Tairi | Service Terms

Tairi Service Terms

Version: October 2022

Background

The Supplier is engaged in training independent contractors predominantly located in South-Asia and South-East Asia in the field of online sales and online marketing, back office operations, customer support services, or IT services, in order to provide these services of these independent contractors to businesses predominantly located in Europe and North America, as further specified in the Order Form (“Services”).
The Customer desires Supplier to provide such Services.
The Customer understands and acknowledges that the Supplier will use all reasonable efforts to train and coach the independent contractors, in order to best meet business requirements of Customer.
These Tairi Service Terms (“Service Terms”) describe the terms and conditions applicable to the relationship between Supplier and Customer and apply to Services identified in the Order Form and, if applicable, any additional or adjusted Order Forms.
The main body of these Service Terms set out the general terms applicable to the relationship between Supplier and Customer. The Services are more specifically described in the applicable Order Form. Other Annexes (if applicable) contain further arrangements between the Parties.

Service Terms

Definitions
1. In these Service Terms and in the Agreement, the following capitalised terms shall have the following meaning:
  1. "Agreement" means the Tairi Services Agreement, consisting of the (signed) Order Form, these Service Terms and all Annexes attached thereto.
  2. “Business Day” means a day other than a Saturday, Sunday or public holiday in the Netherlands.
  3. “Annexes” means any annex attached to the Agreement.
  4. "Effective Date" means the date of signing of the Agreement.
  5. “Fees” means the fee or fees set out in the Order Form, as part of the Agreement.
  6. Force Majeure Event” means circumstances beyond the control of a performing Party (overmacht) including, without limitation, (i) circumstances beyond the control of Supplier’s suppliers, (ii) the failure by Supplier to property meet obligations that were contracted by Supplier on Customer’s instructions, (iii) defects in goods, hardware, software or materials of third parties that Supplier uses on Customer’s instructions, (iv) measures by public authorities, (v) power failures, (vi) failures of the internet, data network or telecommunication facilities, (vii) (cyber) crime, (cyber) vandalism, war or terrorism, and/or (viii) general transport problems.
  7. “Platform” means the Tairi platform, accessible through tairi.co.
  8. “Privacy Legislation” means the General Data Protection Regulation and other applicable privacy legislation and regulations concerning the protection of personal data.
  9. "Term" means the term of the Agreement as specified in the Order Form.
  10. “Services” means the services to be performed by Supplier under the Agreement and as detailed in the applicable Order Form.
  11. “Subcontractors” means the independent contractors of the Supplier assigned to perform the Services for the Customer.
  12. “Order Form” means the document executed and signed by the Parties, which sets out the mutually agreed terms for the provision of Services to Customer.
2. Other definitions – recognizable by use of a capital letter at the beginning – may also be explained in the text in the below.
3. If there is a conflict among the terms and conditions in the Agreement the descending order of precedence will be as follows: (1) Order Form, (2) other Annexes, and (3) these Service Terms.
The Services
1. The Services to be performed by the Supplier will be detailed in an Order Form and mutually agreed upon by authorized representatives of each Party. The terms and conditions laid down in these Service Terms govern the Order Form.
2. The Parties may agree the inclusion of engagement specific terms, as set out in the Order Form. If such terms vary or amend the terms of these Service Terms, then the scope and duration of the variation or amendment shall be expressly stated in the Order Form.
Duration and termination
1. The term of the Agreement between the Parties will commence on the Effective Date and will continue for an indefinite period of time (the “Term”), subject to termination in accordance with this Clause 3.
2. Notwithstanding any provision contained in the Agreement to the contrary, either Party may terminate (opzeggen) the Agreement:
  1. At any time, without affecting the continued operation of applicable Order Form, upon one (1) month prior written notice to the other Party of such termination (the “Termination Notice Period”).
  2. Upon written notice to the other Party, without notice of default being required and with immediate effect, if the other Party is granted a suspension of payments, whether or not provisional, a petition for bankruptcy is filed against the other Party or the company of the other Party is liquidated or dissolved other than for restructuring purposes or for a merger of companies.
3. The Supplier may terminate (opzeggen) the Agreement, in whole or in part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the decisive control of the Customer’s company. The Supplier is never obliged to repay any sum of money already received or pay any sum of money in compensation because of termination as referred to in this paragraph.
4. Notwithstanding any provision contained in the Agreement to the contrary, upon termination by either Party, the Customer shall pay the Supplier for all Services performed and expenses reasonably incurred by the Supplier in connection with the Services provided under the Agreement through to the date of termination.
Terms and deadlines
1. Any delivery dates and/or other dates specified by Supplier or agreed upon by Parties regarding the Services do not bind Supplier and are always indicative (geen fatale termijn), unless expressly agreed otherwise in writing. The Supplier makes reasonable efforts to comply with any delivery dates and/or other dates specified by the Supplier or agreed upon by Parties with regard to the Services, whether or not these are deadlines, strict delivery dates and/or delivery periods.
2. In all cases Supplier is only in default because of a term or period of time being exceeded after the Customer has served the Supplier with a written notice of default and has set a reasonable period of time for the Supplier to remedy the failure to meet its obligations and this reasonable term has passed. The notice of default must describe the Supplier’s breach to meet its obligations as comprehensively and in as much detail as possible so that the Supplier has the opportunity to respond adequately. For the avoidance of doubt, this Clause 4.2 also applies if Parties have agreed on deadlines, strict delivery dates and/or strict delivery periods.
3. The Customer acknowledges that a delay in the Customer performing its obligations under the Agreement may result in a delay in the performance of the Services; and subject to Clause 13 of the Service Terms, the Supplier will not be liable to the Customer in respect of any failure to meet the Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under the Agreement.
4. If a term or period of time is likely to be exceeded, the Supplier and the Customer shall consult in good faith to discuss the consequences of the term being exceeded in relation to further planning.
Supplier rights and obligations
1. The Supplier and its Subcontractors perform the Services with care to the best of its ability, where applicable in accordance with the arrangements and procedures agreed on with the Customer in writing.
2. All Services provided by the Supplier and its Subcontractors are performed on the basis of a reasonable efforts obligation unless and insofar as the Supplier has explicitly promised a result in the written agreement and the result concerned has been described in the Agreement in a sufficiently precise manner.
3. Without prejudice to Clause 10.3, all goods (including any software) delivered to the Customer remain the property of the Supplier until all sums (including but not limited to the Fees) due by the Customer to Supplier under the Agreement have been paid to the Supplier in full.
4. All rights granted or transferred to the Customer are subject to the condition that the Customer has paid all sums due under the Agreement unless explicitly stated otherwise.
5. The Supplier may retain all content, information, documents, software and/or data files received or created in the context of the Agreement, despite an existing obligation to hand these over or transfer them to the Customer, until the Customer has paid all sums (including, but not limited to the Fees) due to the Supplier.
Customer rights and obligations
1. The Customer shall provide Supplier with such facilities and assistance as the Supplier requires from the Customer to perform its obligations under the Agreement. The Customer acknowledges that the Supplier’s ability to deliver the Services hereunder is dependent upon the Customer’s co-operation with the Supplier. The Customer shall use commercially reasonable efforts to provide the Supplier and any of the Subcontractors with access to, and use of, information, data, documentation, computer time, facilities, working space and office services deemed necessary by the Customer for the receipt of the Services.
2. The Customer is solely responsible for all management decisions relating to the Services and the use or implementation of the output of the Services.
3. The Customer ensures the correctness and completeness of any content, data, information, designs, and specifications provided by on or behalf of the Customer to the Supplier and its Subcontractors. If the content, data, information, designs, and/or specifications provided by the Customer should contain inaccuracies and/or incompleteness apparent to the Supplier, the Customer shall provide further information for rectification upon request of the Supplier.
4. The Customer shall secure its systems and infrastructure adequately and keeps these adequately secured.
5. The risk of loss, theft, misappropriation or damage of goods (including software), information (including usernames, codes and passwords), documents, software or data files that are created for, delivered to or used by the Customer in the context of the performance of the Agreement pass to the Customer at the moment these are placed under the actual control of the Customer or an auxiliary person of the Customer.
Payment
1. The Customer shall pay the Supplier the Fees for Services as specified in the Order Form. The Fees in the Order Form shall be prepared based on the following pricing principles:
  1. All Fees are exclusive of value added tax (VAT), additional taxes and/or transaction costs. Services not included in the Order Form shall be billed on a time and material basis as agreed upon by the Parties via e-mail.
  2. The Customer cannot derive any rights or expectations from any cost estimate or budget issued by the Supplier, unless Parties have agreed otherwise in writing. A budget communicated by the Customer is only considered a (fixed) price agreed on by Parties if this has been explicitly agreed in writing and duly signed by the Parties.
  3. Where the activities performed by the Supplier and the sums due by the Customer for these activities are concerned, the information in the Supplier’s administration provides full evidence, without prejudice to the Customer’s right to provide evidence to the contrary.
  4. The Supplier may adjust the Fee on a monthly basis in writing and with due observance of a notice period of at least thirty (30) days. In case of adjustments to Fees, Supplier shall take into account an index or any other criterion included in the Order Form (if applicable). If the Customer is not willing to accept the Fee adjustment, Customer is entitled to terminate the Agreement by serving notice of termination (opzeggen) in writing, within thirty (30) days following the notification of the Fee adjustment and effective from the date on which the new prices and/or rates would take effect.
2. The Subcontractors shall complete and submit a timesheet each month, with a specification of the work performed in the previous month on an hourly basis. The Customer shall supervise and is responsible for the correct registration of the timesheets by each Subcontractor.
3. The Fee shall be charged by the Supplier to the Customer on a monthly basis by means of an invoice to be sent to the Customer. The Customer shall pay the charged Fee through the Platform via online payment within fourteen (14) days after the invoice date, unless otherwise agreed in writing.
4. If a Subcontractor is requested by the Customer to travel for any reason, such as, but not limited to, training, project start-up or other activities, the Customer shall be responsible for all travel expenses including air ticket, train ticket, visa and/or accommodation. In addition, the Customer shall also provide accommodation and a fixed daily allowance of EUR 50,- per day, including weekends, which is considered sufficient to cover the costs of food, transportation and other current expenses.
5. If the Customer should fail to pay the sums due or does not pay the sums due under the Agreement on time, the statutory interest for commercial agreements is payable by the Customer on any outstanding sum, without a reminder or notice of default being required. If the Customer should fail to pay the sum due even after a reminder or notice of default, the Supplier can pass on the claim for collection and the Customer is obliged to pay, within reason and in addition to the total sum due at that time, all judicial and extrajudicial costs, including all costs charged by external experts – all of which is without prejudice to any of the Supplier’s statutory and contractual rights.
6. If the Customer should fail to pay the sums due within sixty (60) calendar days as from the date such fees and/or charges are due, the Supplier may, upon written notice to Customer, immediately suspend its provision of the Services and shall be entitled to either remove and relocate each Subcontractor or keep each Subcontractor assigned to the Customer in which case the Customer will be charged as if Services are provided, until such overdue amounts are paid in full.The suspension of the Services shall not be treated as a default on the part of the Supplier and shall not preclude the Supplier from exercising any other rights under the Agreement. The Customer’s payment obligations with respect to the Services already performed continue to apply in full.
7. The Customer is not entitled to suspend any payments nor to set off any of the sums due.
8. The Supplier may conduct periodic credit reviews, in order to check Customer’s ability to meet its payment obligations under the Agreement. Customer agrees to assist in these reviews by providing the requested financial information on Customer’s creditworthiness without undue delay.
Deployment
1. The Supplier makes the Subcontractors specified in the Order Form available to perform activities under Customer’s direction and instructions. The results of these activities are solely at Customer’s risk.
2. The Customer may only deploy the Subcontractors made available to perform activities other than the activities agreed on in the Order Form, if the Supplier has agreed to this in advance and in writing.
3. The working hours, holiday periods, rest periods, applicable Fees and other relevant working conditions as specified in the Order Form shall apply. The Customer guarantees that the working hours, holiday periods, rest periods and other relevant working conditions are in compliance with applicable laws and regulations.
4. The Customer informs the Supplier as soon as possible about any intended temporary or permanent closure of its organization or company.
5. The following provisions shall apply in relation to the removal, leave and/or illness of Subcontractors:
  1. The Supplier will cooperate with its Subcontractors to notify the Customer before any Subcontractor takes leave during the Term:
    1. without undue delay should the leave be unplanned;
    2. without undue delay, but in any event upon two (2) weeks prior written notice in case of planned leave.
  2. Should a planned or unplanned leave, for whatever reason, of a Subcontractor exceed twenty (20) Business Days, the Supplier shall, if requested by the Customer, use its reasonable efforts to provide a replacement Subcontractor with a similar level of experience who is confirmed as acceptable by the Customer, for the duration of the leave or for an indefinite period of time (whichever is applicable).
  3. If a Subcontractor is permanently unable to provide the Services due to illness or injury, the Supplier shall advise the Customer of that fact as soon as reasonably practicable. If requested by the Customer, the Supplier shall as soon as possible thereafter provide to the Customer a replacement Subcontractor with at least the same level of experience who is confirmed as acceptable by the Customer.
  4. If the provided replacement Subcontractor is not accepted by the Customer, the Supplier will, upon the Customers’ request, suggest another replacement. Should that replacement not be accepted by the Customer, the Parties are entitled to terminate the Agreement in accordance with Clause 3.
6. The Customer shall not actively reach out to any Subcontractor to solicit for employment or to engage with him/her in any other way, unless the Customer gives the Supplier three (3) months prior written notice of its intention to employ or otherwise engage the Subcontractor in question, and if - in addition - one of the following two conditions is met:
  1. the Customer has paid the Supplier in full for the performance of at least 1.600 (sixteen hundred) hours of work provided by the relevant Subcontractor for the Customer as part of the Services under the Agreement; or
  2. in case the 1.600 hours referred to in Clause 8.6.1 have not been paid by the Customer to the Supplier in whole or in part, the Customer shall pay the Supplier an amount of 50% of the relevant Feesmultiplied by the number of hours still required by the relevant Subcontractor to reach a total of such 1.600 hours of work provided by the relevant Subcontractor for Customer.
Outsourcing
1. Subject to any express restrictions elsewhere in the Agreement, the Supplier may outsource (subcontract) any of its obligations under the Agreement, providing that the Supplier must give to the Customer, promptly following the appointment of such outsourced service, a written notice specifying the outsourced obligations and identifying the contracting party in question.
Intellectual Property
1. In this Agreement "IP Rights" means: all present and future intellectual property rights, worldwide, including, but not limited to patent rights, copyrights, neighbouring rights, database rights, drawing and model rights, trademark rights, trade name rights, rights with regard to designs, (web) design and content, domain names, claims to the (source and object) code and all relevant technical information, irrespective of whether these are registered or not.
2. Parties have the intention that the Customer shall own all IP Rights related to, vested in or arising from any result of the Services rendered by the Supplier or its Subcontractors, either solely or jointly with others, pursuant to the execution of this Agreement. Therefore, to the extent such are transferrable by the Supplier, the Supplier hereby transfers to the Customer (in advance) all aforementioned IP Rights, subject to Clause 3. The Customer hereby (in advance) accepts this transfer.
3. The transfer of all IP Rights shall happen incrementally upon payment of the Fees for the relevant Order Form. Insofar as a transfer has therefore not yet taken place with regard to any such IP Rights, the Supplier grants the Customer rights of use in respect thereof for the period until full payment of the Fees has been made. This right of use granted to the Customer is revocable, non-exclusive, non-transferable and non-sublicensable.
4. The Parties hereby agree that, on the date of payment of Fees for the period during which new copyright work under the Agreement have been created, the Supplier, in the scope of the contractual remuneration, hereby perpetually transfers (in advance) to Customer all proprietary copyright to the subject matter of the Agreement meaning that these copyrights will perpetually become Customer’s intellectual property. Customer hereby (in advance) accepts this transfer. This clause effectuates one or more transfers of IP Rights and is therefore to be understood as a deed of transfer as i.a. stated in section 2(3) of the Dutch Copyright Act.
5. For the sake of completeness: the transfer of IP Rights does not affect the Supplier’s rights or options to use and/or exploit, either for itself or for third parties and without any restriction, the parts, designs, algorithms, documentation, works, protocols, standards and the like on which the developments referred to are based for other purposes. The Supplier is also entitled to use and/or exploit, either for itself or for third parties and without any restrictions, the general principles, ideas and programming languages that have been used as a basis to create or develop any work for other purposes. The transfer of an IP Right does not affect the Supplier’s right to continue developing, either for itself or for third parties, software – or elements of software – that are similar to or derived from software – or elements of software – that have been or are being developed for the Customer.
6. While executing the Agreement, the Supplier may use public libraries, open source (software) components and other third party tools that were not created by the Supplier, and which can be specified by the Supplier upon written request by the Customer ("Third Party Software"), for which the following shall apply:
  1. the conditions of the Third Party Software are as stated by the provider of the Third Party Software, or the applicable (open source) license where applicable;
  2. the Third Party Software may have limitations, both known and unknown (including defects, and (unknown) limitations in functionality); and
  3. the Supplier provides no warranty specifically related to any Third Party Software or any applicable Third Party Software licensing terms.
Privacy and information security
1. Both Parties will process personal data within the meaning of the Privacy Legislation, by providing and using the Services and each Parties’ subsequent activities. Parties agree and acknowledge that each Party processing personal data in the performance of the Agreement, acts as a separate data controller within the meaning of the Privacy Legislation.
2. Parties shall each comply with the Privacy Legislation. Parties will provide each other all necessary assistance in concluding all agreements required by the Privacy Legislation, if necessary.
3. The Customer is fully responsible for the data, including all personal data, that (i) the Customer processes in connection with, and during the use of, the Services, and (ii) any Subcontractor processes in the performance of the work for the Customer. The Supplier has no part in such processing activities that are strictly between the Customer and Subcontractor.
4. The Supplier shall make all reasonable efforts to refrain from processing any data, including personal data, processed by the Subcontractor in the performance of the work for the Customer. If the Supplier processes such data incidentally, for example if the Subcontractor per accident uses the Supplier’s servers for storage of such data, the Supplier shall make all reasonable efforts to delete and return such data to the Customer immediately upon discovery thereof.
5. The Customer indemnifies the Supplier against any claims by a third party instituted, for whatever reason, in connection with any data, including any personal data, in connection with the use of the Services by the Customer. More specific, the Customer indemnifies the Supplier against any claims by persons whose personal data are or have been processed and for which processing the Customer is responsible pursuant to the Privacy Legislation, other applicable law or the Agreement, unless the Customer proves that the facts on which a claim is based are attributable to the Supplier pursuant to obligations which apply specifically to the Supplier under the Agreement or the Privacy Legislation.
Confidentiality
1. The Customer and the Supplier ensure that secrecy is observed with respect to all information received from the other Party of which information the receiving Party knows or should reasonably know it is confidential. This prohibition does not apply if and insofar as the information concerned must be provided to a third party in compliance with a judicial decision, a statutory requirement, a statutory order by a public authority or for the proper performance of the Agreement. The Party that receives the confidential information may only use it for the purpose for which it has been provided. Information is in any case deemed confidential if it has been designated as such by either Party. Confidential Information does not include information that:
  1. becomes public through no breach of the receiving Party;
  2. the receiving Party rightfully receives from a third party without restriction;
  3. the receiving Party develops independently or already had full knowledge of information prior to disclosure by providing Party;
  4. the providing Party gives to any third party without confidentiality limitations.
2. Customer acknowledges that software made available by Supplier (if any) is always confidential in nature and that this software contains trade secrets of Supplier and its Suppliers or of the producer of the software.
Liability
1. The Supplier is not liable for any indirect damages the Customer suffers, including consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of Customer’s clients, loss arising from the use of goods, materials or software of third parties prescribed by the Customer to the Supplier, loss due to corruption, destruction or loss of data or documents. In addition, Supplier is not liable for the quality of the results of the activities performed by Subcontractors.
2. If the Supplier is liable towards the Customer for direct damages, this will be limited to an amount equal to one monthly Fee paid by Customer in the month in which the liability causing event(s) occurred. In no event does Supplier’s total liability for any direct damage, on any legal basis whatsoever, exceed EUR 10.000.
3. Neither Party excludes liability for any damage arising from death or bodily injury. The exclusions and limitations referred to in this Clause 13 cease to apply if and insofar as the damage is caused by Supplier’s willful intent or gross negligence.
4. The Suppliershall not be liable for any damages the Customer may cause to any third parties as a result of, or in connection with the use of the Services. The Customer indemnifies the Supplieragainst any third-party claims relating to acts, including omissions, by the Customer as a result of, or in connection with the use of the Services. More specific, the Customer indemnifies the Supplier against any and all claims of third parties arising from product liability because of a defect in a product or system that the Customer delivered to a third party and that consisted in part of hardware, software or other materials delivered by Supplier as part of the Services (if any).
5. Any right to compensation of damages exclusively arises if the Customer reports the damage to the Supplier in writing as soon as possible after the damage has occurred. Any claim for compensation of damages filed against the Supplier lapses by the mere expiry of a period of twelve (12) months following the inception of the claim unless the Customer has instituted a legal action for damages prior to the expiry of this term.
6. To the maximum extent permitted by applicable law, the Supplier hereby disclaims all implied warranties regarding the availability of the Platform. The Platform (and all other related services thereto) are provided "as is" and "as available" without warranty of any kind. The Supplier does not accept any liability for unavailability of the Platform, or any difficulty or inability to access, share, upload, download and/or access content, or any other communication system failure which may result in the Platform being unavailable.
Force Majeure
1. If a Force Majeure Event gives rise to a failure or delay in either Party performing any obligation under the Agreement, other than any obligation to make a payment, that obligation will be suspended for the duration of the Force Majeure Event.
2. Either Party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that Party performing any obligation under the Agreement, must (i) promptly notify the other Party, and (ii) inform the other Party of the period for which it is estimated that such failure or delay will continue.
3. lf a Force Majeure Event situation lasts for more than sixty (60) days, either Party has the right to terminate the Agreement. In such event, all that has already been performed under the Agreement must be paid for on a proportional basis, without anything else being due by either Party to the other Party.
Miscellaneous
1. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between the Parties hereto, nor shall either Party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
2. The Supplier is entitled to unilaterally amend this Agreement, with due observance of a written notice period of thirty (30) calendar days. Customer is entitled to terminate the Agreement by serving notice of termination in writing, within thirty (30) calendar days following the notification of the amendment(s) to the Agreement, and effective as from the date on which the adjustments to the Agreement would take effect.
3. The Customer may amend this Agreement only if and to the extent such amendment is agreed in writing by signature of authorised representatives of both Parties.
4. Each Party warrants its power to enter into the Agreement and has obtained all necessary approvals to do so. The Supplier reserves the right to request from the Customer a copy of the passport and an extract from the relevant chamber of commerce of the person authorized to sign on behalf of the Customer.
5. Any notice or statement in connection with the Agreement shall be given in writing.
6. The invalidity or unenforceability of any provision of the Agreement shall not affect any other provisions of the Agreement, unless any such provision is inextricably linked to the invalid or unenforceable provision. Any invalid or unenforceable provision shall be replaced or, insofar possible under applicable law, deemed to be replaced, by a valid and enforceable provision which differs as little as possible from the invalid or unenforceable provision and reflects the intent of the invalid or unenforceable provision.
7. The Agreement, constitutes the entire agreement between the Parties on the subject matter hereof, and supersedes any previous (verbal or written) agreements or negotiations between the Parties.
8. The Agreement and any amendments thereto may be executed in any number of counterparts, including by means of mutually accepted electronic signature software, which shall have same effect as if the signatures on the counterparts were on a single copy of the Agreement.
9. Except as explicitly permitted under the Agreement, the Customer is not allowed to assign or transfer the Agreement or any of its rights or obligations hereunder, either in whole or in part, without the prior written consent of the Supplier.
10. Any provision of the Agreement which expressly or by implication is intended to come into or continue in force on or after termination of the Agreement including Clauses 10, 11, 12, and 13 of these Service Terms shall remain in full force and effect.
Governing Law and Jurisdiction
1. The Agreement shall be governed by and construed in accordance with the laws of the Netherlands.
2. All disputes arising out of or in connection with the Agreement shall be exclusively submitted to the competent court in Amsterdam.