Terms of Service
1. Purpose of terms of service
The purpose of this terms of service is to establish the fundamental terms and conditions that will govern the business relationship between Jan & Jan Asian Opportunities. (henceforth, Jan & Jan), and the customer, for the sourcing, quality control and logistic services (“Services”) provided Jan & Jan.
2. Scope of service
The scope of services will be defined and agreed with the customer, after the customer agrees to these terms and conditions. Jan & Jan will provide the service in accordance with the specifications and schedule defined in the ‘Project’ in a timely and professional manner by skilled personnel, in compliance with all applicable laws or regulations. All items prepared or required to be delivered under the ‘Project'(s) are collectively referred to herein as the “Tasks”.
3. Term & termination
This Terms of Service shall be effective from the date of signing and shall be valid till the completion of the customer’s engagement with Jan & Jan or until terminated by either party with written notice as specified herein below.
- Termination with cause:
Either party may terminate this Terms of Service for cause, in the event the other party has failed to perform any obligation required to be performed under this Terms of Service and such failure is not corrected within thirty (30) days from receipt of written notice advising of such failure from the other party. Jan & Jan reserves the right to terminate the engagement with immediate effect if the customer is abusive to any Jan & Jan team member.
- Termination without cause:
Either party may terminate this Terms of Service without any cause after giving 30 days prior written notice to the other party. Upon termination, each party shall return the confidential Information as per ‘Clause 14 – Deletion of intellectual property documents and Return of physical material.’ However, all obligations related to tasks and payments till such date shall be completed by both parties.
4. Service warranty
Jan & Jan commits to make all reasonable efforts to deliver quality output. All tasks or assignments or projects are undertaken on a ‘best-effort’ basis only. There is no warranty on any of the information, tasks, or projects the Jan & Jan employee delivers to the customer.
Jan & Jan is responsible for the work it delivers, unless it is attributable to reasons beyond Jan & Jan’s control. In the event of deficiency in service, Jan & Jan will make every reasonable effort to rectify the deficiency by reworking on the task or reassigning to another Jan & Jan employee. Refunds due to deficiency in service will be provided only in terms of additional hours of service on a pro-rata basis as per the engagement model.
In case of delays in delivering a project, Jan & Jan shall not be responsible if the delay has occurred due to insufficient or delayed documentation or information or lack of timely feedback from customer; or for tasks that were not included in the agreed scope of work. Any deviation in the agreed scope of work and required to be done by Jan & Jan shall be documented by amending the ‘Project'(s).
Disputes regarding the quality of any task must be raised by the customer within 5 working days from the date of receiving the task. If the customer doesn’t raise any concern on the task within 5 days, then Jan & Jan will assume that the customer is satisfied with the task.
Any disputes raised after 5 working days will be acted upon only if the customer has prior requested for additional days to provide the feedback, limited to maximum of an additional 5 working days.
If Jan & Jan is unable to support the customer due to any unforeseen issues while using any third-party tools involved in project delivery, refund will be made for the unused hours within 15 working days from the date of mutual agreement of issues notified.
The customer shall pay the project fees as per the schedule and payment terms agreed in the ‘Project’. For any payment delay beyond 15 days from the scheduled dates, Jan & Jan retains the right to withhold any further tasks and/or the release of any IP resulting from Jan & Jan’s activities under this Terms of Service, until the pending payment is made.
6. Un-used hours
The ‘Project’ clearly indicates the validity period for the hours purchased. If the customer does not use 100% of purchased hours within the validity period, refund will not be made for the unused hours. However, Jan & Jan will allow a rollover of 20% of the latest purchased hours, provided the customer purchases an equivalent of rollover hours.
7. Downgrade of subscription engagements
All subscription engagements can be downgraded with a 30-day notice period.
All engagements can be cancelled at any time. However, unused hours will not be refunded if the cancellation is not due to any reasons attributable to Jan & Jan.
9. Intellectual property
Except as provided otherwise in this terms of service, each party retains sole and exclusive ownership of all data, results, ideas, discoveries, inventions, reports and works of authorship, whether or not patentable or subject to copyright, which may be made, written, conceived or reduced to practice by them or any third-party, and any derivative works of such intellectual property created after the Effective Date; provided that such derivative work (a) does not arise from the confidential Information of the other party; and/or (b) is not created specifically for other party. Jan & Jan acknowledges that, all work performed under this term of service shall be deemed “works-made-for-hire” and the authorship shall belong exclusively to the customer. Customer may hire Jan & Jan to create an original “work product, which may include but is not limited to, any and all tasks, information, data, reports, writings, works of art, ideas, source codes, trace documents, processes, Inventions, designs, trademarks, trade names, or other documents, charts, or other materials, whether written, graphic, or in the form of electronic media, written, edited or in any form whatsoever, both tangible and intangible or otherwise created by Jan & Jan (whether solely or jointly with others) arising from its performance of the Services, whether protectable by patent, trademark, copyright, trade secret or not.
Any pre-existing confidential information belonging to Jan & Jan, included in any deliverable, shall remain the exclusive property of Jan & Jan. To the extent that Jan & Jan incorporates any of its own information into the tasks, Jan & Jan hereby grants to customer, royalty-free, non-exclusive, non-transferable license to make, use, sell, copy, distribute, display, perform, transmit, such Jan & Jan information in connection with the tasks.
10. Confidentiality & non-disclosure
“Confidential Information” means any non-public information that relates to the actual or anticipated business (including third party information) and or products, service, research and development , personal information which (i) is subject to privacy rules and regulations and/or derives economic value, actual or potential, from not being generally known to or readily ascertainable by other persons who can obtain economic value from the disclosure or use of the information, (ii) is the subject of efforts that are reasonable under the circumstances to maintain the secrecy of the information, and (iii) is identified by the customer as “confidential” and/or “proprietary”, or which, under all of the circumstances, ought reasonably to be treated as confidential and/or proprietary under this Terms of Service disclosed by both parties either directly or indirectly, in writing, orally or by drawings or inspection of premises, parts, equipment, or other property of parties, its affiliates or subsidiaries.
Notwithstanding the foregoing, confidential information shall not include any information which, as Jan & Jan can prove, (i) was known or subsequently becomes generally known or available by publication, commercial use or otherwise, after disclosure to Jan & Jan through no wrongful action of Jan & Jan, (ii) was known by Jan & Jan as a non-confidential information prior or at the time of disclosure, or (iii) is lawfully obtained by the Jan & Jan without violation of a confidentiality obligation of this terms of service (iv) is independently developed by the Jan & Jan without any use of and/or access to the customer’s information or (v) is in the rightful possession of Jan & Jan, without confidentiality obligations, at the time of disclosure as shown by Jan & Jan’s then-contemporaneous written records. (5) information Jan & Jan required to disclose by a warrant, subpoena or other request in an investigation or legal proceeding or where disclosure is necessary to protect Jan & Jan’s rights or property, or the rights or property of its employees or our other customers. During the term of service and for a period of 5 years after the expiration of term of the service, both the parties will hold in strict confidence, and shall use the same degree of care and reasonable precautions to protect the confidentiality and to prevent any unauthorized use or disclosure of confidential Information, as they would for their own confidential information. Both parties will not (i) use the confidential Information for any purpose whatsoever other than as necessary for the performance of the Services or (ii) disclose the confidential Information to any third party without the prior written consent of other party, except that they may disclose confidential Information to any third party on a need-to-know basis for the purposes of performing the services; provided, however, that such third party is subject to written non-use and non-disclosure obligations at least as protective of the confidential Information as described in this section. The foregoing obligations shall not apply to any information that is required to be disclosed by law or subpoena; however, prior to such disclosure, parties shall provide prior written notice to other party and seek a protective order, or such similar confidential protection as may be available under applicable law.
11. Data privacy and security
Jan & Jan represents and warrants that it currently complies and will maintain compliance with all applicable laws relating to the provision of the Services, privacy and security of personal data including General Data Protection Regulation (GDPR). Jan & Jan understands the importance of maintaining the data privacy of their customers and shall take all reasonable steps to ensure the security and protection of all materials belonging to customer that may be in Jan & Jan’s possession or control, including without limitation all tasks, other customer confidential information and customer property.
12. Ethical and legitimate tasks & projects
Jan & Jan assumes that customer will assign only ethical and legitimate tasks and projects for execution. Jan & Jan shall immediately inform the customer, whenever it notices that an instruction of customer, in its opinion, violates any applicable law, including the GDPR. In the event of a change of any applicable law that is likely to have a material adverse effect on Jan & Jan’s compliance with this Terms of Services, Jan & Jan will notify the customer in writing within fifteen (15) days from the date of Jan & Jan becoming aware of such changes.
13. Use of customer property and materials
In order to facilitate the efficient performance of services, customer may provide information, property and material during the engagement, without limitation to licensed software and equipment. Jan & Jan warrants that all customer properties will be used exclusively in connection with the performance of the Services under this term of service and not for any other purpose.
14. Deletion of intellectual property documents and Return of physical material
Within 30 days after completion of the project, Jan & Jan will delete all the project specific tasks which contain customers intellectual property, unless the customer requests us to retain such tasks for possible future engagements.
In case of any physical material, upon termination or expiration of this terms of service within 30 days or at any time during the engagement upon customer’s request, Jan & Jan shall in a manner approved by customer, and at customer’s expenses, return or dispose all such material.
Customer shall indemnify, defend, and hold harmless Jan & Jan, its directors, officers, employees, agents and affiliates (“Indemnitees”) from and against any and all claims (as defined below) asserted against, resulting to, imposed upon, or incurred by any Indemnitee directly or indirectly, by reason of arising out of (a) any negligence or wilful misconduct or any breach of this terms of service, or (b) any claim that customer or its Operations, or any Indemnitee perform such operation thereof, infringes any rights of data subject or any applicable laws. The term “claim” shall include (i) all debts, liabilities, and obligations, (ii) all losses, damages, judgements, awards, settlements, costs and expenses (including, without limitation, interest, penalties, court costs, and reasonable attorney’s fees and expenses) and (iii) all demands, claims, suits, actions, costs of investigations, cause of action, proceedings, and assessments.
16. Limitation of liability
In no event shall either party be liable for any indirect, incidental, special or consequential losses and damages, including without limitation damages for loss of profits, data or use, errors or omissions, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages. Jan & Jan’s aggregate and cumulative liability for damages on all accounts resulting from this term of service hereunder shall in no event exceed the amount of fees received from the customer in the last six (6) months under the relevant ‘Project’ that has caused the liability.
The customer acknowledges that Jan & Jan has made substantial investments in recruiting, training and matching skilled Jan & Jan employee with customers, and that Jan & Jan has a legitimate interest in earning a reasonable return on those investments. The customer also acknowledges that Jan & Jan has agreements with their employees to protect this interest by requiring that Jan & Jan employees obtain Jan & Jan’s management prior written consent before accepting any direct or indirect engagement (whether as an employee, consultant, contractor or otherwise) with any Jan & Jan customers and their affiliates and subsidiaries.
Accordingly, to the fullest extent permitted under applicable law, the customer agrees that during the term of the customer’s project with Jan & Jan and for five (5) years period from the date of completion of customer’s last Project with Jan & Jan, each party agrees that it will not (through itself, affiliates, principals, or other related parties) solicit for employment, employ, consult with, utilize the services of, or in any other manner induce any employees or give reference (personally or on any public platform) of any employees of the other party including the former employees who were engaged or involved in any manner with that particular customer’s project to perform services for such party or any person or entity related thereto. Post completion of 5 years, any business activity with Jan & Jan’s employees, should be prior notified to Jan & Jan at email@example.com.
Should any solicitation by the customer become a substantial factor resulting in a Jan & Jan employee leaving Jan & Jan and accepting an engagement with the customer directly or indirectly during the term of the customer engagement or within 5 years after end of engagement, the customer agrees to compensate Jan & Jan for its lost investments, a one-time settlement fee, reasonably calculated.
- Independent contractor
Jan & Jan is and will remain as an independent contractor in its relationship with customer. Nothing in this Terms of Service shall be deemed to have created a partnership, or joint venture or a contract of employment between Jan & Jan and customer.
- Further documentation
If any other terms of services or ‘Project'(s) are necessary to enforce the intent of this document, both parties agree to execute such provisions as and when the need arises.
- Force majeure
Jan & Jan will incur no liability to the customer if its performance of any obligation under this term of service is prevented or delayed by causes beyond its control and without the fault or negligence of Jan & Jan. Causes beyond a Jan & Jan’s control may include, but aren’t limited to, acts of God or war, changes in controlling law, regulations, orders or the requirements of any governmental entity, severe weather conditions, civil disorders, natural disasters, fire, epidemics and quarantines, general strikes in the People’s Republic of China and or the Kingdom of the Netherlands.
If any of these terms and conditions are held to be unenforceable or against public policy, by a competent court or arbitration, then that term alone shall be removed from this document and the remainder of the Terms of Service shall stay in full force and effect.
- Governing laws and jurisdiction
This term of service shall be governed by and construed and enforced in accordance with the laws of The Netherlands, excluding that body of law pertaining to conflict of law, and the parties hereto agree to submit to the exclusive jurisdiction of the courts of The Netherlands for any disputes arising out of the subject matter.
- Dispute resolution
Any disputes arising out of or in connection with the Terms of Service shall be first attempted to be settled through discussion and negotiation between the heads of the respective organizations. If a settlement is not arrived at within thirty (30) days, the dispute shall be referred to Mediation. The parties will select a mediator by their mutual terms of service within 15 days. The cost of the Mediation shall be divided equally among the parties involved. Once a settlement has been reached, a mediation agreement shall be drawn up. If parties fail to come into any settlement through mediation, parties will have the right to refer the dispute to the court.
This Terms of Service, inclusive of all ‘Project'(s) and further documents as necessary, constitutes the entire agreement and understanding between the parties relating to the subject matter and supersedes and replaces any and all prior or contemporaneous written or oral agreements with respect to such specific subject matter. All ‘Project'(s) and Annexes to this Agreement shall form an integral part of this Agreement. With regard to any conflict between the terms of such ‘Project'(s) or Annexes and the terms of this Agreement, this Agreement shall govern.
This term of service may be amended or modified only by a written instrument, mutually agreed by both the parties and signed by a duly authorized representative of the parties.
Any notice or other communication given to a party under or in connection with this Agreement must be in writing and delivered to firstname.lastname@example.org.
All communications will be sent to the party’s address or email as set forth herein, or at such address or email as the parties may later specify in writing for such purposes.