Last updated: 17 March 2021
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- “Personal Identifiable Information”means (a) government identification numbers associated with individual persons (e.g. Social Security numbers, driver’s license numbers); (b) medical records or health care information associated with individuals; and (c) personal information (e.g. first name, last name, email, address, date/place of birth, nationality).
- “Cloud Service”means the software as a service made available via the internet by Outerscore to Contractor to supply products, services and resources like temp workers and freelancers to Joint Customers. For Contractor the Cloud Service is free of charge. Outerscore reserves the rights to introduce fees pursuant to paragraph 8.
- “Confidential Information”means, with respect to Contractor, Contractor’s information entered into Outerscore’s Cloud Service (also referred to as “Contractor Data”), and with respect to Outerscore: (a) the Cloud Service and the Cloud Data; (b) computer software (both object and source codes); (c) techniques, concepts, methods, processes, designs, and program interfaces embodied in or relating to Outerscore’s Cloud Service and Cloud Data; and (d) all system security and system architecture design relating to the Cloud Service. In addition to the foregoing, Confidential Information of either Outerscore or Contractor (the party disclosing information being the “Disclosing Party”) includes information: (a) the Disclosing Party protects against unrestricted disclosure to others designated as confidential at the time of disclosure; and (b) information that should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.
- “Users”means Contractor’s employees, agents, contractors, consultants, suppliers or other individuals or affiliated companies who are authorized by Contractor to use Outerscore’s Cloud Service. The Contractor may add or remove users to the Cloud Service
- “Cloud Data”mean any documents or data related to the Cloud Service provided or produced by or with Outerscore.
- “Joint Customer(s)”means a third party authorized by Outerscore to use Outerscore’s Cloud Service so that such third party may procure certain services, products or resources from Contractor.
§ 2 Access Rights and Rescrictions
- Contractor shall not sublicense, license, sell, lease, rent or otherwise make the Cloud Service available to third parties (other than Users who are using the Cloud Service in accordance with Contractor’s use of the Cloud Service). Contractor shall be responsible for the acts and omissions of its Users as if they were the acts and omissions of Contractor.
- Contractor shall not, and shall ensure that its Users do not: (a) copy, translate, disassemble, decompile, reverse-engineer or otherwise modify any parts of the Cloud Service; (b) transmit any content, data or information that is unlawful, abusive, harassing, tortious, defamatory, vulgar, libelous, invasive of another’s privacy right or right of publicity, or racially or ethnically objectionable; (c) infringe the intellectual property rights of any entity or person; (d) interfere with or disrupt the software and systems used to host or connected with the Cloud Service;(e) circumvent or disclose the user authentication or security of the Cloud Service or any host, network, or account related thereto; (f) access the Cloud Service for the purpose of building a competitive product or service or copying its features or user interface; (g) permit access to the Cloud Service by a direct competitor of Outerscore; (h) make any use of the Cloud Service that violates any applicable law or regulation.
- Outerscore may make third party products available for use in connection with the Cloud Service (each a “Third Party Product”). Outerscore does not guarantee the availability of any Third Party Product and may discontinue access to any Third Party Product at any time with or without notice.
§ 3 Confidentiality
- With respect to the Confidential Information of the other, each party: (a) shall take all Reasonable Steps (defined below) to keep all Confidential Information strictly confidential; b) shall not disclose any Confidential Information of the other to any person other than individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder and who are under obligations of confidentiality substantially similar to those set forth herein. As used herein, “Reasonable Steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either party disclosed prior to execution of the Agreement shall be subject to the protections afforded hereunder. If the receiving party is compelled by law or legal process to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure.
- The above restrictions on use or disclosure of Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the Disclosing Party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of the Agreement by the receiving party; (c) at the time of disclosure, was previously known to receiving party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions.
- Each Party shall retain all ownership and intellectual property rights, title, and interest in and to their Confidential Information. Any reproduction of any Confidential Information of the other party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. Each party shall notify the other promptly upon discovery of any unauthorized disclosure or use of the other’s Confidential Information, and will cooperate in every reasonable way to help the other regain possession of its Confidential Information and/or to prevent further unauthorized use or disclosure. In the event of the threatened or actual breach of this Agreement, a party may have no adequate remedy at law and shall be entitled to (a) all equitable remedies, including immediate injunctive relief (without bond and without the necessity of showing actual monetary damages), (b) reasonable attorney’s fees incurred in enforcing its rights hereunder, and (c) any other legal remedies that may be available.
- Contractor agrees that Outerscore may collect, use and disclose quantitative data derived from Contractor’s use of the Cloud Service for industry analysis, benchmarking, analytics, marketing, and other business purposes. All data collected, used, and disclosed will be in aggregated form only and will not identify Contractor.
- The Contractor agrees that Outerscore may disclose the collaboration between Outerscore and the Contractor for marketing purposes and in this connection also use the company logo of the Contactor. The Supplier may revoke this consent at any time by declaration in text form (e.g. via e-mail to firstname.lastname@example.org).
- The Contractor agrees to comply with applicable data protection laws with respect to the personal data of third parties, such as Users and other suppliers, which the Contractor may obtain when using the Cloud Service. The Contractor will instruct all Users and agents accordingly.
§ 4 Contractor Data
- Outerscore and Contractor will implement technical and organizational measures to meet the requirements under the applicable data protection laws and to reasonably protect Cloud Data against misuse
- Contractor agrees that it has collected and shall enter, maintain and handle all Cloud Data in compliance with all applicable data privacy and protection laws, rules, and regulations.
- Contractor ensures that no legal requirements of Contractor prevent Outerscore from fulfilling its contractual obligations under this Agreement in compliance with applicable law, including, without limitation, ensuring that all concerned individuals have previously declared consent to a possible processing of Personal Identifiable Information.
§ 5 Data Protection
- Outerscore maintains an Information Security Management System (ISMS) and is certified according to ISO27001. However, Contractor needs to be aware of the general risk that transmitted data may be intercepted during transmission. This applies not only for the exchange of information via e-mails that leave the system, but also for all other data transmission. For this reason, the confidentiality of data transmitted when using the Cloud Service cannot be guaranteed.
- The Contractor bears sole responsibility for securing the information received or obtained when using the Cloud Service. The Contractor will regularly back up this information/documents on an independent data storage medium/server. This particularly applies if authorized users also use the Cloud Platform on their own end devices on behalf of the Contractor.
- Outerscore treats Contractor’s Personal Identifiable Data in accordance with ISO27001 data protection standards and specifications. The data protection regulations applicable for the use of the Cloud Platform can be found under https://outerscore.com/data-privacy/
- Insofar as the Contractor enters personal data on the Cloud Service, the Contractor is considered a controller within the meaning of Art. 4 (7) GDPR, and Outerscore is considered a processor within the meaning of Art. 4 (8) GDPR. As part of the online registration process and a prerequisite for the Agreement, Outersore and the Contractor conclude a data processing agreement pursuant to Art. 28 GDPR.
- The DPA can be found here: https://outerscore.com/dpa/
- Contractor acknowledges and agrees that Outerscore may follow Joint Customer instructions relating to Personal Identifiable Data provided by Contractor, including, but not limited to, permanently anonymizing or erasing Personal Identifiable Data in the Cloud Service (which may affect corresponding Cloud Data). In the event of any conflict in processing instructions between Joint Customer and Contractor, Joint Customer’s instructions shall govern.
- The Contractor is obliged to comply with applicable data protection laws with respect to the personal data of third parties, such as other Users, which the Contactor may grant access to the Cloud Service.
- The Contractor agrees that Outerscore may freely use, exploit and further develop any feedback provided on the Contractor. This agreement may be revoked at any time.
§ 6 Warranty and Disclaimer
- Each party represents and warrants that is shall take commercially reasonable efforts to ensure that the Confidential Information provided to the other shall be free of any malware or corrupt software, hardware or data.
- Contractor acknowledges and agrees that Cloud Service including (without limitation) all updates and enhancements are provided “As is,” and “As available” without warranty of any kind. Outerscore does not owe any availability as far as the Cloud Service is free of charge for the Contractor
- Since the Platform is cloud-based, Outerscore can only eliminate faults if the cloud server is working without faults. Outerscore accepts no liability for faults in the cloud server. Outerscore will endeavour to rectify faults that are considered repairable within a period of two business days at most after receiving the fault notification.
- If Outerscore plans to decommission the Platform in part or in whole at other times, Outerscore must announce this three business days before the planned decommissioning. The Contractor may only object to this decommissioning if there is good cause, and this objection must be submitted without undue delay. If possible, Outerscore will name a replacement time unless the decommissioning cannot be postponed.
- Outerscore makes no guarantee of the accuracy, correctness or completeness of any information in the Cloud Service, and shall not be responsible for: (i) any errors of omission arising from the use of such information; (ii) any failures, delays or interruptions in the delivery of any content or service provided by the Cloud Service; and (iii) any defamatory, libelous or unlawful material provided by the Cloud Service, including resumes, emails, profiles, statements, memorandums, or materials related to users’ use of the Cloud Service. Contractor acknowledges that any reliance upon any such opinion, advice, statement, memorandum, or information shall be at Contractor’s sole risk
- Outerscore has the right, but not the obligation, to correct any errors or omissions in any portion of the Cloud Service. Outerscore does not warrant that the Cloud Service will be uninterrupted, free of errors, defects or without delay.
- The Contractor shall be obliged to communicate any defect to Outerscore immediately upon appearance. Outerscore shall remedy any duly notified defects appearing in the Cloud Service within a reasonable period of time.
- The Cloud Service includes open source software provided by third parties.
§ 7 Third Party Claims
- Outerscore is not involved in nor is it a party to any transaction between any parties who use the Cloud Service. The Cloud Service is a venue only and Outerscore’s principal role is to connect Joint Customers and other suppliers or cloud service providers with Contractors. Outerscore does not control and has no responsibility for the information or services provided by Joint Customers, Contractor and other suppliers or the behavior of Joint Customers, Contractor and other suppliers. Outerscore cannot control whether or not Joint Customers will complete the transactions they request in the Cloud Service. Contractor agrees and acknowledges that Outerscore has no control over Joint Customer’s decision to conduct a transaction with Contractor through the Cloud Service. Accordingly, Contractor shall defend, indemnify and hold Outerscore harmless against any expense, liability, loss, damage or costs (including reasonable attorneys’ fees), each to the extent payable to a third party, incurred in connection with claims, demands, suits, or proceedings made or brought against Outerscore by a third party arising from or relating to (i) a dispute between Contractor and Joint Customers arising from Contractor’s use of the Cloud Service to exchange information or conduct business with such Joint Customer (ii) a dispute between Contractor and other suppliers arising from Contractor’s use of the services of other suppliers.
- If the use of the Cloud Service or Cloud Data infringes, or in Outerscore’ determination, is likely to infringe, a third party proprietary right, Outerscore may, in its sole discretion and at its option and expense (a) obtain for Contractor the right to use the allegedly infringing item(s), (b) substitute or modify such item to be non-infringing and have equivalent functionality, or (c) terminate the Agreement.
§ 8 Terms and Termination
- Outerscore grants Contractor a personal, non-exclusive, non-transferable, limited right to use the Cloud Service which becomes effective as of the Effective Date.
- Outerscore reserves the right to immediately terminate Contractor‘s use of the Cloud Service in its sole reasonable discretion upon notice (email acceptable). Upon the effective date of termination, Contractor’s access to the Cloud Service will be terminated.
- Where an agreement between any Joint Customer and Contractor is terminated for any reason then Contractor’s rights to access the Cloud Service in respect of that particular Joint Customer shall cease immediately.
- If agreed between Outerscore and the Contractor, Outerscore shall, in addition to providing the Cloud Service provide specific services to adapt the software to the individual needs and wishes of the Contractor, and/or other additional services. The conditions on these services shall be set up by a separate service agreement.
§ 9 Changes to the Software
- Outerscore intends to apply state-of-the-art technology and shall be entitled to regularly carry out or introduce updates, new versions or upgrades of the Cloud Service in order to adapt the Cloud Service to new technical or commercial requirements, to implement new features, or to make changes to existing features in order to improve the Cloud Service.
- If and insofar as the suitability of the Cloud Service for the intended purpose is materially impaired by an update, Outerscore shall inform the Contractor in text form of the introduction of such a material change at least 30 days prior to it becoming effective. If the Contractor does not object to the material change within two weeks after receipt of the change notice in text form (the “objection notice”), the material change shall become an integral component of the Agreement With each change notice, Outerscore shall inform the Contractor of the Contractor’s rights pursuant to this section 10.2, in particular: (i) the objection right, (ii) the period foreseen for objection and (iii) the legal consequences of not declaring an objection to the material change in time.
- If the Contractor objects to the material change, Outerscore shall further provide the Cloud Service for use to the Contractor without the material change unless this is impossible for technical or organizational reasons or Outerscore cannot reasonably be expected to do so. In the latter case, the Contractor is entitled to terminate the Agreement extraordinarily for good cause within four weeks. If the Contractor does not make use of its termination right, the material change shall become an integral component of the Agreement. The period to terminate the Agreement shall commence as soon as Outerscore has informed the Contractor in text form of (i) the non-continuability of the Agreement without the material change, (ii) the Contractor’s extraordinary termination right and (iii) the legal consequences of the expiry of the 4 week period to object to the material change.
§ 10 Limitations of Liability
- Contractors agrees that the use of the Cloud Service is at Contractors own risk. In no event shall Outerscore be liable for any direct, indirect, incidential, special or consequential damages arising out of or in any way connected with the Cloud Service or for any information, products, and services obtained through the service or otherwise arising out of the use of the same even if Outerscore has been advised of the possibility of damages.
- Excluding § 3 Confidentiality and § 7 Third Party Claims the total liability of each party to the other in respect to all claims under or in connection with this Agreement shall on exceed on thousand Euros.
- The no-fault based liability pursuant to section 536a paragraph (1) BGB in German law for the defects in the Cloud Service at the time of contracting shall be excluded.
- This liability arrangement is conclusive. It shall apply with respect to all damage compensation claims, irrespective of their legal ground, particularly also with respect to pre-contractual claims or collateral contractual claims. This liability regulations shall also apply in favor of legal representatives and agents of Outerscore if claims are asserted directylk against them.
§ 11 Miscellaneous
- Signatures sent by electronic means (Scanned and sent via e-mail, or signed by electronic signature service) shall be deemed original signatures.
- Any delay or nonperformance of any provision of the Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of the Agreement.
- No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver hereof; all waivers being required to be in writing signed by the waiving party. If either party should waive any breach of any provision of the Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
- Contractor may not, without Outerscore’s prior written consent, assign, delegate, pledge, subcontract, or otherwise transfer the Agreement, or any of its rights or obligations under the Agreement, or divulge Outerscore’ Confidential Information, to any third party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. Outerscore may in its sole discretion sub-contract parts of the Cloud Service to third-parties.
- Contractor acknowledges and agrees that Outerscore is not in the business of providing legal advice, and that no content available within the Cloud Service or provided by Outerscore in connection therewith should be misconstrued as legal advice.