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USER AGREEMENT MYFASHIONMANAGER PLATFORM
Client: a client of MyFashionManager, who may request services from a Freelancer based on this User Agreement;
Fee: the agreed payment for a specific Project;
Freelancer: an individual person, acting as an independent contractor or as a representative from its own legal entity, who may provide services to a Client based on this User Agreement;
MyFashionManager: the private company with limited liability MyManager Solutions B.V., established in Amsterdam, the Netherlands, registered at the Dutch Chamber of Commerce under number 82520194, having its business address at Joop Geesinkweg 901-999, in (1114 AB) Amsterdam, the Netherlands;
Platform: the online platform of MyFashionManager where Freelancers and Clients can connect;
Project: specific services rendered by a Freelancer to a Client, which will be confirmed in a Project Sheet;
Project Sheet: an overview of the specific services rendered by a Freelancer to a Client, subject to this User Agreement;
User Agreement: this user agreement regarding the services of MyFashionManager provided through the Platform
2. Applicability 2.1. The use of the Platform is subject to this User Agreement, therefore to use the Platform Freelancers and Clients must accept the User Agreement via the Platform. 2.2. The contractual relationship between Freelancers and Clients regarding Projects is determined by this User Agreement and Project Sheets. 2.3. This User Agreement is also applicable between parties in the case the Freelancer and the Client (want to) conclude another Project within twelve (12) months after introduction of the Freelancer and the Client to each other or, if more recent, within twelve (12) months after the end of the last Project. 2.4. MyFashionManager has the right to change the User Agreement from time to time. In this case MyFashionManager will announce the change via the Platform, prompting a message to the Freelancer and the Client at their first login after the change. The Freelancer and the Client can accept or refuse the change by selecting the corresponding option in the Platform.
3. Purpose of the Platform 3.1. The purpose of the Platform is to enable Freelancers and Clients to connect, in order to make arrangements regarding services that a Freelancer will render for a Client (a Project). 3.2. MyFashionManager may change the Platform or relevant features from time to time and may add new features. Features may be optimised or changed based on changed demand from Freelancers and Clients or otherwise where MyFashionManager, in its sole discretion as a service provider, deems it appropriate, and the availability of the Platform may be suspended due to regular or occasional maintenance. 3.3. The Platform should only be used by Freelancers and Clients to find temporary projects, where the Freelancer will act as an independent service provider for the Client. The Platform should not be used for hiring personnel by a Client and/or for having Freelancers work as an employee of the Client. 3.4. MyFashionManager cannot and will not, in any way, be or act as an employer of a Freelancer. MyFashionManager will not be involved in the specific Projects agreed between a Freelancer and a Client. In addition, MyFashionManager has no authority over Freelancers and has no say in i.a. the deliverables of a certain Project or any instructions given to a Freelancer in relation to a specific Project. 3.5. MyFashionManager is not a temporary employment agency; nor does MyFashionManager render job placement services. 3.6. MyFashionManager only provides services for the Freelancer and Client, by:
Hosting the Platform;
Preparing Project Sheets (model Project Sheet attached as Annex 1);Providing consulting services related to organization (i.e. sizing, skill mapping, talent development, counseling and change management) and market study (i.e. fashion industry trends, work & pay reports, on-demand research).
Collecting and paying out the Fee as described in Clause 5.
MyFashionManager has no other obligations towards the Freelancer and the Client.
4. Use of the platform 4.1. MyFashionManager offers its services in accordance with this User Agreement. MyFashionManager is not obliged to provide support regarding the use of the Platform. 4.2. It is important to always use the latest version of Platform. Updates will be made via the Platform from time to time without further notice. 4.3. Freelancer and Client shall provide MyFashionManager with any co-operation MyFashionManager considers necessary in relation to the services provided through the Platform and shall comply with all provisions contained in this User Agreement. Without prejudice to other obligations contained in this User Agreement, Freelancer and Client shall comply with all applicable laws and regulations when using the Platform and MyFashionManager services. 4.4. Freelancer and Client are solely responsible for (the availability, the functioning and the use of) the network, the systems and the devices they use for the Platform and they must ensure adequate security of their connections and devices. The Platform may only be used with devices of which Freelancer and Client are the legal owners. 4.5. Freelancer and Client can only access the services provided through the Platform when logged into their MyFashionManager account. The account is strictly personal and the personal account details, such as user name, must be kept safe. It is prohibited to share your MyFashionManager account information with other persons or third parties. In the event of any security breach related to your MyFashionManager account (including but not limited to the case where your user name/login was obtained by another person), please notify MyFashionManager immediately. MyFashionManager will assist you in taking relevant action. All behaviour related to your MyFashionManager account is assumed to be carried out by you and you alone will bear all responsibility. 4.6. Freelancer and Client must use the Platform in a normal manner and refrain from improper behaviour. At least the following behaviours are contrary to the applicable standards:
upload text, images and/or video material, or any other information or material, that infringes property or personal rights of any person or other third party and/or may cause them any harm in whatever way;
registering an account with false information;
attempting to circumvent security measures taken by MyFashionManager or reverse engineering or (otherwise) attempting to reproduce, copy or modify the source code or any content of the Platform;
use the Platform in a manner that might cause damage to MyFashionManager, Freelancers, Clients and/or third parties (contracted or otherwise);
maliciously use the Platform in an automated manner which could overload the server, or otherwise disrupt or damage web server and network connections;
attempt to obtain or access server data or communication data from the Platform without authorization;
using the Platform in violation of this User Agreement, including but not limited to the conditions under which the right to use the Platform is granted and the obligation to abide by laws and regulation
4.7. Freelance and Clients understands and agrees that:
MyFashionManager may monitor whether you are in breach of any provision of this User Agreement and may at any time suspend or terminate your right to use the Platform if you are in breach of this User Agreement;
5. Fees and payment 5.1. The Project Sheet contains agreements about the Fee for a specific Project between a specific Freelancer and specific Client: (i) In the Project Sheet sent to the Freelancer, the Fee that will be paid to him/her by MyFashionManager will be stated; (ii) In the Project Sheet sent to the Client, the Fee that the Client will pay to MyFashionManager will be stated. The difference between the two fees represent the service fee due to MyFashionManager for the services rendered through the Platform. The Fee is calculated automatically by an algorithm based on the work experience and skills of the Professional. 5.2. The Freelancer will submit a specified invoice, in the agreed currency, to MyFashionManager each month. The Freelancer is only entitled to the Fee regarding the days that the Freelancer actually provided its services. Provided that the Client has paid the corresponding amount to MyFashionManager, MyFashionManager will pay the Freelancer within thirty (30) days after receipt of the invoice. 5.3. MyFashionManager will charge the Client monthly for services provided by the Freelancer in the agreed currency. Payment is due within fifteen (15) days after the receipt of the invoice from MyFashionManager. 5.4. If the Freelancer is unable to provide its services for whatever reason, such as illness, the Freelancer is not entitled to any payment of any Fee over that period of time. If the period that the Freelancer is unable to provide its services lasts for more than five (5) working days and this is not approved in advance by the Client, the Project is automatically suspended. The Client and the Freelancer are able to continue or cease the Project by mutual consent. 5.5. In any case the Fee has to be paid by the Client one (1) day before the end of the User Agreement. 5.6. The Client and the Freelancer explicitly waive their right to set-off payments or set-off with claims. The Client and the Freelancer accept the right of MyFashionManager to set-off payments or set-off with claims. 5.7. The Client and the Freelancer are not able to suspend payments (contractual and non-contractual) that have to be made to MyFashionManager.
6. Obligations 6.1. The Freelancer and Client are obliged to ensure that their relationship during a Project is not, and cannot be seen as, an employment agreement. 6.2. The Client shall not enter into an employment agreement with a Freelancer during the Project, unless MyFashionManager gives its explicit prior written permission. 6.3. The Freelancer shall only provide correct, up to date and true information about themselves, including personal details and information regarding qualifications, experience and training. If Freelancers or Clients provide MyFashionManager or other parties with written details of information (through the Platform), MyFashionManager and the other parties may assume that this information is correct. 6.4. The Freelancer is free to provide services to other clients, providing that such activity does not negatively impact MyFashionManager or the Client the Freelancer is providing services to at that time. 6.5. The Freelancer and Client are obliged to maintain the strictest confidence regarding all information that has come to their attention about the other party and its (business) activities. In this context, reference is also made to Clause 12. After a Project has ended, the Freelancer and the Client will return any property, including documents, of the other party to that party in good order. 6.6. MyFashionManager is not obliged to match a Freelancer with a Client or vice versa and does not guarantee that the use of the Platform will result in Projects.
7. Liability and indemnifications 7.1. MyFashionManager is not an employer, nor is it a temporary employment agency or job placement services agency. Freelancers cannot and will not be, in any way, an employee of MyFashionManager and/or the Client. Therefore, MyFashionManager will not be liable for:
Any tax liability, such as (but not limited to) any claims, fines, penalties, additional tax assessments and all related interest, (legal) costs and expenses, arising from the relationship between the Freelancer and the Client or the Freelancer and MyFashionManager.
Any liability arising from any employment related claims, based on the Freelancer having a status as an employee, such as (but not limited to) claims relating to (minimum) wages or other employee rights, fines, penalties, and all related interest, (legal) costs and expenses.
The Freelancer and the Client indemnify MyFashionManager fully for the above. 7.2. MyFashionManager is not liable for any damage the Freelancer or the Client has incurred during or in connection with a Project. The Freelancer and the Client indemnify MyFashionManager for any damage as mentioned in this Clause. 7.3.The following provisions of this Clause 7.3. are only applicable in the relation between the Client and the Freelancer. In this respect the following applies: "the other party" means the counterparty of the Client or the Freelancer, respectively the Freelancer and the Client or vice versa. The provisions are as follows. 7.3.1. Subject to the provisions of this Clause of this User Agreement, the Client or the Freelancer shall not be liable for damage suffered by the other party for any reason whatsoever, including all direct and indirect damage, such as consequential damage or trading loss, unless such damage was caused by intent or deliberate recklessness on the part of the Client or the Freelancer, its directors or de facto manager. 7.3.2. Only if it is established in court that the Client or the Freelancer, despite the provisions of Clause 7.3.1. of this user agreement and other than due to intent or willful recklessness, is nevertheless liable for any damage suffered by the other party, the liability of the Client or the Freelancer shall be limited to compensation of direct damage only, with a maximum of the total invoice value regarding the Project. 7.3.3. Subject to the provisions of the previous paragraphs, the Client or the Freelancer shall not be liable for indirect damage suffered by the other party, such as (but not limited to) consequential damage, loss of data, loss of income or profit, lost savings and damage due to business interruption. 7.3.4. The Client or the Freelancer shall not be liable for any damage suffered by the other party resulting from errors or omissions on the part of third parties, including its employees and auxiliary staff, which have been prior authorized by the other party. 7.3.5. The Client or the Freelancer shall indemnify the other party against all claims of third parties relating to the Project. 7.3.6. The Client or the Freelancer shall bear all costs arising from the indemnification referred to in Clause 7.3.5. of this User Agreement. 7.4. The limitations of liability referred to in this Clause shall not apply in the event of death or bodily injury.
8. Warranties 8.1. Freelancers and Clients warrant and represent that all information that they give or have given to MyFashionManager or each other in connection with this User Agreement and the Project, including without limitation in respect of their identity, personal details, qualifications, training and experience, is correct, accurate and complete. 8.2. Freelancers and Clients warrant and represent to update and keep updated MyFashionManager and each other if there is any change to the information provided in accordance with Clause 8.1.
10. Intellectual Property and Confidential Information 10.1. The Platform including its content is protected by intellectual property rights, which are and shall remain the exclusive property of MyFashionManager and/or its licensors. Intellectual property rights include but are not limited to copyrights, design rights, trademarks, trade names, database rights, copyright and also include knowhow. Not any related right is granted to Freelancer or Client unless explicitly granted herein. 10.2. Client and Freelancer using the Platform and/or any information provided by MyFashionManager in relation with the Platform and the services of MyFashionManager may only use such in accordance with this User Agreement. 10.3. As a part of this User Agreement, MyFashionManager grants you with the nonexclusive right to use the Platform for the purpose as described in Clause 3. You are prohibited to license, sell, lease, transfer, issue the Platform in any form, or use the Platform for any (other) (commercial) purpose. The content and/or other information provided by MyFashionManager in relation to the Platform and the services of MyFashionManager may not be copied, nor made public or otherwise be exploited. 10.4. In case Freelancers or Clients provide MyFashionManager with feedback or other suggestions for improvements, they hereby agree that such becomes the exclusive property of MyFashionManager and they waive any and all related rights. MyFashionManager is permitted to use such at its sole discretion and without any compensation.
11. Termination 11.1. This User Agreement will start on the date the Freelancer or the Client applies for access to the Platform and accepts the terms of this User Agreement. 11.2. This User Agreement can be terminated by either party by giving eight (8) weeks written notice. 11.3. In addition, MyFashionManager can terminate this User Agreement and/or the Project with immediate effect, without being obliged to take into account a notice period and without any liability to make any further payment, if:
The Client did not fulfill its obligation regarding the timely payment of the Fee as mentioned in Clause 5.2 of this User Agreement;
The Freelancer or the Client breaches any term in this User Agreement, commits fraud, or acts in such a way that MyFashionManager reasonably cannot be expected to continue this User Agreement any longer;
The Freelancer or the Client is declared bankrupt, is liquidated or has terminated its business activities;
The Freelancer or the Client is convicted for a criminal offence.
11.4. Freelancer and/or Client have the right to cancel the Project before the start of the Project, without being liable to the other party.
12. Data protection and confidentiality 12.1. It is important for MyFashionManager to protect the personal data that the Freelancers and Clients provided. MyFashionManager refers to the MyFashionManager Privacy Statement which can be found on the Platform: https://myfashionmanager.com/privacy_policy. The MyFashionManager Privacy Statement provides information about the collection, use, sharing, storage, and protection of your personal data as well as your related rights and how to exercise them. Please be advised to read the MyFashionManager Privacy Statement carefully. 12.2. Each party shall:
treat all confidential information (belonging to the other party) as confidential and safeguard it accordingly; and
not disclose confidential information (belonging to the other party) to any other person without the prior written consent to that other party, except to such persons and to such extent as may be necessary for the performance of this User Agreement and/or the Project or except where disclosure is otherwise expressly permitted by the provisions of this User Agreement.
12.3. Parties shall take all necessary precautions to ensure that all confidential information (belonging to the other party):
is given only to such of its staff and professional advisors engaged to advise such party in connection with the User Agreement and/or the Project and is strictly necessary for the performance of this User Agreement and/or the Project and only to the extent necessary for the performance of this User Agreement and/or the Project; and
is treated as confidential and not disclosed (without prior approval) or used by such staff or professional advisors otherwise than for the purposes of this User Agreement and/or Project.
12.4.The provisions of Clause 11.2 and 11.3 shall not apply to:
any confidential information (belonging to the other party) that is or has become part of the public domain through no fault of the recipient party;
any confidential information (belonging to the other party) that has been lawfully acquired by the recipient from a third party on a non-confidential basis;
any confidential information (belonging to the other party) that has been conceived or generated by the recipient independently of the information received from the other party; or
any confidential information (belonging to the other party) that must be disclosed pursuant to any applicable law, statute, regulation or by any court order or similar process enforceable in any relevant jurisdiction or pursuant to a binding decision by any fiscal or regulatory body or self-regulatory organization in any relevant jurisdictio
13. Governing Laws and Severability 13.1.This User Agreement, the formation hereof and the relation between parties hereto, is exclusively subject to the laws of the Netherlands. 13.2. In case of any disputes arising from or in connection with this User Agreement or the Project, parties shall first discuss the matter and try to find a reasonable, amicable solution. In case such a solution cannot be found for whatever reason within a reasonable period of time, the matter shall be exclusively submitted to the District Court of Amsterdam, the Netherlands in first instance. In addition to the foregoing, MyFashionManager is willing to help the Freelancer and the Client to find an amicable solution in the case Client and Freelancer have a dispute with each other. 13.3. When any provision of this User Agreement cannot be relied upon, because it is proven void, voidable or judged to be invalid by the court, or has become invalid because of changed legislation, the provision it will not influence the effectiveness of other terms or any part thereof. Such invalid provision will be deemed to have been adjusted, without any further action by the parties being required, in a way that corresponds as much as possible regarding its content and purport with the original purpose and the original content, and renders the provision valid and enables it to be relied upon.
14. Other provisions 14.1. This User Agreement (including any Annexes hereto) constitutes the entire understanding between the parties hereto and supersedes all prior agreements, negotiations and discussions between the parties hereto on the subject. 14.2. MyFashionManager is entitled to make use of third parties when providing its services in relation to this User Agreement. 14.3. This User Agreement may not be assigned or otherwise transferred by any party to a third party without the prior written consent of that other party. 14.4. MyFashionManager is entitled to transfer its rights and obligations under the User Agreement to a third party. 14.5. This User Agreement may not be amended, modified or altered in any way except by a writing duly signed by the parties hereto. This User Agreement shall not be affected or modified or altered in any way by any exchange, delivery, acknowledgement or acceptance of invoice or purchase order forms containing different terms or conditions than those which are herein contained, in the course of conducting transactions under this User Agreement. 14.6. If MyFashionManager, for a short or longer time, tacitly or not, allows deviations from the terms of this User Agreement, MyFashionManager still has the right to demand direct and strict compliance with the terms of this User Agreement. The other party can never claim any right based on the fact that MyFashionManager applies the terms of this User Agreement leniently.