Terms of Service
Version 1.0, Updated May 22, 2019
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.
This Terms of Service (also referred to as the “Agreement”) is a contract between you (“you” or “User”) Freelance Labs, Inc. (“Freelance Labs,” “we,” or “us”). You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our website located at www.usebraintrust.com or any part of the Site or Site Services (as defined herein).
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
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.
1.2 ACCOUNT ELIGIBILITY
Freelance Labs 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 and warrant 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 on behalf of you, the entity or Agency.
1.3 ACCOUNT PROFILE
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.
1.4 ACCOUNT TYPES
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.
1.4.1 CLIENT 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.
1.4.2 FREELANCER, AGENCY, AND AGENCY MEMBER 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.
1.5 ACCOUNT PERMISSIONS
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 under your Account. who uses the Account.
1.6 IDENTITY AND LOCATION VERIFICATION
You authorize Freelance Labs, 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.
1.7 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person who is not authorized to use your Account. You authorize Freelance Labs to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use either or (b) the use would violate the Terms of Service.
1. Freelance Labs ACCOUNTS
Section 2 discusses what Freelance Labs does and does not do when providing the Site and Site Services and some of your responsibilities when using the Site.
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, Freelance Labs provides the Site Services to Users, including hosting and maintaining the Site, facilitating Projects between Users,, and assisting Users in resolving disputes which may arise in connection with those Projects Users are required invoice and pay any amounts owed for any agreed upon Projects facilitated by the Site and/or Services.
2.1 RELATIONSHIP WITH FREELANCE LABS
Freelance Labs merely makes the Site and Site Services available to enable Freelancers and Clients to find and transact directly with each other. Freelance Labs 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. The terms between Users with regard to any Project is directly between the Users and Freelance Labs is not a party to any contract between Freelancer and Client.
Users are solely responsible for (a) ensuring the accuracy and legality of any User Content, (b) determining the suitability of other Users for a Project (such as any interviews, vetting, background checks, or similar actions), (c) negotiating, agreeing to, and executing any terms or conditions of any Project, (d) performing Freelancer Services, or (e) paying for Freelancer Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Project with another User and for verifying any information about another User, including Composite Information (defined below). Freelance Labs does not make any representations or warranty regarding 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 Freelance Labs 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. Freelance Labs makes no representations about and does not guarantee, and you agree to hold Freelance Labs harmless 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 Freelance Labs, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Freelance Labs will not have any liability or obligations under or related to any Projects and/or Freelancer Services for any acts or omissions by you or other Users; (iii) Freelance Labs 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 Freelance Labs does not set or have any control over Freelancer’s pricing, work hours, work schedules, or work location, nor is Freelance Labs 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 for a given Project and Freelance Labs does not, in any way, provide or guarantee Freelancer a regular salary or any minimum, regular payment; (vi) Freelance Labs does not provide Freelancers with training or any equipment, labor, tools, or materials related to any Project; and (vii) Freelance Labs 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 Freelance Labs’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) Freelance Labs 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 Freelance Labs, and Freelance Labs does not, in any way, supervise, direct, or control the Agency or Agency Member or services performed by the Agency or Agency Member; (v) Freelance Labs does not, in any way, supervise, direct, or control the Agency or Agency Members; (w) Freelance Labs 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) Freelance Labs does not provide Agencies or Agency Members with training or any equipment, labor, tools, or materials needed for any Project; (y) Freelance Labs does not provide the premises at which the Agency or Agency Members will perform the work; and (z) Freelance Labs 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 Freelance Labs disclaims any and all liability relating thereto.
Nothing in this Agreement is intended to prohibit, limit or discourage (nor should be construed as prohibiting, limiting 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.
2.2 TAXES AND BENEFITS
Freelancer acknowledges and agrees that Freelancer is solely responsible (a) for all tax liability associated with payments received through the Site, and that Freelance Labs 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 Freelance Labs; (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 Freelance Labs is required by applicable law to withhold any amount of the Freelancer Fees and for notifying Freelance Labs of any such requirement and indemnifying Freelance Labs for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Freelance Labs, Freelancer agrees to promptly cooperate with Freelance Labs and provide copies of Freelancer’s tax returns and other documents as may be reasonably requested for purposes of such audit, at its own expense, including but not limited to records showing Freelancer is engaging in an independent business as represented to Freelance Labs.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request Freelance Labs to publish on their behalf information on the Site about the User, such as feedback, composite feedback, and/or geographical location, identity or credentials. However, such information is based solely on unverified data that Freelancers or Clients voluntarily submit to Freelance Labs and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Freelance Labs; Freelance Labs 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 Freelance Labs 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 Freelance Labs 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 Freelance Labs will make Composite Information available to other Users, including composite or compiled feedback. Freelance Labs provides its feedback system as a means through which Users can share their opinions of other Users publicly, and Freelance Labs 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 in violation of applicable laws.
Freelance Labs does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content if such User Content is legally actionable or defamatory. Freelance Labs is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Freelance Labs reserves the right (but is under no obligation) to remove posted feedback or information that, in Freelance Labs’s sole judgment, violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of Freelance Labs. You acknowledge and agree that you will notify Freelance Labs of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, Freelance Labs may rely on the accuracy of such information.
2. PURPOSE OF FREELANCE LABS
Section 3 discusses the relationship you may decide to enter into with another User, including Service Contracts between Users, as detailed below.
3.1 PROJECT TERMS
If a Client and Freelancer decide to enter into a Project, the Project is a contractual relationship directly between the Client and Freelancer. Client and Freelancer have complete discretion both with regard to whether to enter into a Project with each other and with regard to the terms of any ProjectYou acknowledge, agree, and understand that Freelance Labs is not a party to any Project that the formation of a Project between Users will not, under any circumstance, create an employment or other service relationship between Freelance Labs and any Freelancer or a partnership or joint venture between Freelance Labs and any User.
With respect to any Project, Clients and Freelancers may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Freelance Labs’s rights and obligations under the Terms of Service and the applicable Escrow Instructions.
3.2 DISPUTES AMONG USERS
For disputes arising between Clients and Freelancers, you agree to abide by the dispute process that is explained in the Escrow Instructions that apply to your particular Project. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that Freelance Labs will not and is not obligated to provide any dispute assistance beyond what is provided in the Escrow Instructions.
If Freelancer or Client intends to obtain an order from any arbitrator or any court that might direct Freelance Labs or our Affiliates to take or refrain from taking any action with respect to an Escrow Account, that party will (a) give us at least fifteen (15) business days’ prior notice of the hearing; (b) include in any such order a provision that, as a precondition to obligation affecting Freelance Labs or we be paid in full for any amounts to which we would otherwise be entitled; and (c) be paid for the reasonable value of the services to be rendered pursuant to such order.
3.3 CONFIDENTIAL INFORMATION
If and to the extent that the Users do not articulate any different agreement, then they agree that this Section 3.3 (Confidentiality) applies to each Project agreed to by Users.
To the extent a User provides Confidential Information to the other, the recipient will take all reasonable steps to protect the confidentiality , and avoid the disclosure of, the disclosing party’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
3.4 THIRD-PARTY BENEFICIARIES
It is the intent of the Parties to this Agreement that Users who have entered into Projector disclosed or received Confidential Information to another User are third-party beneficiaries of this Agreement with respect to this Section 3 only.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND FREELANCER
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Freelance Labs and a User.
Client is solely responsible for and has complete discretion with regard to selection of any Freelancer for any Project. Client is solely responsible, warrants its decisions regarding classification are correct, and assumes all liability, for determining whether Freelancers should be engaged as independent contractors or employees of Client and engaging them accordingly; Freelance Labs will have no input into, or involvement in, worker classification as between Client and Freelancer and Users agree that Freelance Labs has no involvement in and will have no liability arising from or relating to the classification of a Freelancer generally or with regard to a particular Project.
4. WORKER CLASSIFICATION
Section 5 describes what fees you agree to pay to Freelance Labs in exchange for Freelance Labs providing the Site and Site Services to you and what taxes Freelance Labs may collect, as detailed below.
5.1 SERVICE FEES FOR FREELANCERS
To receive payments through the Site, Freelancers will need to establish a payment account with Stripe, a third party payment processor, and provide Freelancer’s bank account and social security/employer identification number and other requested information to create a connected payment account (“Connected Account”). Freelancer must agree to the Stripe Connected Account Agreement, which incorporates the Stripe Services Agreement, as modified by Stripe from time to time. Freelancer must agree to receive both credit card, debit card and ACH payments through Stripe. As a condition of enabling payment-processing services through Stripe, you agree to provide accurate and complete information about you and your business, and you authorize Freelance Labs to share it and transaction information related to your use of the payment processing services provided by Stripe.
All payments processed through Stripe are subject to deduction of Stripe’s payment processing fee in effect at the time of the transaction.
5.4 CLIENT PLATFORM FEES
All payments processed through the Site shall be subject to a Service Fee over and above the transaction amount agreed to between Freelancer and Client. he amount charged by Freelance Labs, calculated as a percentage of the fees to be paid by Client for each transaction paid through the Platform. The Service Fee shall be calculated in accordance with the Fee Schedule in effect at the time of the payment. Freelance Labs reserves the right to modify the Fee Schedule at any time, in its sole and absolute discretion.
5.5 VAT AND OTHER TAXES
Freelance Labs may be required by applicable law to collect taxes or levies including, without limitation, withholding income tax or VAT (while some countries may refer to VAT using other terms, e.g. GST, we’ll just refer to VAT, GST and any local sales taxes collectively as “VAT”) in the jurisdiction of the Freelancer (the "Taxes"). In such instances, any amounts Freelance Labs is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Freelance Labs under the Terms of Service.
5.6 NO FEE FOR INTRODUCING OR FOR FINDING PROJECTS
Freelance Labs does not introduce Clients to Freelancers and does not help Freelancers secure Projects. Freelance Labs merely makes the Site and Site Services available to enable Freelancers to do so themselves and may from time to time highlight Projects that may be of interest. Therefore, Freelance Labs does not charge a fee when a Freelancer finds a suitable Client or finds a Project. In addition, Freelance Labs does not charge any fee or dues for posting public feedback and composite or compiled feedback, including Composite Information.
5. FREELANCE LABS FEES
For Hourly Contracts, Freelancer will invoice Client on a weekly basis through Freelance Labs, and Client will pay invoices consistent with the Hourly Escrow Instructions. For Fixed-Price Contracts, Client becomes obligated to fund escrow immediately upon sending a Fixed-Price Contract offer (for the full amount or for the first milestone, if milestones are used) or upon activating any additional milestone.
Client acknowledges and agrees that for both Hourly Contracts and Fixed-Price Contracts failure to decline or dispute an Hourly Invoice or request for payment is an authorization and instruction to release payment, as described more fully in the applicable Escrow Instructions. When Client authorizes the payment of the Freelancer Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs Freelance Labs to charge Client’s Payment Method for the Freelancer Fees. When Client approves an Hourly Invoice for an Hourly Contract, Client automatically and irrevocably authorizes and instructs Freelance Labs to charge Client’s Payment Method for the Freelancer Fees.
6.1 DISBURSEMENTS TO FREELANCERS
Under the relevant Escrow Instructions, Freelance Labs Escrow disburses funds that are available and payable to a Freelancer upon Freelancer’s request. A Freelancer can request disbursement of available funds any time on a one-time basis or by setting up an automatic disbursement schedule. If Freelancer does not request a disbursement, Freelance Labs will automatically disburse available funds no more than 90 days after the Freelancer Fees are released to the Freelancer Escrow Account, unless the amount in the Escrow Account is less than the Minimum Threshold. For purposes of the Terms of Service, a “Minimum Threshold” is either (a) $100 for Freelancers within the United States, or (b) $1,000 for Freelancers outside the United States. When the funds in the Freelancer Escrow Account are below the Minimum Threshold, the automatic disbursement schedule is paused and the available and payable funds are released on the earlier of (i) Freelancer’s request, or (ii) on the first scheduled automatic disbursement occurring after the amount exceeds the Minimum Threshold or 180 days after the funds are available in the Freelancer Escrow Account.
For Hourly Contracts, Freelancer Fees become available to Freelancers following the expiration of the dispute period and the five-day security period. For Fixed-Price Contracts, the Freelancer Fees become available to Freelancers following the expiration of the five-day security period after the funds are released. The security period begins after Client accepts and approves work submitted by Freelancer.
Notwithstanding any other provision of the Terms of Service or the Escrow Instructions, and except as prohibited by applicable law, if we believe, in our sole discretion, that you have violated the conditions and restrictions of the Terms of Service, including by committing or attempting to commit fraud or other illicit acts on or through the Site, Freelance Labs Escrow may refuse to process or may hold the disbursement of the Freelancer Fees and take such other actions with respect to the Escrow Account as we deem appropriate in our sole discretion and in accordance with applicable law. Without limiting the foregoing, Freelance Labs Escrow, in its sole discretion and to the extent permitted by applicable law, may also refuse to process or may hold the disbursement of the Freelancer Fees or any other amounts and offset amounts owed to us if: (a) we require additional information, such as Freelancer’s tax information, government-issued identification or other proof of identity, address, or date of birth; (b) we have reason to believe the Freelancer Fees may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement; or (e) we deem it necessary in connection with any investigation or required by applicable law. If, after investigation, we determine that the hold on the disbursement of the Freelancer Fees is no longer necessary, Freelance Labs Escrow will release such hold as soon as practicable.
In addition, notwithstanding any other provision of the Terms of Service or the Escrow Instructions and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or Project; (ii) discover erroneous or duplicate transactions; or (iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Client if you are a Freelancer, despite our provision of the Site Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by instructing Freelance Labs Escrow to (and Freelance Labs Escrow will have the right to) charge the applicable Escrow Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Site and Site Services and close your Account, including access to all associated Agency accounts.
If Client is in “default”, meaning the Client fails to pay the Freelancer Fees or any other amounts when due under the Terms of Service, Freelance Labs will be entitled to the remedies described in this Section 6.4 in addition to such other remedies that may be available under applicable law. For the avoidance of doubt, Client will be deemed to be in default on the earliest occurrence of any of the following: (a) Client fails to pay the Freelancer Fees when due, (b) Client fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days, an account current after a credit or debit card is declined or expires, (c) Client fails to pay an invoice issued to the Client by Freelance Labs within the time period agreed or, if none, within 30 days, (d) Client initiates a chargeback with a bank or other financial institution resulting in a charge made by Freelance Labs for Freelancer Fees or such other amount due being reversed to the Client, or (e) Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s account.
If Client is in default, Freelance Labs may, without notice, temporarily or permanently close Client’s Account and revoke Client’s access to the Site and Site Services, including Client’s authority to use the Site to process any additional payments, open and agreed upon any Projects, or obtain any additional Freelancer Services from other Users through the Site. However, Client will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on the Client’s Account as a result of the default. Without limiting other available remedies, Client must pay Freelance Labs upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
Freelance Labs or Freelance Labs Escrow, at our discretion and to the extent permitted by applicable law, may set off amounts due against other amounts received from Client or held by Freelance Labs or Freelance Labs Escrow for Client and/or make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
6.3 NO RETURN OF FUNDS
Client acknowledges and agrees that Freelance Labs Escrow will charge Client’s designated Payment Method for the Freelancer Fees incurred as described in the applicable Escrow Instructions and that once Freelance Labs Escrow charges or debits the Client’s designated Payment Method for the Freelancer Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client shall not initiate a request with its credit card company, bank, or other Payment Method provider to charge back any Freelancer Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that Freelance Labs or Freelance Labs Escrow may dispute or appeal the chargeback and institute collection action against Client and take such other action it deems appropriate.
6.4 PAYMENT METHODS
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes Freelance Labs to process the applicable charges associated with a Freelancer’s invoice and corresponding Service Fees pursuant to the Payment Method designated by Client on the Site. By providing Payment Method information through the Site and authorizing payments with the Payment Method, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to make payments using the Payment Method(s); (c) if Client is an employee or agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on Freelance Labs; and (d) such actions do not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
Because the use of any Payment Method may be limited by applicable law or by written agreement with your financial institution, Freelance Labs is not liable to any User if Freelance Labs does not complete a transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. Freelance Labs will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement and any applicable Escrow Instructions.
6. CLIENT PAYMENTS ON SERVICE CONTRACTS
Section 8 discusses your agreement to make and keep all required records, as detailed below.
Users will each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) provide copies of such records to Freelance Labs upon request. Nothing in this subsection requires or will be construed as requiring Freelance Labs to supervise or monitor a User’s compliance with this Agreement.. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on Freelance Labs’s part to store, backup, retain, or grant access to any information or data for any period.
8. RECORDS OF COMPLIANCE
Section 9 discusses your agreement and understanding that the Site and Site Services may not always be available or work perfectly, as detailed below.
THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. FREELANCE LABS MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, USER CONTENT, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FREELANCE LABS DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 14 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST FREELANCE LABS WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
9. WARRANTY DISCLAIMER
Section 10 discusses your agreement that Freelance Labs usually will not have to pay you damages relating to your use of the Site and Site Services and, if it is, at most it will be required to pay you $2,500, as detailed below.
Freelance Labs is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Site, Site Services and/or this Terms of Service, including, but not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL FREELANCE LABS, ITS PARENTS, SUBSIDIARIES, EMPLOYEES, OFFICERS, AGENTS, ATTORNEYS AFFILIATES, LICENSORS, OR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF FREELANCE LABS, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY FREELANCE LABS WITH RESPECT TO ANY PROJECT ON WHICH USER WAS INVOLVED AS CLIENT OR FREELANCER DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
10. LIMITATION OF LIABILITY
Section 11 discusses your agreement not to hold us responsible for any dispute you may have with another User, as detailed below.
In addition to the recognition that Freelance Labs is not a party to any contract between Users, you hereby release Freelance Labs, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Freelancer Services provided to Client by a Freelancer and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Escrow Instructions.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
This release will not apply to a direct claim by a User against Freelance Labs that it has failed to meet its obligations under this Agreement.
Section 12 discusses your agreement to pay for any costs or losses we have as a result of a claim brought against us related to your use of the Site or Site Services or your illegal or harmful conduct, as detailed below.
You will indemnify, defend, and hold harmless Freelance Labs, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to or arising out of: (a) the use of the Site and the Site Services by you or your agents, including any payment obligations or default (described in Section 6.4 (Non-Payment)) incurred through use of the Site Services; (b) any Project agreed upon between you, your agents and any User, (c) the classification of Freelance Labs as an employer or joint employer of any Freelancer, including, but not limited to any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (d) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 12, your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password.
Section 13 discusses your and Freelance Labs’s agreement about when and how long this Agreement will last, when and how either you or Freelance Labs can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
Unless both you and Freelance Labs expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other,.You may provide written notice to email@example.com. In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. Freelance Labs is not a party to any Service Contract between Users. Consequently, User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Project entered into between Users. If you attempt to terminate this Agreement while having one or more open Projects, (a)you shall be bound by this Agreement until all open Projects have closed on the Site; (b) Freelance Labs will continue to perform those Site Services necessary to complete any open Project or related transaction between you and another User; and (c) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Projects, whichever is later, to Freelance Labs pursuant to the terms of this Agreement.Without limiting Freelance Labs’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Freelance Labs or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without Freelance Labs’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF FREELANCE LABS DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, FREELANCE LABS HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS,. YOU AGREE THAT FREELANCE LABS WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY USER REGARDING CLOSED ACCOUNT STATUS.
13.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Site. Any closure of your Account may involve deletion of any content stored in your Account for which Freelance Labs will have no liability whatsoever. Freelance Labs, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement terminates, the terms that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect, including, but not limited to, arbitration, audits, indemnification, payment of fees and reimbursement, limitation of liability, governing law, each, by their nature, contemplate performance or observance after this Agreement terminates. he termination of this Agreement for any reason will not release you or Freelance Labs from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
13. AGREEMENT TERM AND TERMINATION
Section 14 discusses your agreement with Freelance Labs and our agreement with you about how we will resolve any disputes, including that we will both first try to resolve any dispute informally and, if you are in the United States, that we both agree to use arbitration instead of going to court or using a jury if we can’t resolve the dispute informally, as detailed below.
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and Freelance Labs or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 14.4.4 below, you, Freelance Labs, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, your relationship with Freelance Labs (including without limitation any claimed employment with Freelance Labs or one of our Affiliates or successors), the termination of your relationship with Freelance Labs, or the Site or Site Services (each, a “Claim”) in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”).
Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Site, Site Services, any Project, escrow payments or agreements, any payments or monies you claim are due to you from Freelance Labs or our Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination, retaliation or harassment and claims arising under the Defend Trade Secrets Act of 2016, Civil Rights Act of 1964, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, Civil Rights Act of 1991, the Pregnancy Discrimination Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with Freelance Labs or the termination of that relationship.
Disputes between the parties that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Agreement.
14.2 CHOICE OF LAW
14.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and Freelance Labs agree to first notify each other of the Claim. You agree to notify Freelance Labs of the Claim at Attn: Legal, PO BOX 471234 San Francisco CA 94147 or by email to firstname.lastname@example.org, and Freelance Labs agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Freelance Labs then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or Freelance Labs, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Freelance Labs will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
14.4 BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, the dispute shall be settled by binding arbitration administered:
a. Within the U.S.: By the American Arbitration Association in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Federal Arbitration Act shall govern the interpretation and enforcement of this Agreement. The AAA’s rules, as well as forms for initiating arbitration proceedings, are available at www.adr.org.
b. Outside the U.S.: By the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The rules, as well as forms for initiating arbitration proceedings, are available at www.icdr.org.
ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ON AN INDIVIDUAL BASIS ONLY. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE OR JOIN A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION, OR TO CONSOLIDATE THEIR ARBITRATION WITH OTHER ARBITRATIONS. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JUDGE OR JURY. IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE.
14.4.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
In any arbitration under this Section, the Freelancer will pay the arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, with Freelance Labs to make up the difference, if any. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between Freelance Labs and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth in Section 14.4.4, below. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section 14 unless all parties to that arbitration consent in writing to that amendment.
This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits.
Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Freelance Labs will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
14.4.2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and Freelance Labs agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
14.4.3. CLASS AND COLLECTIVE WAIVER
Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects your ability to participate in class or collective actions. Both you and Freelance Labs agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the AAA rules, disputes regarding the enforceability, revocability, scope, or validity or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. However, Freelance Labs may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
14.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
You may opt out of the Arbitration Provision contained in this Section 14 by notifying Freelance Labs in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to Freelance Labs at Attn: Legal, PO BOX 471234 San Francisco, CA 94147 that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement indicating that you wish to opt out of the Arbitration Provision. Alternatively, you may send this written notification to email@example.com. Opting out of this Arbitration Provision will not affect any other terms of this Agreement.
If you do not opt out as provided in this Section 14.4.4, continuing your relationship with Freelance Labs constitutes mutual acceptance of the terms of this Arbitration Provision by you and Freelance Labs. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.
14.4.5. Enforcement of this Arbitration Provision
This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, above, is deemed to be unenforceable, you and Freelance Labs agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
14. DISPUTES BETWEEN YOU AND FREELANCE LABS
Section 15 discusses additional terms of the agreement between you and Freelance Labs, it will be interpreted and applied, and your agreement not to access the Site from certain locations, as detailed below.
15.1 ENTIRE AGREEMENT
This Agreement sets forth the entire agreement and understanding between you and Freelance Labs relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings i are included for ease of reference only and have no binding effect.
15.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon Freelance Labs unless in a written instrument signed by a duly authorized representative of Freelance Labs or posted on the Site by Freelance Labs. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Freelance Labs’s prior written consent in the form of a written instrument signed by a duly authorized representative of Freelance Labs. Freelance Labs may freely assign this Agreement without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
15.5 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, denial of service attacks, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
15.6 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States.
15.7 ACCESS OF THE SITE OUTSIDE THE UNITED STATES
Freelance Labs makes no representations that the Site is appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.
In order to access or use the Site or Site Services, you must and hereby represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.
15.8 CONSENT TO USE ELECTRONIC RECORDS
Section 16 gives you some definitions of capitalized terms that appear in the Terms of Service but other capitalized terms are defined above, which you can tell because the term is put in quotation marks and bold font.
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that is known to the public or that: (a) is generally known by third parties as a result of no act or omission of Freelancer or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Escrow Account” means Client Escrow Account, Freelancer Escrow Account, or Fixed-Price Escrow Account.
“Escrow Instructions” means the Fixed-Price Escrow Instructions or the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions.
“Fixed-Price Contract” means a Project for which Client is charged a fixed fee agreed between a Client and a Freelancer, prior to the commencement of a Project, for the completion of all Freelancer Services contracted by Client.
“Freelancer Fees” means: (a) for an Hourly Contract, the amount reflected in the Hourly Invoice (the number of hours invoiced by Freelancer, multiplied by the hourly rate charged by Freelancer); (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Freelancer; and (c) any bonuses or other payments made by a Client to a Freelancer.
“Hourly Contract” means a Project for which Client is charged based on the hourly rate charged by Freelancer.
“Hourly Invoice” means the report of hours invoiced for a stated period by a Freelancer for Freelancer Services performed for a Client.
The term “including” as used herein means including without limitation.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to Freelance Labs, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Freelance Labs may accept from time to time in our sole discretion.
“Project” means an engagement for Freelancer Services, the terms of which have been agreed upon by Client and Freelancer.the Site.
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Freelance Labs App” means the online platform accessed using Freelance Labs’s downloaded application or other software that enables time tracking and invoicing, chat, and screenshot sharing with other Users.
“Work Product” means any tangible or intangible results or deliverables that Freelancer agrees to create for, or actually delivers to, Client as a result of performing the Freelancer Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.
“Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Freelance Labs.
“Client” means any authorized User utilizing the Site to seek and/or obtain Freelancer Services from another User.
“Freelancer” means any authorized User utilizing the Site to advertise and/or provide Freelancer Services to Clients, including Freelancer Accounts that are Agency Accounts or, if applicable, Agency Members. A Freelancer is a customer of Freelance Labs with respect to use of the Site and Site services.
“Freelancer Services” means any services provided by Freelancers.
“Public Site Services” means, collectively, all services, applications and products that are accessible by any Site Visitor who has not become an User through the Site, to the extent they are accessible by a Site Visitor who has not become a User.
“Site” means, collectively, our website located at www.usebraintrust.com, all affiliated websites, including mobile websites and Freelance Labs Mobile Applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (defined in the User Agreement).
“Site Services” means, collectively, all services (except the Freelancer Services defined herein), applications and products that are accessible through the Site, including the Public Site Services, and all Freelance Labs Mobile Applications.
“Freelance Labs Mobile Applications” means all mobile applications published by Freelance Labs or our Affiliates for access to or use of the Site or any Site Services.
“User Content” means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other information that you or any Site Visitor or User post to any part of the Site or provide to Freelance Labs, including such information that is posted as a result of questions.
“You”means any person who accesses our Site, including a Site Visitor or User and including any entity or agency on whose behalf any such person accesses or uses our Site.
17.1 Freelance Labs’S PROVISION OF THE SITE AND LIMITED SITE LICENSE
Section 2.1 discusses the rights we give to you to allow you to use the Site, as detailed below:
As we describe in this Section 2.1, Freelance Labs grants you a limited, non-exclusive, revocable license to access and use the Site and Site Services.
17.2 TERMINATION OF THE LIMITED SITE LICENSE
Section 2.2 explains that we can stop allowing you to use the Site, as detailed below:
Freelance Labs may terminate any license it has granted to any Site Visitor or User to access the Site and Site Services by providing notice, and the termination of such license shall be effective immediately upon Freelance Labs providing such notice.
17.3 Freelance Labs'S INTELLECTUAL PROPERTY
Section 2.3 explains that even though we let you use the Site, we still retain all our rights, as detailed below:
Freelance Labs and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The Freelance Labs logos and names are trademarks of Freelance Labs and are registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners.
Nothing in the Terms of Service grants you a right to use any Freelance Labs Marks.
17.4 YOUR INTELLECTUAL PROPERTY
17.4.1 YOUR OBLIGATIONS AND YOUR INDEMNIFICATION OF FREELANCE LABS
Section 2.4.1 explains that you are solely responsible for your use of the Site and any content you post on the Site, and that if someone makes a claim against Freelance Labs because of your content that you will pay Freelance Labs for our fees and expenses, as detailed below:
When you post User Content on the Site or through the Site Services or provide Freelance Labs with User Content, you understand and acknowledge that you are solely responsible for such User Content. Further, you represent and warrant that you have the right, power, and authority to (a) post that User Content without violating the rights of third parties, and (b) grant the licenses specified below.
You acknowledge and agree that the poster of User Content, and not Freelance Labs, is responsible for any User Content including any harms caused to you, another User, or a third party by such User Content.
You will indemnify, defend, and hold harmless Freelance Labs, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to or arising out of any User Content you post.
17.4.2 YOUR RIGHTS AND LICENSE TO FREELANCE LABS AND OTHER SITE VISITORS
Section 2.4.2 explains that by posting content on the Site, you give others certain limited rights to that content, as detailed below:
17.4.3 YOUR COMMENTS AND IDEAS
Section 2.4.3 explains when you can and what happens if you send your ideas to Freelance Labs, as detailed below:
Freelance Labs consider any suggestions, ideas, proposals or other comments or materials submitted by Client and its Authorized Users, whether solicited or unsolicited, (collectively, the "Ideas") to be non-confidential and non-proprietary. We shall not be liable for the disclosure, use or exploitation of such Ideas. You hereby grant to Freelance Labs a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and transferable right and license to incorporate, use, publish and exploit the Feedback for any purpose whatsoever, commercial or otherwise, without compensation or accounting.
17.5 THIRD-PARTY INTELLECTUAL PROPERTY
Section 2.5 explains that third parties, including other Users, are responsible for content posted or linked on the Site, as detailed below:
Any information or content expressed or made available by a third party or any other Site Visitor or User is that of the respective author(s) or distributor(s) and not of Freelance Labs. Freelance Labs neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than Freelance Labs’s authorized agents acting in their official capacities.
The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites or applications are owned and operated by the third parties and/or their licensors. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website accessed via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
17.6 COMPLAINTS ABOUT COPYRIGHTED CONTENT ON THE SITE
Section 2.6 explains what to do if you think content on the Site infringes your rights, as detailed below:
Freelance Labs is committed to complying with U.S. copyright and related laws and requires all Site Visitors and Users to comply with these laws. Accordingly, you may not use the Site to store any material or content, or disseminate any material or content, in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by U.S. copyright law.
If you are the owner of any copyrighted work and believe your rights under U.S. copyright law have been infringed by any material on the Site, you may take advantage of certain provisions of the Digital Millennium Copyright Act (the "DMCA") by complying with Freelance Labs’s Proprietary Rights Infringement Reporting Procedures.
17. LICENSES AND THIRD-PARTY CONTENT
Section 3 explains how you are allowed to use the Site, as detailed below:
Freelance Labs offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. Freelance Labs makes the Site and Site Services available for Users to find one another, enter into service relationships, make and receive payments through escrow, and receive and provide Freelancer Services. In addition, certain Visitor Site Services, such as the Freelance Labs Blog and Hiring Headquarters, provide, and may be used to obtain, general information and articles that we believe may be of interest to Site Visitors and Users. While we try to ensure that any information we post is both timely and accurate, errors may appear from time to time. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY INFORMATION THAT IS POSTED ON THE SITE BY US OR ANYONE ELSE. IN NO EVENT SHOULD ANY CONTENT BE RELIED ON OR CONSTRUED AS TAX OR LEGAL ADVICE OR OTHERWISE. YOU SHOULD INDEPENDENTLY VERIFY THE ACCURACY OF ANY CONTENT.
18. PERMITTED SITE USES
Section 4 explains uses of the Site that are not allowed, as detailed below:
You may not use, or encourage, promote, facilitate, instruct or induce others to use, the Site or Site Services for any activities that violate any law, statute, ordinance or regulation; for any other illegal or fraudulent purpose or any purpose that is harmful to others; or to transmit, store, display, distribute or otherwise make available content that is illegal, fraudulent or harmful to others.
19.1 PROHIBITED USES OF THE SITE
- In your use of the Site and Site Services, Users are prohibited from: Seeking, offering, promoting, or endorsing and services, content, or activities that:
19. PROHIBITED SITE USES
- are defamatory, illegal, profane, vulgar, threatening, unlawfully discriminatory, illegal, pornographic, obscene, or sexually explicit in nature;
- would violate the intellectual property rights, such as and including copyrights, of another person, entity, service, product, or website;
- would violate Freelance Labs’s Terms of Service; regard the creation, publication, distribution of “fake news”, “hoax news” or similar false content purposefully intended to mislead readers for financial or other gain;
- regard or promote in any way any escort services, prostitution, or sexual acts; or
- are harassing toward another person based on the person's inclusion in a protected class as defined by applicable law;
19.3 REPORTING AND CORRECTING VIOLATIONS
19.4 COMPLAINTS - CALIFORNIA RESIDENTS
If you are a California resident, in accordance with California Civil Code Section 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Affairs of the California Department of Consumer Affairs by contacting them in writing at: 400 R Street, Sacramento, California 95814, or by telephone at (800) 952-5210.
- Fraudulent or misleading uses or content, including:
- Fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the Freelance Labs App, (ii) reporting, recording, or otherwise billing Clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;
- Misrepresenting your experience, skills, or information, including by representing another person’s profile, or parts of another person’s profile, as your own;
- Using a profile photo that misrepresents your identity or represents you as someone else;
- Impersonating any person or entity, including, but not limited to, an Freelance Labs representative, forum leader, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
- Falsely stating or implying a relationship with another User, including an Agency continuing to use a Freelancer’s profile or information after the Freelancer no longer works with the Agency;
- Falsely attributing statements to any Freelance Labs representative, forum leader, guide or host;
- Falsely stating or implying a relationship with Freelance Labs or with another company with whom you do not have a relationship;
- Allowing another person to use your account, which is misleading to other Users; or
- Falsely stating that one Freelancer will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Freelancer that is unable, unwilling, or unavailable to do the work;
- Expressing an unlawful preference in a job post or proposal or otherwise unlawfully discriminating on a protected basis;
- Posting identifying information concerning another person;
- Spamming other Users with proposals or invitations or posting the same job multiple times so that more than one version remains active at a given time;
- Making or demanding bribes or other payments without the intention of providing services in exchange for the payment;
- Requesting or demanding free services, including requesting Freelancers to submit work as part of the proposal process for very little or no money or posting contests in which Freelancers submit work with no or very little pay, and only the winning submission is paid the full amount;
- Requesting a fee before allowing a User to submit a proposal;
- Attempting to or actually manipulating or misusing the feedback system, including by:
- withholding payment or Work Product or engaging in any other conduct for the purpose of obtaining positive feedback from another User;
- attempting to coerce another User by threatening to give negative feedback;
- expressing views unrelated to the work, such as political, religious, or social commentary, in the feedback system; or
- offering services for the sole purpose of obtaining positive feedback of any kind;
- Duplicating or sharing accounts;
- Selling, trading, or giving an account to another person without Freelance Labs’s consent;
- Sharing or soliciting contact information, such as email, phone number, or Skype ID, in a profile or job post;
- Directly or indirectly, advertising or promoting another website, product, or service or soliciting other Users for other websites, products, or services, including advertising on Freelance Labs to recruit Freelancers and/or Clients to join an Agency or another website or company;
- Conduct or actions that could jeopardize the integrity of or circumvent the Site, Site Services or Freelance Labs's proprietary information, including
- Interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site;
- Bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
- Attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site;
- Using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission;
- Attempting to or interfering with or compromising the system integrity or security or deciphering any transmissions to or from the servers running the Site;
- Collecting or harvesting any personally identifiable information, including Account names, from the Site;
- Attempting to or imposing an unreasonable or disproportionately large load (as determined in Freelance Labs’s sole discretion) on the Site’s infrastructure; Introducing any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site that is designed to or known to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any software, firmware, hardware, computer system, or network of Freelance Labs or any third party;
- Accessing or attempting to access the Site or Site Services by any means or technology other than the interface provided; or
- Framing or linking to the Site or Site Services except as permitted in writing by Freelance Labs
- Attempting to or actually reverse engineering, modifying, adapting, translating, preparing derivative works from, decompiling, interfering with the operation of, or otherwise attempting to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law or Freelance Labs; or
- Accessing or using the Site or Site Services to build a similar service or application, identify or solicit Freelance Labs Users, or publish any performance or any benchmark test or analysis relating to the Site.
Subject to the conditions set forth herein, Freelance Labs may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site. Freelance Labs will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. If the Substantial Change includes an increase to Fees charged by Freelance Labs, Freelance Labs will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).
20. AMENDMENTS TO THIS TERMS OF SERVICE