessary, Swiss Monkey will release the hold as soon as practicable.
In addition, except as expressly provided in the Terms of Service and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, services or Project; (ii) discover erroneous or duplicate transactions; or (iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you or your Client despite our provision of the Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by instructing Swiss Monkey or its affiliates to charge your account(s), offset any amounts determined to be owing, deduct amounts from future payments or withdrawals, charge your Payment Method, or use other lawful means to obtain reimbursement from you. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Services and close your Account.
NON-PAYMENT OR DEFAULT
This section describes the actions Swiss Monkey can take if a Client does not pay fees on time. Swiss Monkey is not responsible for a Client’s non-payment of fees.
If Client is in “default”, meaning the Client fails to pay the Freelancer Fees or any other amounts when due under the Terms of Service, or a written agreement for payment terms incorporating the Terms of Service (signed by an authorized representative of Swiss Monkey), Swiss Monkey will be entitled to the remedies described in this section in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, Client will be deemed to be in default on the earliest occurrence of any of the following: (a) Client fails to pay the Freelancer Fees when due; (b) Client fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days after accrual of the charge, an account current after a credit or debit card is declined or expires; (c) Client fails to pay an invoice issued to the Client by Swiss Monkey within the time period agreed or, if no period is agreed, within 30 days; (d) Client initiates a chargeback with a bank or other financial institution resulting in a charge made by Swiss Monkey for Freelancer Fees or such other amount due being reversed to the Client; or (e) Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s account.
If Client is in default, we may, without notice, temporarily or permanently close Client’s Account and revoke Client’s access to the Services, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts or Direct Contracts, or obtain any additional Freelancer Services from other Users through the Site. However, Client will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on the Client’s Account as a result of the default. Without limiting other available remedies, Client must pay Swiss Monkey upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
At our discretion and to the extent permitted by applicable law, Swiss Monkey or its other Affiliates may, without notice, charge all or a portion of any amount that is owed to any Payment Method on file on the Client’s Account; set off amounts due against other amounts received from Client or held by for Client by Swiss Monkey, Swiss Monkey Escrow or another Affiliate; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
Swiss Monkey does not guarantee that Client is able to pay or will pay Freelancer Fees, and Swiss Monkey is not liable for and may reverse Freelancer Fees if Client is in default or initiates a chargeback of funds with their financial institution. Freelancer may use the dispute process as described in the applicable Escrow Instructions in order to recover funds from Client in the event of a default or may pursue such other remedies against Client as Freelancer chooses. If Swiss Monkey recovers funds from a Client who initiated a chargeback or who is in default pursuant to this Section, Swiss Monkey will disburse any portion attributable to Freelancer Fees to the applicable Freelancer to the extent not already paid by Client or credited by Swiss Monkey through any Payment Protection program.
6.5 NO RETURN OF FUNDS AND NO CHARGEBACKS
Clients agree that, once Swiss Monkey charges their Payment Methods, the charge cannot be refunded. Clients agree not to initiate any chargebacks from their credit card companies, banks, or the like.
Client acknowledges and agrees that Swiss Monkey or its affiliates Swiss Monkey may charge or debit Client’s designated Payment Method for the Freelancer Fees incurred. Once Swiss Monkey or its affiliates charges or debits the Client’s designated Payment Method for the Freelancer Fees, the charge or debit is non-refundable, except as provided in the applicable Escrow Instructions or as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client to resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Freelancer Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of this obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that Swiss Monkey or its affiliates may dispute or appeal the chargeback, institute collection action against Client, close Client’s account, and take such other action it deems appropriate.
PAYMENT METHODS
Clients agree to designate a Payment Method and authorize us to charge that Payment Method.
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes Swiss Monkey or it’s affiliates, as applicable, to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment and to charge Client’s credit card (or any other Payment Method) for the Freelancer Fees, service processing fees and any other amounts owed under the Terms of Service. To the extent permitted by applicable law and subject to our Privacy Policy, you acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage your Payment Method information.
By providing Payment Method information through the Site or by authorizing payments with the Payment Method, Client represents that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to make payments using the Payment Method(s); (c) if Client is an employee or agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on Swiss Monkey; and (d) such actions do not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law.
When Client authorizes a payment using a Payment Method via the Site, Client represents that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
Swiss Monkey is not liable to any User if Swiss Monkey does not complete a transaction as a result of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. Swiss Monkey will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement. The Services operate in U.S. Dollars.
NON-CIRCUMVENTION
You agree to communicate through the Site and make and receive payments only through the Site for two years from the date you first identify or meet your Client or Freelancer on the Site, unless you pay a Conversion Fee. Violations of this Section constitute a serious breach and may result in permanent suspension of your Account.
MAKING PAYMENTS THROUGH Swiss Monkey
You agree to exclusively use Swiss Monkey to make payments for work that arises out of a relationship you made through Swiss Monkey for two years from the date you first established the relationship.
You acknowledge and agree that a substantial portion of the compensation Swiss Monkey receives for making the Site available to you is collected through the Service Fee and that in exchange a substantial value to you is the relationships you make with other Users identified through the Services (the “Swiss Monkey Relationship”). Swiss Monkey only receives the Service Fee when a Client and a Freelancer pay and receive payment through the Site. Therefore, for 24 months from the start of an Swiss Monkey Relationship (the “Non-Circumvention Period”), you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that person or arising from that relationship and not to circumvent the Payment Methods offered on the Site unless you pay a fee to take the relationship off of the Site (the “Conversion Fee”). If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the business or its successor when acting in that capacity with respect to the other User. If you, or the business you represent, did not identify and were not identified by another person through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention Period does not apply. By way of example only, you agree that during the Non-Circumvention period you will not:
You agree to notify Swiss Monkey immediately if a person suggests making or receiving payments other than through the Site or if you receive unsolicited contact outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Swiss Monkey via contact@swissmonkey.io
You acknowledge and agree that a violation of this Section is a material breach of the Terms of Service, and may result in your Account being permanently suspended and charged the Conversion Fee. This Section still applies if you choose to cease using the Site, and you must pay the Conversion Fee for each other User you wish to continue working with after you cease using the Site.
COMMUNICATING THROUGH THE SITE; NOT SHARING CONTACT DETAILS
OPTING OUT
You may opt out of the non-circumvention agreement if you pay a fee.
You may opt out of the obligations in Section with respect to each Swiss Monkey Relationship only if the Client or Freelancer pays Swiss Monkey a Conversion Fee which is a minimum of $1,000 USD and up to $50,000 USD for each Swiss Monkey Relationship, unless Client and Freelancer have had an Swiss Monkey Relationship for at least two (2) years.
The Conversion Fee may be calculated differently for Swiss Monkey Relationships when the Client is an Enterprise Client if the Enterprise Client contract with Swiss Monkey provides for different terms.
At Swiss Monkey, we understand that clients and freelancers who have met through Swiss Monkey wish to work together directly outside of Swiss Monkey. We provide the option to do this with a one-time payment of the Conversion Fee. We call this process “contract conversion.”
The Conversion Fee Formula
The Conversion Fee is 20% of a freelancer’s estimated annual earnings. The hourly rate we use differs, depending on what type of contract the client and freelancer have been working on. Choose an option below to learn more.
Conversion Fee = 20% of a freelancer’s hourly rate x 2,080 hours (52 wks x 40 hrs)
You understand and agree that if Swiss Monkey determines that you have violated Section 7, it may (a) charge your Payment Method the Conversion Fee (including interest) if permitted by law or send you an invoice for the Conversion Fee (including interest), which you agree to pay within 30 days, (b) close your Account and revoke your authorization to use the Services, and (c) charge you for all losses and costs (including any and all time of Swiss Monkey’s internal workforce) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
You agree that the Conversion Fee is 20% of the estimated earnings over a twelve (12) month period, which is calculated by taking the Hourly Rate (defined below) and multiplying it by 2,080. “Hourly Rate” means (a) the highest hourly rate charged by the Freelancer on any Service Contract with the Client, if any; or (b) if there is no hourly rate on a Service contract, the hourly rate in the Freelancer’s profile when the conversion is requested. The Conversion Fee includes all applicable taxes and is not subject to the Marketplace Fee. If Client and Freelancer have had an Swiss Monkey Relationship for at least two (2) years, the Conversion Fee is a nominal $1 USD for administrative purposes. The Conversion Fee is not refundable. Swiss Monkey will apply a discount on the Conversion Fee that is equal to the total amount of Marketplace Fees that Client has paid to Swiss Monkey in the preceding twelve (12) months on each marketplace Service Contract between the Client and the Freelancer. In no event shall the Conversion Fee be discounted below the minimum of $1,000 USD.
RECORDS OF COMPLIANCE
You agree to make and keep all required records.
You are solely responsible for creation, storage, and backup of your business records. You agree that Swiss Monkey has no obligation to store, maintain or provide you a copy of any content or information that you provide, except to the extent required by applicable law.
WARRANTY DISCLAIMER
We are not responsible for the quality, safety, or reliability of our Services.
Swiss Monkey and its affiliates make no representation or warranty about the services, including that the services will be uninterrupted or error-free, and provide the Services (including content and information) on an “as is” and “as available” basis. To the maximum extent permitted by applicable law, Swiss Monkey and its affiliates disclaim any implied or statutory warranty, including any implied warranty of title, accuracy of data, non-infringement, merchantability or fitness for a particular purpose.
LIMITATION OF LIABILITY
Any liability we may have to you is limited.
Swiss Monkey is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to: (i) your use of or your inability to use our Site or Site Services; (ii) delays or disruptions in our Site or Site Services; (iii) viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services; (iv) glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services; (v) damage to your hardware device from the use of the Site or Site Services; (vi) the content, actions, or inactions of third parties’ use of the Site or Site Services; (vii) a suspension or other action taken with respect to your Account; (viii) your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and (ix) your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Additionally, in no event will Swiss Monkey, our affiliates, our licensors, or our third-party service providers be liable for any special, consequential, incidental, punitive, exemplary, or indirect costs or damages, including, but not limited to, litigation costs, installation and removal costs, or loss of data, production, profit, or business opportunities. The liability of Swiss Monkey, our affiliates, our licensors, and our third-party service providers to any User for any claim arising out of or in connection with this Agreement or the other Terms of Service will not exceed the lesser of: (a) $2,500 or (b) any fees retained by Swiss Monkey with respect to service contracts on which User was involved as Client or Freelancer during the six-month period preceding the date of the claim.
These limitations will apply to any liability, arising from any cause of action whatsoever arising out of or in connection with this Agreement or the other Terms of Service, whether in contract, tort (including negligence), strict liability, or otherwise, even if Swiss Monkey has been advised of the possibility of such costs or damages and even if the limited remedies provided herein fail of their essential purpose. Some states and jurisdictions do not allow for all of the foregoing exclusions and limitations, so to that extent, some or all of these limitations and exclusions may not apply to you.
11. RELEASE
You agree not to hold us responsible for any dispute you may have with another User.
In recognition of the fact that Swiss Monkey is not a party to any contract between Users, you hereby release Swiss Monkey and our other Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this Agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Freelancer Services provided to Client by a Freelancer and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Escrow Instructions.
To the extent applicable, you hereby waive the protections of California Civil Code § 1542 (and any analogous law in any other applicable jurisdiction) which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
This release will not apply to a claim that Swiss Monkey failed to meet our obligations under the Terms of Service.
INDEMNIFICATION
If you do something using our Services that gets us sued or fined, you agree to cover our costs or losses as described below.
You will indemnify, defend, and hold harmless Swiss Monkey and our other Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) your or your agents’ use of the Services, including any payment obligations or default incurred through use of the Services; (b) any Work Product or User Content related to your use of the Services; (c) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Freelancer as an independent contractor, any employment-related claims; (d) your or your agents’ failure to comply with the Terms of Service; (e) you or your agents’ failure to comply with applicable law; (f) negligence, willful misconduct, or fraud by you or your agents; and (g) you or your agents’ violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights. For purposes of this Section 12, your agents include any person who has apparent authority to access or use your account demonstrated by using your username and password.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including attorneys’ fees) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
This section discusses when and how long this Agreement will last, when and how either you or Swiss Monkey can end this Agreement, and what happens if either of us ends the Agreement.
TERMINATION
You and Swiss Monkey both have the right to end this Agreement, but certain rights and obligations will survive after this Agreement ends.
Unless both you and Swiss Monkey expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion at any time, without explanation, upon 90 days written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided in this Agreement. You may provide written notice to contact@swissmoney. In the event you properly terminate this Agreement, your right to use the Services is automatically revoked, and your Account will be closed.
You agree that Swiss Monkey is not a party to any Service Contract between Users. Consequently, you understand and acknowledge that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Project entered into between Users. If you attempt to terminate this Agreement while having one or more open Projects or active service engagements, you agree that (a) you thereby instruct Swiss Monkey to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Projects or services have closed and your access to the Site has been terminated; (c) Swiss Monkey will continue to perform those Services necessary to complete any open transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to Swiss Monkey for any Services or such other amounts owed under the Terms of Service and to any Freelancers for any Freelancer Services.
Without limiting Swiss Monkey’s other rights or remedies, we may revoke or limit access to the Services, deny your registration, or revoke your access to the Site and refuse to provide any or all Services to you if: (i) you breach any terms and conditions of this Agreement or any portion of the Terms of Service; (ii) we have reasonable reason to believe that you have provided false or misleading information to us; (iii) we conclude that your actions may cause legal liability for you or others; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity; or (iv) we are required to by law, legal process, or law enforcement. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or re-register for a new Account without Swiss Monkey’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of Users’ Account status to all Users, including you and other Users who have entered into Service Contracts with you. You therefore agree that: if Swiss Monkey decides to temporarily or permanently close your account, Swiss Monkey has the right (but no obligation) where allowed by law to: (y) notify other users that have entered into Service Contracts with you of your closed account status, and (z) provide those users with a summary of the reasons for your account closure. You agree that Swiss Monkey will have no liability arising from or relating to any notice that it may or may not provide to any user regarding closed account status or the reason(s) for the closure.
ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed, you will no longer have access to information or material you kept on the Site and any content stored in your Account may be deleted, for which Swiss Monkey expressly disclaims liability. Swiss Monkey may retain some or all of your Account information as permitted or required by law and the Privacy Policy.
SURVIVAL
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions related to arbitration, audits, intellectual property, non-circumvention, indemnification, fees, reimbursements, and limitations of liability each contemplate performance or observance after this Agreement terminates. The termination of this Agreement for any reason will not release you or Swiss Monkey from any obligations incurred prior to termination of this Agreement or other parts of the Terms of Service or that may accrue related to any act or omission prior to such termination.
DISPUTES BETWEEN YOU AND Swiss Monkey
This section discusses your agreement with Swiss Monkey and our agreement with you about how we will resolve any disputes between us, including that we will both first try to resolve any dispute informally and, if you are in the United States, that we both agree to use arbitration instead of going to court or using a jury if we can’t resolve the dispute informally.
Please read the following paragraphs carefully because they require you and us to agree to resolve most all disputes between you and us through binding individual arbitration.
DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and Swiss Monkey or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided below, you, Swiss Monkey, and our Affiliates agree to resolve any and all claims, disputes, or controversies that arise out of or relate to this Agreement, the other Terms of Service, your relationship with Swiss Monkey (including without limitation any claimed employment with Swiss Monkey or one of our Affiliates or successors), the termination of your relationship with Swiss Monkey, or the Services (each a “Claim” and collectively, “Claims”) through binding arbitration on an individual basis in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”).
Claims that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203), Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (Public Law 117-90), or by generally applicable law are excluded from the coverage of this Arbitration Provision.
By agreeing to arbitrate disputes under this Agreement, THE PARTIES ARE EXPRESSLY GIVING UP ANY AND ALL RIGHTS TO A JURY TRIAL OR COURT TRIAL BEFORE A JUDGE. The parties instead elect to have Claims resolved by arbitration. The arbitrator’s decision shall be final and binding on the parties, subject to review on the grounds set forth in the Federal Arbitration Act (“FAA”)).
CHOICE OF LAW
This Agreement, the Site Terms of Use, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions; provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resided at the time the dispute arose.
However, notwithstanding the foregoing sentence, this Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.).
INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and Swiss Monkey agree to first notify each other of the Claim. You agree to notify Swiss Monkey of the Claim by email to contact@SwissMonkey.io, and Swiss Monkey agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Swiss Monkey then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or Swiss Monkey, as applicable, may evaluate the Claim and attempt to informally resolve it. Both you and Swiss Monkey will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim and avoid the need for further action.
BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)
This Arbitration Provision applies to all Users located in or who reside in the United States and its territories.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Swiss Monkey, and our Affiliates agree to resolve the Claim by final and binding individual arbitration before an arbitrator from JAMS, instead of a court or jury. JAMS may be contacted at www.jamsadr.com.
SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
This Arbitration Provision applies to any Claim (defined above) the parties may have, whether based on past, prevent, or future events, and includes all claims and disputes that arose between the parties before the effective date of this Agreement, and survives after your relationship with Swiss Monkey ends. For the avoidance of doubt, Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to this Agreement, the Terms of Service and the Swiss Monkey Payroll Agreement. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided in this Agreement, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a User that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the User is located. Claims by Freelancers that allege employment or worker classification disputes will be conducted in the state and within 25 miles of where Freelancer is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures,” “JAMS Employment Arbitration Rules,” or “JAMS Consumer Arbitration Minimum Standards.” Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
You and Swiss Monkey will follow the applicable JAMS rules with respect to filing or initial appearance and arbitration fees. The arbitrator shall follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between Swiss Monkey and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth in Section 14.4.4 below. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section 14 unless all parties to that arbitration consent in writing to that amendment.
This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance, or unemployment insurance benefits.
Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Swiss Monkey will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.<
INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. The arbitrator shall have exclusive jurisdiction to decide all disputes arising out of or relating to the arbitrability of a Claim or the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, breach, or validity of the Arbitration Provision or any portion of the Arbitration Provision, except as expressly provided below. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that, except as provided by the Class and Collective Waiver section below, the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement, or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable, except as set forth in below.
CLASS AND COLLECTIVE WAIVER
Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects your ability to participate in class or collective actions. Both you and Swiss Monkey agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, validity, or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If there is a final judicial determination that all or part of the Class Action Waiver is unenforceable or that an arbitration can proceed on a class basis, then the arbitration provision herein shall be considered null and void in its entirety and the class or collective action to that extent must be litigated in a civil court of competent jurisdiction. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. You and Swiss Monkey agree that you will not be retaliated against as a result of your filing or participating in a class or collective action in any forum. However, Swiss Monkey may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
You may opt out of the Arbitration Provision contained in this Section 14 by notifying Swiss Monkey in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to Swiss Monkey that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement indicating that you wish to opt out of the Arbitration Provision. Alternatively, you may send this written notification to contact@swissmonkey.io.
Opting out of this Arbitration Provision will not affect any other terms of this Agreement.
If you do not opt out as provided in this Section, continuing your relationship with Swiss Monkey constitutes mutual acceptance of the terms of this Arbitration Provision by you and Swiss Monkey. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.
Enforcement of this Arbitration Provision
This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
GENERAL
Additional terms of the agreement between you and Swiss Monkey, including that the Terms of Service contain our full agreement, how the agreement will be interpreted and applied, and your agreement not to access the Site from certain locations.
ENTIRE AGREEMENT
This Agreement is the only agreement between you and us regarding the Services and supersedes all prior agreements for the Services and supersedes any prior agreements between us for actions occurring after the effective date of this Agreement.
MODIFICATIONS; WAIVER
We may modify these terms and will provide you reasonable advance notice of substantial changes.
Subject to the conditions set forth herein, Swiss Monkey may amend this Agreement and any of the other agreements that comprise the Terms of Service at any time by posting a revised version on the Site. Swiss Monkey will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site and providing notice on the Site or by email. If the Substantial Change includes an increase to Fees charged by Swiss Monkey, Swiss Monkey will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees, any temporary or promotional Fee change, or changes that do not constitute a Substantial Change. Any revisions to the Terms of Service will take effect on the noted effective date. No modification or amendment to the Terms of Service will be binding upon Swiss Monkey unless they are agreed in a written instrument signed by a duly authorized representative of Swiss Monkey or posted on the Site by Swiss Monkey. Email will not constitute a written instrument as contemplated by this Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
ASSIGNABILITY
You may not transfer any rights you have under our Terms of Service unless we give you approval
These Terms of Service and any rights or obligations hereunder may not be transferred or assigned by you unless you follow the provisions in this Section.
In order to assign the Terms of Service or your Account to a successor after an acquisition of your company or substantially all of your assets, a merger, or another change in majority ownership of your company, you must provide written notice to Swiss Monkey via email to contact@swissmonkey.io that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, (f) a statement indicating the manner in which your company was acquired, (g) the name and contact information of the acquiror, and (h) the effective date of such change in ownership. If Swiss Monkey does not object via email within 10 business days of sending of an email or 15 business days of the mailing of a written notice, then the assignment is permissible, provided in both cases that such notice is properly addressed. No other assignments are valid without Swiss Monkey’s prior written consent, which can be requested via email or letter at the above addresses. Any other attempted transfer or assignment will be null and void.
SEVERABILITY; INTERPRETATION
If any provision of this Agreement is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Agreement will continue in full force and effect. To the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in one jurisdiction will not in any way affect the legality, validity, or enforceability of that or any other provision in any other jurisdiction.
FORCE MAJEURE
When certain circumstances beyond your or our control arise, we both will be temporarily relieved from performing our obligations under this Agreement.
The parties to this Agreement will not be responsible for any delay or failure to perform any obligation under this Agreement for a reasonable period due to labor disturbances, accidents, fires, floods, pandemics, telecommunications or Internet failures, strikes, wars, riots, rebellions, terrorism, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar event beyond the parties’ reasonable control.
ACCESS OF THE SITE OUTSIDE THE UNITED STATES
Swiss Monkey makes no representations that the Site or Services are appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable laws and regulations, both in the United States and abroad, including export and import regulations (e.g., the Export Administration Regulations maintained by the U.S. Department of Commerce and the sanctions programs maintained by the U.S. Department of the Treasury Office of Foreign Assets Control). You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.
In order to access or use the Services, you must and hereby represent that neither you, any company you represent, nor any beneficial owner of you or your company are: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Services and your license to use the Services will be immediately revoked.
CONSENT TO USE ELECTRONIC RECORDS
Swiss Monkey and its Affiliates may need to provide you with certain communications, notices, agreements, statements or disclosures in writing regarding our Services. You consent to receive these records electronically from Swiss Monkey and its Affiliates rather than in paper form.
When Freelancer engages with a Client, Freelancer agrees to perform such Services (i) in a timely, professional, and workmanlike manner, using personnel of required skill, experience, and qualification, and in full compliance with all applicable laws, rules, and regulations and the Company’s policies, procedures and instructions, and in accordance with the highest professional industry standards.
In the event that Freelancer receives notice that it or any of its facilities or contractors providing Services under this Agreement shall be the subject of an investigation or audit by any governmental or regulatory authority, Freelancer shall notify Swiss Monkey and Client promptly but not later than two (2) business days of such notice. In the event Freelancer does not receive prior notice of said investigation or audit, Freelancer shall notify as soon as practicable after receiving knowledge of said investigation or audit. Freelancer agrees to reasonably cooperate with Swis in any response to said investigation or audit to the extent it relates (directly or indirectly) to the Services.
Client may supply certain materials or devices to Freelancer in connection with the Services (“Company Supplied Materials”). Freelancer shall handle and store Client Supplied Materials with reasonable care and in accordance with applicable laws, regulations, guidance, industry standards, and any handling, storage, and safety requirements of the Client. Freelancer will use Client Supplied Materials solely to provide the Services and will not disclose or make such Client Supplied Materials available to any third party without prior written approval of the Company.
Freelancer represents and warrants that it and its owners, officers, managers, employees, contractors, and personnel (i) are not currently excluded, debarred, or otherwise ineligible to participate in any federal health care program as defined in 42 U.S.C. Section 1320a-7b(f) (the “Federal Healthcare Programs”), (ii) have not been convicted of a criminal offense related to the provision of health care items or services and not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs, and (iii) are not under investigation or otherwise aware of any circumstances which may result in being excluded from participation in the Federal Healthcare Programs. This shall be an ongoing representation and warranty during the term of this Agreement, and Contractor shall immediately notify the Company of any change in the status of the representations and warranty set forth in this Section. Any breach of this Section shall give the Company the right to terminate this Agreement immediately for cause.
Freelancer agrees to adhere to the requirements of the Information Security and Data Privacy requirements. From time to time during the term of this Agreement (but no more than once per year), so that Swiss Monkey may review Freelancer’s information security program, upon request by Swiss Monkey, Freelancer agrees to complete, within forty-five (45) days of receipt, an audit questionnaire provided by the Swiss Monkey regarding Freelancer’s information security program.
(e) Freelancer represents and warrants as follows:
The Freelancer is customarily engaged in an independently established business of the same nature as the work being performed hereunder and maintains the capacity to contract with other businesses and provide the same or similar services such that Freelancer is free to take on other clients or customers.
vi. The Freelancer publicly markets itself as being available to provide services to other businesses for services that are related to the Services to be provided to Swiss Monkey users hereunder.
vii. The Freelancer furnishes and utilizes its own tools, vehicles, and equipment.
viii. The Freelancer has negotiated the rates, set the hours and determined the work location set forth herein.
ix. The work to be performed by Freelancer is not subject to the any state license board requirements
Individually Identifiable Patient Information. Without limiting the generality of Sections 6(a) or 6(b) hereof, and except as permitted or required by this Agreement or by law, including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”), Freelancer agrees not to use or disclose any medical or patient information in a manner that would violate U.S. privacy and security laws (including but not limited to HIPAA) or any other applicable law. Contractor agrees to comply with HIPAA in all respects, including, to the extent any protected health information (“PHI”) will be used or disclosed, complying with the terms and conditions of the Business Associate Agreement attached hereto as Exhibit B (“BAA”).
Non-Solicitation. Users recognizes and agrees that Swiss Monkey (“Company”) has devoted a considerable amount of time, effort, and expense to develop its Confidential Information, trade secrets, business goodwill, and commercial relationships; the Confidential Information, trade secrets, the Company’s business goodwill and the Company’s commercial relationships are valuable assets to the Company and give the Company a competitive advantage over others who do not have this information; the Company’s marketplace is across the United States of America; and any unauthorized use or disclosure of the Company’s Confidential Information and/or damage to the Company’s business goodwill or the Company’s commercial relationships would cause irreparable harm to the Company for which there is no adequate remedy at law. For these reasons, Users agree that to protect the Company’s Confidential Information, trade secrets, business and goodwill and commercial relationships, it is necessary to enter into the following restrictive covenants.
Non-Disparagement. Users agree that the Company’s goodwill and reputation are assets of great value to the Company, which were obtained through great cost, time and effort. Therefore, Users agrees that during the term of the Agreement and after its termination or expiration, no matter the reason for the termination, Users and its employees and agents will not in any way disparage, libel or defame the Company and/or any of its business or business practices, products or services, or current, past or future employees, officers, managers or owners. This Section does not prohibit Users from testifying truthfully in any proceeding or providing truthful information as legally required to provide such information.
Access to Books and Records. To the extent required by Section 1861(v)(1)(i) of the Social Security Act, Users shall, upon request, allow the United States Department of Health and Human Services, the Comptroller General of the United States, and their duly authorized representatives access to this Agreement and to all books, documents, and records necessary to verify the nature and extent of costs and services provided by Contractor under this Agreement, at any time during the term of this Agreement and for an additional period of four (4) years after the last date services are furnished under this Agreement. If Users carries out any of its duties under this Agreement through a permitted subcontract or similar permitted agreement between it and an individual or organization related to it, that party shall require that a clause be included in such agreement to the effect that until the expiration of four (4) years after the furnishing of services pursuant to such agreement, and to the extent required by Section 1861(v)(1)(i) of the Social Security Act, the related organization will make available, upon written request of the Secretary of Health and Human Services or the Comptroller General of the United States, or any other duly authorized representatives, all agreements, books, documents, and records of said related organization that are necessary to verify the nature and extent of the costs of services provided by that agreement.
Insurance. During the term of this Agreement and for a period of two (2) years after termination or expiration of this Agreement, Freelancers are strongly encouraged to, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers, that includes, insurance coverage of the types and in the minimum amounts as set forth below.
(a) Errors & omissions, network and cyber (information) security (covering Contractor’s handling, storage, transmission or disposal of data or information), with a limit of $5,000,000 annual aggregate, covering all errors, omissions or negligent acts in the delivery of services contemplated under this Agreement.
(b) Commercial general liability, including fire damage, personal injury and advertising injury, with a limit of $1,000,000 combined single limit per occurrence and $2,000,000 annual aggregate.
(c) Umbrella or excess liability, with limits of not less than $1,000,000 combined single limit per occurrence and annual aggregate in excess of the commercial general liability, business auto liability and employer’s liability.
(d) Workers’ compensation, as provided for under any workers’ compensation or similar law in the jurisdiction where work is performed.
Information Security and Data Privacy
As used herein, “Company” shall mean the Client and “Vendor” shall mean Contractor/Freelancer:
1. Information Security Requirements. In addition to any other obligations contained in this Agreement or in the Business Associate Agreement, Vendor agrees to:
(a)segment Company Confidential Information away from Vendor’s internal users, so that only authorized employees of Vendor with a need to know such information can access it.
(b)encrypt all back-up media, laptops, mobile devices, jump/USB or similar portable drives, and similar devices that interact with and/or store Company Confidential Information (“Devices”), and keep audit logs of such Devices to verify, in the event of the loss of a Device, that such Device was encrypted;
(c)put into place all other external controls on Company Confidential Information necessary to prevent such data from being obtained, viewed, altered, or otherwise accessed by unauthorized users, and to prevent its systems from being compromised or breached (i.e., electronic defenses, Access Control Lists (ACLs) on routers, firewalls, etc.);
(d)not use or permit generic account logins for multiple persons or generic root access to its information systems, i.e., all of Vendor’s system administrators of information systems must have their own logins so they can be tracked and audited individually.
(e)have adequate physical security controls in place at its data center and in all other areas or locations (physical or virtual) where Company Confidential Information is stored or processed (voice, video, data, logs, etc.);
(f)have company security policies documented and all of those policies implemented, and provide a copy of such policies to Company for its review upon request, and require that any subcontractors of Vendor adhere to such security policies;
(g)use adequate logical security controls to separate Company Confidential Information from confidential information received from another Vendor customers.
(h)ensure that its agents, subcontractors, third party providers, and users who have access to Company Confidential Information are bound at least as stringent as those applicable to Vendor under this Agreement, with respect to data security and protection and non-use of Company Confidential Information;
(i)maintain Business Associate Agreements and Confidentiality Agreements at all times with all the third-party service providers that it uses in providing service(s) to Company.
(j) not store, transmit, access or display Company Confidential Information within any non-production computer systems environment including, but not limited to, computer system environments designated as development, quality assurance or test.
(k) not process Company Confidential Information for any purpose other than to provide the Services or in any manner that is not expressly contemplated by this Agreement, except where otherwise required by applicable law (and, in such a case, shall inform Company of that legal requirement before processing, unless applicable law prevents it doing so);
(l) only process Company Confidential Information in compliance with Company’s lawful written instructions supplied to Vendor from time to time in writing.
(m)employ a comprehensive written information security program containing administrative, physical, and technical safeguards (including safeguards against disabling devices and the adoption of appropriate policies, procedures and training for personnel) that (i) prevent the unauthorized access to, collection of, use, or disclosure of Company Confidential Information (“Safeguards”), (ii) satisfy all relevant state and federal laws and regulations, including but not limited to HIPAA, GDPR and, to the extent applicable, the most recent applicable version of the Payment Card Industry Data Security Standards (PCI DSS), and (iii) meet or exceed best industry practices regarding Safeguards;
(n)in any circumstance where Vendor or it subcontractor(s) intends to change or modify Vendor’s or such subcontractor’s written information security program or underlying security measures after inspection or approval of the same by Company, obtain Company’s prior written consent as a condition precedent to the implementation of such changes or modifications;
(o)prior to engaging a subcontractor to process any Company Confidential Information, obtain Company’s prior express, written consent to such engagement and enter into a written agreement with the subcontractor, incorporating terms which are substantially similar to those set out in this Exhibit. Any subcontractor shall not engage another subcontractor to process any Company Confidential Information without the prior written consent of Company. As between Company and Vendor, Vendor shall remain fully liable for all acts or omissions of any subcontractor appointed by it pursuant to this Exhibit.
(p)immediately notify Company if compliance with any of Company’s instructions or its obligations under this Agreement is inconsistent with compliance with, or infringes, any applicable law.
(q)transmit Company Confidential Information between Vendor, any subcontractor of Vendor and Company using HTTPS, VPN, Secure FTP or other mutually approved method of encryption; and
(r)store Company Confidential Information within an industry standard encryption utilizing a Company specific decryption key.
2. Security Standards. Vendor acknowledges that Company disallows storage, transmission, access or display of Company Confidential Information within any computer system or process not covered by a set of industry standard security certifications, including, but not limited to, HITRUST and/or SOC 2, Type 2. As such, Vendor attests that, having independent or third-party verification, all applicable computer systems and processes have been and will continue to be certified to such level of security.
3. Breach of Company Confidential Information. In addition to any other obligations contained in this Agreement or in the Business Associate Agreement, Vendor agrees to the following:
(a)Vendor shall promptly notify Company (and in any event within twenty-four (24) hours) of any actual or suspected unauthorized access to, acquisition of, or disclosure of, Company Confidential Information in the custody or control of Vendor or its subcontractors or a reasonable belief by either Vendor or its subcontractor that such unauthorized access, acquisition or disclosure has occurred (the “Breach of Security”). Such notice shall include the following, to the extent such information is discoverable at the time notice is given: (i) date and time that Vendor discovered the Breach of Security and the date and time when the Breach of Security actually occurred, if discoverable; (ii) a detailed description of the Breach of Security; (iii) a list of the systems and data at risk, including a list of affected individuals; and (iv) a description of actions taken after the Breach of Security was discovered. Thereafter, Vendor shall provide to Company weekly reports and updates describing the investigation into the Breach of Security, all corrective or remedial actions taken or to be taken by Vendor or its subcontractor, as the case may be, and shall promptly provide any further information that Company may request or that may become available in connection with the Breach of Security. Vendor will assist Company in investigating and remedying any breach and any related dispute, inquiry, or claim.
(b)Vendor shall promptly (and in any event within forty-eight (48) hours) notify Company if Vendor receives a complaint in relation to Company Confidential Information, from a data subject or an authorized public body, including any regulator or supervisory authority, and provide Company with full details of such complaint.
(c)Vendor shall record and notify Company (within forty-eight (48) hours) of Vendor receiving any data subject requests, including access requests; provide Company with such information and cooperation as required to respond to such request; and not respond to any data subject request or complaint without Company’s prior written.
4. Presence Outside of the US. Without the prior written consent of Company, Vendor will not store, maintain, host, transmit to, or permit the transitory presence of Company Confidential Information outside of the United States.
When Freelancer engages with a Client, Freelancer agrees to perform such Services (i) in a timely, professional, and workmanlike manner, using personnel of required skill, experience, and qualification, and in full compliance with all applicable laws, rules, and regulations and the Company’s policies, procedures and instructions, and in accordance with the highest professional industry standards.
In the event that Freelancer receives notice that it or any of its facilities or contractors providing Services under this Agreement shall be the subject of an investigation or audit by any governmental or regulatory authority, Freelancer shall notify Swiss Monkey and Client promptly but not later than two (2) business days of such notice. In the event Freelancer does not receive prior notice of said investigation or audit, Freelancer shall notify as soon as practicable after receiving knowledge of said investigation or audit. Freelancer agrees to reasonably cooperate with Swis in any response to said investigation or audit to the extent it relates (directly or indirectly) to the Services.
Client may supply certain materials or devices to Freelancer in connection with the Services (“Company Supplied Materials”). Freelancer shall handle and store Client Supplied Materials with reasonable care and in accordance with applicable laws, regulations, guidance, industry standards, and any handling, storage, and safety requirements of the Client. Freelancer will use Client Supplied Materials solely to provide the Services and will not disclose or make such Client Supplied Materials available to any third party without prior written approval of the Company.
Freelancer represents and warrants that it and its owners, officers, managers, employees, contractors, and personnel (i) are not currently excluded, debarred, or otherwise ineligible to participate in any federal health care program as defined in 42 U.S.C. Section 1320a-7b(f) (the “Federal Healthcare Programs”), (ii) have not been convicted of a criminal offense related to the provision of health care items or services and not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs, and (iii) are not under investigation or otherwise aware of any circumstances which may result in being excluded from participation in the Federal Healthcare Programs. This shall be an ongoing representation and warranty during the term of this Agreement, and Contractor shall immediately notify the Company of any change in the status of the representations and warranty set forth in this Section. Any breach of this Section shall give the Company the right to terminate this Agreement immediately for cause.
Freelancer agrees to adhere to the requirements of the Information Security and Data Privacy requirements. From time to time during the term of this Agreement (but no more than once per year), so that Swiss Monkey may review Freelancer’s information security program, upon request by Swiss Monkey, Freelancer agrees to complete, within forty-five (45) days of receipt, an audit questionnaire provided by the Swiss Monkey regarding Freelancer’s information security program.
(e) Freelancer represents and warrants as follows:
The Freelancer is customarily engaged in an independently established business of the same nature as the work being performed hereunder and maintains the capacity to contract with other businesses and provide the same or similar services such that Freelancer is free to take on other clients or customers.
vi. The Freelancer publicly markets itself as being available to provide services to other businesses for services that are related to the Services to be provided to Swiss Monkey users hereunder.
vii. The Freelancer furnishes and utilizes its own tools, vehicles, and equipment.
viii. The Freelancer has negotiated the rates, set the hours and determined the work location set forth herein.
ix. The work to be performed by Freelancer is not subject to the any state license board requirements
Individually Identifiable Patient Information. Without limiting the generality of Sections 6(a) or 6(b) hereof, and except as permitted or required by this Agreement or by law, including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”), Freelancer agrees not to use or disclose any medical or patient information in a manner that would violate U.S. privacy and security laws (including but not limited to HIPAA) or any other applicable law. Contractor agrees to comply with HIPAA in all respects, including, to the extent any protected health information (“PHI”) will be used or disclosed, complying with the terms and conditions of the Business Associate Agreement attached hereto as Exhibit B (“BAA”).
Non-Solicitation. Users recognizes and agrees that Swiss Monkey (“Company”) has devoted a considerable amount of time, effort, and expense to develop its Confidential Information, trade secrets, business goodwill, and commercial relationships; the Confidential Information, trade secrets, the Company’s business goodwill and the Company’s commercial relationships are valuable assets to the Company and give the Company a competitive advantage over others who do not have this information; the Company’s marketplace is across the United States of America; and any unauthorized use or disclosure of the Company’s Confidential Information and/or damage to the Company’s business goodwill or the Company’s commercial relationships would cause irreparable harm to the Company for which there is no adequate remedy at law. For these reasons, Users agree that to protect the Company’s Confidential Information, trade secrets, business and goodwill and commercial relationships, it is necessary to enter into the following restrictive covenants.
Non-Disparagement. Users agree that the Company’s goodwill and reputation are assets of great value to the Company, which were obtained through great cost, time and effort. Therefore, Users agrees that during the term of the Agreement and after its termination or expiration, no matter the reason for the termination, Users and its employees and agents will not in any way disparage, libel or defame the Company and/or any of its business or business practices, products or services, or current, past or future employees, officers, managers or owners. This Section does not prohibit Users from testifying truthfully in any proceeding or providing truthful information as legally required to provide such information.
Access to Books and Records. To the extent required by Section 1861(v)(1)(i) of the Social Security Act, Users shall, upon request, allow the United States Department of Health and Human Services, the Comptroller General of the United States, and their duly authorized representatives access to this Agreement and to all books, documents, and records necessary to verify the nature and extent of costs and services provided by Contractor under this Agreement, at any time during the term of this Agreement and for an additional period of four (4) years after the last date services are furnished under this Agreement. If Users carries out any of its duties under this Agreement through a permitted subcontract or similar permitted agreement between it and an individual or organization related to it, that party shall require that a clause be included in such agreement to the effect that until the expiration of four (4) years after the furnishing of services pursuant to such agreement, and to the extent required by Section 1861(v)(1)(i) of the Social Security Act, the related organization will make available, upon written request of the Secretary of Health and Human Services or the Comptroller General of the United States, or any other duly authorized representatives, all agreements, books, documents, and records of said related organization that are necessary to verify the nature and extent of the costs of services provided by that agreement.
Insurance. During the term of this Agreement and for a period of two (2) years after termination or expiration of this Agreement, Freelancers are strongly encouraged to, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers, that includes, insurance coverage of the types and in the minimum amounts as set forth below.
(a) Errors & omissions, network and cyber (information) security (covering Contractor’s handling, storage, transmission or disposal of data or information), with a limit of $5,000,000 annual aggregate, covering all errors, omissions or negligent acts in the delivery of services contemplated under this Agreement.
(b) Commercial general liability, including fire damage, personal injury and advertising injury, with a limit of $1,000,000 combined single limit per occurrence and $2,000,000 annual aggregate.
(c) Umbrella or excess liability, with limits of not less than $1,000,000 combined single limit per occurrence and annual aggregate in excess of the commercial general liability, business auto liability and employer’s liability.
(d) Workers’ compensation, as provided for under any workers’ compensation or similar law in the jurisdiction where work is performed.
Information Security and Data Privacy
As used herein, “Company” shall mean the Client and “Vendor” shall mean Contractor/Freelancer:
1. Information Security Requirements. In addition to any other obligations contained in this Agreement or in the Business Associate Agreement, Vendor agrees to:
(a)segment Company Confidential Information away from Vendor’s internal users, so that only authorized employees of Vendor with a need to know such information can access it.
(b)encrypt all back-up media, laptops, mobile devices, jump/USB or similar portable drives, and similar devices that interact with and/or store Company Confidential Information (“Devices”), and keep audit logs of such Devices to verify, in the event of the loss of a Device, that such Device was encrypted;
(c)put into place all other external controls on Company Confidential Information necessary to prevent such data from being obtained, viewed, altered, or otherwise accessed by unauthorized users, and to prevent its systems from being compromised or breached (i.e., electronic defenses, Access Control Lists (ACLs) on routers, firewalls, etc.);
(d)not use or permit generic account logins for multiple persons or generic root access to its information systems, i.e., all of Vendor’s system administrators of information systems must have their own logins so they can be tracked and audited individually.
(e)have adequate physical security controls in place at its data center and in all other areas or locations (physical or virtual) where Company Confidential Information is stored or processed (voice, video, data, logs, etc.);
(f)have company security policies documented and all of those policies implemented, and provide a copy of such policies to Company for its review upon request, and require that any subcontractors of Vendor adhere to such security policies;
(g)use adequate logical security controls to separate Company Confidential Information from confidential information received from another Vendor customers.
(h)ensure that its agents, subcontractors, third party providers, and users who have access to Company Confidential Information are bound at least as stringent as those applicable to Vendor under this Agreement, with respect to data security and protection and non-use of Company Confidential Information;
(i)maintain Business Associate Agreements and Confidentiality Agreements at all times with all the third-party service providers that it uses in providing service(s) to Company.
(j) not store, transmit, access or display Company Confidential Information within any non-production computer systems environment including, but not limited to, computer system environments designated as development, quality assurance or test.
(k) not process Company Confidential Information for any purpose other than to provide the Services or in any manner that is not expressly contemplated by this Agreement, except where otherwise required by applicable law (and, in such a case, shall inform Company of that legal requirement before processing, unless applicable law prevents it doing so);
(l) only process Company Confidential Information in compliance with Company’s lawful written instructions supplied to Vendor from time to time in writing.
(m)employ a comprehensive written information security program containing administrative, physical, and technical safeguards (including safeguards against disabling devices and the adoption of appropriate policies, procedures and training for personnel) that (i) prevent the unauthorized access to, collection of, use, or disclosure of Company Confidential Information (“Safeguards”), (ii) satisfy all relevant state and federal laws and regulations, including but not limited to HIPAA, GDPR and, to the extent applicable, the most recent applicable version of the Payment Card Industry Data Security Standards (PCI DSS), and (iii) meet or exceed best industry practices regarding Safeguards;
(n)in any circumstance where Vendor or it subcontractor(s) intends to change or modify Vendor’s or such subcontractor’s written information security program or underlying security measures after inspection or approval of the same by Company, obtain Company’s prior written consent as a condition precedent to the implementation of such changes or modifications;
(o)prior to engaging a subcontractor to process any Company Confidential Information, obtain Company’s prior express, written consent to such engagement and enter into a written agreement with the subcontractor, incorporating terms which are substantially similar to those set out in this Exhibit. Any subcontractor shall not engage another subcontractor to process any Company Confidential Information without the prior written consent of Company. As between Company and Vendor, Vendor shall remain fully liable for all acts or omissions of any subcontractor appointed by it pursuant to this Exhibit.
(p)immediately notify Company if compliance with any of Company’s instructions or its obligations under this Agreement is inconsistent with compliance with, or infringes, any applicable law.
(q)transmit Company Confidential Information between Vendor, any subcontractor of Vendor and Company using HTTPS, VPN, Secure FTP or other mutually approved method of encryption; and
(r)store Company Confidential Information within an industry standard encryption utilizing a Company specific decryption key.
2. Security Standards. Vendor acknowledges that Company disallows storage, transmission, access or display of Company Confidential Information within any computer system or process not covered by a set of industry standard security certifications, including, but not limited to, HITRUST and/or SOC 2, Type 2. As such, Vendor attests that, having independent or third-party verification, all applicable computer systems and processes have been and will continue to be certified to such level of security.
3. Breach of Company Confidential Information. In addition to any other obligations contained in this Agreement or in the Business Associate Agreement, Vendor agrees to the following:
(a)Vendor shall promptly notify Company (and in any event within twenty-four (24) hours) of any actual or suspected unauthorized access to, acquisition of, or disclosure of, Company Confidential Information in the custody or control of Vendor or its subcontractors or a reasonable belief by either Vendor or its subcontractor that such unauthorized access, acquisition or disclosure has occurred (the “Breach of Security”). Such notice shall include the following, to the extent such information is discoverable at the time notice is given: (i) date and time that Vendor discovered the Breach of Security and the date and time when the Breach of Security actually occurred, if discoverable; (ii) a detailed description of the Breach of Security; (iii) a list of the systems and data at risk, including a list of affected individuals; and (iv) a description of actions taken after the Breach of Security was discovered. Thereafter, Vendor shall provide to Company weekly reports and updates describing the investigation into the Breach of Security, all corrective or remedial actions taken or to be taken by Vendor or its subcontractor, as the case may be, and shall promptly provide any further information that Company may request or that may become available in connection with the Breach of Security. Vendor will assist Company in investigating and remedying any breach and any related dispute, inquiry, or claim.
(b)Vendor shall promptly (and in any event within forty-eight (48) hours) notify Company if Vendor receives a complaint in relation to Company Confidential Information, from a data subject or an authorized public body, including any regulator or supervisory authority, and provide Company with full details of such complaint.
(c)Vendor shall record and notify Company (within forty-eight (48) hours) of Vendor receiving any data subject requests, including access requests; provide Company with such information and cooperation as required to respond to such request; and not respond to any data subject request or complaint without Company’s prior written.
4. Presence Outside of the US. Without the prior written consent of Company, Vendor will not store, maintain, host, transmit to, or permit the transitory presence of Company Confidential Information outside of the United States.
This Global Privacy Policy (“Privacy Policy”) describes how Swiss Monkey, Inc. and its affiliates will gather, use, and maintain your Personal Information on the Swiss Monkey Platform. It will also explain your legal rights with respect to that information.
By using the Swiss Monkey Platform, you confirm that you have read and understand this Privacy Policy, and our Global Terms of Service (together referred to herein as the “Agreement”). The Agreement governs the use of the Swiss Monkey Platform. Swiss Monkey will collect, use, and maintain information consistent with the Agreement.
If you are a California resident or data subject in Europe, please see the “Additional Disclosures for California Residents” and “Additional Disclosures for Data Subjects in the European Economic Area (EEA), Switzerland, and the UK” sections, respectively. If you have any questions or wish to exercise your rights and choices, please contact us as set out in the “Contact Us” section below.
In this Privacy Policy:
Swiss Monkey collects certain personally identifiable information about you, including information that can identify, relate to, describe, be associated with you, or is reasonably capable of being associated with you (“Personal Information”). Examples of Personal Information that Swiss Monkey collects include but are not limited to:
Contact Information. This may include your first and last name, postal address, telephone number, and email address.
Billing Data, including your payment instrument number (such as a credit or debit card number), expiration date, and security code as necessary to process your payments.
Identity Information. If you are a User, we may collect Personal Information, such as your date of birth and address, national identification number if applicable, together with the result of basic criminal record checks as provided by you, or by our Third-Party Agents (as defined below), as applicable and to the extent permitted by law in your jurisdiction, as well as such information as may be needed to validate your identity.
Financial Information. To help Users set up a payment account and help Clients make payments to Users and pay fees to Swiss Monkey, we may collect financial information, including credit card number, bank routing numbers, tax information, taxpayer identification number, and other payment information, as applicable. We use Financial Information in order to operate the Swiss Monkey Platform and to ensure that Users are paid by Clients. We do this as necessary for our legitimate interests in providing our platform and services and to fulfill our contracts with Users. To keep your financial data secure, we have contracted with a third party to maintain and process your payment information.
Promotional Information. Certain offerings of the Swiss Monkey Platform, such as newsletters, surveys, contests, and the like are optional and so you are not required to enter them or to give us your data in connection with them. Where you do consent to take advantage of Swiss Monkey Platform offerings, we will use your data to (as applicable) send you newsletters and other communications that are tailored based on information we have about you, or to operate and manage the survey, contest or similar offering in connection with our legitimate interest in promoting our business and the Swiss Monkey Platform. To opt-out of receiving marketing communications from us, please see Section 7, Your Rights and Choices.
Employment Information. We collect employment and education history, transcripts, writing samples, and references as necessary to consider your job application for open positions.
Content Information. You also may choose to send Swiss Monkey Personal Information in an email or chat message containing inquiries about the Swiss Monkey Platform and we use this Information in order to help us respond to your inquiry. We also collect content within any messages you exchange with other Users through the Swiss Monkey Platform (such as through our chat functionality).
We require that you furnish certain information when you register an account with us in order to provide services through the Swiss Monkey Platform. For example, if you are a Client, we collect your first and last name, email address, and your zip or postal code in order to create and administer your Swiss Monkey account. We also collect additional information in order to facilitate your booking request, such as information about the task you are seeking, the time, date and location of the task, and Billing Data. If you are a User, we collect your first and last name, email address, mobile phone number and zip or postal code in order to create and administer your Swiss Monkey account and facilitate communications between you and your Clients through the Swiss Monkey Platform. We also collect information about your tasks, rates, and skills, as well as Identity Information and Financial Information.
Third Party Information. If you registered through a co-branded version of our Swiss Monkey Platform through one of our Partners (as defined below) or IKEA, they may provide us with basic information such as your name, address, email, and purchase history related to your Task needs. We may receive additional information about you, such as demographic data, Financial Information, or fraud detection information, from Third-Party Agents (as defined below) and combine it with other information that we have about you, to the extent permitted by law, in order to comply with our legal obligations and for the legitimate interest in improving the Swiss Monkey Platform. Swiss Monkey may work with Third-Party Agents to perform identity checks and criminal background checks on Users, if applicable and permitted by local law, in order to advance our legitimate interests in ensuring the safety of our Users and maintaining the integrity of the Swiss Monkey Platform.
We automatically collect certain information when you use the Swiss Monkey Platform. The categories of information we automatically collect and have collected, including in the last 12 months, are as follows:
Service Use Data, including data about features you use, pages you visit, emails and advertisements you view, portions of the Swiss Monkey Platform that you view and interact with, the time of day you browse, and your referring and exiting pages.
Device Data, including data about the type of device or browser you use, your device’s operating system, your internet service provider, your device’s regional and language settings, and device identifiers such as IP address and Ad Id. When you visit and interact with the Swiss Monkey Platform, Swiss Monkey may collect certain information automatically through cookies or other technologies, including, but not limited to, the type of computer or mobile device you use, your mobile device’s unique device ID, the IP address of your computer or mobile device, your operating system, the type(s) of internet browser(s) you use, and information about the way you use the Swiss Monkey Platform (“Device Information”). We may use Device Information to monitor the geographic regions from which Users navigate the Swiss Monkey Platform, and for security and fraud prevention purposes. Use of any IP-masking technologies or similar technologies (like the TOR network) may render portions of the Swiss Monkey Platform unavailable and are forbidden on the Swiss Monkey Platform.
Location Data, including imprecise location data (such as location derived from an IP address or data that indicates a city or postal code level), and, with your consent, precise location data (such as latitude/longitude data). When you visit the Swiss Monkey Platform via a native mobile application, we use, with your consent when required under applicable law, GPS technology (or other similar technology) to determine your current location in order to determine the city you are located in and display a relevant location map. We will not share your current location obtained in this manner with other Users.
Cookies and similar technologies are described in our Cookie Policy, which sets out the different categories of cookies and similar technologies that the Swiss Monkey Platform uses and why we use them.
We collect and use information for business and commercial purposes in accordance with the practices described in this Privacy Policy. Our business purposes for collecting and using information include:
Interest-Based Advertising. Ads are a standard part of user experience on the Internet, and Swiss Monkey believes that targeted advertising enhances this experience. Swiss Monkey and affiliate third parties may use cookies and other technologies to place ads where they believe interested Users will see them. In addition to banner ads, Swiss Monkey may advertise products, companies and events that we think might interest you through the email address and/or phone number you provide. We may incorporate Tracking Technologies on the Swiss Monkey Platform (including our website and emails) as well as into our ads displayed on other websites and services. Some of these Tracking Technologies may track your activities across time and services for purposes of associating the different devices you use, and delivering relevant ads and/or other content to you (“Interest-Based Advertising”).
For more information and to understand your choices regarding third-party ads, please see our Cookie Policy. Advertising and marketing is carried out as necessary for our legitimate interests in providing an engaging and relevant experience, promoting our services, and growing our business.
Analytics and Market Analysis. Swiss Monkey may analyze information (“Market Analysis”) as necessary for our legitimate interests in providing an engaging and relevant experience, and promoting and growing the Swiss Monkey Platform.
Swiss Monkey uses information to offer services to Users who express an interest in these services, through a poll for example, or to Users who can be presumed to have an interest based on results from our Market Analysis. We do this as necessary for our legitimate interests in providing an engaging and relevant experience, promoting our services, and growing our business.
Cell Phone Numbers. Swiss Monkey may use your cell phone number to call or send recurring text messages to you, using an autodialer or prerecorded voice, in order to provide you notifications about Tasks, for marketing purposes (with your consent where required by law), and to administer the Swiss Monkey Platform. If you would like more information about our policy, or how to opt out, please review the “Your Rights and Choices” section below or Section 9 of our Terms of Service. You may be liable for standard SMS and per-minute charges by your mobile carrier. Swiss Monkey may also message you via push notifications (with your consent when required under applicable law), which you can opt-out of on your mobile device. Data rates may apply.
Call recordings. Calls to or from Swiss Monkey or its Third Party Agents may be monitored and recorded for the purposes of quality control and training. Such calls may contain Personal Information.
We only share the Information we collect about you as described in this Privacy Policy or as described at the time of collection or sharing, including as follows:
Third Party Agents. We share information, including Identity Information, with entities that process information on our behalf for our business purposes. We contractually prohibit our Third-Party Agents from retaining, using, or disclosing information about you for any purposes other than performing the services for us, although we may permit them to use information that does not identify you (including information that has been aggregated or de-identified) for any purpose except as prohibited by applicable law.
To operate Swiss Monkey, including processing your transactions, we may share your Personal Information with our agents, representatives, vendors and service providers (“Third Party Agents”) so they can provide us with support services as follows:
Partners. Some Swiss Monkey content is "sponsored by" or "presented by" other companies. If you connect to the Swiss Monkey through a co-branded version of Swiss Monkey or otherwise participate in one of our partner programs, we may share information about your use of Swiss Monkey with that Partner in order to offer the integrated platform and to evaluate the partner program. We may also share your Personal Information with our Partners in order to receive additional information about you, or in order to create offers that may be of interest to you. Please check such Partner’s privacy policy before revealing information about yourself. If you don't want these Partners to have your Personal Information, you can choose to not participate.
Promotions. When you voluntarily enter a sweepstakes, contest, or other promotion, we share information as set out in the official rules that govern the promotion as well as for administrative purposes and as required by law (e.g., on a winners’ list). By entering a promotion, you agree to the official rules that govern that promotion, and may, except where prohibited by applicable law, allow the sponsor and/or other entities to use your name, voice, and/or likeness in advertising or marketing materials. We may occasionally contact you, if you want us to, with information about special events, activities, promotions, contects, submission opportunities, and programs. You always have the ability, in your Account, to ask Swiss Monkey not to contact you with this type of information.
Matched Ads. We may use Matched Ads by sharing personal information with another party or incorporating a pixel from another party into our own Sites, and the other party matching common factors between our data and their data or other datasets for advertising purposes. For instance, we incorporate the Facebook pixel on our Sites and may share your email address with Facebook as part of our use of Facebook Custom Audiences.
Other Users. Swiss Monkey facilitates contact between Clients and Users and reserves the right to share one User’s contact information (e.g., name, phone number, email, or postal address) with other Users, or with the recipient User’s legal or other authorized representative, in order to: (1) facilitate or communicate the resolution of an investigation or dispute related to or arising from an interaction between two or more Users of the Swiss Monkey Platform; or (2) facilitate the performance of a Task. This exchange of information is essential to the operation of the Swiss Monkey Platform.
Legal Obligations. Swiss Monkey and our Third Party Agents may disclose your Personal Information or User Generated Content to courts, law enforcement, governmental or public authorities, tax authorities or authorized third parties, if and to the extent required or permitted to do so by law or where disclosure is reasonably necessary to: (i) comply with Swiss Monkey’s legal or regulatory obligations; (ii) respond to a court order, warrant or subpoena; (iii) respond to a valid legal request relating to an investigation into alleged criminal or illegal activity; or (iv) respond to or address any other activity that may expose us to legal or regulatory liability.
In jurisdictions where Swiss Monkey is, according to applicable law, required to collect or remit information about Users’ permits, licences, tax, or social security registrations, Swiss Monkey and our Third Party Agents may disclose information, including but not limited to, User contact details, identification information, transaction dates and amounts, license and permit status, and tax identification number(s) to applicable governmental authorities.
Swiss Monkey reserves the right to disclose Personal Information from both private and public areas of the Swiss Monkey Platform in the absence of a court order, warrant, or subpoena, to the extent permitted by applicable law, if we are given reason to believe, in our sole discretion, that someone is causing injury to or interfering with the rights of Users, the general public, or Swiss Monkey or its partners, parents or affiliates.
It is our policy to provide notice to Users before producing their information in response to law enforcement requests unless (i) we are prohibited or otherwise constrained by law or court order from doing so, (ii) we have reason to believe the User’s account has been compromised such that the notice would go to the wrong person, or notice would otherwise be counterproductive or would create a risk to safety, or (iii) it is an emergency request and prior notice would be impractical (in which case we may provide notice after the fact).
Merger or Acquisition. Swiss Monkey reserves the right to share information in connection with, or during negotiations of, any proposed or actual merger, purchase, sale, or any other type of acquisition or business combination of all or any portion of our assets, or transfer of all or a portion of our business to another business.
Public Areas. Your profile on the Swiss Monkey Platform consists of information about you and your business, and may include information such as photographs, your years in business, skills and expertise, hourly pay rates, feedback/rating information, and other information, including your username (“Profile”). The information in your User Profile may be visible to all Users and the general public. If you choose to post a Task via the Swiss Monkey Platform, the contents of such listing will be viewable to Users you select on the Swiss Monkey Platform.
You may opt-out of receiving promotional communications from us, including promotional communications related to the Swiss Monkey Platform, and request the removal of your Personal Information from our databases, or deactivate your account, by logging on to the Site or App and clicking on the “Account” tab, or by contacting us.
Account Settings. During registration you choose whether to receive marketing correspondence from Swiss Monkey. This information remains on your Profile where you can, at any point, easily edit it. After logging on, click on the “Account” tab, then select “Notifications” to make your preferred selections.
Push Notifications. You have the option to receive updates and relevant offers via push notifications in your app. These notifications can be configured in the settings of your mobile device at any time.
Corrections to Profile. You have the right to access, update, and correct inaccuracies in your Swiss Monkey Profile at any time by logging in and clicking on the “Account” tab. There, you can view, update, and correct your Account information.
So that we may protect the integrity of the Swiss Monkey Platform, there are certain pieces of information, such as your age, that you cannot alter yourself. For example, since children under the age of majority in their jurisdiction of residence are not allowed to register as Users, we need to take reasonable measures to preserve the accuracy of our Users' ages. You may contact us at contact@SwissMonkey.io if there is a need to make a correction to such data.
Promotional Communications. You can opt out of receiving promotional communications from Swiss Monkey by emailing contact@swissmonkey.io. In addition, you can opt out of email marketing by clicking on the unsubscribe link in any message. You can opt out of promotional communications from Swiss Monkey sent via text message at any time by following the instructions provided in those messages to text the word "STOP". Please note that your opt-out is limited to the phone number used and will not affect subsequent subscriptions. If you opt-out of only certain communications, other subscription communications may continue. Even if you opt-out of receiving promotional communications, Swiss Monkey will continue to send you non-promotional communications, such as those about your account, Tasks, transactions, servicing, or Swiss Monkey’s ongoing business relationship with you. If you receive unsolicited promotional communications from a Swiss Monkey domain, please let us know here.
If you are a California Resident, please see the Additional Disclosures for California Residents section below.
We retain personal data for as long as you are a User in order to meet our contractual obligations to you, and for such longer period as may be in our legitimate interests and to comply with our legal obligations. We may also retain data from which you cannot directly be identified, for example where stored against a randomly-generated identifier so we know the data relates to a single User, but we cannot tell who that User is. We use this kind of data for research purposes and to help us develop and improve our services, and we take appropriate measures to ensure you cannot be re-identified from this data.
Your Swiss Monkey account is password-protected so that only you and authorized Swiss Monkey staff have access to your account information. In order to maintain this protection, do not give your password to anyone. Also, if you share a computer, you should sign out of your Swiss Monkey account and close the browser window before someone else logs on. This will help protect your information entered on public terminals from disclosure to third parties.
Swiss Monkey implements and maintains reasonable administrative, physical, and technical security safeguards to help protect information about you from loss, theft, misuse and unauthorized access, disclosure, alteration and destruction. Swiss Monkey has staff dedicated to maintaining this Privacy Policy and other privacy initiatives, periodically reviewing security, and making sure that every Swiss Monkey employee is aware of our security practices. Nevertheless, transmission via the internet is not completely secure and we cannot guarantee the security of information about you.
Swiss Monkey's Privacy Policy is periodically reviewed and enhanced as necessary. This Privacy Policy might change as Swiss Monkey updates and expands the Swiss Monkey Platform. Swiss Monkey will endeavor to notify you of any material changes by email. Swiss Monkey also encourages you to review this Privacy Policy periodically.
This service is intended for a general audience, and is not directed at children under 13 years of age. In certain jurisdictions, this minimum age may be higher. Please check the Jurisdiction-specific Provisions below for more information.
We do not knowingly gather personal information (as defined by the U.S. Children’s Privacy Protection Act, or “COPPA”) in a manner not permitted by COPPA. If you are a parent or guardian and you believe that we have collected information from your child in a manner not permitted by law, please let us know by contacting us here. We will remove the data.
We do not knowingly collect or “sell” the Personal Information of minors under 18 years old who are California residents.
If you have any questions about this Privacy Policy or the manner in which we or our Third-Party Agents treat your Personal Information, the practices of the Site, your dealings with the Swiss Monkey Platform, or if you have technical problems, you may contact us here.
Swiss Monkey's staff will respond to all mail or email from Users with questions about privacy, including the types of Personal Information stored on the Swiss Monkey databases, and requests to know, delete or rectify such Personal Information.
Information of U.S. Users. Our collection, use, and retention of the Personal Information of U.S. Users is in accordance with applicable U.S. laws, as is our determination of what is deemed to be “personal data and/or information.”
Swiss Monkey expressly disclaims any liability that may arise should any other individuals obtain the information you submit to the Swiss Monkey Platform.
Interest-Based Advertising in the United States. For more information about interest-based ads, or to opt out of having your web-browsing information used for behavioral advertising purposes, please visit www.aboutads.info/choices.
Swiss Monkey’s Security of Collected Information. While Swiss Monkey will use commercially reasonable efforts to ensure the security of all Personal Information, we expressly disclaim any liability for any unauthorized access to or use of our secure servers and/or any and all Personal Information stored therein, and you agree to hold Swiss Monkey harmless for any damages that may result therefrom. If you have any further questions on this issue, please refer to the Terms of Service.
These additional disclosures for California residents apply only to individuals who reside in California. The California Consumer Privacy Act of 2018 (“CCPA”) provides additional rights to know, delete and opt out, and requires business collecting or disclosing Personal Information to provide notice of rights California residents have and can exercise.
California Notice of Collection. We have collected Personal Information corresponding to the following categories enumerated in the CCPA, including within the last 12 months.
For more information on what we collect, including the sources we receive information from, review Section 3, Information Collection. We collect and use these categories of personal information for the business purposes described in Section 5, Swiss Monkey’s Use of Information, including to provide and manage Swiss Monkey.
Swiss Monkey does not generally sell information as the term “sell” is traditionally understood. However, to the extent “sale” under the CCPA is interpreted to include advertising technology activities such as those disclosed in Section 5, Swiss Monkey’s Use of Information, as a “sale,” we will comply with applicable law as to such activity.
Swiss Monkey discloses the following categories of information for commercial purposes:
We use and partner with different types of entities to assist with our daily operations and manage the Swiss Monkey Platform. Please review Section 6, Information Sharing, for more detail about the parties with which we share Personal Information.
Right to Know and Delete. If you are a California resident, you have the right to know certain information about our data practices in the preceding 12 months. In particular, you have the right to request the following from us:
In addition, you have the right to delete the Personal Information we have collected from you. However, this is not an absolute right and Swiss Monkey may have legal grounds for keeping such data.
To exercise any of these rights, please submit a request at privacy@swissmonkey.com or here. In the request, please specify which right you are seeking to exercise and the scope of the request. We will confirm receipt of your request within 10 days. We may require specific information from you to help us verify your identity and process your request. If we are unable to verify your identity, we may deny your requests to know or delete.
Right to Opt-Out. To the extent Swiss Monkey sells your Personal Information as the term “sell” is defined under the CCPA, you have the right to opt-out of the sale of your Personal Information by us to third parties at any time. You may request to opt-out by clicking Do Not Sell My Personal Information and making your choice.
Authorized Agent. You can designate an authorized agent to submit requests on your behalf. However, we will require written proof of the agent’s permission to do so and verify your identity directly.
Right to Non-Discrimination. You have the right to non-discriminatory treatment by us, should you exercise any of your rights.
Shine the Light. Customers who are residents of California may request: a list of the categories of Personal Information disclosed by us to third parties during the immediately preceding calendar year for those third parties’ own direct marketing purposes, and (ii) a list of the categories of third parties to whom we disclosed such information. To exercise a request, please contact us at policies@swissmonkey.com or 237 Kearny Street #9003 San Francisco, CA 94108. Requests must include “California Shine the Light Request” in the first line of the description and include your name, street address, city, state, and ZIP code. We may require additional information from you to allow us to verify your identity and are only required to respond to requests once during any calendar year. Please note that Swiss Monkey is not required to respond to requests made by means other than through the provided email address or mail address.
This Business Associate Agreement (“Agreement”) is among Client (“Covered Entity”) and Swiss Monkey (“Business Associate”). Company and Business Associate shall individually be known as a “Party” and collectively as “the Parties.”
WHEREAS, Company provides certain services to or on behalf of a Covered Entity, as defined in 45 C.F.R. § 160.103;
WHEREAS, Business Associate provides certain goods and/or services to or on behalf of Company that may involve the use and/or disclosure of Protected Health Information (“PHI”), as defined in 45 C.F.R. § 160.103;
WHEREAS, the Company is subject to certain of the provisions of the Privacy, Security, Breach Notification and Enforcement Rules found at 45 C.F.R. Parts 160 and 164 implemented under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by applicable provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act (Title XIII, Subtitle D) and its implementing regulations (collectively, the “HIPAA Regulations”); and
WHEREAS, the HIPAA Regulations and the Covered Entity require that Company obtain satisfactory assurances that Business Associate will comply with certain obligations with respect to the PHI used or disclosed in the course of providing goods and/or services to or on behalf of Company.
NOW THEREFORE, in consideration of the representations, warranties and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
A. Definitions.
The Parties agree that the following terms, when used in this Agreement, shall have the following meanings. Capitalized terms used herein, but not otherwise defined, shall have the meaning ascribed by the HIPAA Regulations.
“Arrangement” means the agreement or business relationship between the Parties pursuant to which Company may disclose to Business Associate certain PHI, specifically the Contractor Services Agreement, dated as of when this contract is signed.
“Protected Health Information” (or “PHI”) has the same meaning as this term has in 45 C.F.R. § 160.103, which includes PHI maintained in or transmitted by electronic media (“ePHI”); provided, however, such term is limited, when used herein, to the PHI created, received, maintained, or transmitted by Business Associate from or on behalf of Company.
B. Obligations and Activities of Business Associate.
Business Associate shall comply with all applicable state and federal laws governing the confidentiality, privacy and security of individually identifiable or sensitive information, including but not limited to the provisions of the HIPAA Regulations applicable to Business Associates.
Business Associate shall not use or disclose PHI other than as permitted or required by this Agreement or as Required by Law. Business Associate agrees that if Company or the Covered Entity notifies Business Associate that Company or the Covered Entity has agreed to be bound by additional restrictions on the use or disclosure of PHI, Business Associate shall abide by such additional restrictions and shall not use or disclose PHI in violation of such additional restrictions.
Business Associate shall use any and all appropriate administrative, physical and technical safeguards to prevent the use or disclosure of PHI other than as provided by this Agreement, and shall comply with the Security Rule (45 C.F.R. Part 164, Subpart C) with respect to ePHI.
Business Associate shall report to Company as soon as possible, but not later than forty-eight (48) hours following Discovery, any actual or suspected use or disclosure of PHI in violation of this Agreement or any applicable federal or state laws and regulations, including but not limited to any Breach of Unsecured PHI as required by 45 C.F.R. § 164.410, and any Security Incident. Such notice shall include (and may be supplemented as facts become available) the identification of each individual whose Unsecured PHI has been, or is reasonably believed by Business Associate to have been, accessed, acquired, used or disclosed by such Breach or incident, and any other information that Company deems necessary to meet its contractual obligations to the Covered Entity or its or the Covered Entity’s breach notification obligations under the HIPAA Regulations. Business Associate shall (i) mitigate any adverse effects from any unauthorized access, use or disclosure of PHI, and (ii) promptly remedy any violation of this Agreement.
Business Associate shall ensure by written contract, in accordance with 45 CFR § 164.502(e)(1)(ii) and § 164.308(b)(2), that any subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate agree to the same restrictions, conditions, and requirements that apply through this Agreement to Business Associate with respect to PHI.
Business Associate shall, at the request of Company, promptly provide Company (or the Covered Entity) access to PHI maintained in a Designated Record Set in order to meet the requirements under 45 CFR § 164.524, and to notify Company of any requests for access it receives from an Individual within two (2) business days of receipt.
Business Associate shall promptly make available to Company (or the Covered Entity) such information as Company (or the Covered Entity) may require to fulfill its obligations to amend PHI in accordance with its contract with the Covered Entity and 45 CFR § 164.526. In addition, Business Associate shall, at the request of Company (or the Covered Entity), promptly incorporate any amendment(s) to PHI maintained in a Designated Record Set, and notify Company of any amendment requests it receives from an Individual within two (2) business days of receipt.
Business Associate shall make internal practices, books, and records, including policies and procedures, relating to the use and disclosure of PHI received from, or created or received by Business Associate on behalf of, Company available to the Secretary for purposes of determining Company’s compliance with the HIPAA Regulations. Business Associate shall immediately notify Company of any such request for access by the Secretary and shall provide Company with a copy thereof as well as a copy of all materials disclosed pursuant thereto. The provision of any information pursuant to this Section shall not be deemed a waiver of any privilege, including the attorney-client and/or work-product privileges, applicable to any such information. The Parties’ respective rights and obligations under this Section B.8. shall survive termination of the Agreement.
Business Associate shall document and maintain a record of disclosures of PHI and information related to such disclosures as would be required for Company (or Covered Entity) to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528, including the date of the disclosure, the name and, if known, the address of the recipient of the PHI, a brief description of the PHI disclosed, and the purpose of the disclosure which includes an explanation of the basis for such disclosure. Business Associate shall make this record, and any such information as Company (or the Covered Entity) may require to provide an accounting of disclosures of PHI in accordance with 45 CFR § 164.528, available to Company, the Covered Entity, or an Individual upon Company’s request, in a prompt and commercially reasonable manner. The Parties’ respective rights and obligations under the Section B.9. shall survive termination of the Agreement.
Business Associate shall, to the extent Business Associate is to carry out Company’s obligations under the HIPAA Regulations, comply with the requirements of the HIPAA Regulations that apply to Company in the performance of such obligations.
C. Permitted Uses and Disclosures by Business Associate.
Except as otherwise limited in this Agreement, Business Associate may use or disclose PHI, as follows:
As necessary to perform the services for or on behalf of Company as set forth in and subject to the terms of the Arrangement, provided that such use or disclosure would not violate the HIPAA Regulations if done by Company (or the Covered Entity).
Business Associate may use PHI received by Business Associate in its capacity as a business associate of Company, if necessary, for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.
Business Associate may disclose PHI for the proper management and administration of Business Associate, provided that such disclosures are Required by Law, or Business Associate obtains satisfactory assurances from the person to whom the information is disclosed that it will remain confidential and be used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
D. Term and Termination.
This Agreement shall be effective as of the Effective Date, and shall terminate upon termination of the Arrangement, unless sooner terminated as provided herein.
If Company determines in its sole discretion that Business Associate has violated a material term of this Agreement, Company may: (i) provide an opportunity for Business Associate to cure the breach or end the violation within the time specified by Company, and immediately terminate this Agreement and the Arrangement if Business Associate does not cure the breach or end the violation within such specified time, or (ii) immediately terminate this Agreement and the Arrangement if cure is not possible.
Except as provided in Section D.3.ii., upon termination of this Agreement or the Arrangement, for any reason, Business Associate shall promptly return all PHI received from Company, or created or received by Business Associate on behalf of Company (or, if instructed by Company, destroy all such PHI and provide Company a written certification of such destruction).
i. This provision shall also apply to PHI that is in the possession of subcontractors or agents of Business Associate. Business Associate shall retain no copies of the PHI.
ii. In the event that Business Associate reasonably determines that returning or destroying the PHI is infeasible, Business Associate shall provide to Company notification in writing of the conditions that make return or destruction infeasible. Upon confirmation from Company that return or destruction of PHI is infeasible, Business Associate shall extend the protections of this Agreement to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI. This Section D.3.ii. shall survive termination or expiration of this Agreement.
E. Miscellaneous
Consideration. Business Associate recognizes that the promises it has made in this Agreement shall, henceforth, be detrimentally relied upon by Company in choosing to continue or commence a business relationship with Business Associate.
Modification. This Agreement may not be changed or modified in any manner except by an instrument in writing signed by a duly authorized representative of each of the Parties hereto. The Parties, however, agree to amend this Agreement from time to time as necessary, in order to allow Company to comply with the requirements of the HIPAA Regulations.
Survival. The respective rights and obligations of the Parties under Sections B.8., B.9., D.3.ii., and E.1. - E.16. of this Agreement shall survive the termination or expiration of the Arrangement and this Agreement.
No Agency Relationship. None of the provisions of this Agreement are intended to create, nor shall be deemed or construed to create, any relationship between the Parties hereto other than that of independent contractors. Neither Business Associate nor any of its employees, subcontractors, or other agents shall be deemed to be an “agent,” “employee,” “servant,” or “joint employee” of Company.
Liability for Security Incidents. Business Associate will indemnify and hold Company, the Covered Entity, and their partners, officers, owners, affiliates, employees, agents, and other representatives, individually and collectively, harmless from and against all claims, demands, actions, judgments, settlements, interest, awards, penalties, fines, costs, expenses, damages, liabilities and losses of whatever kind, including reasonable attorneys’ fees and punitive damages, which may arise from or relate to any claim of a third party or Company arising out of or occurring in connection with any (i) violation or breach of this Agreement and/or applicable laws by Business Associate or its officers, directors, owners, employees, agents, subcontractors, and other representatives (collectively, the “Business Associate Representatives”), including but not limited to any failure to perform its obligations under HIPAA or any Breach of PHI by Business Associate Representatives, or (ii) negligence or willful misconduct by the Business Associate Representatives. Business Associate shall not enter into any settlement without Company’s prior written consent. Business Associate’s obligations in this Section are in addition to any indemnification or similar obligations Business Associate may have under the Arrangement.
Remedies. The rights and remedies of Company under this Agreement will not be subject to any limitation or exclusion of liability, actions or remedies or any other similar limiting provisions stated in the Arrangement. Business Associate acknowledges that a breach or threatened breach of this Agreement will cause irreparable harm to Company which cannot be adequately compensated by monetary damages. Accordingly, Company may, in addition to any legal or other remedies available to Company, seek injunctive or other equitable relief to prevent or remedy such breach or threatened breach, without the necessity of posting bond or other surety.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. Any claim, dispute, controversy or other matter arising under or related to this Agreement shall be subject to the sole and exclusive jurisdiction of the federal and state courts located in Sacramento County, California, and all Parties hereto waive any claims of inconvenience or lack of personal jurisdiction with respect to such courts.
Waiver. No waiver of any right hereunder shall be effective for any purpose unless in a writing that is signed by the Party possessing said right; nor shall any such waiver be construed to be a waiver of any subsequent right, term or provision of this Agreement. Each such waiver or consent will be effective only in the specific instance and for the purpose for which it was given, and will not constitute a continuing waiver or consent.
Regulatory and Statutory References. Any reference in this Agreement to a section of the HIPAA Regulations shall mean such regulation or statute as in effect on the Effective Date or, if and to the extent applicable, as subsequently updated, amended or revised.
Assignment. This Agreement may not be transferred or assigned by either Party without the prior written consent of the other Party. Notwithstanding the foregoing, any assignment permitted under the Arrangement shall be permissible hereunder. This Agreement is for the benefit of, and shall be binding upon, the Parties and their respective successors and permitted assigns.
Entire Agreement. This Agreement, and the Arrangement, constitute the complete agreement between Business Associate and Company relating to the matters specified in this Agreement, and supersedes all prior representations or agreements, whether oral or written, with respect to such matters, including any pre-existing business associate agreement between the Parties. In the event of any conflict between the terms of this Agreement and the terms of the Arrangement or any such later agreement(s), the terms of this Agreement shall control unless the terms of such arrangement are more strict with respect to PHI and comply with the HIPAA Regulations. No obligation on either Party to enter into any transaction is to be implied from the execution or delivery of this Agreement.
Notices. Any notice pertaining to this Agreement shall be given in writing and shall be deemed duly given when personally delivered to a Party or a Party’s authorized representative as listed below or sent by means of a reputable overnight carrier, or sent by means of certified mail, return receipt requested, postage prepaid. A notice sent by certified mail shall be deemed given on the date of receipt or refusal of receipt. All notices shall be addressed to the appropriate Party as follows:
Swiss Monkey, Inc.
contact@swissmonkey.io
Headings and Interpretation. The headings and captions of the various sections of this Agreement are for convenience of reference only and shall in no way modify, or affect the meaning or construction of, any of the terms or provisions hereof. Any conflict, inconsistency or ambiguity in or between this Agreement and the HIPAA Regulations shall be resolved in favor of a meaning that permits the Parties to comply with the HIPAA Regulations.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart executed by the party against whom enforcement of this Agreement is sought.
No Third-Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of the Parties hereto and their respective permitted successors or assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other person or entity.
Severability. The provisions of this Agreement shall be severable, and if any provision of this Agreement shall be held or declared to be illegal, invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect as though such illegal, invalid or unenforceable provision had not been contained.