Last updated September 01, 2020
We are about to embark together on an exciting journey around the globe. It is a legally and logistically complicated trip, and we, at Oyster, are committed to making it as easy and transparent as possible. These Terms and Conditions (“Terms”) are the rules of the road and are non-negotiable. That may sound harsh, but Our job is to help You expand while largely taking on Your global employment risks. AS SUCH, WE ENCOURAGE YOU TO BECOME FAMILIAR WITH THESE TERMS AS THEY FORM THE BASIS OF OUR CONTRACTUAL RELATIONSHIP. If You feel like any of these terms are patently unfair, let Us know. We are always interested in understanding Your concerns and improving Our Services, service model, and contracts. If We make changes to these Terms, We will update them here, so everyone benefits from the change. Whenever there is a change in these Terms, Our Services, or Our fees, We will provide You thirty (30) days’ written notice. In those thirty (30) days You can choose to terminate Your contract with us, or agree to the changes. Continued use of the Platform after the thirty (30) days will be deemed acceptance.
Welcome to us, where the world really is Your oyster.
The Terms is a legally binding agreement between Customer and Oyster (“Parties”). You are encouraged to read the Terms carefully and to save a copy of it for Your records. If You are agreeing to these Terms on behalf of a business or an individual other than Customer, You represent and warrant that You have authority to bind that business or other individual to the Terms, and Your agreement to these Terms will be treated as the agreement of such business or individual. By (i) clicking the applicable button to indicate Customer’s Service Plan choice, (ii) clicking the applicable button to indicate Customer’s acceptance of the Terms, or (iii) accessing or using the Employer of Record Service, Customer accepts the Terms, and Customer agrees, effective as of the date of such action, to be bound by the Terms.
Each party may disclose confidential information to each other. Such information includes trade secret, proprietary and employee information, and pricing terms. Except as agreed or required by law, both We and You will hold in confidence and not disclose such confidential information to anyone other than Our and Your own employees, agents, contractors or insurance entities who have agreed to preserve the confidentiality.
What is confidential? Oyster’s Confidential Information includes all non-public documents and information that have or could have commercial value or other utility. Examples include customer lists, Our prices and how We set them, intellectual property, employee information, business plans, Our new ideas and methods for doing business. Information is not confidential if it is publicly known, readily available to the public, or if Oyster specifically allows its disclosure in a written release. But remember, if confidential information becomes public because a party’s violation of these Terms, it is still deemed confidential information and still protected by this agreement.
What are my obligations? Parties agree to keep confidential information confidential. Parties agree to exercise reasonable care to protect the confidentiality of confidential information. Reasonable care means at least the same level of care that You would reasonably use to protect Your own confidential information. Parties agree not to disclose Our confidential information to any third party, except as required to fulfill Our engagement together. You remain fully responsible for any unauthorized disclosure by Your representatives.
Parties agree not to use confidential information in competition with each other. Parties agree not to use Our confidential information in any way that harms the other party. Parties agree not to share confidential information with competitors, or to otherwise use confidential information for Your own business advantage. Some confidential information like trade secrets, intellectual property, and certain personally-identifiable information is protected by law. The legal duty to keep that information confidential is independent of these Terms.
What if there is a disclosure? You agree to notify Oyster immediately of any unauthorized access, disclosure, loss or misuse of confidential information, or other breaches by You or Your representatives. You will also use Your best efforts to immediately contain and remedy any such unauthorized access, disclosure, loss or misuse. Finally, You will fully cooperate with Oyster in any effort to enforce its rights related to any such unauthorized disclosure. You may be required by law, court order, regulatory inquiry, or subpoena to disclose Oyster’s confidential information (we’ll call that a “Compelled Disclosure”). If You receive a notice of Compelled Disclosure, You will provide Oyster prompt notice, to the extent allowed by law, and will provide reasonable assistance if Oyster decides to contest the Compelled Disclosure.
How long does this obligation last? It depends on how long We work together. These confidentiality and non-disclosure obligations will continue for three years after either You or Oyster provide a notice (as directed below) of termination of Services. Within thirty business days of providing notice, You must return all documents in Your possession, custody, or control containing Our confidential information and provide certification that all electronic copies have been destroyed.
You are trusting Us with Your business and Colleague’s personal information. We take that trust seriously and work hard to comply with the highest data processing standards, rules and regulations.
Control of personal data. In order to provide Our Services, We may require control and processing of personal data belonging to individuals who are protected under the EU’s General Data Protection Regulation EU 2016/679 (GDPR) or other applicable data protection laws. You are a controller and Oyster is a processor with respect to personal data and sensitive personal data belonging to data subjects, that data will be considered “Personal Data”. You will ensure You have all necessary and appropriate consents and notices in place to enable lawful collection and transfer of Personal Data to Oyster. Where Oyster collects personal data directly from data subjects, Oyster may act as an independent controller of information as well. Each party is solely responsible for its compliance with applicable data protection laws and for fulfilling any of its related obligations to third Parties, including Data Subjects and Supervisory Authorities.
Use of third Parties and subprocessors. You authorize Oyster to use third Parties to process Personal Data, and additionally, You authorize the third Parties to engage subprocessors to process Personal Data. Oyster’s use of any specific third party or subprocessor to process Personal Data must be in compliance with applicable data protection laws and must be governed by a contract between Oyster and the third party (and their Subprocessors) that requires comparable protections to these Terms. Oyster will provide upon written request a copy of Oyster’s agreements with third Parties that process Your Personal Data. Please note all terms unrelated to the Standard Contractual Clauses will be stricken. If after review, You object to the appointment of a particular third party (or subprocessor), You may terminate this agreement in accordance with the Oyster Terms.
Protecting personal data. Oyster agrees to implement appropriate technical and organizational measures to protect Personal Data in their possession against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration, or disclosure. Oyster will ensure that its personnel are bound by confidentiality obligations with respect to Your Personal Data, and are subject to appropriate training regarding the processing of Personal Data. You and Oyster agree to promptly notify the other if it is no longer able to abide by the rights and obligations attached to the Personal Data, and to cease using that data or otherwise to take appropriate steps to remediate. You and Oyster remain individually responsible for ensuring that Your respective uses and transfers of Personal Data comply with all applicable data protection laws.
Data loss. In the case of any potential or actual losses of personal data (“Incident”), Parties will notify each other as soon as possible and no later than one (1) business day after identification of an Incident. Quick notice allows Us to consider what We need to do to resolve an issue in accordance with the applicable law. When an Incident occurs, Parties agree to help each other in an expeditious and compliant manner.
Cooperation and audit rights. Both You and Oyster agree to provide reasonable assistance to each other related to any requests from individuals exercising their rights in Personal Data granted to them under applicable data protection laws. Oyster shall make available to You and Your regulators all information necessary to demonstrate compliance with applicable data protection laws. You and Your regulators shall also have the right to inspect Oyster’s architecture, systems, and documentation which are relevant to the security and integrity of Personal Data, or as otherwise required by a governmental regulator. If You agree to cover the cost, Oyster will allow and cooperate with a data protection impact assessment and a third-party audit initiated by You. You and the auditor agree to avoid causing damage, injury, or disruption to Oyster’s premises, equipment, or business in the course of such audit.
Model clauses. Each party’s signature to the Assignment Agreement which incorporates these Terms by reference shall be considered a signature to the Model Clauses. If required by the laws or regulatory procedures of any jurisdiction, the Parties shall execute or re-execute the Model Clauses as separate documents
We like rules and We follow them. While employment law is Our passion, We require compliance with all applicable bribery, trade, trafficking, and money laundering laws.
Anti-Corruption. Anti-corruption laws prohibit directly or indirectly making, promising, authorizing, or offering any advantage or anything of value to public officials or private persons or corporations to secure an improper advantage, to improperly obtain or retain business, or to direct business to any other person or entity. Parties agree, individually and together, to comply with applicable Anti-Corruption Laws, which may include but is not limited to the US Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act (the “UK Act”), the Singapore Prevention of Corruption Act (“PCA”), the Mexico General Law on the National Anti-Corruption System (“GLAR”), the Canadian Corruption of Foreign Officials Act (“CFPOA”), and all other applicable anti-corruption and anti-bribery laws (collectively, “Anti-Corruption Laws”).
Labor Laws. You agree to comply with applicable workplace and privacy laws of Colleague’s country of residence in the capacity of Oyster’s employer representative and controller of personal data. Information about these laws are provided in these Terms, each Assignment Agreement, and the Oyster Knowledge Base. However, it is important that You understand and agree that Oyster is not a law firm or an attorney, and is not the substitute for the advice or Services of an attorney. Oyster strives to keep its legal documents accurate, current and up-to-date, but the law changes rapidly, the law is different from jurisdiction to jurisdiction, and may be subject to interpretation by different courts. Furthermore, the legal information contained on the Site and Applications has been prepared for informational purposes only, and is not intended to provide, nor should You rely on it for, legal, tax, or accounting advice in any jurisdiction. It is always best practice to consult a licensed attorney, tax, and accounting professionals about cross-border expansion.
Policy and Procedures. Both You and Oyster shall maintain policies and procedures designed to ensure its compliance with the applicable laws above. You and Oyster agree that neither party shall knowingly take any action that would cause the other party to be in violation of the laws above. Additionally, each party shall immediately notify the other party if such party has any information or suspicion that there may be a violation of any applicable laws in connection with the performance of any activities under the Oyster Terms.
Employing in other countries can be difficult. You are hiring Oyster to make it easier. Specifically, We will hire individuals in the country where they live to perform work for You. We call these talented people Colleagues. We will also provide You and the Colleagues access to Our Platform to make things, like contracting and making payments, easier.
Workforce Services. Oyster agrees to legally retain and place Colleagues, identified by You, to work at Your instruction. Oyster may reasonably reject a proposed Colleague (for example, if proposed Colleague cannot legally work in-country). Because You are identifying the proposed Colleague, Oyster makes no representations about the quality of Colleague’s work. This means that We aren’t responsible for the Colleague’s professional mistakes, errors, and omissions. Finally, after providing You ample notice, as Colleague’s employer, We may dismiss Colleague for cause at any time, with no liability to You.
Payroll Services. Our Services include payment of wages, salaries, bonuses, commissions, and other earnings to Colleagues, based on the amount reported by You. We will assist with processing and paying approved Colleague expenses. Along with their salary and expense reimbursements, Colleague will be provided a compliant payslip for each pay period. We will process related third party tax withholding, reporting, remittance, and other social obligation remittance, where applicable. We will remit these sums under Our account as the employer of record, in accordance with applicable law. The total amount of these payments to the Colleague along with any required remittances (“Cost of Employment”), Local Infrastructure Costs, and the Oyster Service Fee is the Monthly Payroll Obligation. We will only provide Payroll Services, if You adequately fund the Monthly Payroll Obligation.
Confidential Information, Intellectual Property, and Equipment. We understand how important Your proprietary information is and have created a template Colleague Confidentiality, Competition, and Intellectual Property Agreement for Your use in procuring Colleague’s contractual commitment to keep Your proprietary information confidential, to secure Your ownership of Colleague-created intellectual property and work-for-hire, to have Colleague comply with Your globally-applicable code of conduct and rules, to destroy or return Your proprietary documents after the Colleague/Customer relationship ends, and finally, to use, protect and return Your equipment, after the Colleague/Customer relationship ends. The Colleague Confidentiality, Competition, and Intellectual Property Agreement is available on the Platform for enrolled Customer Companies. Finally, You understand and agree that any proprietary information Colleague may receive will not be attributable to Oyster, and that Oyster will not be held liable for its disclosure.
Oyster Partners. Oyster may assign its rights and delegate its obligations under this Agreement to a third party of Oyster’s choosing. “Oyster Partner” means any person, firm or company who Oyster contracts with or otherwise engages to assist with or perform the Services or any part of the Services. To help ensure the best possible provision of Services, Oyster reserves the right to replace an Oyster Partner in its sole discretion at any time with prior notice to You. Oyster agrees to be responsible for the performance of Oyster Partners related to provision of the Services during the Term and such subcontracting shall not relieve Oyster of its obligations hereunder. You agree not to work directly with the Oyster Partner(s) assigned to Your account during the duration of this Agreement and for one year after the termination of this Agreement.
If We had to boil it down to one thing We ask of You, it is to be a good steward of Your Colleagues. We are taking care of the logistics of cross border employment, but You are responsible for taking care of the Colleague. Together, We can provide talented Colleagues amazing opportunities.
Colleague Management. First, You are responsible for recruiting Your proposed Colleagues who are both qualified and eligible to work legally in the country in which they are living. Once You have found Your talented candidate and have negotiated a fair and equitable salary, You introduce them to Oyster to hire. Even though Oyster technically retains Colleague on Your behalf, You exclusively benefit from Colleague’s Services and will retain control of Colleague to the extent allowed by law.
Next, You are responsible for supervising, controlling, and assigning work to Colleague on a day-to-day basis. While this may go without saying, You agree to assign only tasks that are legal and treat Colleague ethically, in compliance with these Terms, the Colleague Assignment Agreement, and applicable employment and data protection laws. If You know or suspect Colleague has grievances, complaints or employment-status concerns―including changes in legal status to work in-country, You agree to notify Oyster immediately.
Even though You direct Colleague’s work, any disciplinary actions or termination of the placement must be handled by Oyster. If You have concerns about a Colleague’s performance, please contact Oyster for assistance as soon as possible and before You make any changes to the Colleague’s work schedule, salary, or responsibilities. That way, We can work together to resolve the issue or minimize any termination costs or other potentially negative consequences. If You want to stop working with a specific Colleague, You agree to give Oyster thirty (30) days’ notice, and pay any attendant termination costs, including required notice or severance pay.
Accurate Records. Our Services, Fees, and obligations in this Agreement are conditioned upon Your full and accurate disclosure of all information We request, including any material change to information You previously provided. You maintain full responsibility for verifying the ongoing accuracy of all Platform information. Specifically, You agree to maintain accurate records of Colleague time worked, vacation and/or leave taken, salary increases, bonus, and any other work-related information We request. You also agree to timely transmit that information to us. We rely on such information to provide Our Services and establish Our Fees. If You fail to provide accurate and complete information, We have the right to collect additional amounts from You, change the Services provided and/or the Fees charged, or with thirty (30) days’ notice terminate any active Assignment Agreements.
Payroll Submission. You agree to submit and approve payroll according to the timelines outlined in the applicable Assignment Agreement. Specifically, You agree to maintain accurate records of Colleague time worked, and timely transmit that information to us. Additionally, You agree to notify Oyster in advance of any Colleague scheduling or issues that will affect payroll (for example, overtime, vacation/leaves taken, payroll-reimbursed expenses, etc.). Any changes, additions or deletions after the initial payroll cycle shall be communicated to Oyster no later than 72 hours before each payroll processing date. You agree that by submitting each payroll:
If You are late to submit or approve payroll, Oyster will use reasonable efforts to process the payroll with the regularly-scheduled payment. If that is not possible, Oyster will process the payroll no later than the next regularly-scheduled payment. Late notice or payroll reruns requested after the approval of the payroll in the Platform will incur a fee. Any late payment penalties incurred due to Customer’s delay will be the responsibility of Customer to pay. Applicable fees are provided in individual Assignment Agreements.
Performance Assistance. You will enable Oyster to take all necessary steps to effectively perform Our Services, including timely provision of required documents, including, but not limited to, bank authorization forms, powers of attorney, and tax authorization forms. Your assistance in this regard may include Your signature on powers of attorney and registration documents. Oyster shall have no liability for any errors, omissions, or failures relating to the Services to the extent caused by Your failure to assist or Your delay.
Your Business. Duties not allocated to Oyster under the Agreement remain Your obligation. Examples of duties for which You remain solely responsible include: Your products and/or Services; compliance with licensing regulations and professional standards pertaining to Your workplace; safety and health laws, including reporting, record-keeping and compliance requirements and ensuring the use of all personal protective equipment; and accessibility requirements. You will notify Oyster if You are or become a government contractor and agree that We do not assume any obligations or responsibilities under any government contract.
One of the ways that Oyster makes global employment easier, is by creating a secure homebase where You can manage all of Your Colleagues’ needs. However far flung Your distributed team may be, all of their payroll, all of their benefits, all of their contracts are in one place.
Software Licenses. Our Services are offered through a cloud-based software Platform to which Oyster grants You and Your Colleague(s) limited, non-transferable, royalty-free licenses to use in accordance with these Terms. In order to access Our Services, internet access and a valid email address are required for every Customer and Colleague.
The Platform is not the answer to everything. Your use of the Platform and Oyster-provided content is entirely at Your own risk. Oyster is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional Services or advice. Any information provided via the Platform is meant for informational purposes only and should not be interpreted as professional advice. We encourage You to consult a professional that is trained or licensed in the relevant area if You need assistance.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY OYSTER. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OYSTER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, OYSTER MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR OYSTER CONTENT IN OR LINKED TO THE PLATFORM. OYSTER DOES NOT WARRANT THAT THE PLATFORM OR OYSTER CONTENT WILL (I) MEET YOUR SPECIFIC EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, OYSTER EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.
In business, as in life, change is constant. If for one reason or another, You and/or Oyster need to make changes to Our Services, We understand and hope that We can meet each other's needs. You may need to change the Colleague placed with You. We may need to change the Oyster Terms because of a law change in a particular country. The ability to make changes allows Oyster to provide Customers and Colleagues with the best possible experience.
As a Result of Compliance Obligations. The laws governing the Employment of Record legal construct or employment in the Colleague’s home country may change. Additionally, union or collective bargaining agreement(s) governing Colleague’s Services are subject to change throughout the duration of this Agreement. You understand and agree that such changes are beyond the control of either party. Such changes may require adjustments to the terms and cost of Colleague’s Services under the applicable Assignment Agreement.
At Your Request. You may request additions or modifications to the Services, at which point the Parties shall discuss and mutually agree on a course of action consistent with the local laws of the applicable Country. As the employer of record, only Oyster, or Oyster Partner may perform any action in connection with Colleague’s employment status, including title, salary, and benefits, therefore You shall communicate any request for such actions directly to Oyster. Such changes may require adjustments to the terms and cost of Colleague’s Services under the applicable Assignment Agreement.
At Oyster’s Request. Oyster reserves the right to change the products and Services offered, the manner in which they are delivered, the prices charged, or other terms and conditions of our Services, including, but not limited to a transfer of a Colleague to a different Oyster Partner within the country.
Effect of Change. If a change is required, as stated above, Oyster will provide You reasonable notice of such change and further will ensure a smooth transition of changes as they relate to Colleague. Any transfer to a new Partner shall not compromise the quality of Services provided and shall not compromise a Colleague’s rights under local law to consent to such transfer. After Oyster provides You written notice of changes, You have thirty (30) days to decide whether or not You want to continue Your engagement with Oyster. Continued use of Our Platform after thirty (30) days will indicate Your acceptance of any changed terms. If, upon notification of the change, You decide not to continue the Services, then notwithstanding anything to the contrary in this Agreement, You may terminate any Assignment Agreement upon thirty (30) days’ prior written notice without penalty, provided however that Oyster shall continue to bill You for Services, until the actual date Colleague’s placement can be terminated in accordance with applicable law.
Other Changes. Oyster may modify these Terms at any time, in Oyster’s sole discretion. If Oyster does so, Oyster shall let You know either by posting the modified Terms on the Platform or Site or through other communications. It is important that You review the Terms whenever modified, because continued use of the Platform or Services for thirty (30) days after notification is Your indication that You agree to be bound by the modified Terms. If You do not agree to be bound by the modified Terms, then You must notify Oyster in writing of Your intention to terminate Our business relationship as instructed below. Because the Platform and Services are evolving over time, Oyster may change or discontinue all or any part of the Platform, or Oyster-provided content at any time and without notice.
Change of Heart. We are in this together and while We don’t want You to leave Oyster, if We aren’t the right fit for Your needs, You should be able to make a change. Except in case of breach of contract, You may terminate Your Assignment Agreement(s) pursuant to these Terms at any time, for any reason or no reason, if You give Us thirty (30) days’ written notice to Us of Your intent to terminate. Of course, Your obligation to pay unpaid invoices and Oyster’s remedies for non-payment survive termination of Your Assignment Agreement. Oyster can likewise terminate Your Assignment Agreement at any time, for any reason or no reason, if We give You thirty (30) days’ written notice.
Abandonment. If You abandon our Services by either reporting a payroll cycle of $0.00 or failing to timely report Your payroll information for a payroll cycle, it will be deemed a termination of Your Assignment Agreement, and We will remove any Colleagues from Your placement. This will result in Us charging You any attendant notice pay or other costs for which the Colleague may be entitled, along with Our related Fees.
Breach. In the case of breach of contract, either party may terminate all or some of Your Assignment Agreement and the associated Colleague placements, pursuant to the Oyster Terms, following written notice to the other party and seven (7) calendar days’ opportunity to cure. The cure period will not be extended; as doing so would result in increased payroll and other liabilities.
Oyster believes in transparent pricing. The cost of employment varies by country and Colleague salary. Oyster’s Assignment Agreement Is designed to clearly explain the costs, Our fees and timing for payment, along with important information about Your Colleague. Easily initiate a new Colleague placement in the same or a different country upon executing an additional Assignment Agreement.
Monthly Oyster Service Fee. The Monthly Oyster Service Fee is the fee Oyster charges for its Services. Oyster’s monthly fee is provided in each Colleague’s Assignment Agreement. Oyster will begin charging its Service Fee, on the first date of Colleague’s placement with You.
Total Cost of Employment. You are responsible for paying Colleague’s Total Cost of Employment each month, which includes the Colleague’s salary, the employer’s contribution, local infrastructure costs, and the Oyster Service Fee.
Total Cost of Employment = Colleague’s Monthly Salary + Employer’s Contributions + Local Infrastructure Costs + Oyster Service Fee
Colleague’s Monthly Salary includes salary, allowances, commissions, bonuses. Employer’s Contribution includes required taxes, benefits, social welfare and other contributions. These amounts, along with the local infrastructure costs, and Oyster Service Fee are separately detailed on each Assignment Agreement and every invoice.
We require a deposit for each Colleague to ensure that regardless of Our Customer’s invoicing schedule, Oyster has funds available to pay Colleague’s salary as it becomes due. The deposit also helps defray any costs surrounding Colleague’s termination, from severance to settling claims.
Amount. The amount of the deposit for each Colleague will be in the amount stated in the Assignment Agreement. If You choose to offer Colleague notice periods or severance payment terms over and above the statutory minimum required in-country or if the required notice period/severance pay increase over the length of Colleague’s placement, the deposit will be increased by a corresponding amount.
Return of Funds. Any deposit not utilized in providing Services to Colleague will be returned to You thirty (30) days after all matters related to the termination of Colleague’s placement have been fully and finally resolved.
Security Interest. Oyster has a security interest in the deposit, which is perfected by Oyster’s possession and control of the deposit funds. The deposit will be held by Oyster or for the benefit of Oyster until each Professional’s termination date.
Timing. Employment-related payment obligations have a much shorter time to fund than typical service contracts. You agree to pay invoices timely, including invoices that charge for incidental or one-time Colleague costs (for example, for paid leaves, vacation, separation pay, expenses, Colleague claims attributable to Customer, etc.). The invoice for each Colleague’s deposit will be invoiced upon Our initiating work to onboard any given Colleague, and must be paid prior to Colleague’s placement in Your workforce. All other undisputed invoices shall be paid within three (3) business days of delivery by Oyster.
Currency. Oyster accepts payments in USD, GBP, and EUR, but pays Colleagues in their home country currency. So when the currency We receive is different from the currency We are obligated to pay the Colleague, Oyster will exchange the currencies, so You don’t have to. Oyster calculates its exchange rate using rates from one or more third Parties, such as Transferwise and OFX. Our rate is updated regularly, but may not be identical to the real-time market rate. The exchange rate used will be stated in the invoice.
Payment Method. Currently Oyster accepts payment by bank wire. Oyster will provide wiring instructions on the invoice. You are responsible for paying any bank fees associated with wiring funds. Please note: Oyster will not request wired funds outside of the invoicing process. If You are concerned that a particular request may be fraudulent, please call Us directly for confirmation.
Disputes. If You dispute any invoice, You must notify Oyster in writing within seven (7) days of receipt of invoice. Parties will negotiate in good faith to promptly resolve the dispute. If the entire dispute is not resolved before the invoice’s original due date, You agree to pay Oyster all amounts not disputed by the relevant due date. Your failure to pay undisputed invoices when due constitutes a breach of the Oyster Terms.
Taxes. At all times, You and Oyster shall be solely responsible for paying any VAT, HST, GST, or similar indirect taxes, if any, and to self-account and self-report for such taxes if as necessary.
Nonpayment. If Oyster is required to use a collection agency or other means to collect payment due from You, You agree to pay reasonable collection agency fees or reasonable attorney’s fees associated with such collection. In the event You file for bankruptcy while We have Colleagues placed with You or while You are in arrears on invoices issued pursuant to the Oyster Terms, You agree to include Oyster on Your list of preferred vendors and to include all payments due to Oyster in any first day motions filed.
Oyster warrants that the Services it provides will be performed and operate in all respects in accordance with the Oyster Terms and with applicable law, and will be performed in a professional and workmanlike manner at a standard comparable with others in the industry.
Colleague Fitness and Malfeasance. Oyster makes no warranties about Colleague’s eligibility to work, or fitness for any particular job duties. Oyster is not responsible for the actions, errors, or omissions of any Colleague assigned to You pursuant to these Terms or any damages resulting from such Colleague’s actions, errors, or omissions. Furthermore, You agree and acknowledge that You are wholly responsible for protecting any of Your Intellectual Property (IP) to which Colleague has access. You will hold Us harmless for any theft or misappropriation of Your IP by Colleague.
Employment Relationship. Under the Terms, Oyster contracts to be the sole employer of Colleague. However, You understand and agree that whether or not a government agency or other regulator or judicial body ultimately deems You to be Colleague’s employer, despite this Agreement, is beyond Oyster’s control. To that end, if a third-party with authority to do so renders a determination that You are the employer, in fact, of Colleague, You agree to hold Oyster harmless for any damages or other negative consequences sustained as result of Your work relationship with Colleague.
Permanent Establishment. Whether You are deemed to be transacting business in a jurisdiction where Colleague works― triggering a taxable presence or so-called “permanent establishment”―will be a function of Your activities in that country. You agree that You, not Oyster, retain all responsibility for decision-making regarding Your international corporate structure, corporate tax matters, permanent establishment risk, stock issuance to Colleagues, and/or any other business decision and associated risk You incur in connection with Your international operations. You acknowledge this is beyond Oyster’s control and agree to hold Oyster harmless for any damages or other negative consequences sustained as result of Your international operations.
Force Majeure. If performance by either party is delayed, hindered, or prevented from providing Services by reason of war, riot, sabotage, terrorist act, flood, fire, earthquake, hurricane, tornado, radiological emergency, computer virus or worm, governmental or quasi- governmental law, regulation or court order, or any other cause of like nature beyond reasonable control, the party unable to perform will promptly give notice to the other party. As soon as practicable under the circumstances, the non-performing party shall make commercially reasonable efforts to resume full performance.
Professional Advice. Oyster does not provide tax, legal or accounting advice to Customers or Colleagues. We will do Our best to provide You with the information You need to make Your own decisions about compliance with applicable laws. If You have questions after reviewing the Offer Letter and Assignment Agreements generated by the Oyster Platform, the Knowledge Base, and other information provided by Oyster, You should consult Your own tax, legal or accounting advisors prior to issuing an Offer Letter, executing an Assignment Agreement, or paying an invoice.
OYSTER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, NOT EXPRESSLY MADE HEREIN, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Mutual Indemnification. Oyster and You agree to indemnify, defend and hold each other (including each other’s parent companies, subsidiaries and affiliates, their respective directors, officers, employees, licensees, contractors, attorneys, agents, successors and assigns)(together referred to as "Indemnified Parties") harmless from and against any and all claims, damages, liabilities, payments, actions, demands, proceedings, costs and expenses, including reasonable attorneys' fees, (collectively, "Liabilities") arising out of a claim by any third party (including Colleagues) made against any of the Indemnified Parties relating to (i) any material breach of any of obligations, representations, or warranties arising from the Oyster Terms; (ii) data processing activities in connection with provision of Services under any specific Assignment Agreement; or (iii) the sole gross negligence or willful misconduct of either party in the performance of its obligations hereunder as determined by a court of competent jurisdiction.
Indemnification for Workplace Torts. You agree to indemnify, defend and hold Oyster harmless from and against Liabilities arising out of a claim by any third party (including Colleagues) made against Oyster relating to (i) any information, direction, or materials You provided to Oyster, including without limitation, any claim that such information, direction or materials violates any intellectual property rights of any third party; (ii) a prior independent contractor relationship between You and a Colleague; (iii) any claims arising from a lack of sufficient insurance coverage for Colleague other than as related to coverages provided by Oyster pursuant to these Terms; (iv) liabilities arising from any alleged failure by You or Oyster to comply with Transfer of Undertakings except to the extent such failure is caused by Oyster’s negligence or willful misconduct; (v) any claims advanced by Colleague arising out of Your acts or omissions, including without limitation any employment-related claim of discrimination, harassment, retaliation, unlawful termination, and failure to pay wages; (vi) any claims by a Colleague’s former employer to enforce a non-compete or restrictive covenant; and/or (vii) any relationship or activities undertaken by You with the Colleague outside of Oyster’s direction or control, including but not limited to processing expenses, issuance of corporate credit cards, and other benefits You may choose to provide directly to Colleagues.
Indemnification Process. If You become aware of a claim, and are seeking indemnification, promptly notify Us in writing of the claim. We will do the same for You. Each party agrees to cooperate with the other by providing necessary information and assistance as requested in support of efforts to respond and defend any claim, with expenses to be borne by the indemnifying party. As a condition of indemnification, the party seeking indemnification must provide the indemnifying party sole control of the applicable defense and settlement. The indemnified party may participate in its own defense at its sole expense. The indemnifying party may not settle any claim unless such settlement includes a full release of the applicable Claim against the indemnified party. The indemnifying party may not settle any claim without the indemnified party’s consent if the settlement imposes a payment, admission of fault or wrongdoing, or other obligation on that party.
Damages Excluded. In no event, will either party be liable to the other for special, indirect, incidental, punitive, or exemplary losses, damages, or expenses (including, without limitation, claims for lost business profits or revenue, loss, interruption, or unavailability of data, interruption of business operations, or the cost of the procurement of substitute goods or Services, the Customer’s use or inability to use the Oyster Platform or any interruption of such use), even if the Customer has been advised of the possibility of such damages and regardless of the cause of action (whether in contract, tort, breach of warranty or otherwise).
Liability Limit. Except for the indemnity obligations outlined herein and Customer’s payment obligations under the Assignment Agreement, which form part of Customer’s consideration for Services, in no event, or series of connected events, will either party’s total liability to the other in connection with any particular Assignment Agreement exceed the lesser of twelve (12) times the Total Cost of Employment for the relevant Colleague(s) for the month immediately precede the action giving rise to the liability, or one hundred thousand dollars ($100,000).
When something goes wrong between You and Oyster, We believe in trying to work it out. If a dispute arises, let’s agree to timely inform each other about it and cooperate with a view to resolving issues amicably, and in a timely fashion.
Agreement to Arbitrate. If informal attempts to resolve any issue or claim are unsuccessful, You agree that any dispute, controversy, or claim (together referred to as “Claim”) relating in any way to Your use of the Services including whether the claims asserted are arbitrable, will be referred to and finally determined by final and binding arbitration by London Court of International Arbitration (under its then-effective rules). Notwithstanding the foregoing, You and Oyster have the right to bring an action in a court of appropriate jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator.
The arbitration will occur in London, England, using the English language, before a single arbitrator. The Parties agree that the arbitrator is not empowered to award damages in excess of the limitations of liability specified in the Terms. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. Payment for any and all reasonable filings, administrative and arbitrator fees will be in accordance with the LCIA Rules.
Class Action Waiver. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. YOU UNDERSTAND THAT BY AGREEING TO THESE TERMS, YOU AND OYSTER ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND ARE EACH WAIVING THE RIGHT TO BRING OR PARTICIPATE IN ANY DISPUTE ON A CLASS, PRIVATE ATTORNEY GENERAL, REPRESENTATIVE, OR SIMILAR BASIS. ONLY CONSENT TO THESE TERMS IF YOU UNDERSTAND AND AGREE TO THIS PROVISION.
Marketing. Ask first. Neither Oyster, nor Customer shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use each other’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party.
Electronic Acceptance of Terms. These Terms, and any amendments thereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to indicate acceptance of these Terms; or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
Electronic Notification. Any notices or other communications provided by Oyster, including those regarding modifications to these Terms and Conditions, will be given: (i) via email; or (ii) by posting to the Platform. For notice provided by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices provided by posting to the Platform, the date of such posting will be deemed the date that notice is given.
No Agency. Nothing contained herein shall constitute a partnership between, or joint venture by, the Parties hereto or make either party an agent of the other. Neither party shall hold itself out contrary to the terms of this paragraph. Neither party shall become liable by any representation, act or omission of the other contrary to the provision hereof. No act, commission, or omission by any party to these Terms shall change this independent Service Provider relationship or be construed to render the Parties to be partners, joint venturers or agents of each other. Nothing contained in these Terms shall be deemed to permit either party to conduct business in the name of or on account of the other party, to incur or assume any expense, debt, obligation, liability, tax or responsibility on behalf of or in the name of the other party or to act on behalf of or bind the other party in any manner whatsoever.
Waiver. No failure or delay by either party to exercise any right or remedy provided under the Oyster Terms or by applicable law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
No Assignment. Neither party may not assign rights and obligations under the Oyster Terms, by operation of law or otherwise, without the other party’s prior written consent, which will not be unreasonably withheld. Any attempt to assign or transfer this Agreement, without such consent, will be null.
Severability. If any part of these Terms are found to be invalid or unenforceable, the remainder of the agreement will remain in full force and effect as if the unenforceable part did not exist. The Oyster Terms will be construed in its entirety, giving meaning to its whole, and not strictly for or against Oyster or Customer.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of New York without regard to its conflict of law provisions. The UN Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the Parties under this Agreement.
Contacting Oyster. Notice under these Terms or any Assignment Agreement can be provided by email addressed to firstname.lastname@example.org. If You really like snail mail, You can find Us at:
Oyster HR, Inc.
251 Little Falls Drive
Wilmington, DE 19808 USA
Feedback. Oyster was made for You. Our mission is making the international hiring process clean, simple, and affordable for employers, while helping brilliant people build fulfilling careers from anywhere. If You have ideas about how We can do that better, We welcome Your Suggestions. Talk to Us at email@example.com. We will listen.