These Terms and Conditions (the “Terms”) are entered into between you (the “Client”) and Zillion Ways LLC, a Delaware corporation having its registered address at: 221 W 9th St, Wilmington, DE 19801 (“ClearProfile”).
Please read these Terms in their entirety. By using the ClearProfile website, located at https://clearprofile.com, and related services (the “ClearProfile Platform”) you represent that you have read the full Terms, and agree to and accept all of the terms and conditions contained herein.
If you do not agree to be bound by the Terms contained herein, do not use the ClearProfile Platform or website.
BY CHECKING THE BOX AND CLICKING THE “SUBMIT” BUTTON THE CLIENT AGREES TO BE LEGALLY BOUND IN ACCORDANCE WITH THESE TERMS.
BY AGREEING TO THESE TERMS, THE CLIENT PERSONALLY REPRESENTS AND WARRANT THAT THE CLIENT IS (I) A NATURAL PERSON OF AT LEAST EIGHTEEN YEARS OLD, AND OF SOUND MIND WHO IS OTHERWISE CAPABLE OF ENTERING INTO LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW, OR (II) ACTING ON BEHALF OF A LEGAL ENTITY AND POSSESSING NECESSARY AND COMPLETE AUTHORITY TO BIND SAID LEGAL ENTITY TO THESE TERMS (IN WHICH CASE THE TERM “CLIENT” THROUGHOUT THESE TERMS WILL REFER TO SUCH CLIENT ENTITY).
IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE ClearProfile PLATFORM.
1. Introduction
1.1. ClearProfile offers IT consultancy and development services to customers via the ClearProfile Platform. The services are coordinated by ClearProfile and performed by qualified, independent professionals engaged separately by ClearProfile (the "Developers") for the purpose of delivering various Projects (as defined in Clause 5.2 below) on behalf of ClearProfile customers. Throughout these Terms, "Developer" refers to a professional engaged by ClearProfile to work on and deliver a Project.
1.2. These Terms constitute the final and complete presentation of the entire agreement between the Client and ClearProfile with regard to the Client's use of the ClearProfile Platform, but are subject to certain Work Orders and other written policies and procedures published on the ClearProfile Platform.
1.3. These Terms are a legal agreement and are entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and these Terms supersede any other such agreements, promises, warranties, or representations.
1.4. The Client understands that these Terms establish a contractual relationship between the Client and ClearProfile only, and that the Client does not and will not have a contractual relationship of any kind between the Client and any Developer.
1.5. ClearProfile reserves all rights, including but not limited to intellectual property rights, in and to the ClearProfile Platform.
1.6. ClearProfile may change the ClearProfile Platform at any time in ClearProfile's sole and absolute discretion.
2. Rules of Conduct on the ClearProfile Platform
2.1 The Client agrees to comply with any applicable laws, these Terms and other written policies and procedures posted on the ClearProfile Platform. The Client will not violate any third-party rights, including but not limited to intellectual property rights, and shall not “frame” or “mirror” any content contained on the ClearProfile Platform on any other server or internet-based platform or device.
2.2. The Client is required to maintain a consistent and high standard of professionalism while using the ClearProfile Platform. When posting any content on the ClearProfile Platform, such as information, comments, feedback, potential projects, or other material related to other clients, Developers, ClearProfile, or third parties (collectively, "Client Content"), the Client will be respectful and not publish any false or defamatory material.
2.3. All Client Content must be: (1) Written in English; (2) Professional in nature; (3) Free from offensive language and advertisements for other products or services; (4) Legal and not violation of the intellectual property rights of any party, or import and export control laws; (5) Free of any adult or explicit content and generally not related to the creation of adult or explicit content or modeling/acting; (6) Free of any information that enables or requests contact or payment outside of the ClearProfile Platform.
2.4. The Client may be held legally responsible for damages suffered by other clients, Developers, ClearProfile or any other third party as a result of legally actionable or defamatory Client Content posted on the ClearProfile Platform.
2.5. ClearProfile is not responsible for and does not monitor or censor Content for accuracy. The Client shall be solely responsible for any Client Content posted or made available by the Client on the ClearProfile Platform.
2.6. ClearProfile may remove or restrict access to any Client Content posted or made available on the ClearProfile Platform, if ClearProfile, in its sole discretion, considers such Client Content to be in violation of these Terms or applicable law or if ordered to do so by a government authority or a competent court.
3. Access to the ClearProfile Platform
3.1. The Client is required to create an ClearProfile account, through the ClearProfile Platform (the "ClearProfile Client Account"), in order to access the ClearProfile Platform. The Client is prohibited from accessing or attempting to access the ClearProfile Platform except via the ClearProfile Platform website.
3.2. The ClearProfile Client Account details must match those of the Client. If the Client is a legal entity, the Client Account must identify and provide the correct details of the Client entity.
3.3. The Client may not use Client Content obtained from the ClearProfile Platform for any purpose other than the purpose for which it was made available.
3.4. The Client is prohibited from engaging in any activity that interferes with or disrupts the functioning of the ClearProfile Platform. This includes uploading and/or attaching an invalid, malicious, or unknown file or inserting any external links that may be malicious.
4. Identity and Account security
4.1. Information related to the identity of the Client provided to ClearProfile via the ClearProfile Client Account must be accurate and verifiable.
4.2. The Client shall not create or use more than one ClearProfile Client Account. Each ClearProfile Client Account shall be used by only one Client.
4.3. ClearProfile may validate Client identity information at any time, in ClearProfile's sole discretion. The Client authorizes ClearProfile, directly or indirectly through third parties, to make any inquiries necessary to validate the Client's identity and confirm the Client's ownership of the Client's email address and/or financial information.
4.3. Maintaining the security of the Client's password to the ClearProfile Client Account shall be the Client's sole responsibility. The Client shall not disclose the password to any third party and shall be solely responsible for any use of or action that is taken through the use of such password on the ClearProfile Platform. The Client must notify ClearProfile Support immediately if the Client suspects that the password has been lost or stolen. (e-mail: [email protected]).
5. Work Orders
5.1. In order to begin a Project, the Client must agree with a Developer in writing regarding the description, specifications, requirements, and deliverables of a particular Project in a "Work Order" which shall be available on the ClearProfile Platform.
5.2. Each Work Order shall provide reasonable detail as to the services to be delivered by ClearProfile to the Client (the "Services"), the duration of the Project, milestones (if any), and other relevant information (all together with the Services referred to as the "Project"). A Work Order may be submitted by message on the ClearProfile Platform, containing a list of specific requirements and deliverables, or via a separate document uploaded to the ClearProfile Platform.
6. Pricing a Project
6.1. A Project which has been described via a Work Order will be opened to the public for submissions by Developers of estimates of their expected fees for completing the Project described in the Work Order. Where a single Developer submits an estimate, this estimate (with the addition of ClearProfile's Profit Margin (as defined in Clause 7.1 below)) will be set as the fixed price to be paid by the Client.
6.2. Where two or more Developers submit separate estimates, the ClearProfile Platform will calculate an average of the estimates provided, and the calculated average (with the addition of ClearProfile's Profit Margin (as defined in Clause 7.1 below)) will be set as the fixed price to be paid by the Client, irrespective of the final choice of Developer to complete the Project.
6.3. After the Project price has been set and the Client decides to proceed, the fixed price including ClearProfile's Profit Margin will be the amount payable in USD by the Client to ClearProfile (the "Payment").
7. Payment
7.1. The Client will make the Payment to ClearProfile via one of the available payment methods on the ClearProfile Platform at the start of a Project. ClearProfile shall be the sole recipient and beneficiary of the payment. Once payment has been confirmed, the Developer may begin work on the Project. An amount equal to 17.5% of the final fixed fee for the Project shall be added to the Fee as ClearProfile's "Profit Margin".
7.2. The Profit Margin is refundable for any reason.
7.3. The Client agrees to follow the procedure set out in the Procedures for Resolution of Disputes available on the ClearProfile Platform to resolve any payment disputes, and agrees to be bound by its ruling and further agrees not to initiate or submit a chargeback request with the payment processor.
8. Performance of the Service
8.1. The Client may select a specific Developer to carry out the Services outlined in the Work Order, provided that one or more Developers have given an estimate. However, ClearProfile has the sole and absolute discretion to select the Developer who will perform the Services.
8.2. It shall be the Client's responsibility to provide the Developer with access to any required media or software files, as well as any login credentials as may be required to allow the Developer to successfully complete the Project. In the event any delay in Project completion results from the Client's failure to provide the Developer with such files or credentials, ClearProfile shall not be responsible for the delay or any missed deadlines.
8.3. Upon receipt of the Client's payment, ClearProfile shall undertake to perform the Services in accordance with the Work Order. The specific services required will be performed by a Developer engaged by ClearProfile and delivered directly to the Client. In the event the completed and delivered materials do not meet the requirements of the Work Order, the Client may be entitled to a refund of all or part of the development fees paid, not including the Profit Margin.
8.5. Requests to complete work that is not included within the Work Order will be handled via the 'additional tasks' function on the ClearProfile Platform and may result in additional payment(s) from the Client to ClearProfile. ClearProfile has no obligation to complete work which is outside the scope of an active Work Order.
8.6. Once a Project is finished, the Developer or ClearProfile may request the Client to review the work and mark the Project as 'complete' on the ClearProfile Platform in order to complete the Project. The Client has seven calendar days to respond to the request and ask for modifications or ask for more time to review the work. ClearProfile may mark a Project as 'complete' where the Client fails to do so within seven calendar days and does not request modifications.
8.7. In the event the Client identifies any flaws or bugs in any delivered and completed Project and reports the same to ClearProfile within 14 days after the Project is marked complete, ClearProfile shall revise or repair the flawed deliverables. This obligation does not include software conflicts or incompatibilities not addressed in the Work Order, incompatibilities resulting from any software updates, third-party software installed, misuse or modifications to the code made by the Client or any third parties after the Services have been delivered to the Client and the Project has been marked as complete either by the Client or ClearProfile.
9. Circumvention of the ClearProfile Platform
9.1. Circumvention of the ClearProfile Platform is strictly prohibited, including without limitation, by the Client making any payment to the Developer outside of the ClearProfile Platform, or participating in any activities designed to bypass or circumvent the ClearProfile Platform fee estimate system through direct negotiations of pricing with Developers. In the event ClearProfile determines in its sole discretion that the Client has participated in any circumvention of the ClearProfile Platform, ClearProfile reserves the right to take any appropriate action in its sole discretion, including, without limitation, deactivation of the Client's ClearProfile Client Account.
9.2. Any attempt by a Client to directly hire a Developer introduced through the ClearProfile Platform as an employee or independent contractor which results in or would have the effect of causing payment of such Developer outside the ClearProfile Platform shall be deemed Circumvention of the ClearProfile Platform, and in this case, the Client shall pay to ClearProfile the higher of: (1) an amount equal to 25% of the annualized salary of the Developer in the first year for the position to which the Developer has been hired, or (2) $25,000.
9.3. In the event the Client receives any communication from a Developer requesting to circumvent the ClearProfile Platform, the Client shall report such communication immediately to ClearProfile's Support Team (e-mail: [email protected]).
10. Liability & Indemnification
10.1. In no event will ClearProfile be liable for any consequential, special, incidental, exemplary or indirect damages or litigation costs, installation and removal costs, or loss of data, production or profit. ClearProfile's liability for any claim arising out of or in connection with these Terms, the Work Order and/or the Project shall not exceed $2,500. These limitations shall apply to any liability, arising from any cause of action whatsoever, whether in contract, tort, strict liability or otherwise, even if advised of the possibility of such costs or damages and even if the limited remedies provided herein fail of their essential purpose. ClearProfile will not be liable for any damages suffered by the Client, unless resulting from the gross negligence or willful misconduct of ClearProfile.
10.2. The Client shall indemnify, defend, and hold harmless ClearProfile and its directors, officers, employees, and agents and their respective successors, heirs and assigns (the "Indemnitees"), against any liability, damage, loss, or expense (including reasonable attorney fees and expenses of litigation) incurred by or imposed upon any of the Indemnitees in connection with any claims, suits, actions, demands or judgments arising out of any theory of liability (including without limitation actions in the form of tort, warranty, or strict liability and regardless of whether such action has any factual basis) concerning any Client act or omission in connection with the Client's use of the ClearProfile Platform, or breach of any applicable law, or breach of these Terms by the Client.
11. Term and Termination
11.1. The term of a Project shall commence on the date of acceptance of the Work Order and will continue in effect until the earlier of its termination or completion.
11.2. Any of the Client, the Developer (on behalf of ClearProfile) and ClearProfile may terminate a Work Order at any time, with or without cause, effective immediately upon written notice to the other party.
11.3. In the event the Client terminates a Work Order, the Client shall not be entitled to recover any amounts paid to ClearProfile unless (i) the termination is due to ClearProfile's material breach of these Terms and/or the Work Order, or (ii) agreed upon with ClearProfile by following the procedure set out in the Procedures for Resolution of Disputes available on the ClearProfile Platform.
11.4. Where a Work Order is terminated early, ClearProfile shall be obligated to return to the Client payment related to any part of the Services which has not been completed, only where the Work Order has been terminated by the Developer or by ClearProfile without any breach by the Client of these Terms, or where termination by the Client results from ClearProfile's breach of these Terms or the Work Order.
11.5. The Client may be entitled to recover more than the portion of the payment related to any part of the Services which has not been completed in certain cases pursuant to the Procedures for Resolution of Disputes available on the ClearProfile Platform.
12. Refund
12.1. ClearProfile's Profit Margin is non-refundable, regardless of whether ClearProfile fails to meet the Work Order requirements or if the Work Order is terminated. Any mention of a refund or recovery of payments in these Terms refers to the development fee only, not including ClearProfile's Profit Margin. If ClearProfile fails to meet the Work Order requirements, the Client may be eligible for a full or partial refund of the development fee. The amount of the refund, if any, will be determined by following the Procedures for Resolution of Disputes available on the ClearProfile Platform.
12.2. By marking the Project as 'complete', the Client acknowledges that the Project was delivered in accordance with the Work Order, and therefore, the Client is not entitled to a refund. If the Work Order deviates from the original agreement and the Client refuses to pay for the additional work, the Client is not entitled to a refund.
12.3. Partial refund: If the Project is partially delivered or satisfies the requirements of the Work Order only partially, the Client may be entitled to a partial refund by following the procedure set out in the Procedures for Resolution of Disputes. Where the Client receives a partial refund, the Client is prohibited from further use of any materials delivered pursuant to the Work Order which fall under the portion of the Project which was deemed incomplete or unsatisfactory or otherwise subject to the partial refund. The Client is further obligated to delete any such material and is prohibited from publishing, transferring or reusing such content in any way. The Client shall not have any rights, including without limitation Intellectual Property Rights, over this material.
12.4. Full refund: In the event the Client has followed the procedure set out in the Procedures for Resolution of Disputes, resulting in a full refund payable to the Client, the Client acknowledges that the Client shall not have any rights including without limitation Intellectual Property Rights over any delivered work related to the Project. The Client is prohibited from further use of such materials and is prohibited from publishing, transferring or reusing such content in any way. The Client undertakes to delete any such material in the Client's possession within 3 business days. If the Client fails to do so, ClearProfile may take any legal action against the Client it may deem necessary.
13. Breach
13.1 ClearProfile may suspend or terminate the Client's ClearProfile Account and refuse further access to the ClearProfile Platform if:
- The Client breaches these Terms, the Work Order, or other written policies and procedures on the ClearProfile Platform.
- ClearProfile is not able to verify or authenticate the Client's information.
- ClearProfile believes, in its sole discretion, that the Client's actions may cause legal liability for the Client, other clients, the Developers, or ClearProfile.
13.2 Once suspended or terminated, the Client is prohibited from continuing to use the ClearProfile Platform under a different account or by registration of a new account. Breaking these Terms, the Work Order, and/or other written policies and procedures on the ClearProfile Platform may result in legal action.
14. Intellectual Property Rights
14.1. When the Client marks the Project as 'complete', all intellectual property rights, including copyrights, trademarks, designs, patent rights, utility models, inventions, production methods, and other technical advances resulting from the Services (the "Intellectual Property Rights"), will automatically transfer from ClearProfile to the Client. ClearProfile will not be entitled to receive separate payment for this transfer. Upon completion of the Project, ClearProfile agrees to assign to the Client, to the fullest extent permitted by law, all right, title, and interest in any and all such Intellectual Property Rights. ClearProfile will provide reasonable assistance to the Client for the protection and utilization of its Intellectual Property Rights, including signing necessary documents.
15. Client Deliverables
15.1. It shall be the sole responsibility of the Client to provide ClearProfile and the Developer with any information, documentation, material, technical data, software and/or intellectual property, etc. (the "Client Deliverables") as may be necessary for the successful provision of the Services. The Client shall retain all rights, including but not limited to all intellectual property rights (if any), to the Client Deliverables. It shall be the responsibility of the Client to ensure that the Client Deliverables are free of any third-party rights, including but not limited to intellectual property rights. ClearProfile and/or the Developer shall not be held liable for violation of such third-party rights in connection with the performance of the Services, and the Client shall indemnify ClearProfile in the event of any claim resulting from such violation of third-party rights.
15.2. Any use of non-free pre-existing software, intellectual property or other information or material etc. by ClearProfile and/or a Developer in the course of completing the Project must be approved by the Client.
15.3. ClearProfile and a Developer shall be obligated to return all Client Deliverables to the Client and further agree to destroy (a) all copies of Client Deliverables and (b) the work product, in or on ClearProfile's and/or a Developer's premises, systems, or any other equipment otherwise under ClearProfile's and/or a Developer's control, upon Termination of the Work Order or upon the 29th day after completion of the Project.
16. Retainer Projects
16.1. Some longer term Projects will entail provision by ClearProfile of services on a continuing basis over a period of time, for a recurring set fee, billed monthly. These are Retainer Projects. Retainer Projects may be defined in terms of hours worked for the month, or specific discrete tasks performed on a continuing basis, such details must be specified in a Work Order.
16.2. Billing period and payment: The billing period for a Retainer Project is a month. The Client is required to pay the recurring fee each month at the start of the new billing period, and will be automatically billed on the same day each month in an amount equal to the required payment. After the end of the billing period, funds paid by the Client toward the Retainer Project for that period will not be refunded in whole or in part. For Retainer Projects specifying a number of hours worked each month, unused hours will expire upon the end of the current billing period, and will not carry over.
16.3. Term and termination of a retainer project: A Retainer Project commences on the date the Work Order is accepted, and continues until terminated for any reason. Unless otherwise specified in the applicable Work Order or otherwise specifically requested by the Client in writing, in the event of termination the Developer will continue to work on the Retainer Project until the end of the current billing period.
16.4. The term of a retainer project commences on the date of acceptance of the Work Order and continues in effect until terminated. Both the Client and the Developer may terminate the Work Order at any time, with or without cause, effective immediately upon written notice to the other party. Unless otherwise agreed in the Work Order, (i) the Developer must continue to perform the Services for the remainder of the retainer period during which the Work Order is terminated, unless otherwise requested by the Client, and (ii) the Client will not be entitled to recover any payments made related to the retainer period during which the Work Order is terminated.
17. Confidentiality
Information relating to ClearProfile, the Client, or any Developer's business, including without limitation the ClearProfile Platform, the Project and the Services to be provided shall be "Confidential Information", and shall not be used for any reason except for the completion of the Project and provision of the Services, and shall not be published or transferred, provided, or disclosed to any third party for any reason except as provided herein. Both Parties shall maintain and keep confidential the Confidential Information of the other and any Developer, and to the extent any Confidential Information is required to be provided to either of their respective employees, independent contractors, or other representatives in connection with completion of the Project, each Party has the obligation to require and ensure that any such employees, independent contractors or representatives have executed an agreement at least as restrictive as these Terms in respect of the use and disclosure of such Confidential Information. The obligations of each Party pursuant to this paragraph shall continue in effect for so long as such information remains Confidential Information.
18. Ratings and Feedback
ClearProfile offers a feedback and rating system where Clients are able to express their opinions publicly in relation to Projects that they've had delivered and the developers who completed the work. The Company does not monitor or censor these opinions or investigate any remarks posted by Clients for accuracy or reliability. The Client acknowledges and agrees that its feedback published on the Platform will be public. ClearProfile shall not be responsible for any feedback or comments posted on the ClearProfile Platform, even if that content is defamatory or otherwise legally actionable. Any effort by the Client to falsify feedback or manipulate a Developer by threatening negative feedback is in violation of these Terms. The Company reserves the right to delete ratings and feedback from the Platform as the Company deems appropriate.
19. PERSONAL DATA
19.1 Processing of personal data
Please refer to our Privacy Policy.
19.2 General
In the event ClearProfile is required to process personal data as part of the services provided to the Client, such processing will be in compliance with applicable data protection laws.
19.3 Personal Information of Residents of the European Union
This Clause does not apply except where the personal data of one or more residents of the European Union are to be processed as part of the services
It shall be the sole responsibility of the Client to inform ClearProfile and the Developer in the event any of the services to be provided may require processing of the personal information of residents of the European Union
Where the services to be provided require processing of the personal information of residents of the European Union, and where this is clearly stated in the Work Order, ClearProfile shall ensure that such personal information of the residents of the European Union in processed in accordance with the following
19.4 General
To the extent the services ClearProfile provides to the Client involve processing of personal data of residents of the European Union, the Client shall be regarded as a data controller (hereinafter the “Data Controller”) and ClearProfile shall be regarded as a data processor (hereinafter the “Data Processor”).
Provided that personal data is processed, including collected, accessed, stored, such processing by Data Processor is subject to the territorial scope of Regulation (EU) 2016/679 of 27 April 2016 (“General Data Protection Regulation”). Data Processor shall comply with all requirements incumbent on Data Processor as set out in the General Data Protection Regulation, and as detailed herein.
19.5 Data Processing and obligations of the Data Processor
Data Processor shall process personal data on behalf of Data Controller in relation to the services provided in accordance with these Data Processing Clauses, the Terms and the Work Order.
Personal data being processed by the Data Processor on behalf of Data Controller regards data relating to individuals provided to the Data Processor by the Data Controller, as defined, necessary and required for the provision of services under these Terms and the Work Order, which may include non-sensitive personal data and special categories of personal data, as based on the nature of the Client’s business and requirements.
In pursuance of the General Data Protection Regulation, Data Controller shall have the following obligations and rights as set out in the General Data Protection Regulation:
The Data Controller shall be responsible for ensuring that the processing of personal data takes place within the framework of the General Data Protection Regulation.
The Data Controller shall therefore have both the right and obligation to determine the purposes and the means of the processing of personal data.
The Data Controller shall be responsible for ensuring that the processing activities that the Data Processor is instructed to perform is in compliance with the General Data Protection Regulation.
In pursuance of the General Data Protection Regulation, Data Processor shall comply with all requirements incumbent on Data Processor as set out in the General Data Protection Regulation:
Data Processor shall process personal data on behalf of the Data Controller and may only process personal data on documented instructions from Data Controller unless required to do so by the European Union or member state law to which Data Processor is subject. In such a case a Data Processor must notify the Data Controller of such legal requirements before the processing, unless the relevant law prohibits such notification on important grounds of public interests.
Data Processor must immediately notify Data Controller if, in Data Processor’s opinion, an instruction from Data Controller is contrary to the applicable data protection legislation.
Data Processor is hereby committed to strict confidentiality in relation to any personal data that Data Processor may process on behalf of Data Controller. The confidentiality obligation is ongoing and shall continue to be applicable, regardless of whether a Work Order is terminated.
Taking into account the state of art, the costs of implementation and the nature, scope, context and purposes of the processing as well as risk of varying likelihood and severity of the rights and freedoms of natural persons, Data Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk pursuant to Article 32 of the General Data Protection Regulation in relation to security of the processing.
Taking into account the nature of the processing, Data Processor shall assist Data Controller by appropriate technical and organizational measures with the fulfillment of Data Controller’s obligation to respond to requests for exercising the data subject’s rights laid down in the General Data Protection Regulation. Data Processor shall be compensated for the time devoted in relation to the assistance with responses to requests regarding the data subject’s rights and the specific compensation will be agreed upon separately.
Taking into account the nature of processing and the information available to Data Processor, Data Processor warrants that it will assist Data Controller in ensuring compliance with any of Data Controller’s obligations pursuant to the applicable data protection legislation, including Article 32 (Security of processing), Article 33-34 (Notification and communication of a personal data breach), and potential obligations under Article 35 (Data protection impact assessment) and Article 36 (Prior consultation) of the General Data Protection Regulation. Data Processor is entitled to receive separate compensation regarding such assistance and the specific compensation will be agreed upon separately.
The Parties agree that at the termination of the data processing, Data Processor shall, at the choice of Data Controller, (i) return all data processed and any copies thereof to Data Controller, or (ii) delete all data processed under these Data Processing Clauses, unless European Union and/or relevant member state law requires storage of such personal data.
Data Processor shall, upon request from Data Controller, provide access to all necessary information in order for Data Controller to ensure compliance with the obligations laid down in the General Data Protection Regulation. Data Processor shall also allow for, and contribute to, audits, including inspections, conducted by Data Controller or another auditor mandated by Data Controller. The Data Processor is entitled to receive separate compensation in this regard.
Data Processor shall notify Data Controller without undue delay after becoming aware of a personal data breach.
19.6 Transfer of personal data to a third country
By accepting these Terms, including these Data Processing Clauses, Data Controller accepts that Data Processor may transfer personal data to a third country, i.e. a country outside the EEA for which the European Commission has not confirmed a suitable level of data protection on the basis of an adequacy decision. To the extent that the Data Processor on behalf of the Data Controller transfers personal data to a third country, EU Standard Contractual Clauses or EU-U.S. Privacy Shield Framework shall be applicable. A Data Processor will be required to ensure that such transfer is at all times lawful, including that there is an adequate level of protection of the transferred personal data. Same obligation applies in relation to Data Processor’s use of sub-processors (Developers) in third countries.
19.7 Sub-processing (use of Developers)
By acceptance of these Data Processing Clauses, Data Controller agrees that Data Processors may engage sub-processors (Developers) to assist in providing the services. Data Processor warrants and ensures that the sub-processing is lawful and that any and all sub-processors (Developers) undertake and are subject to the same terms and obligations as Data Processor as set out in these Data Processing Clauses. Should the sub-processors (Developers) not comply with their obligations, the Data Processor shall remain responsible for all acts and omissions of its sub-processors (Developers).
20. INDEMNIFICATION
The Client shall indemnify, defend and hold harmless ClearProfile and its subsidiaries, affiliates, officers, agents, employees, consultants, representatives and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to the Client’s use of the work product and/or Project. The Client will indemnify, hold harmless and defend the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses arising from or relating to any claim, judgment, or adjudication that any work product, Project, Services or action or omission by ClearProfile and/or a Developer infringes intellectual property rights or other rights of any third party.
21. WARRANTY DISCLAIMER
ClearProfile EXPLICITLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, ClearProfile PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THE PROJECT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ClearProfile DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
22. General Terms
22.1. Notices
Notices pursuant to these Terms may be sent to ClearProfile via email to [email protected], or to the Client via a the client’s email address on file and linked to the Client’s ClearProfile Platform account, or via a message posted directly on the ClearProfile Platform.
22.2. Amendments
ClearProfile may make amendments to these Terms at any time, in its sole discretion and without prior notice to the Client. In the event of any change to these Terms, the Client will be notified in writing as soon as possible, and in any case not more than 3 business days from the date the amendment is implemented.
22.3. No Waiver
The failure or delay of either party to exercise or enforce any right or claim in these Terms does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it.
22.4. Assignment
The Client may not transfer or assign any of its rights or obligations under the Work Order and/or these Terms, without ClearProfile's prior written consent by a duly authorized representative of ClearProfile.
22.5. Severability
If any provision of these Terms is determined to be invalid or unenforceable, in whole or in part, this determination shall not affect any other provision, and the provision in question shall be modified by the court so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible.
22.6. Dealing with a dispute
In the event of a controversy or dispute related to a Project, Work Order, these Terms, and/or other written policies and procedures posted on the ClearProfile Platform, the Client agrees to actively engage in good faith discussions to resolve the matter. Furthermore, the Client expressly agrees to follow the Procedures for Resolution of Disputes and be bound by the resulting ruling.
22.7. Use of Logos and Trademarks
22.7.1. The Client grants ClearProfile the right to use the Client's logos, trademarks, and trade names (collectively, "Logos") for marketing and promotional purposes. This includes, but is not limited to, display on the ClearProfile website, marketing materials, social media channels, and other promotional platforms.
22.7.2. The Client represents and warrants that it has the authority to grant such rights and that the use of the Logos by ClearProfile will not infringe upon any third-party rights. ClearProfile agrees to use the Logos in a manner consistent with any usage guidelines provided by the Client.
22.7.3. The Client may revoke this permission at any time by providing written notice to ClearProfile. Upon receipt of such notice, ClearProfile will make reasonable efforts to cease using the Logos in new marketing materials and will remove the Logos from existing materials within a commercially reasonable timeframe.
22.8. Governing law and venue
These Terms, the Work Order and other written policies and procedures posted on the ClearProfile Platform shall be governed by and construed in accordance with the laws of Delaware.
