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Terms of Service Agreement |
Updated: November 11, 2008 |
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BILLING AND PAYMENT SERVICE TERMS AND CONDITIONS |
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Business Use
In addition to the Eligibility requirements described in the Terms of Service, Elance's mandatory Billing and Payment Service (the "Payment Service") is intended for business use. You must establish an Account primarily for business, and not primarily for personal, family, or household purposes. You must not establish more than one Account.
To pay for Services using the Payment Service, you must be a Member that holds a valid credit card issued by a bank acceptable to Elance or a Member that holds a Verified PayPal account.
Accounts
Funds in an Account may be used to pay Providers, to pay Job posting fees, membership fees, service fees, connect fees, and wire transfer fees.
A Client may add funds to its Account by any of the methods available on the Site. The Client must reasonably intend that such amounts will be used to pay Elance or Providers for Services purchased through the Site.
A Provider may add to its Account by directing that Clients' payments for Services purchased on the Site and received through the Payment Service be added to their Account, or by any of the methods available on the Site. In the case of methods other than receiving Clients' payments for Services purchased on the Site, the Provider must reasonably intend that such amounts will be used to pay membership fees, service fees, connect fees, or wire transfer fees as provided in the Terms of Service.
Legal Relationships
Elance provides the Payment Service and requires you to use it to make all payments to Elance, and to request and make payments to and accept payments from other Members, for the purchase and sale of Services through the Site. Solely for purposes of the Payment Service, and not for any other Services available through the Site, Elance acts as your agent based upon your direction and your requirements to perform tasks on your behalf. Elance will at all times hold your funds separate from its corporate operating accounts, and will not voluntarily make your funds available to its creditors in the event of a bankruptcy or for any other purpose.
As a Client, you agree not to pay invoices for Provider Services unless the invoices are originated from the Elance Payment Service, and as a Client you acknowledge that you are not obligated to pay invoices unless the invoices are originated from the Elance Payment Service. As a Provider, you agree to send Clients invoices for Provider Services only through requests for payment on the Elance Payment Service, and you agree to use this system for all Elance-originated business, whether first-time, repeat or follow-on. As a Provider, you agree that a Client is not obligated to pay invoices for Provider Services unless you originated the request for payment through the Elance Payment Service.
You acknowledge that: (1) Elance is not a bank and the Payment Service is a payment service rather than a banking service; and (2) Elance is not acting as a trustee or fiduciary with respect to your funds, but is acting only as an agent and custodian. (3) ELANCE IS NOT A BANK, AND AMOUNTS TRANSFERRED THROUGH OR STORED IN THE PAYMENT SERVICE ARE NOT INSURED DEPOSITS. In addition, your Account will not constitute an escrow.
By initiating invoices and sending payments through the Payment Service or adding funds to your Account, you appoint Elance as your agent to obtain the funds on your behalf and to transfer the funds to the recipient that you designate, subject to the terms and conditions of this Agreement. Each Provider must properly discharge and credit Clients for all payments Elance receives through the Payment Service from such Clients.
Payment Provider
Elance acts as a payment service provider by creating, hosting, maintaining, and providing the Payment Service to you via the Internet. Elance does not have any control over the Provider Services purchased or sold with the Payment Service, nor whether a Client or Provider you are dealing with will actually complete the transaction. Nothing in the Payment Service will be deemed to constitute Elance your agent with respect to any Provider Services purchased and sold by Users through the Site, or expand or modify any warranty, liability or indemnity stated in the Terms of Service.
Interest
You agree that you will not receive interest or other earnings on the funds in your Account or that Elance otherwise handles as your agent. Elance may earn and retain interest on those funds, or may receive a reduction in fees or expenses charged for banking services or other compensation in respect of any balances in Accounts.
How to Bill for Services Using the Payment Service
To request payment from a Client, you must use the Payment Service and you must follow the instructions and Payment Service links on the Site and provide the information requested. By requesting payment you authorize us to bill such Client and receive payments from the Client on your behalf in the amounts stated on the applicable Payment Service web page.
As a Provider, you acknowledge and agree that when you instruct Elance to request payment from a Client using the Payment Service, such instruction: (1) is a representation that you have completed the applicable Services fully and satisfactorily, and (2) constitutes an irrevocable instruction to Elance to invoice and accept payment from the Client on your behalf. Once Elance has charged the Provider, Elance may be subject to charge back if the Client's credit card company, bank, or PayPal believes the above representations have been breached. As a Provider, you therefore agree, as a condition of using the Payment Service, that if the Client's credit card company, bank, or PayPal successfully charges back any amount to Elance for any reason, you hereby agree to repay Elance for such amounts, plus reasonable attorney fees and costs of collection, and Elance reserves the right to terminate Service to you in addition to all other rights available to Elance.
How to Pay for Services Using the Payment Service
To pay a Provider, you must use the Payment Service and you must follow the instructions and links on the Site and provide the information requested. Unless you have a balance in your Account, Elance will ask to charge your credit card, bank account, or PayPal for the necessary amount. By providing us with your credit card or bank account information, you authorize us to charge such credit card or bank account for the amounts stated on the applicable Payment Service web page.
As a Client, you acknowledge and agree that when you instruct Elance to pay a Provider using the Payment Service, such instruction: (1) is a representation that the Provider has completed the applicable Services fully and satisfactorily, and (2) constitutes an irrevocable instruction to Elance to pay the Provider. Once Elance has paid funds to the Provider, Elance may not be entitled to demand return of the funds. You therefore agree, as a condition of using the Payment Service, NOT to ask your credit card company or bank to charge back any amount to Elance for any reason. In the event you do, you hereby agree to repay Elance for such amounts, plus reasonable attorney fees and costs of collection, and Elance reserves the right to terminate Service to you in addition to all other rights available to Elance.
Authorized Payments are Final
Your use of the Payment Service constitutes your agreement to pay for any amounts which you authorize us to charge against your Account and, as appropriate, your credit card, bank account, or PayPal. Such payments, once authorized, ARE FINAL.
Charge-backs
Elance reserves the right to seek reimbursement from you as a Provider, and you will reimburse Elance, if Elance discovers erroneous or duplicate transactions, or Elance receives a charge-back from any Client's credit card company, bank, or PayPal for any reason. Elance may obtain such reimbursement by charging the applicable Provider's Account, deducting amounts from future payments owed to the Provider, charging such Provider's credit card, or obtaining reimbursement from such Provider by any other lawful means. Failure to pay for reimbursements of charge-backs is cause for termination of Services.
Currency
The Payment Service operates in US Dollars and therefore Elance is not responsible for currency fluctuations that occur when billing or crediting a credit or debit card denominated in a currency other than US Dollars, nor is Elance responsible for currency fluctuations that occur when receiving or sending payment via wire transfer, check or ACH to and from your Account.
Withdrawal of Funds
To withdraw funds from your Account, you must request such funds using any of the withdrawal methods available on the Site. Any such requests shall be subject to the conditions and restrictions contained on the Site and in the Terms of Service. Notwithstanding any other provision of the Terms of Service, if Elance determines in its sole discretion that a Member has violated the conditions and restrictions of the Site or Terms of Service, Elance will have the right to refuse to process the withdrawal.
Hold on Account Funds
Elance will make funds deposited in your Account generally available for you to use or withdraw. Elance reserves the right, at its sole discretion, to place a hold on funds for Client payments to clear, or if Elance suspects monies may be subject to charge back or if fraud is suspected. Elance will release a hold as soon as practical.
Agreement to Pay
If, for any reason, Elance does not receive payment for any amounts that you have authorized to be paid through your use of the Payment Service or other Elance Services, you agree to pay such amount immediately upon demand by Elance. You also agree to pay any interest charges, attorney's fees and other costs of collection incurred by Elance in collecting from you the authorized but unpaid amount. In such case, Elance may, at its option, stop processing any further payments made by you and apply any amounts then held by Elance on your behalf toward any deficiencies, losses or costs that we have incurred as a result of your use of the Payment Service or other Elance Service. We may also make appropriate reports to credit reporting agencies, financial institutions, tax agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
Disputes Between Clients and Providers
Any disputes in connection with Services provided by Providers or payments made by Clients remain between such Clients and Providers. By using the Payment Service, you agree to follow the Dispute Resolution Policy. You further acknowledge that Elance will not be a party to any such dispute. Elance will attempt to take the actions set forth in the Dispute Resolution Policy, but Elance will not be obligated to take any other action or refrain from taking any other action toward resolving any such dispute. Elance may, at its sole discretion, and in the case of Escrow Jobs may be required to, withhold or delay payment or continue to hold amounts in Escrow or make payment or release amounts in Escrow, in the event of dispute between a Client and a Provider.
Reservation of Rights
Elance reserves the right to seek reimbursement from any Provider and Provider will reimburse Elance if Elance discovers erroneous or duplicate transactions or receives a charge-back from any Client's credit card company, bank, or PayPal for the amount of such Client's purchase from such Provider. Elance may obtain such reimbursement by deducting from future payments owed to such Provider, by reversing any credits to such Provider's bank account, by charging such Provider's credit card or by seeking reimbursement from such Provider by any other lawful means.
Questions
If you have any questions, suggestions or reports of problems regarding the Payment Service, please contact Customer Service.
GENERAL ESCROW INSTRUCTIONS |
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These General Escrow Instructions govern an Escrow established by Client and Provider pursuant to the Business Terms they have jointly agreed to at the Site. The “Escrow Instructions” are comprised of these General Escrow Instructions, the Terms of Service, and such Business Terms. Client and Provider will be deemed to have executed the Escrow Instructions pursuant to the federal Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. Sec. 7001, et seq.), by clicking to accept the Business Terms or clicking to fund Escrow at the Site, and doing so constitutes an acknowledgement that you are able to electronically receive, download, and print the Escrow Instructions. By clicking to accept an Escrow Job, Client has agreed automatically to the Escrow Instructions effective when Provider clicks to Accept the Job. By clicking to Accept the Job, Provider has agreed automatically to the Escrow Instructions. All references to the Escrow in these General Escrow Instructions will include the initial Funding Approval and any additional Funding Approval for the Job.
The direct provider of the escrow services pursuant to the Escrow Instructions is Elance Escrow Corporation, a Delaware corporation (“EEC”). EEC is a wholly-owned corporate subsidiary of Elance. EEC is licensed as an Escrow Agent by the Department of Corporations, State of California, License No. 963 5086. Client and Provider hereby employ, authorize, and instruct EEC to act as Escrow Holder and Escrow Agent in connection with the Job to provide for the retention, administration, and controlled release of the escrowed funds in accordance with the Business Terms and subject to and conditioned on the Escrow Instructions. You authorize EEC to disburse to Elance amounts released from Escrow pursuant to the Escrow Instructions in payment of Service Fees payable to Elance pursuant to the Terms of Service.
Throughout these General Escrow Instructions, the terms “Elance,” “us,” and “we” are intended to mean both EEC and Elance unless the context otherwise requires.
Funding Escrow
When Client Submits a Funding Approval on the Site, Client will be deemed to have irrevocably authorized Elance to use the Payment Service to charge Client's Account and, as appropriate, Client's credit card, bank, or PayPal in the amount of the applicable Funding Approval, and deposit any amounts collected thereby into an Escrow Account for the Job. In the event Elance cannot collect such amount for any reason, Elance will have no obligation with respect to the creation or funding of the Escrow or any addition to such Escrow. Unless and until Client submits the initial Funding Approval with Elance, Elance will have no obligation with respect to the Escrow. OTHER THAN CHARGING Client'S ACCOUNT AND, AS APPROPRIATE, Client'S CREDIT CARD, BANK, OR PAYPAL, ELANCE WILL HAVE NO OBLIGATION WITH RESPECT TO THE CREATION OR FUNDING OF THE ESCROW OR ANY ADDITION TO SUCH ESCROW.
Funding Approvals are Final
Client's Submission of Funding Approval for an Escrow constitutes Client's agreement to pay the amounts Client authorizes Elance to charge against Client's Account and, as appropriate, Client's credit card, bank, or PayPal. Such payments, once authorized, ARE FINAL, and amounts in the Escrow will be released only pursuant to the Escrow Instructions.
Use of Funds in Escrow Account
Elance will use funds deposited in the Escrow Account only in accordance with the Escrow Instructions. Elance will not voluntarily make funds deposited in the Escrow account available to its creditors in the event of a bankruptcy or for any other purpose. These General Escrow Instructtions are supplementary to the Business Terms, the Terms of Service, and to any other agreement between Client and Provider concerning the Job, as provided in 11 United States [Bankruptcy] Code, Section 365(n).
Escrow Account Deposit
Elance will deposit and maintain all funds in the Escrow Account in a bank insured by the Federal Deposit Insurance Corporation and approved to receive escrow funds under applicable laws and regulations. You agree that you will not receive interest or other earnings on the funds in the Escrow Account. Elance may earn and retain interest on those funds, or may receive a reduction in fees or expenses charged for banking services or other compensation in respect of any balances in Escrow Accounts.
Status Reports
Client and Provider may access current information regarding the status of the Escrow on the Site.
Release and Delivery of Amounts in Escrow
Elance is authorized to and will release applicable portions of the Escrow Account (each portion a "Release") to Provider or Client only pursuant to one or more Release Conditions provided below. Provider and Client authorize Elance to use the Payment Service to deliver the amount of any Release, and to withhold from Provider those amounts Elance is entitled to withhold pursuant to the Payment Service.
Release Conditions
As used in these General Escrow Instructions, "Release Conditions" means any of the following:
- Client's or Provider's Approval of a Release on the Site
- Client's or Provider's failure to timely upload to the Site Contrary Instructions pursuant to the Dispute Resolution Policy below
- Client's and Provider's delivery of joint written instructions to Elance
- Client's or Provider's failure to participate in a dispute resolution call requested by Elance pursuant to the Dispute Assistance Policy
- Client's or Provider's failure to submit to binding arbitration requested by the other pursuant to the Dispute Assistance Policy
- The final binding determination of an arbitrator from which appeal is not taken
- The final binding order of a court from which appeal is not taken
Escrow Dispute Resolution Process
For any dispute arising between Client and Provider regarding an Escrow (excluding disputes involving claims for injunctive or other equitable relief) Client and Provider will pursue resolution of the dispute in accordance with the following steps:
Dispute Notice Form. If Provider or Client has requested a Release on the Site, and the other party has not approved such Release within five business days after such request was posted on the Site, then the Provider or Client that requested the Release has the right to upload to the Site a completed Dispute Notice Form as made available by Elance on the Dispute Resolution Help page.
Contrary Instructions. In the event Provider or Client uploads a completed Dispute Notice Form to the Site requesting a Release, the other party will have three business days to respond in a private message with contrary instructions ("Contrary Instructions") before Provider or Client can make a request to Elance for assistance. Contrary Instructions means a good faith written representation: (1) If by Client, that Client has not received all Milestone Deliverables required for a Release pursuant to the Business Terms, or (2) If by Provider, that Provider has delivered all Milestone Deliverables required for a release.
Failure to Upload Contrary Instructions. In the event Client or Provider does not upload Contrary Instructions to the Site within three business days following Provider's or Client's original upload of the Dispute Notice Form to the Site, Provider or Client will notify Elance of such failure. Elance will then notify the Client or Provider and require a response to the Dispute Notice Form. If Client or Provider does not respond to Elance within five business days of Elance's demand then Client and Provider will be deemed to have agreed to the Release sought in the Dispute Notice Form and in accordance with such Dispute Notice Form either: (1) Client and Provider will be deemed to have authorized and instructed Elance to, and Elance will, make the Release to the Provider or (2) Provider and Client will be deemed to have authorized Elance to, and Elance will, make the Release to the Client, as the case may be.
Response to Contrary Instructions. In the event Client or Provider timely uploads Contrary Instructions to the Site, Provider or Client will have the right within three business days to upload a good faith response. The Client and Provider will have the right to upload and respond, with the goal of resolving in good faith any dispute and delivering joint written instructions to Elance concerning a Release. Client and Provider will not terminate such discussion and negotiation prior to the earlier to occur or delivery of joint written instructions to Elance concerning a Release, or the date 15 business days following Provider's original upload of the Dispute Notice Form.
Elance Dispute Assistance. In the event Client and Provider fail to resolve any dispute through the Member Resolution process within 15 business days following Provider's or Client's original upload of the Dispute Notice Form, the Provider or Client will follow the Dispute Resolution Policy.
Failure to Arbitrate. In the event Provider or Client requests binding Arbitration (“Requesting Party”), the other party (“Responding Party”) will have three business days following receipt of notice from the Arbitrator to submit to such Arbitration. In the event Responding Party fails to submit to such Arbitration within three business days, Elance will promptly notify Responding Party of such failure and demand that Responding Party submit to such Arbitration within three more business days. In the event Responding Party fails to submit within three business days after Elance sends such notice, then: (1) Responding Party will be deemed to have agreed to the Release sought by the Requesting Party; (2) Responding Party will be deemed to have authorized Elance to, and Elance will, make the Release sought by the Requesting Party; and (3) Elance will have the right to terminate or suspend the Responding Party’s Account.
Escrow During Dispute Resolution Process
During the Dispute Resolution Process, Elance will continue to hold the Escrow without Release pending a Release Condition.
Release of Escrow Account
Upon any Release, the Escrow will terminate as it relates to the portion of the Escrow Account so released. Upon final Release of the final milestone the entire Escrow Account will terminate.
Releases are FinalYour Authorization of Release of any amount in the Escrow Account constitutes your agreement to release such amounts from the Escrow. Such releases, once authorized, ARE FINAL.
Escrow AgentElance undertakes to perform only such duties as are expressly set forth in the Escrow Instructions and no other or further duties will be implied. Elance will have no liability under and no duty to inquire as to the provisions of any agreement other than the Business Terms and the Escrow Instructions. Elance will be under no duty to inquire into or investigate any agreement or communication between Client and Provider, even if uploaded to the Site. Elance may rely upon and will not be liable for acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties. Elance will be under no duty to inquire into or investigate the validity, accuracy or content of any such document. Elance will have no duty to solicit any payments or Releases which may be due to or from any Escrow Account. Elance may execute any of its powers and perform any of its duties under the Escrow Instructions directly or through agents or attorneys (and will be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. Elance will not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons. In the event that Elance is uncertain as to its duties or rights hereunder or receives instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of the Escrow Instructions, it will be entitled to refrain from taking any action and its sole obligation will be to keep safely all property held in Escrow until it is directed otherwise in writing by Client and Provider or by a final order or judgment of an arbitrator or court of competent jurisdiction.
Elance Action; Resignation; SuccessionElance has the right in its sole discretion but not the obligation to institute Arbitration in accordance with the foregoing, or to institute any other legal proceedings including interpleading funds held in Escrow with a court of competent jurisdiction, to resolve any dispute between Client and Provider related to an Escrow. Any provision of these General Escrow Instructions to the contrary notwithstanding, and regardless whether Elance is identified as a party in interest in any dispute, arbitration or other legal proceeding, nothing herein will be construed to limit Elance’s legal and equitable rights, including but not limited to interpleading funds held in Escrow with a court of competent jurisdiction.Elance may resign and be discharged from its duties or obligations under the Escrow Instructions by giving 20 days advance notice in writing of such resignation to Client and Provider specifying a date when such resignation will take effect. Any corporation or association into which Elance may be merged or converted or with which it may be consolidated, or any corporation or association to which all or substantially all the escrow business of Elance may be transferred, will succeed to all the rights and obligations of Elance as escrow agent under these General Escrow Instructions without further act.
Term and Termination of Escrow
The Escrow will terminate automatically upon Release of all funds in the Escrow Account. Elance reserves the right to terminate the Escrow, for any reason, by providing Client and Provider 20 days written notice.
Survival of Terms Following Termination
Upon termination of the Escrow, the remaining provisions of the Terms of Service will survive, including, without limitation, obligations to pay Elance any amounts, provisions concerning dispute resolution, limitation of liability, and indemnification obligations.
Miscellaneous Escrow Terms and Conditions
Notice of Requested Order
If Provider or Client intends to obtain an order from any arbitrator or any court, which order might direct Elance to take, or refrain from taking any action with respect to the Escrow, that party will: (1) give Elance at least five business days prior notice of the hearing; (2) include in any such order a provision that, as a precondition to Elance's obligation, Elance be paid in full for any amounts to which Elance would otherwise be entitled; and (3) be paid for the reasonable value of the services to be rendered pursuant to such order.
No Third Party Rights
The Escrow Instructions are intended solely for the benefit of Client, Provider, Elance, and their respective permitted successors and assigns, and no other person or entity swill have or acquire any right by virtue of the Escrow Instructions unless otherwise agreed to by Client, Provider, and Elance.
Successors and Assigns
These General Escrow Instructions will be binding upon and inure to the benefit of the successors and assigns of Client, Provider, and Elance. However, Elance will have no obligation in performing the Escrow Instructions, to recognize any successor or assign of Client or Provider unless Elance receives clear, authoritative, and conclusive written evidence of the change of such parties.
PRIVACY POLICY |
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Please view our Privacy Policy at http://www.elance.com/p/help/tos/privacy.html
COPYRIGHT POLICY |
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Removal of Material for Which Copyright Infringement is Claimed
Pursuant to 17 USC. § 512 as amended by Title II of the Digital Millennium Copyright Act, Elance has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. If you believe your copyrights are being infringed by a user of the Services available at the domain and sub-domains of www.elance.com, please fill out a Notice of Infringement form and fax it to Elance Copyright Infringement Notices at 650-316-7501.
The information requested by the Notice of Infringement form substantively complies with the safe harbor provisions of the Digital Millennium Copyright Act, 17 USC. § 512(c)(3)(A), which provides:
To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a Provider that includes substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online Site are covered by a single notification, a representative list of such works at that Site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Provider to locate the material.
- Information reasonably sufficient to permit the Provider to contact the complaining party such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions above shall not be considered as providing actual knowledge or an awareness of facts or circumstances from which infringing activity is apparent.
Please provide a Notice of Infringement form each time you wish to report alleged acts of infringement and fax it to the number provided.
REGISTRATION INFORMATION |
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You agree to provide true, accurate and complete information as prompted by the Registration form, and to update this information to maintain its truthfulness, accuracy and completeness. Elance may suspend or terminate your Account if information you provide is not complete or accurate.
SAFEGUARDING YOUR PASSWORD |
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You agree to safeguard the User ID and password you use to access this Site. You authorize us to assume that any person using the Site with your User ID and password either is you or is authorized to act for you. Further, your Elance Account (including feedback) and User ID may not be transferred or sold to another party.
POSTING INFORMATION OR CONTENT |
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You agree to provide true, accurate and complete information whenever you post any information or content on the Site (including but not limited to posting a request for Services, providing a proposal for a posted Job, posting your profile and providing feedback). You agree to update such information whenever it changes. You agree to use good judgment when posting information, remarks or other content regarding other Users, Members, Clients, Providers, Elance or any other third party. You understand that you may be held legally responsible for damages suffered by other Users, Members, Clients, Providers, Elance or any third party as a result of legally actionable or defamatory comments, remarks or other information or content which you post to the Elance Site. Under federal law (specifically, the Communications Decency Act of 1996), Elance is not legally responsible for any remarks, information or other content posted or made available on its Site by any User or third party, even if such information or content is defamatory or otherwise legally actionable. Elance is not responsible for and does not monitor or censor content for accuracy or reliability. Elance reserves the right to remove or restrict access to any information, content or Job posted or made available on the Site in its sole discretion, or if ordered to do so by a court, or if Elance considers such information or content to be in violation of the Terms of Service. You agree NOT to do any of the following on the Site:
- Post any Job, submit any proposal, or otherwise use Elance to transmit any content or conduct any transaction that would violate any applicable law or regulation in the U.S. and any other country.
- Post any Jobs that are fake, posted without the intention to hire or complete the Job or posted only to receive pricing information.
- Post any Jobs that offer commission or equity compensation.
- Post any Jobs that request free Services.
- Post any Job, proposal, deliverable or transmit any content that infringes a third party's intellectual property rights, license rights, the terms and conditions of use of such third party's Web site or copyrighted materials or such third party's rights of publicity or privacy.
- Post any Job, proposal, deliverable or transmit any content related to or containing any adult or sexually explicit material.
- Post Jobs related to bulk email or spam, including but not limited to bulk email hosting, scripts, active code, programs, proxies, lists and relay servers.
- Post advertisements, solicitations or offers of full-time employment.
- Post false or misleading information about a product, service or service request.
- Post logos, seals or slogans from third parties on the Site unless such material is provided by Elance or an Elance partner, or you have received express written permission from Elance to display such third-party logo, seal or slogan.
- Post or transmit any content that is profane, vulgar, racist, offensive, threatening, harmful, abusive, defamatory or disparaging.
- Post or transmit unprofessional or offensive comments about a User, Member, Provider, Client, Elance or any third party.
- Post any Job, submit any proposal that violates, or has the potential to violate, the integrity of academic and professional applications, tests and work; for example by passing off the skills, ideas or words of another as one's own; using another's production or content without crediting the source; presenting as new and original, ideas or products derived from an existing source; presenting fabricated facts, persons or sources as real.
- Suggest or solicit another User to contact you directly in order to buy or sell Services outside of Elance.
- Access, tamper with or use non-public or non-authorized areas of the Site. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution.
- Tamper with postings of other Users, Members or Elance.
- Solicit or gather any User's or Member's information available from the Site, such as other Usernames and email addresses, for any commercial or business purposes or to transmit any unsolicited advertising, junk mail, spam or chain letters.
- Do anything which would create or impose an unreasonable or disproportionately large burden or load on the Site.
- Use robots, spiders, scrapers or other automated means to access information in our Site for any purpose without express written permission from Elance.
- Post or introduce software on the Site that: (i) is designed to disrupt, disable, harm or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of this Site or any other software, firmware, hardware, computer system or network (sometimes referred to as "viruses" or "worms"); (ii) would disable or impair this Site or any other software, firmware, hardware, computer systems or networks in any way where such disablement or impairment is caused by the elapsing of a period of time, exceeding an authorized number of copies, advancement to a particular date or other numeral (sometimes referred to as "time bombs," "time locks" or "drop dead" devices); (iii) would permit you or any other person to access this Site or any other software, firmware, hardware, computer systems or networks to cause such disablement or impairment or transmit information (sometimes referred to as "traps," "access codes," or "trap door" devices, or "spyware"); or (iv) which contains any other similar harmful, malicious or hidden procedures, routines or mechanisms which would cause such programs to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications or otherwise interfere with operations.
- Post Jobs that violate the Terms and Conditions of other companies.
- Frame or link to the Site except as permitted in writing by Elance.
- Impersonate or misrepresent your affiliation with any person or entity.
- Require or request that a Provider deliver a free mock-up or proof of concept as part of a proposal submission or as a condition to consideration of a proposal.
- Repeat any action after you receive warning or request to desist from Elance, whether or not that action is explicitly prohibited in the policies stated on the Site.
- Fail to respond to an email from Elance regarding violation, dispute or complaint within two business days.
- Use the Site if you are not able to form legally binding contracts, are under age or are temporarily or indefinitely suspended from our Site.
- Take any action that may undermine the feedback or ratings systems (such as importing or exporting feedback information off the Site, or using feedback as an extortion mechanism).
- Copy, modify or distribute content from the Site, except for your own information and use, without the prior express written permission from Elance.
- Select a Client or hire a Provider on the basis of religion, sex or race.
- Violate a request by Elance to not post Jobs deemed by Elance in its sole discretion to be contrary to the interests of the Site or the Elance User community.
- Violate any other policies stated on the Site.
Violation of these rules may result in suspension or termination of your Account, in addition to all other remedies available to Elance or other Users or Members. If you are aware of a potential violation, please contact Customer Service. In order to operate the Site, Elance must have certain rights. Consequently, when you post information, text, files, links, attachments, software or other materials to publicly visible areas of the Site, you are granting, or warranting that the owner of such Content has expressly granted a worldwide, royalty-free, perpetual, irrevocable, fully sub-licensable, non-exclusive right to use, reproduce, modify, transmit, distribute, perform, display and delete such Content (in whole or in part) and/or to incorporate such Content in other works in any form, media or technology now known or later developed.
USER OBLIGATIONS |
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You agree to: (a) abide by the Terms of Service and the processes and procedures described throughout the Site; (b) be financially responsible for your use of Elance and the purchase or delivery of Services; and (c) perform your obligations and complete the transaction as specified by the terms of your Job or order, your proposal or your agreed business terms, whichever is more recent, unless such transaction is prohibited by law or by the Terms of Service. Upon acceptance of a proposal, you agree to purchase the Services if you are a Client, or provide the Services if you are a Provider, in accordance with the terms agreed to by the parties, subject to any mutually agreed increase or decrease in Job scope. If the scope of the Services to be provided increases beyond the initial scope on the date of acceptance and the billings for the Job are larger than initially reported, you agree to report the higher amount through the Elance Payment Service and understand that the service fee Elance charges to the Provider will increase proportionally. As a Client, you agree not to pay invoices unless they are originated from the Elance Payment Service. As a Client you also understand that you are not obligated to pay invoices unless they are originated from the Elance Payment Service. As a Provider, you agree to send Clients invoices only through the Elance Payment Service, and agree to use this system for all Elance-originated business, whether first-time, repeat or follow-on. You understand that for our purposes a Client is not obligated to pay invoices unless they are originated through the Elance Payment Service.
POSTING JOBS |
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Elance offers you as a Client two ways to post your Job: Basic or Featured. A Basic Job posting is visible to all Elance Providers in the Category relevant to your Job. Elance will not charge the Client a fee for posting a Basic Job. A Featured Job posting is visible to all Elance Providers; however, Providers with Premier status in the Category relevant to your Job can submit bids and proposals at a preferential cost relative to non-Premier providers.
Elance will charge the Client a posting fee for a Featured Job posting. Please visit the Learn More section of the Site, or contact Customer Service with any questions regarding posting a Job.
Job Guidelines
You agree to utilize the following Job guidelines:
- Post Jobs with clear scope, well-defined deliverables and required time frames. Do not hesitate to contact Customer Service for assistance with posting a Job.
- Answer clarifying questions from Providers and update the Job description.
- Evaluate multiple proposals against criteria important to you such as a Provider's work experience, education, portfolio, certifications, references, feedback from prior Clients, location, communication style and cost.
- Accept a proposal only when it has a clear statement of work, well-defined deliverables and milestones, precise timeframes and payment terms.
- Ask the Provider to utilize the Business Terms and Change Order features found in MyElance to define key milestones and payment schedules.
- Ask for full contact information, for example telephone, and address information, of the other party once a bid proposal has been selected.
- Ask for the Provider's office hours and standard response times.
- Once you have hired for your Job, use MyElance to manage the Job and the Elance private messages to maintain an electronic record of all written communication between you and the Provider around scope, deliverables, milestones, timeframes, price, feedback, revisions, schedule changes, vacations, availability, delays, acceptance of deliverables and completion of milestones. In the event of a dispute, all written communication on Elance, including Job post, proposals, business terms and private message communication will serve as the statement of record.
- Utilize Elance's Payment Service to maintain the privacy of your personal financial details; leverage Elance's anti-fraud measures; maintain a record of all invoices and payments; and, in the event of a problem, have access to Dispute Resolution process.
- After the Job is completed, leave objective, balanced ratings and feedback.
- If the Provider does not complete the Job, leave objective, balanced ratings and feedback.
COMMUNICATION |
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Elance encourages open, complete and professional communication between Clients and Providers. Clients and Providers can use MyElance, Elance private messages, as well as email, chat, and telephone to clarify Job descriptions, scope or any specific requirements. Open communication helps Providers develop relevant proposals and Clients make informed hiring decisions. You are required to use MyElance to manage Jobs and are required to use Elance private messages to maintain an electronic record of all written communication including clarifications and agreements around scope, deliverables, milestones, timeframes, price, feedback on deliverables, requests for revisions, acceptance of deliverables and completion of milestones. Also, transcribe relevant emails, instant messages, telephone or in-person conversations between the Client and the Provider in a private message to maintain a record of what is agreed. In the event of a dispute, all written communication on Elance, including Job posting, proposals, business terms and private message communication will serve as the record for resolution of the dispute. A communication that is not referenced in a private message cannot be submitted as evidence in non-judicial dispute resolution after a dispute is reported.
- Please note: Elance provides the private messages and profile CONTACT INFORMATION section for you to enter your email address, telephone number and instant message IDs. You may not enter your contact information in your proposal comments, Job descriptions or other sections of your profile outside of the CONTACT INFORMATION section.
RATING AND FEEDBACK SYSTEM |
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You acknowledge and agree that the Site will contain public feedback from Users with whom you have transacted. You acknowledge that feedback results for you may consist of comments and ratings left by other Users and that Elance may calculate a composite feedback number based on these individual ratings. Providers agree to be rated by Clients along several criteria, as determined by Elance. Elance provides its feedback and rating system as a means through which Users can express their opinions publicly, and Elance does not monitor or censor these opinions or investigate any remarks posted by Users for accuracy or reliability unless a User brings the posting to Elance's attention. You may be held legally responsible for damages suffered by other Elance Users or third parties as a result of these remarks if a court finds that these remarks are legally actionable or defamatory. Under federal law, Elance is not legally responsible for any feedback or comments posted or made available on this Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. You agree to report violations or abuses of our rating and feedback system immediately by contacting Customer Service, and agree not to take any actions that undermine the integrity of the feedback system, including but not limited to the following:
- Leaving fake feedback for yourself or another User or Member such as using a secondary Username or other Elance members to artificially raise the level of your own feedback or create negative feedback for another User or Member.
- Feedback threats such as demanding another User or Member to perform a task by threatening to leave negative feedback or withholding deliverables or funds until another User or Member agrees to leave positive feedback or no feedback.
- Feedback solicitation such as offering to sell or buy Services in exchange for good feedback, trading feedback undeservedly or buying feedback.
In order to protect the integrity of the feedback system and protect Users from abuse, Elance will consider removing feedback under the following scenarios:
- Feedback or information posted seeks to elicit or solicit any User's contact information, such as other Users' email addresses, for any non-Elance related commercial or business purposes, or to transmit any unsolicited advertising, "junk mail," "spam," or "chain letters."
- Feedback or information posted contains language that is profane, vulgar, racist or contains adult material. Insulting or inflammatory feedback is strongly discouraged but will not be removed.
- Feedback or information posted is shown to have been left by any User who is in violation of Elance's Eligibility requirements, or by or for a User who has conducted any fraudulent transaction.
- Feedback or information posted is not directly related to transactions conducted through Elance.
- Feedback or information posted makes any reference to actions taken or purported to be taken by Elance or any law enforcement organization.
- When Elance is provided with a ruling or settlement agreement from a valid and certified dispute resolution service, or is provided with a court order finding that the disputed feedback is slanderous, libelous, defamatory or otherwise illegal.
- The User who left feedback provided Elance with false contact information during the transaction period (as verified by Elance) and cannot be contacted by Elance.
- The User who left feedback is participating in an Elance transaction with the intent of leaving feedback as part of a campaign to harass Elance member(s) (as verified by Elance).
- Negative feedback that was intended for another User only when the User responsible for the mistaken feedback contacts Elance and places the same feedback for the appropriate User. This does not apply to feedback that was mistakenly marked negative instead of positive or vice versa, in which case the User can contact Customer Service to file a feedback review request.
PROVIDING SERVICES |
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If you wish to provide Services through Elance, you must complete the Provider registration process and select an appropriate membership program. You agree to provide true, accurate, complete information and to update such information to maintain its truthfulness, accuracy and completeness. Elance considers true and accurate location only the primary place from which your Services are rendered. Misleading information about your location, including, but not limited to, using a satellite location in another country, is not allowed on Elance. At the beginning of your membership application, and from time to time thereafter, your Account may be subject to verification as well as editorial and feedback reviews. Elance can suspend or terminate your Account upon the discovery that any information you provided or posted is not complete or accurate, or as a result of other violations of the Terms of Service.
To attain "Premier" status as a Provider, you must either meet the minimum set of criteria outlined on the Site, or submit an application and pay an application fee. Please see the site for the current Premier status fee. Your application will be reviewed for qualification for Premier status. Qualification is based on your expertise and reputation as determined from sources outside of the Site and acceptance of your application is at the sole discretion of Elance. The Premier application fee is non-refundable, regardless of acceptance or denial of your application.
Proposal Guidelines
You agree to utilize the following bid proposal guidelines:
- Provide proposals only for Jobs that you are a good fit for and you can complete within the Client's time frames.
- Help the Client clarify his or her needs and fully develop the Job scope and deliverables.
- Write a specific, detailed proposal with clear scope, deliverables and milestones.
- Set expectations that you can meet or exceed.
- Specify payment terms that tie to the completion of milestones.
- Specify how change orders will be handled.
- Specify how warranty work will be handled.
When submitting your proposal you agree to:
- Submit an accurate proposal reflecting your understanding of the scope of the Job and the amount of time/effort you plan to commit in order to provide high Client satisfaction.
- Submit a new proposal when needed to reflect any changes to price, delivery date or approach, prior to the end of the proposal period.
- Not submit unreasonably low proposal prices or test proposals. If you do not have sufficient information about the Job, post a message through the "ask the Client" feature and request more information, indicating your assumptions regarding the Job scope in your proposal and making explicit that you will update the proposal once you receive more information, or do not submit a proposal on the Job.
- Not submit proposals that are made with the intent to commit fraud. Doing so will result in immediate termination of your membership.
- Not submit boilerplate, placeholder or generic proposals.
- Not offer your Services in exchange for good feedback or for free.
- Respond promptly, within one business day, to private messages from the Client.
- Respond promptly, within one business day, to any inquiry from Customer Service.
Violation of these guidelines may result in suspension or termination of the Job or of your Account. If you are aware of a potential violation, please contact Customer Service.
Job Fulfillment Guidelines
You agree to utilize the following Job fulfillment guidelines:
- Once you have hired for a Job, use MyElance to manage the Job and Elance private messages to maintain an electronic record of all written communication between you and the Client around scope, deliverables, milestones, time frames, price, feedback, revisions, schedule changes, vacation, availability, delays, acceptance of deliverables and completion of milestones. Also, transcribe relevant emails, instant messages, telephone or in-person conversations between you and the Client in a private message to maintain a record of what is agreed. In the event of a dispute, all written communication on Elance, including Job post, proposals, business terms, and private message communication will serve as the statement of record.
- Inform the Client of your office hours and committed response time.
- Inform the Client if a committed deliverable will be missed, offering an explanation and proposing a revised date.
- Inform the Client if you will be unavailable for more than one business day.
- If you are unable to complete the Job, alert Customer Service so that Elance is aware of the situation and can offer assistance to the Client.
- Respond promptly, within 1 business day, to all Job-related communication, whether from the Client or from Elance.
- Utilize Elance's Payment Service to maintain the privacy of your personal financial Account details; leverage Elance's anti-fraud measures; maintain a record of all invoices and payments; add the Job, feedback and transaction amount to your profile; and, in the event of a problem, have access to Elance's Dispute Resolution process.
- Ask that Clients leave feedback on the Elance rating system after the work is completed and report any rating system violation by contacting Customer Service.
- After the Job is completed, leave objective, balanced ratings and feedback.
Violation of these guidelines may result in suspension or termination of the Job or of your Account. If you are aware of a potential violation, please contact Customer Service.
PROVIDER FEES |
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Provider Membership Programs and Premier Status
Elance offers five Provider membership programs. Two are free and three are paid. The two free membership programs are named: Individual Basic and Business Basic. The three paid membership programs are named: Professional, Small Business, and Large Business. In addition, qualified Providers under one of the three paid membership programs may upgrade to Premier status. To qualify, a Professional, Small Business, or Large Business Provider must meet a minimum set of criteria and agree to the Premier standards set forth on the Site. There is an additional monthly fee for Premier status as outlined on the Site. Only Premier members may submit proposals for Jobs marked as "Featured" without using additional Connects.
Membership Fees and Connect Fees
All Providers pay a monthly membership fee depending on their membership program. Each membership program includes a certain number of prepaid "Connects." These prepaid Connects reserve capacity. A Provider uses these Connects by accessing leads. The Provider will use a certain number of Connects when they submit proposals, review invitations to submit a proposal, or allow potential Clients to contact them. If in a given month you exceed the number of Connects included with your membership program, you have the option to buy additional Connects. Membership fees can be paid by credit card, bank account, or PayPal, or through your Elance Account. The membership billing period begins on the date that Elance receives your payment. Membership fees are calculated from the beginning of that billing period. The period for calculating monthly Connects included in your membership program starts on the same day as the membership, Pacific Time, and renews every calendar month. Unused Connects will not be carried over into the next month. You have the option to buy additional Connects in excess of those included with your membership program and, if you choose to do so, payment for the additional Connects is due within 30 days. If such payment is not received within 30 days, your ability to submit proposals will be suspended until your Account is brought current. Elance reserves the right to change the monthly number of Connects included in the membership programs, change the price for additional Connects or institute new fees at any time, upon reasonable notice posted in advance on this Site. No refunds of fees already paid will be given. If you provide false or misleading information, Elance will have the right to cancel your membership and will not refund the membership fee already paid.
Automatic Membership Renewal
Elance automatically renews your monthly membership and charges your credit card or your default payment method. If your Account is set up to pay by credit card, bank account, or PayPal, you hereby authorize us to charge such credit card, bank account, or PayPal for the appropriate membership fees and amounts stated. If you are set up to pay via your Elance Account, Elance deducts the appropriate membership fee from the Account balance each month. Automatic renewal occurs on the first day after the expiration date. You can cancel by following the cancellation instructions listed below.
Changes to Membership Program
If you change your membership program from Individual to Business, or from Small Business to Large Business, the unused portion of the lower membership fee will be credited toward the higher membership fee. The new billing period will then be based upon the date Elance receives payment of the new membership fee. Upgrading a membership or adding additional categories will result in a new billing date effective upon the date of payment of the additional fees and, if applicable, will result in a credit of the unused portion of the existing category membership fees. If you downgrade a membership, you will not receive a refund or credit for the fees already paid. The downgrade will go into effect at the beginning of the next billing period. Elance reserves the right to modify its membership programs at any time, upon a reasonable notice posted in advance on this Site.
Membership Cancellation Instructions
To cancel your membership, click on the 'Membership Status' link on 'MyElance,' then the 'Edit my Membership Plan' link, or contact Customer Service. Your cancellation request will be effective if received by 11:15 p.m. Eastern Time on the final day of your membership term. Elance will send you an email confirmation once your membership has been cancelled. You will not be liable for any additional membership fees after your cancellation is effective. Cancellation goes into effect at the end of the active billing period. In any notice of cancellation, you must include:
- Your full name, Elance Username, phone number and address.
- Number of memberships you wish to cancel.
- Levels (i.e., Individual Professional, Small Business, Large Business).
- Categories you wish to cancel.
- Term (i.e. monthly, quarterly or annual) of each membership you would like to cancel.
- The last five digits of the payment method currently used for your Account (for your security, write only the last five digits; if you are paying with your Elance Account, please specify the last activity on your Elance Account).
- Only if you are canceling via fax or certified mail, a printout of your Membership Status page.
Please note that we will not be able to process cancellation requests unless all of the above information is provided. Memberships that expire or are converted to Free Memberships are subject to a monthly Account fee until remaining funds are removed or expire. Please consult the Site or contact Customer Service for the current fee level.
Service Fees
Elance charges Providers a service fee based on: (a) the total amount you receive for your Services from the Client; (b) the total amount you invoice through Elance; or (c) the proposal amount accepted by the Client if invoicing or payment through Elance does not start within 45 days of the bid acceptance date for non-Escrow Jobs or 45 days of the bid acceptance date for Escrow Jobs. Under all circumstances, a minimum service fee shall apply. Please consult the Site or contact Customer Service for the calculation of fees applicable to your Job.
For non-Escrow Jobs, the service fee is charged to your Account each time an invoice is sent through the Elance system. In the event that the total amount paid to you by the Client is greater than the amount invoiced, the Elance system will automatically adjust the service fee to the higher amount. The service fee is always due 45 days from the date each invoice is submitted for payment. For administrative reasons, invoices and associated service fees are treated individually even if they are part of the same Job. If within 45 days from the Job acceptance date you have not sent any invoices to the Client through the Elance Payment Service, Elance will automatically charge your Account for the service fee calculated at Job acceptance. You understand that the service fees are due within 45 days from the date of invoicing (or, if invoices have not been sent, from the date of acceptance) and accept that Elance may, at its sole discretion, suspend your Account until overdue amounts are paid in full. In the event your Account is overdue, Elance will apply payments received first to the membership fees and then to service fees. The service fee is charged in US dollars, but can be paid in other currencies although payments made in currency other than US dollars may take up to eight weeks to process and balance adjustments may be delayed. Elance reserves the right to change the method of calculating the service fee at any time. However, Elance will always apply changes to the service fee only to Jobs accepted after notification of the change.
For Escrow Jobs, the service fee is charged to your Account each time a payment is released through the Elance system. The service fee is always due 45 days from the date of each payment. If within 45 days from the Job acceptance date you have not received any payments from the Client through the Elance Payment Service, Elance will automatically charge your Account for the service fee calculated at Job acceptance. You understand that the service fees are due within 45 days from the date of payment (or, if no payments have been made, from the date of acceptance) and accept that Elance may, at its sole discretion, suspend your Account until overdue amounts are paid in full. In the event your Account is overdue, Elance will apply payments received first to the membership fees and then to service fees. The service fee is charged in US dollars, but can be paid in other currencies although payments made in currency other than US dollars may take up to eight weeks to process and balance adjustments may be delayed. Elance reserves the right to change the method of calculating the service fee at any time. However, Elance will always apply changes to the service fee only to Jobs accepted after notification of the change.
Period of Exclusivity
IF YOU ARE A Client, YOU AGREE THAT FOR A PERIOD OF ONE YEAR AFTER ACCEPTANCE OF A PROPOSAL, IF YOU POST, SOLICIT, OR PURCHASE ANY SERVICES FROM THE SAME PROVIDER YOU WILL DO SO EXCLUSIVELY ON THE SITE, WHETHER SUCH SERVICES ARE THE SAME JOB, A FOLLOW-UP JOB, OR NEW UNRELATED SERVICES.
IF YOU ARE A PROVIDER, YOU AGREE THAT FOR A PERIOD OF ONE YEAR AFTER ACCEPTANCE OF A PROPOSAL, IF YOU PROPOSE OR PROVIDE ANY SERVICES TO THE SAME Client YOU WILL DO SO EXCLUSIVELY ON THE SITE, WHETHER SUCH SERVICES ARE THE SAME JOB, A FOLLOW-UP JOB, OR NEW UNRELATED SERVICES.
Circumvention of Service Fees
You agree not to engage in any action or activity meant to circumvent the service fees. Prohibited practices include (but are not limited to) the following:
- Placing low value or placeholder proposals, with unreasonably high final service charges.
- Failing to report changed proposal amounts or final service prices through the Elance Payment Service.
- Suggesting or soliciting Clients to hire you outside the Elance system.
- Submitting proposals for a Job posted on the Site outside of the Elance system.
- Reporting on the Site a Job amount different than that agreed between Client and Provider.
Audit Provisions and Record Keeping
For a period of one year after accepting each Job, you agree to keep and maintain complete and accurate records related to the Services provided on Elance, including the service description, the proposal and payment terms, and information on all repeat or follow-on Services performed for each Client originated on Elance. In the event of questions regarding Services rendered, work performed or fees due to Elance, upon 30 days written notice and request from Elance, you agree to provide copies of these records and other relevant documentation.
ENFORCEMENT OF TERMS OF SERVICE |
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We may suspend or cancel your Account if we believe that you have violated or acted inconsistently with the letter or spirit of the Terms of Service, or violated our rights or those of another party. Without limiting Elance's other remedies, we will suspend or terminate your Member Account and refuse to provide any Services to you if: (a) you breach any terms and conditions of the Terms of Service and the 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 Elance. Once suspended or terminated, you may not continue to use the Elance service under a different Account or re-register under a new Account. In addition, violations of the Terms of Service may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. If a User or Member engages in actions or activities which circumvent the Site or otherwise reduces service fees owed Elance under the Terms of Service, that User or Member will be liable to Elance for the service fees due, and may be subject to additional sanctions including, but not limited to, suspension or termination of Elance membership. Elance reserves the right to terminate any User or Job for any reason, at its sole discretion and to refuse to provide registration and membership to you in the future. We will notify you if we cancel your membership, unless in our judgment giving notice would cause a risk of further violation or damages. However, we will notify you that your Account will be canceled if the law requires such notification. When your membership is canceled, you may no longer have access to data, messages, files and other material you keep on the Site.
DISPUTE RESOLUTION PROCESS |
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How to Avoid Disputes
About one percent of all Jobs on Elance result in a dispute. Disputes often arise due to miscommunication and can often be resolved amicably between the parties. Elance recommends the following steps to avoid disputes:
- Post Jobs with clear scope, well-defined deliverables and required time frames.
- Answer clarifying questions from Providers and update the Job description.
- Evaluate multiple proposals against criteria important to you, such as a Provider's work experience, education, portfolio, certifications, references, feedback from prior Clients, location, communication style and cost.
- Review the Sample Contracts posted on the Site for applicability to your situation, or obtain legal advice and attach a written agreement onto the Private Message Board.
- Accept a proposal only when it has a clear statement of work, well-defined deliverables and milestones, precise time frames and payment terms.
- Ask your Provider to utilize the Business Terms and Change Order features found in MyElance to define key milestones and payment schedules.
- Ask for full contact information, for example email, telephone, and address information, of the other party once a proposal has been selected.
- Ask for the Provider's office hours and standard response times.
- Maintain open lines of communication. Be clear about your expectations and check in frequently with the other party. Do not leave anything to assumptions.
- Once you have hired for your Job, use MyElance to manage the Job and Elance private messages to maintain an electronic record of all written communication between you and the Provider around scope, deliverables, milestones, time frames, price, feedback, revisions, schedule changes, vacations, availability, delays, acceptance of deliverables and completion of milestones. In the event of a dispute, all written communication on Elance, including Job post, proposals, business terms and private message communication will serve as the statement of record.
- Document any changes to scope, timing or payment in writing, and utilize the Business Terms and Change Order feature to add all milestones and payment schedules.
- Send/receive payment in installments as key milestones are met. Have both parties sign off on the milestones via the Private Message Board so that a record is maintained.
- Utilize Elance's Payment Service to maintain the privacy of your personal financial Account details; leverage Elance's anti-fraud measures; maintain a record of all invoices and payments; and, in the event of a problem, have access to Elance's Dispute Resolution process.
What if I Have a Dispute?
In the event that you have a dispute with another User, the Dispute Resolution Process consists of three phases subject to limitation based on the type and status of Job in dispute:
- Member Resolution - Available on all Jobs with payments made through the Elance Billing and Payment Service.
- Elance Dispute Assistance - Available only for Escrow Jobs with funds still held in Escrow, or for Escrow Jobs with mandatory status reporting selected.
- Arbitration - Available only for Escrow Jobs with funds still held in Escrow, or for Escrow Jobs with mandatory status reporting.
Key Dates
For all disputes regardless of type and status of a Job in dispute, you must be aware of the following three key dates in any dispute:
"Breach Date" means the later of (1) the date on which the events causing the breach of your agreement with the other User first took place, and (2) the date on which you learned, or reasonably should have learned, about those events.
"Dispute Initiation Date" means the date you upload to your Private Message Board the completed "Dispute Notice Form" made available by Elance on the Dispute Resolution Help page. You must upload your completed Dispute Notice Form to your Private Message Board at least 15 days prior to the six month anniversary of the Breach Date (see the paragraphs entitled "Limitations Period" and "Arbitration" below).
"Limitations Date" means the date six months following the Breach Date. You do not have a right to initiate a claim or cause of action or demand arbitration after the Limitations Date.
Member Resolution Phase
Member Resolution. If you have used the Billing and Payment System and adhered to the Terms of Service and followed the guidelines herein, please upload the "Dispute Notice Form" made available by Elance on the Dispute Resolution Help page. Complete the following steps: (1) fill in the information requested on the form, with complete details about the Job and the dispute, including your Username, the Username of the other User ("Opposing Party"), the Breach Date, and the Job name and if the Job is an Escrow Job with funds still held in Escrow, please clarify your request for Release of funds held in Escrow; (2) save the form as a Microsoft Word document file on your computer; and (3) upload it to your private messages (posting in your private messages allows Elance to maintain a record of each party's positions in the dispute) to allow the Opposing Party to respond.
Elance Dispute Assistance Phase
Dispute Assistance. If the Job is an Escrow Job with funds still held in Escrow or with mandatory status reporting selected, and if you have uploaded the completed Dispute Notice Form to your private messages but the Opposing Party does not respond within three business days, or if the Opposing Party responds but you cannot come to an agreement within an additional three business days after their response, then Elance will notify both the Opposing Party and you to try to re-establish communication between the two of you to encourage settlement of the dispute. If either party fails to respond to an email message from Elance regarding violation, dispute or complaint within two business days, Elance will have the right to terminate that party's Job or Account. Elance will be a neutral third party and will have no further obligations. No Elance employee is authorized to make any recommendation or guaranty regarding the dispute.
By using the Site you agree that in the event for any reason the parties fail to agree on a resolution to the Dispute within 15 days of the Dispute Initiation Date, then the provisions of the section below entitled “Arbitration Phase” will automatically apply.
Limitations Period. The six-month anniversary of the Breach Date is the statute of limitations date or "Limitations Date". All claims must have a Dispute Initiation Date prior to the Limitations Date or the claim is barred. You do not have a right to initiate a claim or demand Arbitration after the Limitations Date. You must upload your completed Dispute Notice Form to your Private Message Board at least 15 days prior to the six month anniversary of the Breach Date or you will not have the right to demand Arbitration and your claim or cause of action will be barred (see the paragraph entitled "Arbitration" below).
Notice of Disputes Resolved. Any agreement resolving the dispute between you and the Opposing Party must be posted (and confirmed by both parties) as text or attachments onto Elance private messages to allow Elance to maintain a record of same.
Arbitration Phase
Arbitration. If the Job is an Escrow Job with funds still held in Escrow or with mandatory status reporting selected, if the dispute is not settled within 15 days after the Initiation Date, you agree that you and the Opposing Party (the "Dispute Parties") will each have the right, until the Limitations Date, to demand binding, non-appearance-based arbitration conducted by a neutral third party dispute resolution service that Elance will choose and engage in its sole discretion ("Arbitrator") to resolve the dispute ("Arbitration"). If the Opposing Party demands Arbitration in accordance with the foregoing, you agree to submit to such Arbitration in accordance with these Terms of Service. You agree that in the event of such an Arbitration: (a) each Dispute Party and Elance will pay one-third of the first $600 of the Arbitrator's fees; (b) each Dispute Party will pay one-half of any amount by which