Effective May 21, 2018
PLEASE READ THE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
TABLE OF CONTENTS
7.1 Making Payments Through Upwork
7.2 Opting Out
8. Records of Compliance
9. Warranty Disclaimer
10. Limitation of Liability
13. Agreement Term and Termination
13.2 Account Data on Closure
14. Disputes Between You and Upwork
14.1 Dispute Process, Arbitration, and Scope
14.2 Choice of Law
14.3 Informal Dispute Resolution
14.4 Binding Arbitration and Class Action/Jury Trial Waiver
15.1 Entire Agreement
15.2 Modifications; Waiver
15.5 Force Majeure
15.6 Prevailing Language and Location
15.7 Access of the Site Outside the United States
15.8 Consent to Use Electronic Records
1. UPWORK ACCOUNTS
Section 1 discusses what you must agree to before using the Site or Site Services and the different types of accounts that can be created on the Site, as detailed below.
1.1 REGISTRATION AND ACCEPTANCE
By registering for an account to use the Site or Site Services (an “Account”), by using the Site or Site Services after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Agreement and the other Terms of Service.
If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company.
Upwork offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you (a) have or are an employee or agent of and authorized to act for an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site and Site Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of Freelance Services; and (d) a legal entity or an individual 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) who can form legally binding contracts.
To register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
As described in this Section, there are a number of different Account types. Once you register for one Account type, you can add the other Account types under the same username and password. For example, if you already have a Freelancer Account (defined below), you can add a Client Account as a separate account type in settings without re-registering. You agree not to have or register for more than one Account without express written permission from us. We reserve the right to revoke the privileges of the Account or access to or use of the Site or Site Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.
You can register for an Account or add an Account type to use the Site and Site Services as a Client (a “Client Account”). Each User under a Client Account (“Team Member”) can be given different permissions to act on behalf of the Client Account.
You can register for an Account or add an Account type to use the Site and Site Services as a Freelancer (a “Freelancer Account”). Another type of Freelancer Account you can add is an “Agency Account”, the owner of which is referred to as an “Agency”. An Agency Account allows permissions to be granted to Users under the Agency Account which can be given different permissions to act on behalf of the Agency (each, an “Agency Member”) .
You acknowledge and agree that the Agency is solely responsible, and assumes all liability, for (a) the classification of your Agency Members as employees or independent contractors; and (b) paying your Agency Members in accordance with applicable law for work performed on behalf of the Agency for Projects. You further acknowledge and agree that (i) the Agency may determine the Profile visibility and pricing/rate information of any of its Agency Members, and (ii) Agency Members’ Profiles may display work history that includes work done under the Agency Account, including after the Agency Member is no longer an Agency Member.
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, including as a Team Member or Agency Member, you represent and warrant that (a) the User is authorized to act on your behalf, (b) you are financially responsible for the User’s actions taken in accordance with those permissions, including, if applicable, entering into binding contracts on behalf of the owner of the Account, and (c) you are fully responsible and liable for any action of any User to whom you have provided any permissions and any other person who uses the Account, including making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site. Upon closure of an Account, Upwork may close any or all related Accounts.
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on Upwork. You authorize Upwork, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business.
2. PURPOSE OF UPWORK
Section 2 discusses what Upwork does and does not do when providing the Site and Site Services and some of your responsibilities when using the Site to find or enter into a Service Contract with a Freelancer or Client, as detailed below.
The Site is a marketplace where Clients and Freelancers can identify each other and advertise, buy, and sell Freelancer Services online. Subject to the Terms of Service, Upwork provides the Site Services to Users, including hosting and maintaining the Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those Service Contracts. When a User enters a Service Contract, the User uses the Site to invoice and pay any amounts owed under the Service Contract.
Upwork merely makes the Site and Site Services available to enable Freelancers and Clients to find and transact directly with each other. Upwork does not introduce Freelancers to Clients, find Projects for Freelancers, or find Freelancers for Clients. Through the Site and Site Services, Freelancers may be notified of Clients that may be seeking the services they offer, and Clients may be notified of Freelancers that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Project, Client or Freelancer on their own. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users and Upwork is not a party to that Service Contract.
You acknowledge, agree, and understand that Upwork is not a party to the relationship or any dealings between Client and Freelancer. Without limitation, Users are solely responsible for (a) ensuring the accuracy and legality of any User Content, (b) determining the suitability of other Users for a Service Contract (such as any interviews, vetting, background checks, or similar actions), (c) negotiating, agreeing to, and executing any terms or conditions of Service Contracts, (d) performing Freelancer Services, or (e) paying for Service Contracts or Freelancer Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Contract with another User and for verifying any information about another User, including Composite Information (defined below). Upwork does not make any representations about or guarantee the truth or accuracy of any Freelancer’s or Client’s listings or other User Content on the Site; does not verify any feedback or information provided by Users about Freelancers or Clients; and does not vet or otherwise perform background checks on Freelancers or Clients. You acknowledge, agree, and understand that Upwork does not, in any way, supervise, direct, control, or evaluate Freelancers or their work and is not responsible for any Project, Project terms or Work Product. Upwork makes no representations about and does not guarantee, and you agree not to hold Upwork responsible for, the quality, safety, or legality of Freelancer Services; the qualifications, background, or identities of Users; the ability of Freelancers to deliver Freelancer Services; the ability of Clients to pay for Freelancer Services; User Content, statements or posts made by Users; or the ability or willingness of a Client or Freelancer to actually complete a transaction.
You also acknowledge, agree, and understand that Freelancers are solely responsible for determining, and have the sole right to determine, which Projects to accept; the time, place, manner, and means of providing any Freelancer Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Upwork, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Upwork will not have any liability or obligations under or related to Service Contracts and/or Freelancer Services for any acts or omissions by you or other Users; (iii) Upwork does not, in any way, supervise, direct, or control any Freelancer or Freelancer Services; does not impose quality standards or a deadline for completion of any Freelancer Services; and does not dictate the performance, methods or process Freelancer uses to perform services; (iv) Freelancer is free to determine when and if to perform Freelancer Services, including the days worked and time periods of work, and Upwork does not set or have any control over Freelancer’s pricing, work hours, work schedules, or work location, nor is Upwork involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Freelancer for a Project; (v) Freelancer will be paid at such times and amounts as agreed with a Client in a given Service Contract, and Upwork does not, in any way, provide or guarantee Freelancer a regular salary or any minimum, regular payment; (vi) Upwork does not provide Freelancers with training or any equipment, labor, tools, or materials related to any Service Contract; and (vii) Upwork does not provide the premises at which Freelancers will perform the work. Freelancers are free to use subcontractors or employees to perform Freelancer Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Freelancer’s subcontractor(s) or employee(s). If a Freelancer uses subcontractors or employees, Freelancer further agrees and acknowledges that this paragraph applies to Upwork’s relationship, if any, with Freelancer’s subcontractors and employees as well and Freelancer is solely responsible for Freelancer’s subcontractors and employees.
Without limiting the foregoing paragraph, if you are an Agency or Agency Member, you expressly acknowledge, agree, and understand that: (s) the Agency is solely responsible for paying its Agency Members for work performed on behalf of the Agency and that such payments will not be made through the Site; (t) Upwork is not a party to any agreement between the Agency and its Agency Members and does not have any liability or obligations under or related to any such agreement, even if the Agency or Agency Member defaults; (u) neither Agencies nor Agency Members are employees or agents of Upwork, and Upwork does not, in any way, supervise, direct, or control the Agency or Agency Member or services performed by the Agency or Agency Member; (v) Upwork does not, in any way, supervise, direct, or control the Agency or Agency Members; (w) Upwork does not set Agencies’ or Agency Members’ contract terms amongst themselves or with Clients (including determining whether the contract will be hourly or fixed price), fees, pricing, work hours, work schedules, or location of work; (x) Upwork does not provide Agencies or Agency Members with training or any equipment, labor, tools, or materials needed for any Service Contract; (y) Upwork does not provide the premises at which the Agency or Agency Members will perform the work; and (z) Upwork makes no representations as to the reliability, capability, or qualifications of any Agency or Agency Member or the ability or willingness of any Agency to make payments to or fulfill any other obligations to Agency Members, and Upwork disclaims any and all liability relating thereto.
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels they choose. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
Freelancer acknowledges and agrees that Freelancer is solely responsible (a) for all tax liability associated with payments received from Freelancer’s Clients and through Upwork, and that Upwork will not withhold any taxes from payments to Freelancer; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Freelancer is not covered by or eligible for any insurance from Upwork; (c) for determining whether Freelancer is required by applicable law to issue any particular invoices for the Freelancer Fees and for issuing any invoices so required; (d) for determining whether Freelancer is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Freelancer Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and (e) if outside of the United States, for determining if Upwork is required by applicable law to withhold any amount of the Freelancer Fees and for notifying Upwork of any such requirement and indemnifying Upwork for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Upwork, Freelancer agrees to promptly cooperate with Upwork and provide copies of Freelancer’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Freelancer is engaging in an independent business as represented to Upwork.
You hereby acknowledge and agree that Users publish and request Upwork to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that Freelancers or Clients voluntarily submit to Upwork and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Upwork; Upwork provides such information solely for the convenience of Users.
You acknowledge and agree that User feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that Upwork post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Job Success Score, wherever referenced, and other User Content highlighted by Upwork on the Site or otherwise (“Composite Information”), if any, will include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that Upwork will make Composite Information available to other Users, including composite or compiled feedback. Upwork provides its feedback system as a means through which Users can share their opinions of other Users publicly, and Upwork does not monitor, influence, contribute to or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.