1. THE FREELANCETARGET PLATFORM.
1.1 Purpose of the FreelanceTarget Platform.
The FreelanceTarget Platform enables Users to buy and sell Services online. Clients post jobs and invite Contractors to apply. Contractors post profiles and bid on jobs. If a Client and Contractor agree to a contract on the Site, a Service Contract is formed directly between such Client and Contractor subject to the terms specified in Section 3 (Service Contract Terms Between Client and Contractor). FreelanceTarget collects payment from the Client on behalf of the Contractor.
The FreelanceTarget Platform is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. User agrees that User is not (a) a citizen or resident of a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region 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's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's 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.
2. FREELANCETARGET GENERAL USER POLICIES
2.1 FreelanceTarget Fees.
FreelanceTarget charges Contractors a fee for services and technology including but not limited to maintaining the FreelanceTarget Platform and collecting amounts owed by Clients and remitting them to Contractors. Typically, this fee is equal to 10% of Client’s payments, plus a fee for withdrawals.
2.2 General User Obligations.
FreelanceTarget has created a marketplace to connect Clients and Contractors using the FreelanceTarget Platform. FreelanceTarget is not a service company and does not provide Services or manage individual Contractors or their work, in any manner. You will not access (or attempt to access) the Site by any means other than the interface provided, and you will not use information from the Site for any purpose other than the purpose for which it was made available. You will not engage in any activity that interferes with or disrupts the functioning of the Site. You will not upload or attach an invalid or malicious or unknown file. You will not insert any external links that may be malicious or unknown to you, or used for offering any goods or services other than Services. You will not run (a) any sort of “spider,” “crawler”, auto-responder or spam on the Site, (b) any automated means to access or collect any information from the Site, or (c) any processes that run or are activated while you are not logged in.
2.3 Identity and Account Security.
FreelanceTarget reserves the right to validate User information at any time, including but not limited to validation against third party databases or the verification of one or more official government or legal documents that confirm the User's identity. You authorize FreelanceTarget, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial instruments. Failure to provide information about you and your business when requested is a violation of this Agreement. The User is solely responsible for ensuring and maintaining the secrecy and security of the User’s FreelanceTarget account password. User agrees not to disclose this password to any third party and shall be solely responsible for any use of or action taken through the use of such password on FreelanceTarget. You must notify FreelanceTarget Support immediately if you suspect that your password has been lost or stolen. By using your FreelanceTarget User account, you acknowledge and agree the FreelanceTarget’s account security procedures are commercially reasonable.
2.4 Disbursements to Contractors
FreelanceTarget will automatically disburse funds to Contractors according to the payment instructions on file with FreelanceTarget no more than one month after funds become payable (or within six months, for amounts less than $100). Funds become payable to Contractors working on Hourly Contracts following the expiration of the dispute period and the security period associated with each work week. Funds become payable to Contractors working on Fixed Price Contracts after Clients accept work submitted by a Contractor. Clients retain the ability to change the terms of a Fixed Price Contract, including the amount of money owed on a Fixed Price Contract, until they accept the work. Contractors may ask FreelanceTarget to expedite payments. FreelanceTarget reserves the right to refuse any such request and may assess a processing fee in connection with such a request.
Client shall make all payments relating to, or in any way connected with, a Service Contract (including, without limitation, bonuses) through the FreelanceTarget Platform. Any action that encourages or solicits complete or partial payment outside of the FreelanceTarget Platform is a violation of this Agreement. Should a Client be found in violation of this section of this Agreement, it will owe FreelanceTarget an amount with respect to each Service Contract equal to the greater of a) $2,500; or b) the applicable fees had the payments been processed through the FreelanceTarget Platform, plus 18%.
Notwithstanding the provisions set forth above, Users may agree to provide or receive Services outside of the FreelanceTarget Platform with Users identified through FreelanceTarget. If the Services are rendered more than three (3) years after the Client identifies the Contractor through FreelanceTarget, no FreelanceTarget Fees or buyout provisions apply. If Services are rendered outside of FreelanceTarget less than three (3) years after the Client identifies the Contractor through FreelanceTarget, payments for such Services will not be subject to the FreelanceTarget Fees, provided that the Client pays FreelanceTarget a "Buy-Out" amount in accordance with the procedure set forth below:
If Client fails to pay amounts due under this Agreement, whether by cancelling Client’s credit card, initiating an improper chargeback, or any other means, Client’s FreelanceTarget account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. Without limiting other available remedies, Client must reimburse FreelanceTarget for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, FreelanceTarget may setoff amounts due against other amounts received from or held for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
2.8 Hold on funds.
In cases of fraud, abuse or violation of this Agreement, the FreelanceTarget Payment Guarantee shall be revoked and all monies due to the Contractor may be held and/or reclaimed, not just those from the Contract(s) under investigation.
2.9 Dispute Resolution Policy.
For Hourly-Rate Contracts only, Clients may dispute hours during the dispute period following the close of a weekly invoice period. It is the Client’s responsibility to review the Work Diary and Time Log of every Service Contract on a weekly basis and to file any disputes on a timely basis. Once the dispute period has passed, the charges are accepted by the Client and can no longer be disputed and can only be refunded by the Contractor. Disputes can only address the hours billed, not the quality of the work performed or deliverables. FreelanceTarget will promptly investigate the Time Log to determine, in its sole discretion, whether an adjustment is appropriate. FreelanceTarget's determination shall be final.
2.10 Enforcement of Agreement and Policies.
FreelanceTarget has the right, but not the obligation, to suspend or cancel your access to the FreelanceTarget Platform if it believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting FreelanceTarget's other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the FreelanceTarget Platform to you if (a) you breach any terms and conditions of this Agreement or other written policies and procedures posted on the Site; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, our Users or for FreelanceTarget. Once suspended or terminated, you MAY NOT continue to use the FreelanceTarget Platform under a different account or reregister under a new account. If you attempt to use the FreelanceTarget Platform 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 outstanding. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. When your User account is canceled, you may no longer have access to any parts of the FreelanceTarget Platform, including data, messages, files and other material you keep on FreelanceTarget.
3. SERVICE CONTRACT TERMS BETWEEN CLIENT AND CONTRACTOR.
Unless otherwise agreed to in a writing signed by both Client and Contractor, the terms and conditions of the Service Contract are as set forth in Sections 3.1 through 3.12 below (“Standard Terms”). Client and Contractor may not agree to any other terms and conditions that affect the rights or responsibilities of FreelanceTarget..
Contractor shall perform Services in a professional and workmanlike manner. Under Fixed-Price Contracts, Contractor shall deliver the agreed-upon Work Product. Under Hourly-Rate Contracts, Contractor shall use reasonable efforts to create the desired Work Product.
Work performed on Hourly-Rate Contracts under a Contractor's profile must be performed by the Contractor represented. If the Contractor wishes to subcontract with third parties to perform Services on behalf of the Contractor on Hourly-Rate Contracts, the Contractor must do so as an Agency. Contractor and Agency agree and acknowledge that Agency's employees or contract personnel are not employees of FreelanceTarget or Client. Agency is solely responsible for all wages, costs, and expenses of Agency's employees or contract personnel and has the sole and exclusive right to supervise and control them. Neither Client, nor FreelanceTarget, will require Agency's contract personnel to devote full time to performing the Contracts entered into by Agency as required by this Agreement. Furthermore, both Contractor and Agency acknowledge and agree that neither it, nor any of its employees or agents, shall have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits of any kind from FreelanceTarget or Client.
Client shall pay Contractor the agreed-upon fees for time spent (under Hourly-Rate Contracts) or delivery and acceptance of the Work Product (under Fixed-Price Contracts). All amounts paid by Client shall be paid through the FreelanceTarget Platform to FreelanceTarget as the Contractor’s agent, and Client’s obligation of payment to Contractor is met when payment is made to FreelanceTarget.
3.4 Termination of a Service Contract.
Under Hourly-Rate Contracts, either party may terminate the Service Contract at any time for any or no reason. However, the Client remains obligated to pay for any time the Contractor worked prior to termination.
For Fixed-Price Contracts, the Client may terminate at any time but may not recover any payments made to the Contractor unless mutually agreeable. The Contractor may terminate a Fixed-Price Contract at any time if no payment has been made. If a payment has been made on a Fixed Price Contract, the Contractor may terminate only with written agreement from the Client or after the payment has been refunded.
3.5 Client Deliverables.
Client grants Contractor a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Deliverables as necessary for the performance of the Services. Client reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Client Deliverables. Upon completion or termination of the Service Contract, or upon written request by the Client, Contractor shall immediately return all Client Deliverables to the Client and further agrees to purge all copies of Client Deliverables and Work Product contained in or on Contractor's premises, systems, or any other equipment otherwise under Contractor's control. Contractor agrees to provide written certification to the Client certifying the return or purging of Client Deliverables within ten (10) days after the receipt of the Client’s written request to certify.
3.6 Work Product.
Any copyrightable works or works for hire prepared by Contractor in connection with a Fixed-Price Contract for Client shall be owned by the Contractor until payment has been made by the Client and accepted by the Contractor. If the Client pays an amount less than the amount agreed to in the Service Contract, the Contractor may refund the amount paid within two (2) weeks of the payment date and retain ownership of the Work Product.
For Hourly-Rate Contracts, the Client is considered the author and owner of works created once payment for the period of time in question has been made in full, assuming that all hours worked are properly tracked using the FreelanceTarget Team. Once payment has been made in accordance with the above, Contractor shall be deemed to have assigned all Proprietary Rights in the Work Product to the Client.
To the extent that under applicable law, Proprietary Rights cannot be assigned, Contractor hereby irrevocably agrees to grant, and hereby grants, to Client an exclusive (excluding also Contractor), perpetual, irrevocable, unlimited, worldwide, fully paid, and unconditional license to use and commercialize Work Product in any manner now known or in the future discovered. To the extent such license grant is not fully valid, effective or enforceable under applicable law, Contractor hereby irrevocably agrees to grant, and hereby grants, to Client, such rights as Client reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal ownership. In order to ensure that Client will be able to acquire, perfect and use such Proprietary Rights, Contractor will: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to Client, including delivery of a complete copy of the source code for any software, documented in sufficient detail to enable a reasonably skilled programmer to correct, integrate and modify it; (ii) sign any documents at Client’s request to assist Client in the documentation, perfection and enforcement of its rights; and (iii) provide Client with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Proprietary Rights. Contractor also irrevocably authorizes Client to act and sign on Contractor’s behalf and take any necessary steps in order to perfect Client’s rights under this Agreement. In the case that under applicable law, Contractor retains any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights" (collectively "Moral Rights") or other inalienable rights to Work Product or Confidential Information under this Agreement, Contractor irrevocably agrees to waive, and hereby waives, all such rights, or, to the extent Contractor cannot waive such rights, Contractor agrees not to exercise such rights, until Contractor has provided prior written notice to Client and then only in accordance with any reasonable instructions that Client issues in the interest of protecting its rights. Contractor agrees to assist Client in every proper way to obtain and enforce the Proprietary Rights and other legal protections for the Work Product in any and all countries. Contractor will sign all documents that the Client may reasonably request for use in obtaining and enforcing such protection, including, but not limited to, any assignment deed which the Client may select at its sole discretion. Contractor’s obligations under this Section 3.6 will continue even after Contractor deregisters from or ceases use of the FreelanceTarget Platform. Contractor appoints Client as Contractor’s attorney-in-fact to execute documents on Contractor’s behalf for the purposes set forth in this Section 3.6.
3.7 Pre-existing Intellectual Property in Work Product.
Contractor shall ensure that no Work Product created or delivered by Contractor includes any pre-existing software, technology or other intellectual property, whether such pre-existing intellectual property is owned by Contractor or a third party including, without limitation, code written by proprietary software companies or developers in the open source community (collectively "Pre-existing IP") without obtaining the prior written consent of the Client to the inclusion of such Pre-existing IP in the Work Product. Contractor acknowledges that, without limiting any other remedies, Contractor shall not be entitled to payment for, and shall refund to Client any payments previously made by Client to Contractor for, any Services performed on a Contract if the Work Product contains any Pre-existing IP that was not approved in accordance with this Section 3.7.
3.8 Worker classification.
Client assumes all liability for proper classification of workers as independent contractors or employees based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Client and Contractor. Contractor does not have authority to enter into written or oral — whether implied or express — contracts on behalf of Client. Contractor acknowledges that FreelanceTarget does not, in any way, supervise, direct, or control Contractor's work or Services performed in any manner. FreelanceTarget does not set Contractor's work hours and location of work. FreelanceTarget will not provide Contractor with training or any equipment, labor or materials needed for a particular Contract.
FreelanceTarget will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Client and Contractor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Contractor's performance of Services.
For Contracts classified as independent contractor relationships, Client may not require an exclusive relationship between Client and Contractor. A Contractor classified as independent contractor is free at all times to provide Services to persons or businesses other than Client, including any competitor of Client.
For Contracts classified as employer-employee relationships, Client will manage the Contract through FreelanceTarget's payrolling program, where the Contractor becomes an hourly employee of FreelanceTarget's staffing affiliate and Contractor and Client enter into appropriate additional agreements. If Client elects to not utilize this program, Client and Contractor shall be solely responsible for all obligations for tax withholding, the payment of taxes and/or providing the benefits associated with any employment relationship.
Client and Contractor agree to indemnify, hold harmless and defend FreelanceTarget from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Contractor was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Contractor was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney's fees), any claim that FreelanceTarget was an employer or joint employer of Contractor, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.
3.9 Audit Rights
Client and Contractor each shall (i) create and maintain records to document satisfaction of its obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to FreelanceTarget upon request. FreelanceTarget, or FreelanceTarget's advisors or agents, shall have the right, but not the obligation, to routinely, but no less frequently than annually, audit Contractor's operations and records to confirm compliance. Nothing in this provision should be construed as providing FreelanceTarget with the right or obligation to supervise or monitor the actual Services performed by Contractor.
3.10 Third Party Beneficiary
FreelanceTarget is hereby named as a third party beneficiary of each Service Contract.
Service Contracts shall be governed by Sections 6 (Confidential Information) 11 (General) and 12 (Definitions) of this Agreement, as applicable either directly or by way of analogy.
3.12 Entire Agreement.
The terms and conditions set forth in this Section 3 and any additional or different terms expressly agreed by Client and Contractor shall constitute the entire agreement and understanding of Client and Contractor with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.
4. ACKNOWLEDGMENTS BY USER OF FREELANCETARGET'S ROLE.
4.1 Service Contracts.
User expressly acknowledges, agrees and understands that: (i) the FreelanceTarget Platform is merely a venue where Users may act as Clients or Contractors; (ii) FreelanceTarget is not a party to any Service Contracts between Clients and Contractors; (iii) User recognizes, acknowledges and agrees that User is not an employee of FreelanceTarget and that FreelanceTarget does not, in any way, supervise, direct, or control User's work or Services; (iv) FreelanceTarget shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (v) FreelanceTarget has no control over Contractors or over the Services promised or rendered by Contractors; and, (vi) FreelanceTarget makes no representations as to the reliability, capability, or qualifications of any Contractor or the quality, security or legality of any Services, and FreelanceTarget disclaims any and all liability relating thereto.
4.2 Proprietary Rights.
FreelanceTarget and its licensors reserve all Proprietary Rights in and to the FreelanceTarget Platform. User may not use the FreelanceTarget Platform except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement and on the terms set out in the License Agreement. FreelanceTarget reserves the right to withdraw, expand and otherwise change the FreelanceTarget Platform at any time in FreelanceTarget's sole discretion. User shall not be entitled to create any "links" to the FreelanceTarget Platform, or "frame" or "mirror" any content contained on, or accessible through, the FreelanceTarget Platform, on any other server or internet-based device.
4.3 FreelanceTarget's Compensation.
All FreelanceTarget Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.
4.4 FreelanceTarget as a Limited Agent
From time to time, a Contractor may ask FreelanceTarget to provide a physical or manually signed copy of this Agreement, a Service Contract, or an ancillary document (for example, to enable a Contractor to withdraw payments from Contractor’s foreign bank account). Client hereby appoints FreelanceTarget as its agent solely for the limited purpose of executing documents that confirm Client’s activities on the FreelanceTarget Platform. FreelanceTarget will act on Client’s behalf and in a clerical capacity, without in any way restricting FreelanceTarget’s rights or expanding FreelanceTarget’s obligations under this Agreement or any Service Contract. Each Client appoints FreelanceTarget as its agent to execute an Act of Acceptance or equivalent instrument on the Client’s behalf documenting payments made to a Contractor, if Contractor so requests.
5. FEES AND PAYMENTS.
5.1 Formal Invoices and Taxes.
FreelanceTarget shall have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Contractor Fees. Instead, Contractor shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Contractor Fees and for issuing any invoices so required. Contractor shall also be solely responsible for: (a) determining whether Contractor or FreelanceTarget 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 Contractor Fees, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or FreelanceTarget, as appropriate; and (b) determining whether FreelanceTarget is required by applicable law to withhold any amount of the Contractor Fees, notifying FreelanceTarget of any such requirement and indemnifying FreelanceTarget (either by permitting FreelanceTarget to offset the relevant amount against a future payment of Contractor Fees or by refunding to FreelanceTarget the relevant amount, at FreelanceTarget’s sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. FreelanceTarget shall have the right, but not the obligation, to audit and monitor Contractor’s compliance with applicable tax laws as required by this Section 5.1. Further, in the event of an audit of FreelanceTarget, Contractor agrees to promptly cooperate with FreelanceTarget and provide copies of Contractor’s tax returns, and other documents as may be reasonably requested for purposes of such audit.
5.2 Billing Client.
For Hourly-Rate Contracts, Client typically will be billed for hourly Contractor Fees on a weekly basis. For bonuses, milestone payments and Fixed-Price payments, Client is billed immediately.
Client hereby authorizes FreelanceTarget to run credit card authorizations on all credit cards provided by Client, to store credit card details as Client’s method of payment for Services, and to charge Client’s credit card (or any other form of payment authorized by FreelanceTarget or mutually agreed to between Client and FreelanceTarget). FreelanceTarget may, in its sole discretion, alter its standard billing cycle for Hourly-Rate Contracts and charge Client for work performed at any time.
5.4 Payment Guarantee.
FreelanceTarget will guarantee performance of the Client’s payment to you as a Contractor working on Hourly-Rate Contracts where the Client has a verified payment method, the time represented is captured online using the FreelanceTarget Team software, the work performed and captured pertains directly to the Service Contract billed, and each Time Log is annotated with appropriate work memos describing the work performed. Determination of whether these criteria have been met is at the sole discretion of FreelanceTarget. The Payment Guarantee will not apply to Contractors or Contracts in violation of this Agreement, where the Contractor is aware of or complicit in another User’s violation of this Agreement, or where there is any other involvement in fraudulent activities or abuse of this Payment Guarantee.
6. CONFIDENTIAL INFORMATION.
To the extent a Client or Contractor provides Confidential Information to the other and/or to FreelanceTarget, the recipient shall protect the secrecy of the 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, and shall not: (i) disclose Confidential Information to anyone except, in the case of FreelanceTarget, to any Client or Contractor engaged in a Contract; and (ii) use the Confidential Information, except as necessary for the performance of Services for the relevant Contract (including, without limitation, the storage or transmission of Confidential Information on or through FreelanceTarget Platform for use by Contractor).
If and when Confidential Information is no longer needed for the performance of Services for the relevant Contract, or at the Client’s or Contractor’s written request (which may be made at any time at Client’s or Contractor’s sole discretion), Client or Contractor (as the case may be) shall promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Client or Contractor, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this Section 6.2 within ten (10) days after the receipt of disclosing party’s written request to certify.
Without limiting Section 6.1 (Confidentiality), Client, Contractor and FreelanceTarget shall not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a relevant Contract.
7. WARRANTY DISCLAIMER.
FREELANCETARGET MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, FREELANCETARGET PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FREELANCETARGET DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 10.2 (TERMINATION) STATES USER'S SOLE AND EXCLUSIVE REMEDY AGAINST FREELANCETARGET WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL FREELANCETARGET BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF FREELANCETARGET TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (A) U.S. $2,500; AND (B) ANY FREELANCETARGET FEES RETAINED BY FREELANCETARGET WITH RESPECT TO CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR CONTRACTOR DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, 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.
9.1 Proprietary Rights.
Each User shall indemnify, defend and hold harmless FreelanceTarget and its subsidiaries, affiliates, officers, agents, employees, representatives and agents (each an "Indemnified Party" for purposes of this Section 9) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, judgment, or adjudication that any Work Product, Services or action or omission by such User infringes Proprietary Rights or other rights of any third party.
9.2 Indemnification by Client.
Each Client shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Client’s use of Services, including without limitation claims by or on behalf of any Contractor for Worker's Compensation or unemployment benefits, or (ii) any Service Contract entered into between such Client and a Contractor.
9.3 Indemnification by Contractor.
Each Contractor shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Contractor's provision of Services, or (ii) any Service Contract entered into between such Contractor and a Client.
10. TERM AND TERMINATION.
The term of this Agreement commences on the Effective Date and continues in effect until terminated in accordance with Section 10.2 below.
Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or by terminating or suspending User’s account), provided, that any such termination for convenience shall not affect the validity of any Service Contracts that have been executed prior to termination and this Agreement shall continue to apply with respect to such Service Contracts.
10.3 Consequences of Termination.
Termination shall not relieve Client of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, shall be invoiced to Client following termination pursuant to Section 5.2 (Billing Client), and charged to Client’s credit card or other form of payment pursuant to Section 5.3 (Payment). Subject to Section 2.8 (Dispute Resolution Policy), FreelanceTarget shall pay Contractor, in accordance with the provisions of Section 5 (Fees and Payments), for all time recorded in the Time Logs incurred prior to the effective date of the termination.
Sections 4 through 12 of this Agreement shall survive any termination thereof.
11.1 Entire Agreement.
This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
11.2 Side Agreements.
Section 11.1 notwithstanding, Clients and Contractors may enter into any supplemental or other written agreement that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, assignment of rights, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand FreelanceTarget's obligations or restrict FreelanceTarget's rights under this Agreement.
User shall not violate any laws or third party rights on or related to the FreelanceTarget Platform. Without limiting the generality of the foregoing, User agrees to comply with all applicable import and export control laws and third parties' Proprietary Rights.
11.4 Notices: Consent to Electronic Notice.
You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the FreelanceTarget Platform. Notices hereunder shall be invalid unless made in writing and given (a) by FreelanceTarget via email (in each case to the email address that you provide), (b) a posting on the FreelanceTarget Site or (c) by you via email to support@FreelanceTarget.com or to such other addresses as FreelanceTarget may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
No modification or amendment to this Agreement shall be binding upon FreelanceTarget unless in a written instrument signed by a duly authorized representative of FreelanceTarget. For the purposes of this Section 11.5, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles.
11.6 No Waiver.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party's right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
User may not assign this Agreement, or any of its rights or obligations hereunder, without FreelanceTarget's prior written consent in the form of a written instrument signed by a duly authorized representative of FreelanceTarget (and, for the purposes of this Section 11.7, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). FreelanceTarget may freely assign this Agreement without consent of User. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors 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 shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall 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 shall 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.
11.9 Choice of Law.
This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement, including by not limited to a Service Contract, ("Claims") shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
11.10 Dispute Resolution; Arbitration; Personal Jurisdiction and Venue.
FreelanceTarget and User hereby agree that any Claims shall first be settled through negotiation or according to the Dispute Resolution Policy set forth in Section 2.8 above. If a Claim (other than a Claim for injunctive or other equitable relief) remains unresolved by these means, either party will have the right to demand binding non-appearance based arbitration by a third party service mutually agreed upon by the parties. A final judgment will be made by the arbitrator, which must be adhered to by both parties and by FreelanceTarget, as applicable. You agree that any Claim you may have against FreelanceTarget, if not resolved as set forth above, must be resolved by the California state courts of San Mateo County (or, if there is exclusive federal jurisdiction, the United States District Court for the Northern District of California). You hereby irrevocably consent to the personal jurisdiction and venue of these courts.
11.11 Prevailing Language.
The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
"Client" means any User utilizing the FreelanceTarget Platform to request Services to be performed by a Contractor. From time to time, FreelanceTarget may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to FreelanceTarget when acting in this way.
"Client Deliverables" means instructions, requests, intellectual property and any other information or materials that a Contractor receives from a Client for a particular Contract.
"Confidential Information" means Client or Contractor Deliverables, Work Product, and any other information provided to, or created by, a User for a Contract, regardless of whether in tangible, electronic, verbal, graphic, visual or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Contractor 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 Confidential Information.
"Contract" means a particular project or set of ongoing tasks for which a Client has requested Services to be performed by a Contractor and the Contractor has agreed on the FreelanceTarget Platform.
"Contractor" means any company or individual User utilizing the FreelanceTarget Platform to offer Services to Clients.
"Contractor Deliverables" means instructions, requests, intellectual property and any other information or materials that a Client receives from a Contractor for a particular Contract.
"Contractor Fees" means: (a) for an Hourly-Rate Contract, an amount equal to the number of hours recorded by Contractor in the Time Logs, multiplied by the Hourly Rate; (b) for a Fixed-Price Contract, the Fixed-Price; and (c) any bonuses paid or other payments made by a Client for a Contract.
"Effective Date" means the date of acceptance of this Agreement.
"Fixed-Price" means a fixed fee agreed between a Client and a Contractor, prior to the commencement of a Contract, for the completion of all Services requested by Client for such Contract.
"Fixed-Price Contract" means a Contract for which Client is charged a Fixed-Price.
"Hourly Rate" for a Contract means, in respect of a Contractor, the hourly rate specified for that Contractor in the FreelanceTarget Platform.
"Hourly-Rate Contract" means a Contract for which Client is charged based on the Hourly Rate.
"License Agreement" means the license agreement between User and FreelanceTarget relating to use of the FreelanceTarget Team application.
"FreelanceTarget Team" means the online platform accessed using FreelanceTarget’s downloaded Team application that enables time tracking, chat and screen shot sharing with other team members.
"Payment Period" shall mean the one-week period beginning on Monday at 12:00 AM UTC.
"Proprietary Rights" means any and all rights, title, ownership and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.
"Services" means web development, software development, writing, translation, administrative, marketing, design customer service, sales, data entry, general business services and other knowledge-based or online services.
"Time Logs" means the number of hours recorded for a stated period by a Contractor in FreelanceTarget Team in compliance with FreelanceTarget's then-current Policies, for the Services performed in respect of a Contract.