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🛣️ The journey to having access to payroll and financial services as a remote worker requires some ground rules to ensure that we are Ontop of the important details. We are committed to making your path as simple and transparent as possible.
These B2C General Terms and Conditions (“B2C T&Cs” or “Terms”) form the basis of the legally binding contract between you and us.
THESE B2C T&CS WILL REPLACE THE ONTOP PLATFORM TERMS OF SERVICE IN RELATION TO THE WORKER EXPERIENCE OF THE ONTOP PLATFORM AND ONTOP B2C SERVICES FROM FEBRUARY 9, 2024 ONWARDS.
🧐 PLEASE READ THESE TERMS CAREFULLY BEFORE USING OUR PLATFORM AND/OR B2C SERVICES. THESE TERMS ARE NON-NEGOTIABLE.
1. Let’s Begin! Overview of the Ontop Platform 🪂💻
Life is an adventure. We believe in a life without borders, where you live, work, and make money anywhere. Dare to be free.
The Ontop Platform empowers international remote workers to receive payments from the businesses they provide services to around the world. Giving workers financial freedom is something that Ontop cares a lot about. Get paid and spend your money anywhere, at any time. We give you the power to choose what fits your needs. Financial freedom has never been easier for international workers.
2. Who or What is That? 🙋 Key Definitions
🏋️🛎️ “B2C Services” or the “Services”, within the context of these Terms, are the payroll and financial services available to Workers on the Ontop Platform.
🏢 “Client” means any individual or legal entity that engages Ontop to contract, onboard, make payments to and/or manage its relationships with Workers.
👷 “Contractor” is an individual or legal entity that performs services for Clients as an independent contractor.
🏭🎥 “Employer of Record” or “EOR” is the payroll service under which Ontop manages and administers personnel hired and paid by Ontop as Employees, processing salaries or wages for them, and managing extralegal benefits.
⏱️👔 “Employee”, “Full-Time Employee” or “FTE” is an individual that is hired by Ontop or its partners under our EOR payroll service in accordance with local labor laws to provide services to Clients.
🔛🔝 “Ontop”, “us”, “our” and “we” means Ontop Holdings Inc., a US corporation organized under the laws of the State of Delaware, as well as its affiliates and/or subsidiaries, collectively the “Ontop Group”.
💻 “Ontop Platform” or the “Platform” means the proprietary software as a service (SaaS) platform available via login through the Ontop Website and through mobile apps available on Apple iOS and Android, among others.
🌐 “Ontop Website” or the “Website” means the website located at www.getontop.com.
🏋️💵“Ontop Worker Wallet” or “Worker Wallet” means means the electronic or digital wallet account available to Workers from within the Ontop Platform that allows you to receive compensation payments from Clients and make electronic transactions to your own personal account(s) or to third-party accounts.
👉 “User”, “you” and “your”, within the context of these Terms, means any person with authorization to access an Ontop Worker Account, which includes Workers and their representatives, among others.
🏋️ “Worker” can mean a Contractor or Employee, as an individual or legal entity. In cases where the context permits it, Worker will be used as a general term and when specifically required we will use Contractor or Employee.
🏋️🚪 “Worker Account” or “Account” is the user account that a Worker can create on the Ontop Platform and use for the purposes of engaging B2C Services.
3. Overview of our B2C Services 🏋️🛎️
The B2C Services that we provide to Workers through our Platform can be divided into to main segments: (i) payroll services; and (ii) financial services.
Our payroll services aim to enable Workers to provide services and receive their compensation payments from Clients or from Ontop (“Payroll Services”). Depending on the type of relationship, Ontop acts as a payment agent, contracting party, or both. The business models covered by our Payroll services include: (i) You Sign; (ii) Ontop Signs; and (iii) Employer of Record (EOR). Payroll Services may not be available in certain locations, depending on the countries and/or jurisdictions involved.
Under the You Sign business model, Contractors engage Clients directly. We act as a payment agent to make payments of compensation received from Clients to Contractors in their Ontop Wallet. We have no involvement in the relationship between Contractor and Client under You Sign, nor the work agreed to by them.
Under the Ontop Signs business model, we subcontract Contractors on behalf of our Clients. We make compensation payments to Contractors directly in their Ontop Wallet, in our capacity as a contracting party.
Under the EOR business model, we (or our partners) will hire and register Employees in the country where they reside, according to local labor laws and regulations. We may make compensation payments to Employees to accepted local bank accounts or to the Ontop Wallet, subject to the limitations of local authorities and the express authorization of the Employees.
We reserve the right to update, modify, and otherwise alter, at our sole discretion, the Payroll Services and business models we offer, their respective fees and pricing, and the countries in which they are offered.
Our financial services have been created to give Workers financial freedom in relation to the payments they receive under our Payroll Services, which includes, but is not limited to, the following: (i) Ontop Worker Wallet; (ii) Ontop Card; (iii) Subscription Plans; and (iv) Funding Solutions (“Financial Services”).
Workers may have access to an e-wallet account from within the Ontop Platform (“Ontop Worker Wallet” or “Worker Wallet”). Use of the Ontop Wallet is subject to the Worker Wallet Terms of Service.
Workers may be able to apply for a prepaid physical or digital card (“Ontop Card” or the “Card”). If you choose to apply for an Ontop Card, your use will be subject to the Ontop Card Terms of Service.
As a supplementary service to the Ontop Wallet, Ontop Card, or both, Workers will be able to subscribe to plans offering them premium benefits such as cashbacks, a physical Ontop Card, among others (“Subscription Plans”). As a user of the Ontop Wallet and/or Card, you consent that we may make you offers to subscribe to Subscription Plans. The Subscription Plans will be subject to the terms and conditions of each respective plan, which includes, among others: (i) Wanderlust; (ii) Infinite; and (iii) Freedom. Workers cannot subscribe to more than one Subscription Plan at the same time. You can opt out or unsubscribe from Subscription Plans at any time.
We may offer Workers with services that allow them to borrow money or receive payment advances (“Funding Solutions”). Funding Solutions will be subject to (i) the terms and conditions of Ontop Peak; and (ii) the terms of the separate agreement entered between you and us regarding our cash advance service (“Ontop Quick”). We reserve the right to provide you Funding Solutions, at our sole discretion.
We reserve the right to update, modify, and otherwise alter, at our sole discretion, the Financial Services we offer, their respective fees and pricing, and the countries in which they are offered in accordance with the provisions of US consumer laws.
We may allow the employees of Client companies to create a Worker Account for the purposes of providing Financial Services to them, but they are not engaging our Payroll Services as Employees hired under the EOR business model and will have different provisions applicable to them.
From time to time, we may invite you to try certain services features or functionality that we may make available to you for evaluation or testing purposes only (and not for production use), which are designated as beta, test, pre-release, limited release, developer preview, non-production, or any other similar description (“Beta Test Services”). You may accept or decline to engage Beta Test Services at your sole discretion. Beta Test Services are provided for evaluation purposes and not for production use, may contain bugs or errors, and may be subject to additional terms. BETA TEST SERVICES ARE NOT CONSIDERED “SERVICES” UNDER THESE TERMS AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We reserve the right to modify, update, or discontinue Beta Test Services at any time and at our sole discretion, with or without prior notice.
4. B2C Onboarding 🏋️🔛🛹
Important information on Procedures for opening a new Worker Account:
To help the US Federal Government fight the funding of terrorism and money laundering activities, US Federal law requires us to obtain, verify, and record information that identifies each person who opens an account.
To use our Platform, you need to register for a Worker Account and provide certain information about yourself upon registration. You can create a Worker Account: (1) as a Contractor or (2) as an Employee. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) you will inform us about any changes in your tax residence or any events that may have a material effect on your overall tax situation.
The Contractor will receive an email inviting them to review and sign a contract with a Client or Ontop. To sign the agreement, the Contractor must sign up for an Ontop Account on our Platform with the same email.
As an Employee, you will receive an email from the Ontop Platform informing that you have been invited to participate in the KYC process. Due to the nature of employment relationships, Employees may be subject to the requirements of local laws and regulations in conducting the KYC process. After completing the KYC process and receiving final approval, you will be able to view your contract summary on our Platform.
To create a Worker Account, you will provide us with the following information:
(i) As an individual Contractor or Employee, you will be asked to provide your: name; country of residence; nationality; type of document; residence document number; tax ID; tax residence and tax situation information; among others.
(ii) As a company Contractor or representative of a legal entity, the Contractor will be asked for corporate information and that of its legal representative(s), beneficial owners and controlling persons.
(iii) This information will be used to conduct Ontop due diligence as part of our Know Your Customer (“KYC”) process if you are an individual Contractor or Employee, or as part of our Know Your Business (“KYB”) process if you are a company Contractor. After completing the KYC/KYB process and receiving final approval, you can continue with the onboarding process.
We and any of our financial partners may use this information to perform due diligence and background check-up procedures on you before creating an Ontop Account. We use US Export Controls and Sanctions (as defined below), including but not limited to the OFAC sanctions list, among others, and we also have partnerships with different background check providers.
We may suspend or terminate your Worker Account as per Section 9.2 - Term and Termination below.
You may delete your Worker Account at any time, for any reason, by following the instructions available from within our Platform.
You are fully and solely responsible for the security of your Account and for maintaining the confidentiality of your login, Account information, and the activities that you carry out on your Account. You must take reasonable steps to ensure that your electronic devices are secure from any type of malware, such as viruses, scams, spam, phishing, and other forms of cyber threats. This includes, but is not limited to:
Each Ontop account (including Ontop Platform, Ontop Wallet, and Ontop Card) is personal to the user for whom it is created. Account sharing or sharing of account credentials is strictly prohibited and may result in termination of service access. It is imperative to keep passwords and other authentication mechanisms confidential and stored securely, avoiding any easily accessible or clear-text formats. You agree to immediately notify us of any unauthorized use or suspected unauthorized use of your Account, loss of a mobile device, or any other security issues or compromises, including those related to passwords or the use of the dynamic token. In the event of the loss of a mobile device, we highly recommend also blocking the dynamic token by accessing the platform through the browser. We will not be liable for any loss or damage arising from your failure to comply with the above requirements, including loss of funds from Ontop Wallet and Ontop Card.
4.1.4.1. Limitation of Ontop’s Liability on Account Security
Ontop is committed to maintaining the security of the Ontop Platform, Payroll Services, and Financial Services, including the Ontop Wallet, Ontop Card, and Card Account. Despite our efforts to provide a secure environment, we are not liable for losses or damages, including the loss of funds, resulting from unauthorized access or transactions due to your failure to secure your account credentials or devices. It is your responsibility to safeguard your passwords, devices, and any other means of accessing your account to protect against unauthorized access. Liability for unauthorized transactions is governed by the provisions of the Electronic Fund Transfer Act (EFTA) and its implementing Regulation E. You must report any unauthorized transactions or security breaches within two business days to limit your liability to $50, as specified in Regulation E (12 CFR Part 1005, Section 6). Failure to report unauthorized transactions within 60 days of receiving your transaction statement may result in greater liability. Ontop will only be liable for losses resulting directly from our misconduct or gross negligence in maintaining the security of our services. We are not liable for losses where the unauthorized transaction or access results from any action or inaction on your part that violates our security guidelines or your obligations under these Terms of Service.
Engaging in activities that violate Federal laws related to information protection, including but not limited to hacking, phishing, and spamming, is strictly prohibited. Violators will be subject to prosecution by the appropriate Federal law enforcement agencies. Violations leading to unauthorized access or damage to Ontop systems, Platform, Payroll Services, or Financial Services may face legal consequences under Title 18, U.S. Code, potentially including fines and imprisonment.
4.1.6. Your Security Acknowledgments.
4.1.6.1 Proactive Security Measures: You acknowledge that Ontop employs proactive security measures to safeguard the integrity of the Ontop Platform, including but not limited to robust authentication methods, secure communication protocols, and continuous monitoring of transactions. These measures are designed to protect against unauthorized access and fraudulent activities.
4.1.6.2 Security Compliance: You acknowledge and agree that you will adhere to all security requirements and recommendations outlined in these Terms, as well as any additional guidance provided by Ontop, to protect your access credentials from phishing or other fraudulent schemes. This adherence is essential for safeguarding your account and the integrity of your transactions.
4.1.6.3 Reporting Unauthorized Transactions: You acknowledge and agree to immediately follow the steps outlined in Section 4.1.4.1 of these Terms in the event of any unauthorized transfer or suspicion thereof. This includes promptly notifying Ontop within the timeframe specified to ensure limited liability as per the Electronic Fund Transfer Act (EFTA) and Regulation E. Failure to report unauthorized transactions in a timely manner may increase your liability for any resulting losses.
4.1.6.4 Notifications of Transactions: You acknowledge that Ontop will provide notifications and/or receipts for each electronic transfer you initiate. These notifications may be delivered through various channels, including email, SMS, WhatsApp, and mobile notifications. It is your responsibility to ensure that Ontop has up-to-date contact information to receive these notifications promptly.
4.1.7. Worker Account Registration Information
We reserve the right to modify the information required for Workers to provide in order to create and/or maintain a Worker Account and/or for the purposes of conducting periodic KYC and/or due diligence processes from time to time and at our sole discretion. We may, from time to time, request additional tax information depending on your country of residence. When required to provide our B2C Services, we may share your information with third parties in accordance with our Privacy Policy. In addition, Workers expressly and unequivocally consent to us sharing their personal information–including the results of background checks–with Clients in the event that Clients make a written request to provide them with this information. We also reserve the right to terminate access to our services if we believe that you have violated these Terms, the Worker Wallet Terms of Service, or Ontop Card Terms of Service, engaged in illegal activities or acted inconsistently with our security requirements. Ontop will not be liable for any resultant damages to you or any third party. If Ontop exercises its rights, we will notify you and transfer any available funds in your Ontop Wallet to your registered personal bank account. If no bank account is registered, we will contact you to provide a bank account within five (5) business days.
5. I have a Worker Account! Now, how do the Payroll Services Work? 🤔🧾🛎️
Once you finalize the account registration and the KYC is approved, you will be able to sign your contract(s) through our Platform. If the Client doesn’t automate your contract on our Platform, there will be no need for a signature process through the Platform.
Once your contract is active on our Platform, you will be able to view all of the appropriate details in the contract summary. If you have signed your contract off-platform, certain details may be available for viewing within the contract summary.
In the event that the original terms of your contract are changed along the way, you may receive emails and/or notifications to sign an amendment to your contract.
Generally, you will receive your payment though the Worker Wallet. If you receive your payments off-platform, the amounts owed will be sent to the bank account you provide to us. By opting to receive payments off-platform, you agree and acknowledge that you are responsible for covering any additional transactional fees and costs incurred. Once the payment has been made to the bank account provided, we have performed our payment obligation to you. If your KYC process has not been completed, you will not be able to receive payments through the Worker Wallet until KYC approval is given.
Termination of your contract will be done through our Platform. In case the contracting party of the Ontop Signs agreement decides to terminate the contract, you will receive a termination letter that will serve as a formal notification to terminate your contract. If you want to terminate your own contract, you can terminate the contract directly through our Platform and contact your Client or our support team to formalize the termination through a written communication.
We may use your Worker Account information to generate tax documents for you on our Platform. However, we will not be responsible or liable for providing you with income tax returns or any tax or foreign exchange forms. We do not make any guarantees as to the accuracy or correctness of any tax forms generated by our Platform, since they are filled out based on your Account information.
Employees will receive their contracts off-platform and through an e-signature platform envelope before their starting date as an Employee. FTEs will be required to sign their contract as a requirement to begin performing services
After the Employee contracts are signed they will be uploaded to the Platform and you will be able to view all of the appropriate details in the contract summary.
If your employer wants to amend your contract, they will do so off-platform and it will be uploaded to the Platform and the contract summary will be updated accordingly. If Employees want to amend their contracts they will need to contact the employee manager assigned to them directly. The employee manager will then take care of managing the request.
Employees will receive payments in the country where they reside and in the local currency of that country, in accordance with the terms of their Contracts. Ontop may offer Employees the option to access the Ontop Wallet and transfer their payments there, this offer will be limited to some countries of operation. However, this will only be possible after the initial payment has been made in compliance with local regulations regarding salary payments, and after all tax withholdings and social security contributions have been deducted.
Employees who are eligible to transfer their payments to their Wallet will have the flexibility to allocate their compensation either in full or partially to the Wallet. Should Employees choose to transfer their payments to the Wallet, they will be able to reverse this decision by notifying Ontop at least two working days before their salary payment date. If the decision is made after that timeframe, the request will be processed in the following month's payments.
Employee contract termination will be done off-platform. The Employee will receive a formal notification if the employer decides to terminate the contract. If Employees want to terminate their Contracts they will need to contact the employee manager assigned to them directly and send a resignation letter to formalize the termination. Termination documentation, if applicable, will be sent to Employees through an off-platform e-signature solution.
Your access to our Platform and B2C Services are subject to our Acceptable Use Policy. If we determine that the content of a contract violates these Terms or our Acceptable Use Policy, we may remove the contract from our Platform without prior notice. We may also suspend or close a Worker Account, depending on the severity of the violation(s). Contracts removed from a Worker’s account may not be edited or restored.
6. Your Access to our Platform 🎟💻
We grant you a non-transferable, non-exclusive, revocable, worldwide, non-sublicensable, limited license to use and access our Platform solely for the purposes of engaging our B2C Services.
We reserve the right, at any time, to modify, suspend, or discontinue our Platform with or without notice to you. You agree that we will not be liable to you or any third party for any modification, suspension, or discontinuation of our Platform or any part of it.
We will make all reasonable efforts to provide you with support and assistance when using our Platform. We provide support on a case-by-case basis, subject to Section 9.5 - Disclaimer of Warranty below.
Your access to our Platform and B2C Services are subject to our Acceptable Use Policy.
Your access to our Platform and the data and/or information you provide when creating or maintaining your Worker Account are also governed by our Privacy Policy, which is incorporated into these Terms by reference.
By using our Platform and B2C Services, you acknowledge and agree that you have read and are aware of our legal disclaimers: (i)General Disclaimer; (ii) Tax Disclaimers; (iii) Crypto Disclaimers; and (iv) Solicitation and Promotion Rule Disclaimer.
Your access to and use of our Platform and B2C Services is subject to our AML/BSA Policy.
7. Acceptance of Ontop as your Payment Agent 💸🕴
By engaging B2C Services through the Ontop Platform, you appoint, acknowledge, and accept that Ontop (or its affiliates) acts as your duly authorized payment agent (the “Payment Agent”) for the purpose of receiving your compensation from Clients for the provision of services (“Compensation”). As a Payment Agent, we will receive all payments due to you, in your capacity as a payee, from Clients, in their capacity as payor, and ensure the timely and accurate delivery of these funds to you.
7.1. Payment Agent Terms 💸🕴📄
By accepting these B2C T&Cs, you explicitly appoint, consent to, and agree that Ontop, as the Payment Agent, will represent you in the capacity of receiving payments on the Ontop Platform. This consent extends to all relevant aspects of payment transactions, including but not limited to the receipt, holding, and eventual transfer of funds to third-party accounts or institutions. You acknowledge that Clients’ obligation as a payor will be satisfied at the moment that the payment is received and available to us, as Payment Agent, unless such payment is disputed by Clients.
8. Changes 🔀
These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an email to the last email address you provided to us (if any), and/or by prominently posting notice of the changes on our Website. You are responsible for providing us with your most current email address. In the event that the last email address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective immediately. Continued use of our Platform and/or B2C Services following notice of such changes will indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
9. General Legal Terms 🪖⚖️
You agree that any signature, other electronic symbol, or process attached to, or associated with any type of document will have the same legal validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by all applicable law. You waive any objection to the contrary.
- You consent that we may provide notice electronically and you understand that this consent has the same legal effect as a physical signature.
- We may notify you of activity, alerts, payments, invoices, these Terms and others through your account, email, text, or SMS to the contact information you provide us with.
- You may choose not to receive certain notices via text or SMS, but this will limit the use of certain Services.
- These notifications will be considered received 24 hours after they are sent.
- You understand that you may not use our Services unless you consent to receive notices electronically. You may only withdraw consent to receive notices electronically by closing your Account.
- You must maintain an updated web browser and computer and mobile device operating systems to receive notices correctly.
- You are responsible for all costs imposed by Internet or mobile service providers for sending or receiving notices electronically.
You can use our secure e-sign tool to execute agreements and other documents. Under applicable US state and federal laws, electronic signatures are not enforceable on some documents. Because of this, we:
- Have no responsibility or liability with respect to the content, validity, or enforceability of any document, nor are we responsible or liable for any matters or disputes arising from the documents;
- Make no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures.
It is your responsibility to consult with an attorney to determine whether a document will be enforceable if it is electronically signed via the e-sign tool.
Subject to this Section, these Terms will commence upon your acceptance of these Terms of Service and will remain in full force and effect while you use the Website and/or Platform, including when the User has active contracts or Wallet balance within the Platform. We may suspend or terminate your rights to use the Website and/or Platform (including your Account) at any time for any reason at our sole discretion, including for any use of the Website and/or Platform in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Website and/or Platform will terminate immediately. You understand that the termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Ontop will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, any of the provisions under these Terms which by their nature are meant to survive expiration or early termination for any reason will remain in effect.
We will not be held liable for failure or delay in the performance of our obligations under these Terms or any agreement between us, if such performance has been made impracticable by the occurrence of a contingency not reasonably within our control and not at our fault, including compliance with any applicable foreign or domestic governmental regulation or order, any interruption of our Platform and/or B2B Services due to any act of God; blockage, accidents, disturbance or encumbrance of telecommunications, transport or procurement networks for whatever reason; strike, equipment or transmission failure, shortage of materials, riots, disturbance or encumbrance of the telecommunications, internet or other service disruptions involving hardware, software or power systems not within our possession or reasonable control; poor quality or interruptions of electrical current; epidemics, pandemics or outbreak of communicable disease; quarantines; international, national or regional emergencies; poor quality or interruptions of electrical current; virus or computer hacker attacks, insurrections or acts of a similar nature; state of war or embargo; acts of terrorism, total or partial strikes within or outside of Ontop; lock-out, social conflicts, sabotage or acts of vandalism; foul weather, earthquakes, explosion, fires, storms, flooding, other natural disasters; water damage, incapacity to obtain raw materials or supplies; legal or regulatory modifications applicable to supplying our Services, and any other case reasonably beyond our control preventing the normal provision of our Services to you.
Through acceptance of these Terms, you release and forever discharge Ontop (and our officers, employees, agents, successors, and assigns) from, and waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly from, or that relates directly or indirectly to, our Platform and/or B2C Services (including any interactions with or act or omission of other Platform users or any other related third parties).
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THIS SECTION, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
OUR PLATFORM AND B2C SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND ONTOP (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT OUR PLATFORM AND/OR B2C SERVICES WILL MEET YOUR REQUIREMENTS, THAT THEY WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS, NOR THAT THEY WILL BE ACCURATE, COMPLETE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO OUR PLATFORM AND/OR B2C SERVICES, ANY AND ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to indemnify and hold us (and our officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all claims or demands made by any third party due to or arising from (a) your use of our Platform and/or B2C Services, (b) your violation of these Terms, (c) default in payment of any Ontop Fees, (d) your violation of applicable laws or regulations, and/or (e) the content or data you provide on our Platform. We reserve the right, at your expense, to take on the sole defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claims, actions and/or proceedings when we become aware of them.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE (OR ITS SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF OR INABILITY TO USE OUR PLATFORM AND/OR B2C SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO AND USE OF OUR PLATFORM AND/OR B2C SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR RESULTING LOSS OF DATA.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, OUR LIABILITY TO YOU FOR ANY AND ALL DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF TEN THOUSAND US DOLLARS (US $ 10,000.00). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
We respect the Intellectual Property of others and ask that you do the same. “Intellectual Property” or “IP” means any intellectual property or similar proprietary rights in any jurisdiction, whether registered or unregistered, including such rights in and to:
(a) trademarks and pending trademark applications, trade dress, service marks, certification marks, logos, domain names, uniform resource locators (URLs), trade names and fictional business names, together with all translations, adaptations, derivations and combinations and like intellectual property rights, together with all associated goodwill;
(b) issued patents and pending patent applications, and any and all divisions, continuations, continuations-in-part, reissues, renewals, provisionals, continuing patent applications, reexaminations, and extensions of such patents or applications, any counterparts claiming patent priority, utility models, patents of importation/confirmation, certificates of invention, certificates of registration and similar rights, inventions, invention disclosures, discoveries and improvements, whether or not patentable;
(c) works of authorship, all copyrightable works (including software) and all copyrights, including all relevant applications, registrations, renewals, and corresponding rights; ;
(d) trade secrets (including those trade secrets defined in the US Uniform Trade Secrets Act promulgated by the National Conference of Commissioners on Uniform State Laws in 1979, as amended and under corresponding foreign statutory and common law), business and technical information, know-how, non-public information, and confidential information and rights to limit the use or disclosure by any person;
(e) mask works; and
(f) moral rights (droit moral).
Excluding any of your own content or data that you may provide, you acknowledge that all the Intellectual Property rights, including copyrights, patents, trademarks, and trade secrets on our Platform and its content are owned by us, our affiliates and/or suppliers. Neither these Terms (nor your access to our Platform) transfers to you or any third party any rights, title or interest in or to such Intellectual Property rights, except for the limited access rights expressly set forth in Section 6.1 - License. We and our suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
If you submit, whether orally or in writing, or provide us with any feedback, suggestions, or recommended changes regarding our Platform, B2C Services or any other product offerings, including new features or functionalities, comments, questions, suggestions, or the like (“Feedback”), you assign to us any and all right, title, and interest to your Feedback, including any ideas, know-how, concepts, techniques, or other Intellectual Property rights contained in your Feedback, and agree that we will have the right to use and fully exploit such Feedback and related information in any manner we deem appropriate without any attribution or compensation to you, for any purpose whatsoever. We will treat any and all Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not send us any information or ideas that you consider to be confidential or proprietary.
All trademarks, logos, and service marks (“Marks”) displayed on our Website and Platform are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of the third party that owns the Marks.
You agree not to export, reexport, or transfer, directly or indirectly, any US technical data acquired from Ontop, or any products utilizing such data, in violation of export control administered by, among others:
- The US Department of Commerce’s Bureau of Industry and Security guidelines;
- The US Export Administration Regulations and trade and economic sanctions maintained by OFAC;
- Other applicable US Government restrictions to export controls;
- The EU Regulation (EC) No 428/2009 (as amended); and
- Other US, UK and foreign export or import regulations in other countries.
These Terms will be governed and construed in accordance with the laws of the State of Delaware, United States, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) will not govern these Terms or the rights or obligations of the parties under these Terms.
Please read this Arbitration Agreement carefully. It is part of your contract with Ontop and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Ontop that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Ontop, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Ontop should be sent to: 251 Little Falls Drive, Wilmington, New Castle County, Delaware, 19808. After the Notice is received, you and Ontop may attempt to resolve the claim or dispute informally. If you and Ontop do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Ontop made to you prior to the initiation of arbitration, Ontop will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or Ontop pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Ontop, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Ontop.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Ontop in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO SUCH DISPUTES.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CLIENT, CONTRACTOR AND/OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT, CONTRACTOR AND/OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Ontop.
(m) Small Claims Court. Notwithstanding the foregoing, either you or Ontop may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court and/or if the dispute is deemed non-arbitrable by the arbitrator(s) or a court of law, the parties hereby agree to submit to the personal jurisdiction of the courts located within the Southern District of Miami-Dade County, Florida, for such purpose.
These Terms represent the entire agreement between the parties. It cannot be changed except by written agreement signed by the parties.
If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Headings are for convenience only and do not affect the interpretation of these Terms.
Our failure to exercise or enforce any right or provision of these Terms will not be constituted as a waiver of such right or provision. A waiver granted by us on one occasion will not operate as a waiver on other occasions.
These Terms and your associated rights and obligations may not be assigned, subcontracted, delegated, or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontracting, delegation or transfer in violation of this restriction will be null and void.
We may freely assign these Terms to other companies or affiliates of the Ontop Group, whose provisions will be binding upon assignees.
Independent contractor agreements signed between you and Ontop Holdings Inc. are now assigned to Ontop IC Operations LLC with immediate effect. There will be no other modifications to the obligations agreed upon in any agreement, except the Ontop entity party to it.
Mailing Address: 251 Little Falls Drive, Wilmington, New Castle County, Delaware, 19808
Support: https://www.getontop.com/contact
If you feel that anything in these Terms is unclear or difficult to understand, please let us know by sending us an email to legal@getontop.com. We are truly concerned about constantly improving your legal experience and welcome your feedback.
