These general terms (hereinafter the General Terms) are an integral part of the service contract (hereinafter the Service Contract) between the customer (hereinafter you) and the service provider (hereinafter the Contractor) for the purpose of the provision of the professional services (hereinafter the Service/Services).
The Contractor is the partnership based on the contractual relationship between a managing partner (hereinafter Xolo) and an individual professional (hereinafter the Professional). The Contractor is regulated by § 580 of the Estonian Law of Obligations Act. The Contractor is not a legal entity and does not have independent legal capacity. Considering that, Xolo (as the managing partner of the Contractor) and the Professional, who is represented by Xolo, enter into the Service Contract on behalf of and on the account of the Contractor.
You and the Contractor are jointly referred in the General Terms as the Parties and either separately as a Party.
The Service Contract consists of the following integral parts:
- General Terms;
- the project(s) which specify the Services to be provided to you (hereinafter the Project);
- any modifications to the above-said documents that may be made from time to time in accordance with the terms of the General Terms.
- ORDERING THE SERVICES AND ENTERING INTO THE SERVICE CONTRACT
1.1 For each Service, which you wish to order from the Contractor and based on the terms agreed between you and the Professional, the Professional prepares a Project. The Project may specify, for example, the nature and scope of the Services, term of the Services (incl. fixed-length or open-ended), service fee, terms of payment and, if applicable, the number of hours to be worked, the hourly rate charged and other applicable terms. You should review each Project carefully.
1.2 The Project shall follow the principles that Xolo has established for the Services. Xolo has the right to restrict or limit the nature, scope, extent and other matters relating to the Services that the Professional can offer. Xolo has the right to make such restrictions, as altered from time to time, public on its website.
1.3 The Professional sends a pre-filled Project for your review on the website organised by Xolo (hereinafter the Platform). After you and the Professional have agreed the content of the Project, you shall accept the Project by clicking the corresponding checkbox on the Platform. By accepting the Project, the Project and the General Terms become binding to you. Even though these documents are electronic and not physically signed by you, by accepting them you unconditionally agree with them and are obliged to follow them. For avoidance of doubt, the General Terms are provided as-is by the Contractor and cannot be negotiated. If you do not agree with any of the clauses of the General Terms or the Project, you should not accept them.
1.4 The Project has to be accepted by Xolo in order to become effective and binding to the Contractor. Xolo can refuse accepting the Project based on its internal guidelines, including anti-money laundering, terrorism prevention and other rules. Xolo is not obligated to provide an explanation for any refusals.
1.5 If both you and Xolo, acting on behalf of the Contractor, have accepted the Project, the Service Contract is regarded to be concluded.
- PROVIDER OF THE SERVICES
2.1 The Services under the Service Contract shall be provided by the Professional on behalf of the Contractor. Xolo has verified the identity of the Professional by using the tools of electronic identification.
2.2 The Professional has confirmed to Xolo that he/she is able to fulfil the rights and obligations of the Service Contract and he/she has all necessary professional skills and resources to provide the Services to you. Xolo has not verified whether the confirmations of the Professional are true.
2.3 You are encouraged to perform a background research of the Professional, and verify that the Professional has all necessary professional skills and resources presumed while providing the Services. You also should verify and ensure that the Professional has all valid authorisations, licenses, approvals and permits from any state, local or other authority for lawfulness of his/her activities required under any jurisdiction to provide the Services to you. You acknowledge, agree, and understand that you are responsible for assessing whether to enter into a Service Contract and for verifying any information/documents about the Professional. Xolo does not issue any recommendations or warranties to you related to the Professional, information and/or documents that the Professional submits in relation to the Services.
2.4 You may require the Professional to obtain personal insurance, which covers the damages and consequences that may arise related to the provision of the Services, and/or fulfilment of the obligations and rights related to the Project and/or the Service Contract. In this case the insurance requirement shall be specified in the Project and the Professional shall obtain insurance before starting to provide the Services under the Project. Regarding the insurance, the Project shall specify: a) the applicable minimal value of the insurance policy, b) maximum personal liability of the Professional under the insurance policy, c) the right of damaged persons (Xolo, you or any other) to claim damages directly from the insurer, and d) the extended term for submission of possible damage claims of 5 years from the end of the insurance policy.
2.5 In the course of provision of the Services, you may provide to the Professional your confidential information (e.g. financial data, clients, contractors, means of provision of the services, expertise). To protect such confidential information, you and the Professional may conclude a separate non-disclosure agreement (hereinafter the NDA) stipulating the terms of handling of confidential information in the course of provision of the Services. The Contractor and Xolo will not be a party of such NDA and such NDA will not be a part of the Service Contract.
2.6 In the course of provision of the Services, you may provide to the Professional your end-users’ personal data (e.g. name, personal identification code/registration number, field of activity and other data disclosed by you to the Professional or what has been disclosed to the Professional in the course of provision of the Services). To protect such personal data and stipulate the terms of processing of such personal data, you and the Professional may conclude a separate data processing agreement (hereinafter the DPA) as stipulated in the article 28 of the EU General Data Protection Regulation no 2016/679. The Contractor and Xolo will not be a party of such DPA and such DPA will not be a part of the Service Contract.
2.7 For avoidance of doubt, any action, activity, transaction or agreement can be bound to the Contractor and Xolo only if such action, activity, transaction or agreement is in accordance with the Service Contract and/or is reviewed and confirmed at least in a form that can be reproduced in writing by Xolo. Otherwise, it will be regarded that such action, activity, transaction or agreement is accepted and is binding solely for the Professional as a separate person, who will be personally responsible for the fulfilment of the obligations and liabilities resulting from such action, activity, transaction or agreement, including for any damages which may incur. It is your sole liability to verify that any action, activity or agreement is in accordance with the Service Contract and/or has been verified by Xolo.
- SERVICE CONTRACT AND PROVISION OF THE SERVICES
3.1 The Professional shall do all reasonably possible to achieve a result in providing the Services (incl. bears the responsibility for adequate quality, security, protection, backup and all other relevant aspects). The Professional shall provide the Services at the level of generally accepted professional skills with the presumed diligence.
3.2 The role of Xolo is to provide management, representation and administrative support to the Professional so that the Professional can focus on the provision of the Services. Xolo does not, in any way, supervise, direct, control, or evaluate the Professional upon provision of the Services.
3.3 The relationship between you and the Contractor (incl. Xolo and the Professional both acting on behalf of the Contractor) shall at all times be that of independent contractors.
3.4 The Contractor may require instructions and/or information and/or documents from you, and you are obliged to cooperate with the Contractor, including providing the Contractor complete, true and accurate information and documents on time and grant explanations as requested by the Contractor. If you fail to provide instructions and/or information needed for the fulfilment of the Services, the Contractor has the right to suspend the fulfilment of the Service Contract or terminate the Service Contract without prior notice.
3.5 The specific methods for provision of the Services are decided by the Contractor and you cannot require the fulfilment of detailed instructions. The Contractor may adhere and follow your instructions as far as these are legal, based on the Service Contract, do not constitute a conflict of interest, and do not lead to the qualification of such relationship between you and the Professional as employment. You are obligated to ensure that the provision of the Services will not constitute an employment relationship between you and the Professional.
3.6 You confirm and warrant that you have engaged all required tax and legal support and are aware of all applicable risks, which may be triggered by entering into the Service Contract.
3.7 You shall inform Xolo about any important problems arising during the provision of the Services.
- COMMUNICATION OF THE PARTIES
4.1 The Parties agree to communicate and share information and documents (incl. any invoice, notice or other communication) in connection with the Service Contract electronically over the Platform or via email. You undertake to ensure, at all times, that your contact email address notified to the Contractor is valid and in working order.
4.2 You confirm that you are aware of the risks related to the forwarding of any relating electronic mail over the Internet, incl. that the messages could disappear, confidential and private information could be intentionally or non-intentionally changed, stolen or disclosed to third parties. The Contractor is not responsible for the risks related to the electronic forwarding of information and documents and their potential consequences, this remains your liability.
4.3 The Parties have agreed that any notice sent to your email address, shall be deemed to be received by you after 3 calendar days have passed from sending such notice.
- DELIVERING AND ACCEPTING THE SERVICES
5.1 The Professional shall deliver the Services to you according to the details of the Project.
5.2 You shall examine the Services immediately. If you have no complaints (hereinafter the Objections), the Services are deemed to have been accepted from the day the Services were delivered to you. The Services are also deemed to have been accepted by you if you fail, without any legal basis, to accept the Services.
5.3 The Objections have to be filed to the Contractor (incl. Xolo and the Professional) at the latest within 3 working days of the delivery of the Services.
5.4 In case you file reasonable Objections by due date, the Professional shall make relevant improvements for repairing the deficiencies within a reasonable time.
5.5 By making a payment of the Service Fee stipulated in clause 6.1 of the General Terms, you confirm that you do not have neither Objections nor claims against any person arising from the Service Contract. This does not apply if you have Objections related to the Services which have been subject to prepayment schedule.
- SERVICE FEE
6.1 You shall pay the Contractor a fee for performing the Services according to the principles agreed in the Project (hereinafter the Service Fee). The Service Fee may rely upon the time-based fee (hourly fee), fixed amount (flat fee) or other fee schedules.
6.2 Any amounts (incl. taxes), which the Contractor is required to collect, pay or withhold related to the Service Contract and/or the provision of the Services shall be added to the Service Fee, unless otherwise agreed in the Project.
6.3 Any additional third-party claims related to the performed Project and submitted against the Contractor and/or Xolo after the submission of the Project, payment of the Service Fee and/or the termination of the Service Contract shall be collected from you.
- PAYMENT OF THE SERVICE FEE
7.1 The Service Fee shall be paid on the basis of one or several invoices (hereafter the Invoice) issued by Xolo according to the principles stipulated in the Project.
7.2 You shall pay the Service Fee to the bank account of Xolo within the term specified in the Invoice.
7.3 In case any Invoice is overdue, you shall pay a default interest of 0.1% of the outstanding sum of the Invoice in question per each day delayed. You are also obliged to cover all additional costs (incl. legal assistance expenses) incurred by the Contractor or third parties related to the collection of the overdue amounts. In addition, the Contractor has the right to suspend the provision of the Services during the period you are in delay with any payment according to the Service Contract up to the receipt of the payment.
7.4 If the Service Contract has been terminated or the fulfilment of the Service Contract has been suspended, you shall remunerate the Contractor for the Services provided until termination or suspension of the Services.
- INTELLECTUAL PROPERTY
8.1 The intellectual property created as a result of or in the course of the provision of the Services (hereafter the Intellectual Property) may be divided between the Parties threefold:
8.1.1 if not otherwise explicitly agreed in the Project (as stipulated in sections 8.1.2 or 8.1.3), the Intellectual Property shall remain in full with the Professional; or
8.1.2 if explicitly agreed in the Project, the Intellectual Property shall be assigned and transferred from the Professional to you, to the fullest extent permitted under law for an unlimited period. In this case all the proprietary rights related to the results created under the Project shall be deemed to be transferred to you as of the moment of receipt of the full payment for the respective Project, in accordance to the General Terms. Simultaneously with the transfer of the proprietary rights, the Professional shall grant you irrevocable, perpetual and non-conditional exclusive right to use all moral rights related to the results (exclusive global license) created during the performance of the Project, for an unlimited time allowing you to grant sublicenses at your own discretion, and make whatever changes or supplements in the results under your own name or under pseudonym. In this case the Professional shall not retain a right to use the results created during the performance of the Project him-/herself, as well as to provide third parties with any rights to use these results, whereas this prohibition shall apply also to the period prior to the delivery of the results of the Services; or
8.1.3 if explicitly agreed in the Project, the Professional shall retain the Intellectual Property to him-/herself, thus providing you with a non-exclusive and non-transferable license allowing you to use the Intellectual Property. In this case and unless otherwise agreed, you will not be allowed to make whatever changes or supplements in the results, sub-license the results or present the results under your own name or under pseudonym. In this case the Professional shall retain the right to use the results created during the performance of the Project him-/herself, as well as to provide third parties with any rights to use these results. The Parties may specify the terms of the license in the Project.
8.2 It is the sole liability of the Professional to confirm that the Services (incl. any development, use, production, distribution or exploitation thereof) will not infringe, misappropriate or violate any intellectual property or other rights of any party.
8.3 The Professional does not receive any separate fee for the rights transferred and/or licenses granted herein. Fee for the transfer of Intellectual Property rights and/or licenses granted herein is included in the Service Fee.
8.4 Any result of the provision of Services forwarded by the Contractor to you during the provision of the Services is meant only for the use by you, unless the Parties have agreed otherwise in the Project.
- OTHER RIGHTS AND OBLIGATIONS
9.1 The Contractor may delegate its rights and obligations under the Service Contract to third parties, including using assistance and cooperation of third parties and using third party software and/or other tools and/or services.
9.2 During the term of the Service Contract, you and the Contractor jointly and severally undertake to act in the performance of the Service Contract, primarily in each other's economic interests and the objectives set out in the General Terms. Among other things, the Parties undertake to:
9.2.1 exercise their rights and perform their obligations in good faith;
9.2.2 perform their rights and obligations arising from the Service Contract in such a manner as is necessary to fulfil and comply with the requirements of the Service Contract;
9.2.3 notify the other Party of all material circumstances related to the contractual relationship towards which the other Party has a justified interest;
9.2.4 notify the other Party during the validity period of the Service Contract of the changing of one’s contact data.
9.3 You are obliged to:
9.3.1 cooperate with the Contractor and provide requested assistance (incl. true, timely and comprehensive documentation, information and other resources);
9.3.2 provide input in case the Contractor requests information and/or documents from you, for example, to fulfil the requirements of anti-money-laundering or terrorist financing regulations;
9.3.3 use your rights and obligations only for lawful purposes;
9.3.4 take appropriate tax and legal advice with regard to the conclusion of the Service Contract. You are obliged to comply with any licensing, registration, or other legal requirements with respect to your business and/or the provision of the Services, incl. verification that relevant obligations have been fulfilled by the Professional;
9.3.5 immediately inform Xolo, if the Professional should not be able to fulfil his/her obligations according to the Service Contract and/or his/her activities may trigger any claim;
9.3.6 inform and update Xolo of the country where the Professional provides the Services. Xolo has not conducted and will not conduct any analysis for determining the place of the provision of the Services;
9.3.7 notify Xolo and the Professional of the comments and recommendations to ensure the higher quality, faster and more efficient servicing and cooperation;
9.3.8 not assign, transfer, sell, encumber, sublicense, rent, lease or in any other way dispose the rights and obligations arising from the Service Contract to a third party without the prior written consent of Xolo;
9.3.9 maintain all documents and information related to the Services during the validity period of the Service Contract and within 10 years as of the termination of the Service Contract;
9.3.10 require and verify, if necessary, that the Professional has obtained insurance as stipulated in clause 2.4;
9.3.11 ensure that the cooperation between the Professional and you is never regarded to be an employment relationship, and cover all costs and liabilities (incl. occupational health and safety) related to the misclassification.
10.1 The liability of the Contractor (incl. Xolo and the Professional) under the Service Contract will be limited to the maximum extent permitted by law. The Contractor is not liable for the loss of profit, indirect loss and non-patrimonial damage, incl. any indirect or consequential damages. The total liability of the Contractor for any kind of damages under the Service Contract is in any case limited to 20% of the payment amount to the Contractor under the Project (with the exclusion of any taxes and coverage of costs, if applicable) in connection with which the damage in question has occurred, but not more than EUR 1,000. The limitation is not applied in case of deliberate or gross negligent breaches of the Service Contract. For avoidance of doubt, this limit applies also to the possible breach of Intellectual Property obligations by the Professional.
10.2 The limitation period for submitting and enforcement of any claims against the Contractor (the limitation period) is 6 months, which must be calculated from the time of breach.
10.3 For the avoidance of doubt, if you and the Professional have agreed to enter into separate NDA and/or DPA as stipulated in clauses 2.5 and 2.6 of the General Terms, neither the Contractor nor Xolo shall be responsible for the fulfilment and any breaches of the NDA and/or DPA by the Professional.
10.4 You agree to indemnify the Contractor and any persons related to it against any costs, damage, claims, liabilities, settlements, legal fees and other expenses incurred as a result of the breach of the Service Contract, or any provisions of the applicable laws and any other action or inaction by or for or on your behalf.
10.5 The Contractor does not bear any liabilities related to the actions of any third party. For example, the Contractor is not liable for the correctness of the information provided by you. The Contractor is also not liable for the negative consequences resulting from the absence of necessary clarifications, or the incorrectness of information/documents received from you. You are obliged to notify the Contractor immediately of the changes, observations and additional information that could be of importance related to the Service Contract.
10.6 In case of any damage claims, you are obligated first of all to submit them to the Professional as the party actually providing the Services. Only after you have used all reasonable opportunities to claim damages from the Professional and have not succeeded, you can claim for damages from Xolo.
10.7 Non-performance or improper performance of contractual obligations shall not be considered a breach of the Service Contract if it was caused by circumstances beyond the control of the Parties, could not and should not have been foreseen or prevented (hereinafter the Force Majeure). These circumstances must be verifiable and, notwithstanding the foregoing unforeseen circumstances, you and the Contractor are required to take measures to mitigate the potential damage. If the impediment is temporary, the breach of obligation is excusable only for the time when the obligation was obstructed. A Party whose activities in the performance of its contractual obligations are prevented by unforeseeable circumstances shall immediately notify the other Party of that and of the means applied to minimize the consequences.
- REPRESENTATIONS AND WARRANTIES
11.1 Each Party to the Service Contract respectively represents and warrants to the other Party that:
11.1.1 the Party has full legal right, power, authority and competence to enter into, execute and deliver the Service Contract and has taken all necessary steps and actions, as appropriate and necessary to authorise or permit the execution, delivery and performance of the Service Contract and the transactions contemplated hereby;
11.1.2 no voluntary or compulsory liquidation proceedings or insolvency or bankruptcy proceedings have been initiated, threatened or warned on the Party.
11.2 You represent and warrant to the Contractor the following:
11.2.1 you have active legal capacity and you are acting on your own name and account;
11.2.2. you have reviewed the Service Contract with adequate thoroughness and understand the content of it and you are willing to execute the provision of the Services;
11.2.3. you have proceeded all required analysis related to the general and specific skills, knowledge and experience of the Professional and you are convinced that the Professional is able to provide the Services according to your request and needs;
11.2.4. you are aware of all aspects which are relevant related to the provision of Services through the Contactor as a contractual partnership, incl. applicable obligations (e.g. any law, judgement, award, order, permit, licence, consent, contract, approval or prescript), liabilities and risks;
11.2.5. you shall inform Xolo if you and the Professional are related parties (persons are deemed to be related if they have common economic and/or personal interests);
11.2.6. you have sufficient financial resources to pay for the Services;
11.2.7. you are not engaged with illegal activities; your activities will have to be compliant with any applicable laws during the validity period of the Service Contract;
11.2.8. there are no lawsuits, administrative, arbitration or other legal proceedings (including, but not limited to tax proceedings) against you;
11.2.9. you are willing to bear full liability for the obligations and risks related to the obligations stipulated in the Service Contract;
11.2.10 you have notified the Contractor of all circumstances towards which the Contractor has or could have recognizable interest, considering the aim of the Service Contract;
11.2.11 all information and/or documents submitted by you are true and complete;
11.2.12 your interests and rights have been reasonably taken into account in the Service Contract;
11.2.13 there are no other circumstances which would prejudice or preclude your right to enter into, execute and deliver the Service Contract.
11.3 The Parties immediately notify the other Party in writing of any circumstances arising after the conclusion of the Service Contract which causes any of the representations and warranties to become untrue, inaccurate or misleading which is material for disclosure to the other Party.
- TERMINATION OF THE SERVICE CONTRACT
12.1 The Service Contract is entered into for an unspecified term, unless otherwise stipulated in the Project.
12.2 The Service Contract can be terminated by either Party at any time by providing at least 30 days prior written notice to the other Party.
12.3 The Service Contract shall be deemed to be terminated automatically when the contractual partnership between the Professional and Xolo is terminated or liquidated.
12.4 Any of the Parties may terminate the Service Contract extraordinarily if the other Party has materially violated the Service Contract and has not remedied the violation within 10 days after being notified of that by the other Party. Additionally, the Contractor shall be entitled to terminate the Service Contract extraordinarily at any time in the following cases: a) in case of significant deterioration or danger of a significant deterioration of your financial situation which can affect your ability to fulfil the Service Contract, b) in the case of initiation, threatening or warning of your liquidation, insolvency or bankruptcy proceedings, c) due to requirements and restrictions of third party service providers (banks, other financial institutions, debit card service providers, or d) due to any other circumstances which forbid or restrict the activity of the Contractor. In such cases, the Contractor, Xolo and the Professional shall not bear any responsibility towards you that may arise due to or in connection with such termination by the Contractor.
12.5 Xolo is not obliged to maintain any information or documents related to the Service Contract after the termination of the Service Contract.
12.6 All provisions of the Service Contract that in accordance with the context are meant to survive the termination of the Service Contract, shall continue to apply to you until all legal and/or financial issues between the Parties are settled, or until it is reasonable.
- GOVERNING LAW AND DISPUTES
13.1 The Service Contract is covered by the laws of the Republic of Estonia. The Parties proceed from the valid legal acts of the Republic of Estonia and other acts regulating the mutual relations in matters not regulated in the Service Contract.
13.2 You are obliged to provide during the validity period of the Service Contract and after the termination of the Service Contract any documents and/or information which may be needed for the Contractor to solve any disputes which are related or arise related to the Service Contract.
13.3 At the occurrence of different opinions, the Parties are obliged to notify the other Party of it and pursue to settle the problem by negotiations. Xolo does not solve any disputes that arise between you and the Professional, unless otherwise decided by Xolo. If no agreement is reached, the disputes are solved pursuant to the procedure set by the legal acts of the Republic of Estonia.
13.4 Any dispute, controversy or claim arising out of or relating to the Service Contract, or the breach, termination or validity thereof will be settled by Harju County Court, the Republic of Estonia as the court of first instance.
- OTHER TERMS
14.1 The headings of the clauses of the General Terms have been inserted for convenience of reference only and in no way restrict or modify any of the terms or provisions hereof. Whenever the singular, masculine or neuter is used in the Service Contract the same shall be construed as including the plural or feminine, or anybody corporate or unincorporated where the context or reference to the Parties hereto so requires.
14.2 The Service Contract is the entire contract between the Parties and it supersedes all prior representations, negotiations, writings, memoranda, and agreements with respect to the subject matter hereof. No modification, representation or warranty, variation, or amendment shall be of any force or effect unless it is in writing and signed by all Parties, unless otherwise stipulated in the General Terms.
14.3 The Contractor has the right to change the General Terms from time to time by providing 30 days prior notice to you. Relevant notice will be sent to your email address. You have to notify immediately the Contractor if the revised General Terms are not acceptable to you and initiate the termination process of the Service Contract. The revised General Terms will become effective 30 days after the Contractor has sent an email to your email address. If you have not started the termination process of the Service Contract by that date, the revised General Terms are regarded to be accepted by you. The foregoing Service Contract amendment regulation shall not apply if the amendment is required due to the change in the applicable laws, or other regulations that have influence on the Service Contract and/or the Contractor or if it is required by any decree, regulation or restriction of any state authority. In such case the amendment shall enter into force immediately upon provision of corresponding notice to you, whereas in this case you shall not be allowed to terminate the Service Contract.
14.4 If one or more of the foregoing provisions are or become invalid, the validity of the remaining provisions shall not be affected thereby. The invalid provision shall be replaced by a valid one, which achieves to the extent possible the purpose and the commercial goal of the invalid provision.
14.5 In case of a conflict between the contents of the General Terms and the Project, the content of the Project shall prevail, unless otherwise stipulated in the General Terms.