SMARTCAT SUPPLIER AGREEMENT
Current version. Last updated on February 20, 2024.
IMPORTANT! PLEASE READ THIS AGREEMENT CAREFULLY AS IT MAY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS.
This is a legal agreement (the “Agreement”) between you and depending on where you reside Smartcat Platform Inc., a legal entity registered under the laws of the United States of America if you reside in the United States of America, or Smartcat Europe B.V., a legal entity registered under the laws of the Netherlands if you reside in any other country (“Smartcat”, “we” or “us”), regarding an online platform, located at www.smartcat.com (the “Platform” / “Smartcat Platform” as further defined in Section 1 below).
1. Overview and Key Definitions
2. Registration of Supplier Account and Acceptance of this Agreement
4. Warranties, Undertakings and Covenants
5. Technical and Organizational Security Measures
8. User License Grant for Platform
9. Termination and Suspension of Agreement and License
10. Copyright Matters and Translated Content Assignment
16. Your Information and Personal Data
19. Independent Contractor Relations
23. Entire Agreement / Severability / Amendment
1. Overview and Key Definitions
1.1. “Completed content” means the result of your work made with the Content according to the Service Task.
1.2. “Content” means any document, information, data, text, images, software, music, videos, sound, photographs, graphics, messages, or other materials, including any text and/or oral communication, that a Customer wishes Smartcat to translate or process in the agreed way, submits it for translation/processing by way of uploading, e-mailing, posting, assigning a task, publishing or displaying (hereinafter, “upload”) it on the Platform and that the Supplier will commit to performing as a project in the form of the Service Task.
1.3. “Customer” means a customer of Smartcat which executed with Smartcat a service agreement for the provision of Translation and Subscription Services provided on the Platform as defined in the customer agreement, located at https://www.smartcat.com/legal/customer-agreement/.
1.4. “Data Protection Laws” means all applicable data protection, privacy and data security laws and regulations, including the GDPR, UK General Data Protection Regulation (“UK GDPR”), the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 and its implementing regulations (collectively referred to herein as the “CCPA”), and any similar or equivalent applicable laws or regulations.
1.5. “DPA” means Smartcat Data Processing Addendum, located at https://www.smartcat.com/legal/dpa/.
1.6. “Exploit” / “Exploitation” / “Exploiting” in respect of the Completed content and/or any intellectual property rights in any such Completed content, means produce, reproduce, use, exploit, communicate, make available, sell, distribute, prepare, proofread, edit, change, amend, update, revise, translate, retranslate, commercialize, license, sub–license, assign, waive, copy, issue copies of such Completed content to the public, rent or lend such Completed content to the public, perform, show or play such Completed content in public, communicate such Completed content to the public, make an adaption of such Completed content or do any of the above in relation to an adaption of such Completed content or do (or permit or authorize others to do) anything which is or may be otherwise restricted by the copyright in such Completed content or otherwise use, exploit and/or deal with all or any part of such Completed content in any form or manner (including online, offline, and/or in any digital or electronic book form) and anywhere in the world, including (without any limitation) by preparing sound recording incorporating the whole or part of such Completed content (or an adaption thereof), by producing and selling any other devices capable of storing sound including but not limited to electronic or digital files for transmission over the internet or via other wireless means, by publishing any extracts or an abridgement of such Completed content in any newspapers (including the online form of any such newspapers) books, periodicals, in volume or elsewhere (including any maps, diagrams or illustrations from the Completed content), by publishing an edition with editorial apparatus or an edition with a limited vocabulary for sale on educational terms by educational sales methods; and/or by any readings from the text of such Completed content on radio or television or otherwise, by transcription of such Completed content into Braille and/or the recording of such Translation as a “talking book” for the use of the blind or otherwise.
1.7. “GDPR” / “General Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Counsel of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
1.8. “Platform” / “Smartcat Platform” means an online platform, located at www.smartcat.com, and represents itself as a technology platform for translation workflow automation allowing a registered user to automate translation processes and make use of technologies provided by Smartcat on the Platform.
1.9. “Service Task Currency” means a currency in which your rate is set for each Service Task.
1.10. “Service Task” means service order of Customer for the provision of Translation Services that contains the description of its terms, including language of the original text, translation language, scope of work, deadline and rate per unit (word, character, page or hour, etc.), task acceptance criteria identified by the Customer, payment and dispute resolution terms as specified by the Customer in each specific Customer account, as well as specific requirements to performance of the task by the Supplier, if any. The Service Task is made available to the Supplier via Supplier Account on the Platform.
1.11. “Supplier Account” means your account on the Platform where the Content is uploaded for the performance of Service Task or where you store your Completed content.
1.12. “Supplier” means any individual freelancer or legal entity, including you, that is registered on the Platform and wishes to perform the Service Task.
1.13. “Terms of Service” / “TOS”. Supplier’s use of the Platform shall be also governed by the terms of service, located at https://www.smartcat.com/legal/terms/ (the “TOS”). This Agreement will prevail to the extent of any inconsistency with the TOS.
1.14. “Translation Services” means translation, interpreting and related services (such as, but not limited to editing and post-editing, proofreading, desktop publishing, etc.).
1.15. “User” means a Customer or a Supplier (depending on the context) registered on the Platform.
2. Registration of Supplier Account and Acceptance of this Agreement
2.1. You must create an account and provide certain information about yourself to access and use the Platform. You agree to provide true, accurate, and complete information as prompted by the registration form and all forms you access on the Platform and to update this information to maintain its truthfulness, accuracy, and completeness. You are responsible for maintaining the confidentiality of your account password and all activities that occur in connection with your account.
2.2. To access and use the Platform as a Supplier, you must be a legal entity or an individual of eighteen (18) years of age or older who can enter into legally binding contracts.
2.3. Once you complete the mandatory fields of your profile and register as a Supplier on the Platform you represent and warrant to Smartcat that: (i) you are authorised to bind yourself; (ii) you agree to be bound by this Agreement and the TOS (iii) you agree to be considered a Supplier for the purposes of this Agreement and the TOS.
2.4. You must not access and use the Platform if you (a) are a competitor of ours, or (b) you reside or have business activities in a territory included in the economic and financial sanctions lists maintained by OFAC and/or EU, or are subject to such sanctions in any other way, or (c) if we have previously banned you from accessing and using the Platform and/or closed your account on the Platform.
3. Scope of Engagement
3.1. You will provide the Translation services to Smartcat of the Content as detailed in one or more Service Tasks.
3.2. As a general rule, a Customer assigns a Service Task to Smartcat. If you are indicated in the Service Task, Smartcat shall further instruct you as the Supplier to perform the Service Task for Smartcat. You shall be responsible before Smartcat for performing the Service Task, and Smartcat shall pay you a fee for the Service Task under this Agreement.
3.3. Once you accept the Service Task:
a) you are obliged to render Service Task within the agreed scope and term, and it should be of proper quality and satisfy the specific Customer requirements as indicated in the Service Task or in each specific Customer account, or, where no specific requirements are indicated, consistent with standard industry practices for such services;
b) you are obliged to use your own software, equipment, workplace and premises in order to provide the services, and you acknowledge that Smartcat shall not provide such software, equipment, workplace and premises unless you independently obtain such resources from Smartcat;
c) you are entitled to independently choose working hours under no control of Smartcat in order to provide the services;
d) you are not restricted from providing similar services to any other customer including competitors of Smartcat;
e) if you do not deliver the results of the Service Task within the agreed scope, term and quality, we reserve the right, at our sole consideration, to decrease or revoke your fee for the Service Task, or, depending on the specific circumstances, to stop offering you any or all Service Tasks from current or other Customers, though you will be still allowed to continue using the Platform subject to terms of Section 8 herein.
3.4. Procedure for acceptance of the Completed content.
a) Once you complete the Service Task, the Customer that ordered the Service Task is informed about its completion by e-mail or through their Сustomer’s account dashboard on the Platform.
b) The Service Task shall be deemed duly completed and the Completed content accepted by Smartcat if no complaint was brought by the Customer that ordered the Service Task and the Customer accepted the Service Task using the special interface on the Platform within the timeframe specified in the Service Task.
c) If the Customer has any complaint regarding the Completed content and brought it to your attention via the Platform, you are obliged to rectify the deficiencies within 2 (two) days from the date the complaint was brought to your attention. If the Customer is not satisfied with how you addressed their complaints, we reserve the right, at our sole consideration, to conclude that you did not deliver the results of the Service task.
4. Warranties, Undertakings and Covenants
4.1. To perform any Service Task, you hereby covenant and undertake to Smartcat and warrant as follows:
a) to be bound by confidentiality provisions of this Agreement;
b) to use any Content solely for the performance of a specific Service Task;
c) upon written request of Smartcat or the relevant Customer who disclosed the Content to you, to delete (destroy) the Content as well as the Completed content from the workspace in your account on the Platform, as well as any copies, whether in paper or electronic form;
d) report immediately to Smartcat if the Content contradicts the applicable ethical or legislative norms (contains calls for terrorism, coup, etc.);
e) to protect the Content and Completed content from unauthorized access of third parties;
f) to ensure the technical and organizational measures including technical and organizational measures mentioned in Section 5
g) in case you are an individual freelancer to perform the Service Task personally without derogating any of its parts to anyone else or in case you are a legal entity to perform the Service Task only with the involvement of your employees, contractors, or affiliated entities provided that each employee, contractors or affiliated entities involved for the performance of the Service Task should bind themselves by substantially similar confidentiality and Completed content assignment provisions as contained herein;
h) any person using the Platform with your username and password is you or is authorized to act for you. You agree to notify us immediately if you suspect any unauthorized account use.
i) any Content you upload on the Platform is in full compliance with Data Protection Laws.
j) you comply with the requirements imposed on you by Data Protection Laws whenever you collect or receive from data subjects any Content that contains personal data of such data subjects.
5. Technical and Organizational Security Measures
5.1. As part of this Agreement, you must have in place the following technical measures:
a) all software used in providing the service must be vendor supported with security updates being available. Where possible, automatic updating must be activated.
b) all computers used in providing the service must be password protected with a strong password that cannot be easily guessed. We recommend a minimum of 8 characters of mixed letters, numbers, upper and lower case for both and mixed characters.
c) all computers must have anti-malware and anti-virus software that must be properly licensed and supported.
d) your network or computers must have an active firewall that is suitably configured to protect your personal data.
e) you shall strictly comply with the confidentiality provisions of this Agreement.
f) avoid the use of removable media, e.g. USB sticks, CD/DVD disks, flash cards, to reduce the potential loss of data.
g) immediately report to Smartcat on any data loss.
6. Fee and Payment
6.1. The fee for each Service Task is calculated according to the rate indicated for such Service Task in your Supplier Account. The fee in respect of each Service Task duly completed by you and accepted by Smartcat is accrued in the Service Task Currency.
6.2. Once the Service Task is completed by you and is accepted under Section 3.4. above, you will be paid your fee for the completed Service Task following receipt of the funds by Smartcat for the completed Service Task from the Customer, but in any case, you will receive your fee no later than 60 (sixty) days following the day in which Smartcat accepted the Completed content.
6.3. We have the right to seek reimbursement from you, and you will reimburse us if we discover a fraudulent transaction, erroneous or duplicate transaction.
6.4. You will be liable for any taxes required to be paid on your income received from Smartcat, as required by the legislation of the country you are subject to. You must pay your taxes independently and will provide Smartcat with documentation of such payment upon request. Smartcat shall not be responsible for any taxes which you are a subject to. Furthermore, Smartcat shall not be responsible for withholding from your payments nor remit to the tax authorities any payroll or other tax, social security or medicare contribution, or any other tax or contribution. You further agree to indemnify and hold Smartcat harmless from and against liability for any and all such payments. Nevertheless, you agree that Smartcat may withhold from payment to you any amounts which Smartcat determines it is required to withhold by applicable law.
6.5. In case you accept the Service Task from the Customer that allocated such Service Task to you via the Platform, you agree to interact with such Customer, including receiving any payments, exclusively via the Platform, whether first-time, repeatedly, or on a follow-on basis, except for the cases when you worked with such Customer outside the Platform before you received the first Service Task from them via the Platform, and this may be proved either by you or by the Customer. You also agree not to take any action directly or indirectly to circumvent the Platform or any associated fees.
6.6. The Platform operates in various currencies, the list of which is available in your account on the Platform. We are not responsible for currency fluctuations that occur when billing or crediting a credit or debit card denominated in a currency other than the Service Task currency, nor are we responsible for currency fluctuations that occur when receiving or sending payment via wire transfer, check or automated clearinghouse to and from your bank account, credit card account, PayPal account or any other payment method specified by you. Foreign currency conversion is processed at a foreign currency conversion rate set in the Platform. The exchange rate is updated on a daily basis but may not be identical to the real-time market rate.
6.7. The Platform operates with different payment systems and payment providers; therefore, you acknowledge and agree that you may receive payment for each Service Task from any of our affiliates depending on the type of payment selected on the Platform.
7. Service Charges
7.1. The Platform offers you as any other User Supplementary Services (as defined in the TOS) that you can order on the Platform. Accordingly, there may be service fees (charges) for such services detailed on the Platform. We reserve the right to change the service fees (charges) or any other fee that we may charge at any time, at our sole discretion.
8. User License Grant for Platform
8.1. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Platform for your personal and commercial purposes. We reserve all rights not expressly granted herein in the Platform.
9. Termination and Suspension of Agreement and License
9.1. This Agreement shall become effective once you have created (registered) a Supplier Account on the Platform and shall continue until your Supplier Account is terminated by you or us as provided for under the terms of this section.
9.2. We may terminate or suspend your right to access and license (as described in Section 8 herein) to use the Platform at any time by providing you with email notice of such termination in the following cases:
a) upon the demand of a state authority;
b) in case of your violation of the applicable legislation;
c) in case your identity or any other information provided by you on registration or during your use of the Platform is reasonably deemed by us to be falsified or substantially inaccurate;
d) if the content you upload on the Platform or Completed content you create on the Platform contradicts the applicable ethical or legislative norms (contains calls for terrorism, coup, etc.);
e) breach of confidentiality provisions as well as covenants and undertakings under this Agreement;
f) in case you violate the restrictions as to direct transactions between you and other Users as defined in Section 6.5.;
g) in case of violation of Section 5 of the TOS;
h) in case of fraud or suspected fraud as reasonably determined by us;
i) in case of violation of other provisions of this Agreement.
Provided that we notified you about such termination or suspension by sending a notification of termination or suspension via e-mail and gave you 7 (seven) calendar days to eliminate such violation and you failed to cure such violation within the said term, where such violation can be eliminated. In case of fraud or suspected fraud, as reasonably determined by us, we reserve the right to suspend your access and license to use the Platform immediately without any prior notification to you and until resolution.
9.3. Termination or suspension of your right of access also means:
a) termination or suspension of your license to use the Platform given to you under Section 8 of this Agreement;
b) that you will not be entitled to any refund of the unused balance in your account.
Furthermore, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party unless we give express consent hereto. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including, without limitation, pursuing civil, criminal, and injunctive redress.
9.4. You may terminate this Agreement at the completion of any project by ceasing all access and use of the Platform by sending an e-mail termination notice via https://www.smartcat.com/contact-support/. This will also mean your waiver of the license to use the Platform.
9.5. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
9.6. When your account is terminated for any reason, you may no longer have access to any data, messages, files, and other materials you keep on the Platform. The materials may be deleted along with all your previous Content posted on the Platform.
10. Copyright Matters and Translated Content Assignment
10.1. Under no circumstances you get any intellectual property rights to any Content uploaded by a Customer via the Platform, whether or not it was done for the purpose of performing the specific Service Task by you.
10.2. You hereby unconditionally and irrevocably assign to Smartcat absolutely to the fullest extent permitted by the applicable law the following rights throughout the world:
a) all your rights and benefits to Exploit the Completed content;
b) the entire copyright and all other rights in the nature of copyright subsisting in the Completed content;
c) without prejudice to any of the foregoing, all intellectual property rights and other rights and benefits of yours in the Completed content of whatever nature, whether now known or created in the future, to which you are now, or at any time after the date of this Agreement may be, entitled by virtue of the laws in force in any part of the world, in each case;
d) for the whole term including any renewals, reversions, revivals and extensions and together with all related rights and powers arising or accrued, including the right to bring, make, oppose, defend, appeal and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of these assigned rights, whether occurring before, on or after the date of this deed.
10.3. You hereby unconditionally and irrevocably waive all moral rights in the Completed content done by you under this Agreement for the relevant Customer, to which you are now or may in the future be entitled under the Copyright, Designs and Patents Act 1988 (as amended from time to time) and under all similar legislation in force from time to time anywhere in the world.
10.4. If you believe, in good faith, that any Content provided to you in connection with the Service Task have Illegal or Copyright infringing content (as defined by TOS), please report it to us according to the Section XVIII Terms of Service.
11. Confidentiality
11.1. For purposes of this Agreement, "Confidential Information" shall mean all information in any and all medium, including without limitation the Content that has been or will be disclosed to you on the Platform and the Completed content that has been created or will be created by you, including without limitation text, data, technology, source code, know-how, inventions, discoveries, designs, processes, formulations, models, equipment, algorithms, software programs, documents, specifications, information concerning research and development work, and/or trade and business secrets.
11.2. Confidential Information shall not include any information which:
a) is already known to you or is publicly available at the time of disclosure;
b) becomes known to the general public after disclosure not through any act of yours in breach of this Agreement;
c) is disclosed by a third party who is not, to your knowledge, in breach of an obligation of confidentiality or engaged in any other wrongdoing; or
d) was or is independently developed by you without use of the Confidential Information disclosed by the Customer.
11.3. Each party hereto receiving or otherwise obtaining Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”), undertakes to the Disclosing Party to protect the Confidential Information.
11.4. The Receiving Party shall not disclose or otherwise provide any Confidential Information to any third party without prior written consent of the Disclosing Party.
11.5. The Receiving Party undertakes to the Disclosing Party to (i) use the Confidential Information solely for the purpose of performing the Service Task or evaluating the Service Task (“Permitted Purpose”), (ii) not, without the prior written consent of the Disclosing Party, disclose to any third party the Confidential Information, other than furnishing such Confidential Information to its employees, agents, contractors or affiliated entities who need to have access to such Confidential Information in connection with the Permitted Purpose and subject to the condition that such employees, agents, contractors or affiliated entities have signed the confidentiality agreements with the Receiving Party on the terms substantially similar to those in this Agreement, (iii) use reasonable care to protect the confidentiality of the Confidential Information, and (iv) in the event that the Receiving Party is required by law to make any disclosure of any of the Confidential Information, by subpoena, judicial or administrative order or otherwise, the Receiving Party will use commercially reasonable efforts to give the Disclosing Party notice of such requirement (to the extent legally permissible) and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information.
11.6. Neither Party under any circumstances shall obtain ownership rights or other intellectual property rights under this Agreement in respect of the Confidential Information given to it by the Disclosing Party, including rights to the Content uploaded via Platform.
11.7. Each party’s obligations with respect to the Confidential Information shall remain in perpetuity and survive termination of this Agreement.
11.8. You are hereby notified that, pursuant to the federal Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
11.9. You shall delete or return all Confidential Information, Content and Completed Translation within forty-eight (48) hours upon the request of the Customer or Smartcat.
11.10. In any case, you shall delete all Confidential Information, Content, and Completed Translation within forty-eight (48) hours after completing the Service Task from all your personal devices and systems if you extracted Confidential Information, Content, and Completed Translation from the Platform.
12. Disclaimer of Warranty
12.1. YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. UNLESS OTHERWISE PROVIDED BY THE PLATFORM LICENSE AND SERVICES AGREEMENT THAT MAY BE ADDITIONALLY CONCLUDED BETWEEN US AND YOU, WE MAKE NO WARRANTY THAT (I) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (II) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY (UP-TO-DATE), OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OR FITNESS OF ANY DOCUMENTS, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS. THE PLATFORM IS SECURED BY TAKING APPROPRIATE ADMINISTRATIVE, PHYSICAL, AND TECHNICAL MEASURES FOR PROTECTION OF THE SECURITY, CONFIDENTIALITY AND INTEGRITY OF YOUR DATA, INCLUDING, BUT NOT LIMITED TO USING CERTIFIED SECURED DATA PROTOCOLS AND ENCRYPTING SENSIBLE DATA (“SMARTCAT SECURITY”). THE SMARTCAT SECURITY IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND SMARTCAT MAKES NO WARRANTIES THAT THE LEVEL OF SMARTCAT SECURITY SHALL BE RESISTANT TO POSSIBLE DDOS AND ANY OTHER TYPES OF ATTACKS ON PLATFORM AND CONSECUTIVELY BEARS NO LIABILITY WHATSOEVER IF THE AVAILABLE LEVEL OF SMARTCAT SECURITY IS NOT SUFFICIENT TO WITHSTAND ANY OF THE ABOVE MENTIONED ATTACKS.
13. Limitation of Liability
13.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, INFORMATION PROVIDERS, AGENTS, LICENSEES, LICENSORS (COLLECTIVELY, “RELEASED PARTIES”) WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE PLATFORM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; OR (V) ANY OTHER MATTER RELATING TO THE PLATFORM. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED $100.
13.2. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PLATFORM OR WITH THIS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE THE USE OF THE PLATFORM.
14. Release
14.1. If you have a dispute with another User, you shall release the Released Parties 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 such dispute.
14.2. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE §1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR".
15. Indemnity
15.1. You are responsible for maintaining confidentiality of your account and password(s). You are also responsible for all activities that occur under your account. Therefore, you agree to indemnify, defend and hold Smartcat and its affiliates, employees, officers, directors, owners, information providers, agents, licensees, licensors (the “Indemnified Parties”) harmless from and against any and all liabilities, claims, costs, including reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any third party demand, claims, action, suit, or loss arising as a result of (a) any breach by you of this Agreement or claims arising from your account or any other use by you of the Platform; (b) any fraud or manipulation by you; (c) any third-party claim, action or allegation of infringement based on information, data, files or other content submitted by you; (d) any claims of credit card fraud based on any information released by you; (e) any claims for breach of payment terms by any Customer; or (f) from the damage or destruction of any work or properties, attributable to or resulting from your performance of the services under this Agreement (g) breach of Data Protection Laws and loss of data (h) negligence, gross negligence, or intentional or willful misconduct of you, your affiliates, representatives and/or agents in performing their respective obligations in connection with this Agreement. You agree to use your best efforts to cooperate with us in the defense of any demand, claim, action or suit. We reserve the right to assume the exclusive defense of any matter subject to indemnification by you at our own expense.
16. Your Information and Personal Data
16.1. In addition to the information you submit to or through the Platform, we also collect, store and process information about you in the course of your use of the Platform subject to the Privacy Policy and Consent Notice, located at https://www.smartcat.com/legal/privacy-policy/.
17. Personal Data Processing
17.1. Whenever processing personal data of the EU residents (if any) included into the Content uploaded by the Customer to the Platform, Smartcat acts as a “processor”, and Supplier acts as a “subprocessor” within the meaning of article 4 of the GDPR and the DPA which you become a party to. The DPA shall be incorporated as follows:
- Smartcat shall have the rights and obligations related to the controller under the DPA.
- Supplier shall have the rights obligations related to the processor, except of the right and obligations specified in Section 9 of the DPA.
17.2. If you are a non-EU resident and act as sub-processor you also agree to become a party to the Standard Contract Clauses as defined in the DPA.
17.3. The SCC are incorporated into the DPA and this Agreement and apply where the application of the SCC, as between the parties, is required under applicable European Data Protection Legislation for the transfer of personal data. The SCC shall be deemed completed as follows:
As mentioned above Smartcat acts as processor and Supplier acts as a subprocessor and with respect to personal data of the EU residents (if any) included into the content uploaded by the Customer to the Platform, therefore Module 3 of the SCC applies.
Clause 7 (the optional Docking clause) is not included.
Under Clause 9 (Use of sub-processors), the parties select Option 2 (General written authorization). The time period of the notification regarding any intended changes to the list of sub-processors is at least 24 hours in advance.
Under Clause 11 (Redress), the optional language will not apply.
Under Clause 17 (Governing law), the parties choose Option 1 and select the law of the Netherlands.
Under Clause 18 (Choice of forum and jurisdiction), the parties select the courts of the Netherlands.
Annexes I and II of the SCC are set forth in Appendix below.
18. Vetting Process
18.1. We may, but are under no obligation to, subject you, other Suppliers, or Customers using the Platform to an extensive vetting process before they can register and during their use of the Platform, including but not limited to verification of identity and comprehensive criminal background check, at the regional, national and local level, using third party services as appropriate. You hereby give us consent to conduct background checks as often as required in compliance with applicable laws and regulations, as well as our internal policies, without any notice.
18.2. Although we may perform background checks of you, other Suppliers, or Customers using the Platform, as outlined above, we cannot confirm that each person using the Platform is who he, she, or it claims to be, and therefore, we cannot and do not assume any responsibility for the accuracy or reliability of the identity or background check information or any other information provided through the Platform.
18.3. When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people whom you do not know. Neither Smartcat nor its affiliates or licensors shall be responsible for the conduct of any User of the Platform, whether online or offline. You hereby release Smartcat and its affiliates or licensors from any liability related thereto. Smartcat, its affiliates, and licensors will not be liable for any claim, injury, or damage arising from your use of the Platform.
19. Independent Contractor Relations
19.1. You acknowledge and agree that your relationship with Smartcat is that of an independent contractor. As with any other Supplier, you shall perform services to Smartcat as an independent contractor. Nothing in this Agreement shall be deemed to create a partnership, joint venture, agency, or employer-employee relationship between you and the Customer or between Smartcat and yourself. You will be solely responsible for, and Smartcat shall not provide or be liable for, typical employee benefits (including but not limited to health and disability insurance, vacation and/or paid time off, etc.). You will remain free to perform services for parties other than Smartcat, provided that such services will not conflict or interfere with the performance of services hereunder and will not compete with the current or future business of Smartcat. You further agree and acknowledge that:
a) Your relationship with Smartcat is not an employment relationship.
b) You are solely responsible for determining the method and means by which you will accomplish the services and otherwise fulfill your obligations hereunder and are free from the control and direction of Smartcat in the performance of the work.
c) You will be solely responsible for the professional performance of the services and will receive no training, assistance, direction, or control from Smartcat.
19.2. You shall be solely responsible for obtaining, at your expense and in your name, disability, worker’s compensation, or other insurance, as well as all licenses and permits usual or necessary for conducting the services hereunder. You represent that you have the qualifications, skills, and ability to perform the services in a professional manner without the advice, control, or supervision of Smartcat. Nothing contained in this Agreement shall be construed to place the parties in the relationship of partners or joint venturers, and neither party shall have any right to obligate or bind the other in any manner. You agree that you will not hold yourself out as an authorized agent with the power to bind Smartcat in any way.
20. Third Party Services
20.1. If you register on the Platform through third party social networking services, such as Facebook, LinkedIn, and other third-party services that allow you to sign in to other services like our Platform with the personal data shared with these services, we will use the personal data you provided to such third party services to create your account on the Platform.
21. Governing Law
21.1. If you are registered and/or reside in Europe, Asia (excluding Japan), Africa or Australia, the laws of England and Wales, excluding its conflicts-of-law rules, govern this Agreement.
21.2. If you are registered and/or reside in North America, South America or Japan, the laws of the State of Massachusetts, excluding its conflicts-of-law rules, govern this Agreement.
22. Arbitration
22.1. If you are registered and/or reside in Europe, Asia (excluding Japan), Africa or Australia, any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by LCIA arbitration in London, the United Kingdom, using the English language in accordance with the LCIA rules (“LCIA”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of LCIA arbitrators in accordance with the LCIA rules.
22.2. If you are registered and/or reside in North America, South America or Japan, any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by ICC arbitration in Boston, Massachusetts, U.S.A., using the English language in accordance with the ICC arbitration rules (“ICC”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of ICC arbitrators in accordance with the ICC rules of arbitration.
22.3. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
22.4. This clause below is applicable to you only if you are registered and/or reside in North America, South America or Japan:
Any arbitration under this Agreement will take place on an individual basis: class, collective, and representative arbitrations and class, collective, and representative actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND US ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION. Notwithstanding the foregoing, each party shall have the right to institute an action at any time in a court of proper jurisdiction for injunctive or other equitable relief.
22.5. This Arbitration provision is a 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.
22.6. This clause below is applicable to you only if you are registered and/or reside in North America, South America, or Japan:
If the Class Action Waiver in subsection 22.7, below, of this Arbitration provision is deemed to be unenforceable, you and we agree that this Arbitration provision is otherwise silent as to any party's ability to bring a class, collective or representative action in arbitration.
22.7. This clause below is applicable to you only if you are registered and/or reside in North America, South America, or Japan:
THIS ARBITRATION PROVISION AFFECTS YOUR ABILITY TO PARTICIPATE IN CLASS, COLLECTIVE OR REPRESENTATIVE ACTIONS. BOTH YOU AND WE AGREE TO BRING ANY DISPUTE IN ARBITRATION ON AN INDIVIDUAL BASIS ONLY, AND NOT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS ON BEHALF OF OTHERS. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD OR ARBITRATED AS A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION, OR AS A MEMBER IN ANY SUCH CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). THE CLASS ACTION WAIVER DOES NOT APPLY TO ANY RIGHTS TO BRING CLASS, COLLECTIVE, OR REPRESENTATIVE ACTIONS THAT MAY NOT BE WAIVED AS A MATTER OF LAW. NOTWITHSTANDING ANY OTHER PORTION OF THIS ARBITRATION PROVISION OR THE JAMS RULES, DISPUTES REGARDING THE VALIDITY, ENFORCEABILITY OR BREACH OF THE CLASS ACTION WAIVER MAY BE RESOLVED ONLY BY A CIVIL COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR. IN ANY CASE IN WHICH (1) THE DISPUTE IS FILED AS A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AND (2) A CIVIL COURT OF COMPETENT JURISDICTION FINDS ALL OR PART OF THE CLASS ACTION WAIVER UNENFORCEABLE, THE CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION TO THAT EXTENT MUST BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION, BUT THE PORTION OF THE CLASS ACTION WAIVER THAT IS ENFORCEABLE SHALL BE ENFORCED IN ARBITRATION. YOU AND WE AGREE THAT YOU WILL NOT BE RETALIATED AGAINST, DISCIPLINED OR THREATENED WITH DISCIPLINE AS A RESULT OF EXERCISING YOUR RIGHTS UNDER SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT BY FILING OR PARTICIPATING IN A CLASS, COLLECTIVE OR REPRESENTATIVE ACTION IN ANY FORUM. HOWEVER, THE COMPANY MAY LAWFULLY SEEK ENFORCEMENT OF THIS ARBITRATION PROVISION AND THE CLASS ACTION WAIVER UNDER THE FEDERAL ARBITRATION ACT AND SEEK DISMISSAL OF SUCH CLASS, COLLECTIVE OR REPRESENTATIVE ACTIONS OR CLAIMS. THE CLASS ACTION WAIVER SHALL BE SEVERABLE IN ANY CASE IN WHICH THE DISPUTE IS FILED AS AN INDIVIDUAL ACTION, AND SEVERANCE IS NECESSARY TO ENSURE THAT THE INDIVIDUAL ACTION PROCEEDS IN ARBITRATION.
23. Entire Agreement / Severability / Amendment
23.1. This Agreement constitutes the entire agreement between you and us concerning the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, whether written or oral, between the parties with respect thereto. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
23.2. Failure by either party to enforce at any time any of the provisions of this Agreement, or to require at any time performance by the other party of any of the provisions hereof, shall in no way be construed as a waiver of such provisions in any other circumstance or a waiver of any other provision.
24. Change in the Supplier Agreement
24.1. We always reserve the right to discontinue or modify any part of this Agreement as we deem necessary. When we revise this Agreement, we change the “Last updated” date above and post the amended and restated Agreement at www.smartcat.com. We shall notify you by e-mail or via the Platform about the amended and restated Agreement to ensure that you stay informed of such amendments and restatements. Your use of the Platform and application for Service Tasks after the date of notification or the effective date of changes indicated in the notification shall mean your acceptance of the amended and restated Agreement unless you accepted them otherwise earlier. In case you use a corporate account, only the administrator of that corporate account will be notified. The administrator of the corporate account, and not Smartcat, is solely responsible for further notification of changes to other corporate account members.
25. No Waiver
25.1. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
26. Assignment
26.1. The Supplier may not assign or transfer its rights or obligations under this Agreement, and any attempt to do so is void. Smartcat may assign or transfer any of its rights, obligations, and licenses under the Agreement without restriction or notice.
27. Notices
27.1. We may provide notices, whether such notices are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to you, provided that you may opt out of certain means of notification as described in this Agreement.
28. Contact Us
28.1. Should you wish to contact us with any questions or claims with respect to the Platform, please visit our website at www.smartcat.com, or https://www.smartcat.com/contact-support/.
28.2. In case of technical or performance issues, please contact us at https://www.smartcat.com/contact-support/. Should you have any questions or should you require support in relation to receiving payments, please contact us at https://www.smartcat.com/contact-support/ .
ANNEX I
A. LIST OF PARTIES
Data exporter:
Name: Smartcat as defined in the Supplier Agreement.
Activities relevant to the data transferred under these Clauses: Obtaining the translation services on Smartcat Platform from Data importer.
Data importer(s):
You as a Supplier, who has signed the Supplier Agreement to which this document is annexed. Data Importer is considered to be a Subprocessor under the DPA.
Activities relevant to the data transferred under these Clauses: Providing the translation services on Smartcat Platform to Data Exporter.
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Prospects, customers, business partners and vendors of data exporter (who are natural persons).
Employees or contact persons of data exporter’s prospects, customers, business partners and vendors.
Employees, agents, advisors, freelancers of data exporter (who are natural persons).
Data exporter’s Users authorized by data exporter to use the Smartcat Platform.
Categories of personal data transferred
The personal data transferred concern but is not limited to the following categories of Personal Data:
Personal Data
Contact Data
Professional life data
Disclosed Information (from third parties, e.g. Credit Reference Agencies or from Public Directories).
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
On a continuous basis, during the legal force of the Supplier Agreement executed between Data exporter and Data importer.
Nature of the processing
Data importer will process Personal Data in order to provide Services to Data exporter in accordance with provisions of the DPA and the Supplier Agreement.
Purpose(s) of the data transfer and further processing
Data importer will process Personal Data for the purposes of providing translation services to Data exporter in accordance with provisions of DPA and Supplier Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Personal Data shall be deleted from any devices (if Personal Data was downloaded from Smartcat Platform) within 48 hours after the performance of the Service Task and in any case deleted upon a request of the Data exporter.
C. COMPETENT SUPERVISORY AUTHORITY
The Dutch Data Protection Authority (Autoriteit Persoonsgegevens)
ANNEX II
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
As part of this agreement, you must have in place the technical measures as required by the regulations of data processing across Europe mentioned in section 5.1. of the Supplier Agreement.
ANNEX III
UK DATA TRANSFER MECHANISM
The UK Data Transfer Mechanism is incorporated into the DPA by reference at clause 1.24 and by reference to the information required to complete the UK IDTA, the Parties agree to the following:
1. In Table I of the UK IDTA, the names and addresses of the parties as defined in the Supplier Agreement shall be incorporated into the UK IDTA. The Supplier shall be the "data importer" and Sub-Processor, and the Smartcat shall be the "data exporter" and Processor;
2. In Table 2 of the UK IDTA, Module 2 is selected, with the information required to complete Module 2 in the DPA and Annex I;
3. In Table 3 of the UK IDTA, the information required to complete Table 3 is in the DPA and Annex I and III; and
4. In Table 4 of the UK IDTA, the information required to complete Table 4 is in the DPA and Annex II.