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Legal Center Legal Center Error All Contracts <ul> <li> Terms of Service </li> <li> User Agreement </li> <li> Terms of Use </li> <li> Direct Contracts Terms </li> <li> Escrow Instructions </li> <li> Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions </li> <li> Fixed-Price Escrow Instructions </li> <li> Fixed Price Direct Contract Escrow Instructions </li> <li> Hourly Direct Contract Escrow Instructions </li> <li> Upwork Escrow Inc. </li> <li> Fee and ACH Authorization Agreement </li> <li> Freelancer Membership Agreement </li> <li> Optional Service Contract Terms </li> <li> Mark Use Guidelines </li> <li> Upwork's Virtual Patent Marking </li> <li> API Terms of Use </li> <li> Proprietary Rights Infringement Reporting Procedures </li> <li> Privacy Policy </li> <li> Privacy Center </li> <li> Cookie Policy </li> <li> Upwork Digital Accessibility Statement </li> <li> Nondiscrimination Statement </li> <li> Master Subscription Agreement (Enterprise Standard) </li> <li> Master Subscription Agreement (WPP) </li> <li> Master Subscription Agreement (Compliance) </li> <li> Independent Contractor Agreement </li> <li> Independent Contractor Agreement Premium </li> <li> Upwork Payroll Agreement </li> <li> Upwork Talent Scout User Agreement </li> <li> Upwork Talent Scout User Agreement </li> <li> WEWORK CLIENT ADDENDUM FOR UPWORK ENTERPRISE SERVICES </li> <li> Starter Project Program Terms of Use for Clients and Freelancers </li> <li> 'Upwork Team' Software License Agreement </li> <li> Team Builder Terms for Clients </li> <li> Global Data Processing Agreement </li> <li> Work Together Talent Grants Terms and Conditions </li> <li> Jumpstarter Projects Program Terms of Use </li> </ul> Terms of Service Version 4.0 Effective June 26, 2020 Download Table of Contents <ol> </ol> The Upwork Terms of Service is comprised of the following agreements:<ul> <li>User Agreement</li> <li>Privacy Policy</li> <li>API Terms of Use</li> <li>Cookie Policy</li> <li>Escrow Instructions<ul> <li>Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions</li> <li>Fixed-Price Escrow Instructions </li> <li>Direct Contract Escrow Instructions </li> <li>Upwork Escrow Inc. </li> </ul> </li> <li>Fee and ACH Authorization Agreement</li> <li>Freelancer Membership Policy </li> <li>Proprietary Rights Infringement Reporting Procedures</li> <li>Site Terms of Use </li> <li>'Upwork Team' Software License Agreement </li> <li>Upwork Payroll Agreement</li> <li>Upwork Direct Contract Terms </li> <li>Upwork Mark Use Guidelines </li> <li>Optional Service Contract Terms </li> <li>Nondiscrimination Statement</li> </ul> User Agreement Version 5.1 Effective July 13, 2020 Download Table of Contents <ol> </ol> PLEASE READ THIS USER AGREEMENT AND ALL OTHER AGREEMENTS AND POLICIES REFERENCED HEREIN COLLECTIVELY DEFINED BELOW AS THE "TERMS OF SERVICE" CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) Upwork Global Inc. (“Upwork,” “we,” or “us”) and our affiliates Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent expressly stated, Elance Limited ("Elance Ltd."). You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our website located at www.upwork.com or any part of the rest of the Site (defined in the Site Terms of Use) or the Site Services (defined in the Site Terms of Use).This Agreement includes and hereby incorporates by reference the following important agreements, as they may be in effect and modified from time to time: Site Terms of Use. Fee and ACH Authorization Agreement. Cookie Policy. Privacy Policy. Mark Use Guidelines. Freelancer Membership Agreement. Proprietary Rights Infringement Reporting Procedures. Upwork App Software License Agreement. API Terms of Use. and the escrow instructions as applicable to any Service Contract you enter into with another User, specifically the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions. and Fixed-Price Escrow Instructions. This Agreement also incorporates, for any User using the Upwork Direct Contract Service, Upwork Direct Contract Terms and Direct Contract Escrow Instructions. These agreements are collectively, with this Agreement, called the “Terms of Service”.Subject to the conditions set forth herein, Upwork may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site. Upwork will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. If the Substantial Change includes an increase to Fees charged by Upwork, Upwork will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”). YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE ARBITRATION PROVISION IN SECTION 14 OF THIS AGREEMENT (SUBJECT TO YOUR RIGHT TO OPT OUT OF THE ARBITRATION PROVISION AS PROVIDED IN SECTION 14). IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE EXCEPT AS PERMITTED BY THE SITE TERMS OF USE. IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR AGENCY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR AGENCY.TABLE OF CONTENTS1. Upwork Accounts1.1 Registration and Acceptance1.2 Account Eligibility1.3 Account Profile1.4 Account Types1.5 Account Permissions1.6 Identity and Location Verification1.7 Usernames and Passwords2. Purpose of Upwork2.1 Relationship with Upwork2.2 Taxes and Benefits2.3 Marketplace Feedback and User Content3. Contractual Relationship Between Client and Freelancer3.1 Service Contracts3.2 Disputes Among Users3.3 Confidential Information4. Worker Classification and Upwork Payroll 4.1 Worker Classification4.2 Upwork Payroll Services5. Upwork Fees5.1 Fees For Freelancers 5.2 Client Fees5.3 VAT and Other Taxes5.4 No Fee for Introducing or Finding Projects6. Payment Terms and Escrow Services6.1 Escrow Services6.2 Client Payments on Service Contracts6.3 Disbursements to Freelancers on Service Contracts 6.4 Non-Payment6.5 No Return of Funds and No Chargebacks6.6 Payment Methods6.7 U.S. Dollars and Foreign Currency Conversion7. Non-Circumvention7.1 Making Payments Through Upwork7.2 Communicating Through the Site. Not Sharing Contact Details7.3 Opting Out8. Records of Compliance9. Warranty Disclaimer10. Limitation of Liability11. Release12. Indemnification13. Agreement Term and Termination13.1 Termination13.2 Account Data on Closure13.3 Survival14. Disputes Between You and Upwork14.1 Dispute Process, Arbitration, and Scope14.2 Choice of Law14.3 Informal Dispute Resolution14.4 Binding Arbitration and Class Action/Jury Trial Waiver15. General15.1 Entire Agreement15.2 Modifications. Waiver15.3 Assignability15.4 Severability. Interpretation15.5 Force Majeure15.6 Prevailing Language and Location15.7 Access of the Site Outside the United States15.8 Consent to Use Electronic Records16. Definitions 1. UPWORK ACCOUNTS Section 1 discusses what you must agree to before using the Site or Site Services and the different types of accounts that can be created on the Site, as detailed below. 1.1 REGISTRATION AND ACCEPTANCEBy registering for an account to use the Site or Site Services (an “Account”), by using the Site or Site Services after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Agreement and the other Terms of Service.To access and use certain portions of the Site and the Site Services, you must register for an Account. Subject to the Site Terms of Use, certain portions of the Site are available to Site Visitors, including those portions before your Account registration is accepted. Upwork reserves the right to decline a registration to join Upwork or to add an Account of any type (i.e., as a Client or Freelancer), for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company. Your privacy is important to Upwork and your information will be handled in accordance with our Privacy Policy, which is part of the Terms of Service, and applicable law.1.2 ACCOUNT ELIGIBILITYUpwork offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you: (a) are an employee or agent of and authorized to act for and bind an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity). (b) will use the Site and Site Services for business purposes only. (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of Freelancer Services. and (d) are either a legal entity or an individual who is 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) in each case who can form legally binding contracts.1.3 ACCOUNT PROFILETo register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, to be shown to the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.1.4 ACCOUNT TYPESAs described in this Section, there are a number of different Account types. Once you register for one Account type, you can add the other Account types under the same username and password. For example, if you already have a Freelancer Account (defined below), you can add a Client Account (defined below) as a separate account type in settings without re-registering. You agree not to have or register for more than one Account without express written permission from us. We reserve the right to revoke the privileges of the Account or access to or use of the Site or Site Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.1.4.1 CLIENT ACCOUNTYou can register for an Account or add an Account type to use the Site and Site Services as a Client (a “Client Account”). Each User under a Client Account (“Team Member”) can be given different permissions to act on behalf of the Client Account. 1.4.2 FREELANCER, AGENCY, AND AGENCY MEMBER ACCOUNTFreelancer: You can register for an Account or add an Account type to use the Site and Site Services as a Freelancer (a “Freelancer Account”). Agency and Agency Member: A specific type of Freelancer Account you can add is an “Agency Account”, the owner of which is referred to as an “Agency”. An Agency Account allows permissions to be granted to Users under the Agency Account which can be given different permissions to act on behalf of the Agency (each, an “Agency Member”).You acknowledge and agree that the Agency is solely responsible, and assumes all liability, for: (a) the classification of your Agency Members as employees or independent contractors. and (b) paying your Agency Members in accordance with applicable law for work performed on behalf of the Agency for Projects. You further acknowledge and agree that (i) the Agency may determine the Profile visibility and pricing/rate information of any of its Agency Members. and (ii) Agency Members’ Profiles may display work history that includes work done under the Agency Account, including after the Agency Member is no longer an Agency Member.1.5 ACCOUNT PERMISSIONSYou agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, including as a Team Member or Agency Member, you represent and warrant that: (a) the User is authorized to act on your behalf. and (b) you are fully responsible and liable for the User’s acts and omissions, including for obligations and liabilities relating to making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site and Site Services. Upon closure of an Account, Upwork may close any or all related Accounts.1.6 IDENTITY AND LOCATION VERIFICATION When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on Upwork. You authorize Upwork, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes, but is not limited to, providing official government or legal documents. During verification some Account features may be temporarily limited. When a verification is successfully completed, Account features will be restored. 1.7 USERNAMES AND PASSWORDSEach person who uses the Site must register for their own Account. When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password. You agree not to share your username or password with any person, and, if you are a legal entity who is not a natural person, to only share your username and password with a person who is authorized to use your Account. You authorize Upwork to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use both or (b) the use would violate the Terms of Service. 2. PURPOSE OF UPWORK Section 2 discusses what Upwork does and does not do when providing the Site and Site Services and some of your responsibilities when using the Site to find or enter into a Service Contract with a Freelancer or Client, as detailed below.The Site is a marketplace where Clients and Freelancers can identify each other and advertise, buy, and sell Freelancer Services online. Subject to the Terms of Service, Upwork provides the Site Services to Users, including hosting and maintaining the Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those Service Contracts. When a User enters a Service Contract, the User uses the Site to invoice and pay any amounts owed under the Service Contract.2.1 RELATIONSHIP WITH UPWORKUpwork merely makes the Site and Site Services available to enable Freelancers and Clients to find and transact directly with each other. Upwork does not introduce Freelancers to Clients, find Projects for Freelancers, or find Freelancers for Clients. Through the Site and Site Services, Freelancers may be notified of Clients that may be seeking the services they offer, and Clients may be notified of Freelancers that may offer the services they seek. at all times, however, Users are responsible for evaluating and determining the suitability of any Project, Client or Freelancer on their own. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users and Upwork is not a party to that Service Contract.You acknowledge, agree, and understand that Upwork is not a party to the relationship or any dealings between Client and Freelancer. Without limitation, Users are solely responsible for: (a) ensuring the accuracy and legality of any User Content. (b) determining the suitability of other Users for a Service Contract (such as any interviews, vetting, background checks, or similar actions). (c) negotiating, agreeing to, and executing any terms or conditions of Service Contracts. (d) performing Freelancer Services. and/or (e) paying for Freelancer Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Contract with another User and for verifying any information about another User, including Composite Information (defined below). Upwork does not make any representations about or guarantee the truth or accuracy of any Freelancer’s or Client’s listings or other User Content on the Site. does not verify any feedback or information provided by Users about Freelancers or Clients. and does not perform background checks on or guarantee the work of Freelancers or Clients. You acknowledge, agree, and understand that Upwork does not, in any way, supervise, direct, control, or evaluate Freelancers or their work and is not responsible for any Project, Project terms or Work Product. Upwork makes no representations about and does not guarantee, and you agree not to hold Upwork responsible for, the quality, safety, or legality of Freelancer Services. the qualifications, background, or identities of Users. the ability of Freelancers to deliver Freelancer Services. the ability of Clients to pay for Freelancer Services. User Content and statements or posts made by Users. or the ability or willingness of a Client or Freelancer to actually complete a transaction. While Upwork may provide certain badges on Freelancer or Client profiles, such badges are not a guarantee or warranty of quality or ability or willingness of the badged Freelancer or Client to complete a Service Contract and is not a guarantee of any kind, including, the quality of Freelancer Services or Client Project.You also acknowledge, agree, and understand that Freelancers are solely responsible for determining, and have the sole right to determine, which Projects to accept. the time, place, manner, and means of providing any Freelancer Services. the type of services they provide. and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Upwork, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance). (ii) Upwork will not have any liability or obligations, including under or related to Service Contracts and/or Freelancer Services for any acts or omissions by you or other Users. (iii) Upwork does not, in any way, supervise, direct, or control any Freelancer or Freelancer Services. does not impose quality standards or a deadline for completion of any Freelancer Services. and does not dictate the performance, methods or process Freelancer uses to perform services. (iv) Freelancer is free to determine when and if to perform Freelancer Services, including the days worked and time periods of work, and Upwork does not set or have any control over Freelancer’s pricing, work hours, work schedules, or work location, nor is Upwork involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Freelancer for a Project. (v) Freelancer will be paid at such times and amounts as agreed with a Client in a given Service Contract, and Upwork does not, in any way, provide or guarantee Freelancer a regular salary or any minimum, regular payment. (vi) Upwork does not provide Freelancers with training or any equipment, labor, tools, or materials related to any Service Contract. (vii) Upwork does not provide the premises at which Freelancers will perform the work. Freelancers are free to use subcontractors or employees to perform Freelancer Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Freelancer’s subcontractor(s) or employee(s). and (viii) Upwork does not provide shipping services for any physical Work Product. If a Freelancer uses subcontractors or employees, Freelancer further agrees and acknowledges that this Section applies to Upwork’s relationship, if any, with Freelancer’s subcontractors and employees as well and Freelancer is solely responsible for Freelancer’s subcontractors and employees.Without limiting the foregoing paragraph, if you are an Agency or Agency Member, you expressly acknowledge, agree, and understand that: (1) the Agency is solely responsible for paying its Agency Members for work performed on behalf of the Agency and that such payments will not be made through the Site. (2) Upwork is not a party to any agreement between the Agency and its Agency Members and does not have any liability or obligations under or related to any such agreement, even if the Agency or Agency Member defaults. (3) neither Agencies nor Agency Members are employees or agents of Upwork. (4) Upwork does not, in any way, supervise, direct, or control the Agency or Agency Members. (5) Upwork does not set Agencies’ or Agency Members’ contract terms amongst themselves or with Clients (including determining whether the contract will be hourly or fixed price), fees, pricing, work hours, work schedules, or location of work. (6) Upwork does not provide Agencies or Agency Members with training or any equipment, labor, tools, or materials needed for any Service Contract. (7) Upwork does not provide the premises at which the Agency or Agency Members will perform the work. and (8) Upwork makes no representations as to the reliability, capability, or qualifications of any Agency or Agency Member or the ability or willingness of any Agency to make payments to or fulfill any other obligations to Agency Members, and Upwork disclaims any and all liability relating thereto.Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels they choose, provided, if applicable, Users comply with the Opt Out provisions described in Section 7. Users are free at all times to engage in such other business activities and services and are encouraged to do so.2.2 TAXES AND BENEFITSFreelancer acknowledges and agrees that Freelancer is solely responsible (a) for all tax liability associated with payments received from Freelancer’s Clients and through Upwork, and that Upwork will not withhold any taxes from payments to Freelancer. (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Freelancer is not covered by or eligible for any insurance from Upwork. (c) for determining whether Freelancer is required by applicable law to issue any particular invoices for the Freelancer Fees and for issuing any invoices so required. (d) for determining whether Freelancer is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Freelancer Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate. and (e) if outside of the United States, for determining if Upwork is required by applicable law to withhold any amount of the Freelancer Fees and for notifying Upwork of any such requirement and indemnifying Upwork for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Upwork, Freelancer agrees to promptly cooperate with Upwork and provide copies of Freelancer’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Freelancer is engaging in an independent business as represented to Upwork.2.3 MARKETPLACE FEEDBACK AND USER CONTENT You hereby acknowledge and agree that Users publish and request Upwork to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that Freelancers or Clients voluntarily submit to Upwork and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Upwork. Upwork provides such information solely for the convenience of Users.You acknowledge and agree that User feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that Upwork post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Job Success Score, wherever referenced, and other User Content highlighted by Upwork on the Site or otherwise (“Composite Information”), if any, may include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that Upwork will make Composite Information available to other Users, including composite or compiled feedback. Upwork provides its feedback system as a means through which Users can share their opinions of other Users publicly, and Upwork does not monitor, influence, contribute to or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.Upwork does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content. Upwork is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Upwork reserves the right (but is under no obligation) to remove posted feedback or information that, in Upwork’s sole judgment, violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of Upwork. You acknowledge and agree that you will notify Upwork of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, Upwork may rely on the accuracy of such information.3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND FREELANCER Section 3 discusses the relationship you may decide to enter into with another User, including Service Contracts between Users, as detailed below. 3.1 SERVICE CONTRACTSIf a Client and Freelancer decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Freelancer. Client and Freelancer have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that Upwork is not a party to any Service Contract, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between Upwork and any User or a partnership or joint venture between Upwork and any User.With respect to any Service Contract, Clients and Freelancers may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Upwork’s rights and obligations under the Terms of Service, including this Agreement and the applicable Escrow Instructions. The parties to a Service Contract can, if the parties prefer, agree to the Optional Service Contract Terms in whole or in part, in addition to or instead of other such agreements. Only to the extent that they have not entered into another agreement or terms with respect to a Service Contract, the parties to a Service Contract agree that the Optional Service Contract Terms apply to their Service Contract.The Optional Service Contract Terms are provided as a sample only and may not be appropriate for all jurisdictions or all contracts. Users are responsible for complying with any local requirements, including applicable laws, rules, and regulations. Upwork does not assume any responsibility for any consequence of using the Optional Service Contract Terms. The Optional Service Contract Terms are not intended to and do not (a) constitute legal advice, (b) create an attorney-client relationship, or (c) constitute advertising or a solicitation of any type. Each situation is highly fact-specific and requirements vary by situation and jurisdiction and therefore any party should seek legal advice from a licensed attorney in the relevant jurisdictions. Upwork expressly disclaims any and all liability with respect to actions or omissions based on the Optional Service Contract Terms.Please refer to the Upwork Payroll Agreement for Service Contracts using Upwork Payroll.3.2 DISPUTES AMONG USERSFor disputes arising between Clients and Freelancers, you agree to abide by the dispute process that is explained in the Escrow Instructions that apply to your particular Service Contract. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that Upwork will not and is not obligated to provide any dispute assistance beyond what is provided in the Escrow Instructions.If Freelancer or Client intends to obtain an order from any arbitrator or any court that might direct Upwork, Upwork Escrow, or our Affiliates to take or refrain from taking any action with respect to an Escrow Account, that party will (a) give us at least five business days’ prior notice of the hearing. (b) include in any such order a provision that, as a precondition to obligation affecting Upwork or Upwork Escrow, we be paid in full for any amounts to which we would otherwise be entitled. and (c) be paid for the reasonable value of the services to be rendered pursuant to such order.3.3 CONFIDENTIAL INFORMATIONUsers may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in the Optional Service Contract Terms. If and to the extent that the Users do not articulate any different agreement with regard to confidentiality, then they agree that this Section 3.3 (Confidential Information) applies.To the extent a User provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.4. WORKER CLASSIFICATION AND UPWORK PAYROLL Section 4 discusses what you agree to concerning whether a Freelancer is an employee or independent contractor and when you agree to use Upwork Payroll, as detailed below. 4.1 WORKER CLASSIFICATIONNothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Upwork and a User.Client is solely responsible for and has complete discretion with regard to selection of any Freelancer for any Project. Client is solely responsible for and assumes all liability for determining whether Freelancers should be engaged as independent contractors or employees of Client and engaging them accordingly. Client warrants its decisions regarding classification are correct and its manner of engaging Freelancers complies with applicable laws, regulations, and rules. Upwork will have no input into, or involvement in, worker classification as between Client and Freelancer and Users agree that Upwork has no involvement in and will have no liability arising from or relating to the classification of a Freelancer generally or with regard to a particular Project.4.2 UPWORK PAYROLL SERVICESClient agrees to enroll in Upwork Payroll if it will receive services from a Freelancer under terms and conditions that would give rise to an employment relationship (unless Client elects instead to pay the Conversion Fee (see Section 7)). When the Client enrolls in Upwork Payroll, Client will engage Upwork’s third-party staffing vendor (the “Staffing Provider”), which is an Agency on Upwork, through the Site. The Staffing Provider will hire Freelancer at the request of Client and Freelancer according to the terms described on the Site and otherwise agreed to by the Staffing Provider and Client and/or Freelancer, and subject to the Upwork Payroll Agreement. For all purposes with Upwork Payroll, the employer of Freelancer will be the Staffing Provider and not Upwork under any circumstances.Freelancer, acknowledges, understands, and agrees that Upwork will have no control over, or involvement in determining or influencing, the terms and conditions of any employment relationship that may arise between Freelancer and Staffing Provider or Client, including the selection of an employee, pay rate, work hours, employment dates and working conditions. Freelancer will not have any contract on the Site or contact with Upwork regarding such employment terms. Where Freelancer and Client have enrolled in Upwork Payroll the Site is provided for, and Users agree to use the Site for, the sole purpose of enabling Freelancer to communicate with the Staffing Provider and the Client. 5. UPWORK FEES Section 5 describes what fees you agree to pay to Upwork in exchange for Upwork providing the Site and Site Services to you and what taxes Upwork may collect, as detailed below. 5.1 FEES FOR FREELANCERS Service Fees. Freelancers will pay Upwork a service fee for the use of the Site Services as set forth in the Fee and ACH Authorization Agreement and the Direct Contract Terms, for using the Site Services, including the communication, invoicing, reporting, dispute resolution and payment services, including facilitating arbitration services and Hourly Payment Protection, as described in the applicable Escrow Instructions (the “Service Fees”). The Service Fees (to use the Site Services) are paid solely by Freelancer. When a Client pays a Freelancer for a Project or when funds related to a Project are otherwise released to a Freelancer as required by the applicable Escrow Instructions (See Section 6.1), Upwork Escrow will credit the Freelancer Escrow Account for the full amount paid or released by the Client, and then subtract and disburse to Upwork the Service Fee. Freelancer hereby irrevocably authorizes and instructs Upwork Escrow to deduct the Service Fee from the Freelancer Escrow Account and pay Upwork on Freelancer’s behalf. In the event the Freelancer chooses to withdraw funds in a currency other than U.S. dollars, there may also be a foreign currency conversion charge imposed by Upwork Escrow or an affiliate and the rate may differ from rates that are in effect on the date of the payment and you may be able to obtain a better rate from your bank or financial institution. Membership Fees and Connects. Freelancers may subscribe to different levels of participation and privileges on the Site to access additional features and Site Service, by payment of subscription membership fees and by purchasing "Connects" as described in and subject to the terms of the Freelancer Membership Agreement.Disbursement Fees. Freelancers will pay Upwork a disbursement fee for remitting payments to their preferred payment method (“Disbursement Fee”). The Disbursement Fee is paid to Upwork in consideration of costs incurred and administration of disbursements via the disbursement method requested by Freelancer and varies by disbursement method. The Disbursement Fee for each disbursement method is listed under Fees and Schedules on the Site as revised from time to time.In addition to fees charged by Upwork, your disbursement method may also charge activation, maintenance, or other account fees.5.2 CLIENT FEESClients pay Upwork a fee for payment processing and administration related to the Freelancer Fees they pay to Freelancers they engage through the Site, as described in the Fee and ACH Authorization Agreement. Clients may also choose to pay for a premium membership plan to access additional features and Site Services, as described in the Fee and ACH Authorization Agreement. Clients do not pay fees if they use the Site solely for Direct Contracts.5.3 VAT AND OTHER TAXESUpwork may be required by applicable law to collect taxes or levies including, without limitation, withholding income tax or VAT (while some countries may refer to VAT using other terms, e.g. GST, we’ll just refer to VAT, GST and any local sales taxes collectively as “VAT”) in the jurisdiction of the Freelancer (the "Taxes"). In such instances, any amounts Upwork is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Upwork under the Terms of Service.5.4 NO FEE FOR INTRODUCING OR FOR FINDING PROJECTS Upwork does not introduce Clients to Freelancers and does not help Freelancers secure Projects. Upwork merely makes the Site and Site Services available to enable Freelancers to do so themselves and may from time to time highlight Projects that may be of interest. Therefore, Upwork does not charge a fee when a Freelancer finds a suitable Client or finds a Project. In addition, Upwork does not charge any fee or dues for posting public feedback and composite or compiled feedback, including Composite Information.6. PAYMENT TERMS AND ESCROW SERVICES Section 6 discusses your agreement to pay Freelancer Service Fees on Service Contracts, and describes how Upwork’s Escrow Services work, what happens if a Client doesn’t pay, and related topics, as detailed below. 6.1 ESCROW SERVICESUpwork Escrow provides escrow services to Users to deliver, hold, and/or receive payment for a Project, and to pay fees to Upwork (“Escrow Services”). Upwork Escrow is a Delaware corporation and a licensed Internet escrow agent that holds California Department of Business Oversight License No. 963 5086. The Escrow Services are intended for business use, and you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes.6.1.1 ESCROW INSTRUCTIONSUpwork Escrow will use and release funds deposited in an Escrow Account only in accordance with this Agreement and the applicable Escrow Instructions. You acknowledge and agree that Upwork Escrow acts merely as an Internet escrow agent. Upwork Escrow has fully delivered the Escrow Services to you if Upwork Escrow provides the Escrow Services described in this Agreement and the applicable Escrow Instructions. Upwork Escrow is only obligated to perform those duties expressly described in this Agreement and any applicable Escrow Instructions. If you authorize or instruct Upwork Escrow to release or make a payment of funds from an Escrow Account associated with you, Upwork Escrow may release or pay those funds as instructed in reliance on your authorization, this Agreement, and the applicable Escrow Instructions or as required by applicable law.Fixed-Price Projects. If Users choose fixed-price compensation, then the Users agree that they will be bound by, and Upwork Escrow will follow, the Fixed-Price Escrow Instructions.Hourly Projects, Bonus Payments, or Expense Payments . If Users choose hourly compensation, and/or if the Client makes bonus or expense payments, then the Users agree that they will be bound by, and Upwork Escrow will follow, the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.Direct Contracts . If Users enter into a Direct Contract, then the Users agree that they will be bound by, and Upwork Escrow will follow, the Direct Contract Escrow Instructions.Upwork Payroll Engagement s. If Users use Upwork Payroll (Section 4) for a particular Project, then the Staffing Employee is paid directly by the Staffing Provider. A Client will be invoiced through the Site by the Staffing Provider, and the applicable Escrow Instructions will apply. However, the Client will not be able to dispute hours reported by the Staffing Employee and there is no waiting period for the disbursement of funds to the Staffing Employee.6.1.2 ESCROW ACCOUNTSUpwork Escrow will use and release funds deposited in an Escrow Account only in accordance with this Agreement and the applicable Escrow Instructions. Depending on your needs and the applicable Escrow Instructions, Upwork Escrow will establish and maintain one of three different types of Escrow Accounts:(a) Client Escrow Account. After entering into a Service Contract, the first time a Client makes a payment for a Project, Upwork Escrow will establish and maintain a “Client Escrow Account” to hold funds for the Client to use to make payments for Projects, to receive refunds in connection with Projects, and to make payments to Upwork.(b) Freelancer Escrow Account. After entering into a Service Contract, the first time a Freelancer uses the Site to receive payment for a Project, Upwork Escrow will establish and maintain a “Freelancer Escrow Account” for Freelancer to receive payments for Projects, withdraw payments, make payments to Upwork and issue refunds to Clients.(c) Fixed-Price Escrow Account. When you enter into a Fixed-Price Contract, Upwork Escrow will establish and maintain a “Fixed-Price Escrow Account” to receive, hold, and release payments pursuant to the Fixed-Price Escrow Instructions for the Project that is the subject of that Fixed-Price Contract.(d) Direct Contract Escrow Account. When you enter into a Direct Contract, Upwork Escrow will establish and maintain a “Direct Contract Escrow Account” to receive, hold, and release payments pursuant to the Direct Contract Escrow Instructions for the Project that is the subject of that Direct Contract.You hereby authorize and instruct Upwork Escrow to act as escrow agent in connection with the Escrow Accounts and the payment, holding, and receipt of funds for each Project and other specified purposes in accordance with the Terms of Service and the applicable Escrow Instructions. Client and Freelancer may access current information regarding the status of an Escrow Account on the Site.6.1.3 FREELANCER APPOINTMENT OF UPWORK ESCROW AND SUBSIDIARIES AS AGENTIf you are a Freelancer and you request payment related to an Hourly Contract or the release of funds from a Fixed-Price Escrow Account, you hereby appoint Upwork Escrow and its wholly-owned subsidiaries, as your agent to obtain funds on your behalf and credit them to your Freelancer Escrow Account as applicable. Because Upwork Escrow is Freelancer’s agent, Freelancer must, and hereby does, fully discharge and credit Freelancer’s Client for all payments and releases that Upwork Escrow receives on Freelancer’s behalf from or on behalf of such Client.6.1.4 TITLE TO FUNDSUpwork, Upwork Escrow and our Affiliates are not banks. Upwork Escrow deposits and maintains all Escrow Account funds in an escrow trust account at a bank insured by the Federal Deposit Insurance Corporation and approved to receive, hold, and deliver escrow funds under applicable laws and regulations. The escrow trust account is separate from the operating accounts of Upwork and each of our Affiliates. Upwork Escrow will not voluntarily make funds deposited in the escrow trust account available to its creditors, or the creditors of its Affiliates, in the event of a bankruptcy, or for any other purpose. As provided in United States Bankruptcy Code, § 541(d), Upwork Escrow holds only legal title to, and not any equitable interest in, the escrow trust account and any funds deposited therein. This Agreement is supplementary to the Service Contract and to any other agreement between Client and Freelancer concerning the Project, as provided in 11 United States Bankruptcy Code, § 365(n).6.1.5 NO INTERESTYou agree that you will not receive interest or other earnings on the funds held in your Escrow Account. Upwork, Upwork Escrow, or our Affiliates may charge or deduct fees, may receive a reduction in fees or expenses charged, and may receive other compensation in connection with the services they provide as provided in Section 5 and the Fee and ACH Authorization Agreement.6.1.6 ESCROW AGENT DUTIESWe undertake to perform only such duties as are expressly set forth in this Agreement, the applicable Escrow Instructions, and the other Terms of Service, and no other duties will be implied. We have no liability under, and no duty to inquire as to, the provisions of any agreement, other than the Terms of Service, including this Agreement and the applicable Escrow Instructions. We will be under no duty to inquire about or investigate any agreement or communication between Client and Freelancer, even if posted to the Site. We have the right to rely upon, and will not be liable for acting or refraining from acting upon, any written notice, instruction, or request furnished to us by Client or Freelancer in accordance with this Agreement or the applicable Escrow Instructions, if we reasonably believe that such notice, instruction, or request is genuine and that it is signed or presented by the proper party or parties. We have no duty to inquire about or investigate the validity, accuracy, or content of any such notice, instruction, or request. We have no duty to solicit any payments or releases that may be due to or from any Escrow Account. We may execute any of our powers and perform any of our duties under this Agreement and the applicable 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 us. To the extent permitted by applicable law, we will not be liable for anything done, suffered, or omitted in good faith by us in accordance with the advice or opinion of any such counsel, accountants, or other skilled persons. If we are uncertain as to our duties or rights hereunder or receive instructions, claims, or demands from any party hereto that, in our opinion, conflict with any of the provisions of this Agreement or the applicable Escrow Instructions, we will be entitled to refrain from taking any action, and our sole obligation will be to keep safely all property held in the Escrow Account until we are directed otherwise in writing by Client and Freelancer or by a final order or judgment of an arbitrator or court of competent jurisdiction.6.1.7 ESCROW AGENT RIGHTWe have the right, in our sole discretion, but not the obligation, to institute arbitration or, if no arbitration provision applies, other legal proceedings, including depositing funds held in the Escrow Account with a court of competent jurisdiction, and to resolve any dispute between Client and Freelancer related to the Escrow Account. Any provision of this Agreement and the applicable Escrow Instructions to the contrary notwithstanding and regardless whether we are identified as a party in interest in any dispute, arbitration, or other legal proceeding, nothing herein will be construed to limit our legal and equitable rights, including, but not limited to, depositing funds held in the Escrow Account with a court of competent jurisdiction. Any corporation or association into which Upwork Escrow may be merged or converted or with which Upwork Escrow may be consolidated, or any corporation or association to which all or substantially all the escrow business of Upwork Escrow may be transferred will succeed to all the rights and obligations of Upwork Escrow as escrow holder and escrow agent under this Agreement and the applicable Escrow Instructions without further act to the extent permitted by applicable law.6.2 CLIENT PAYMENTS ON SERVICE CONTRACTS Hourly Contracts. Freelancer will invoice Client for Freelancer Fees on a weekly basis through Upwork, and Client will pay invoices consistent with the Hourly Escrow Instructions. When Client approves an Hourly Invoice for an Hourly Contract, Client automatically and irrevocably authorizes and instructs Upwork or its Affiliate, Upwork Escrow or Elance Ltd., to charge Client’s Payment Method for the Freelancer Fees.Fixed-Price Contracts. Client becomes obligated to pay applicable amounts into the Escrow Account immediately upon sending a Fixed-Price Contract offer (for the full amount or for the first milestone, if milestones are used) or upon activating any additional milestone. When Client authorizes the payment of the Freelancer Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs Upwork or its Affiliates, Upwork Escrow or Elance Ltd., to charge Client’s Payment Method for the Freelancer Fees.Client acknowledges and agrees that for both Hourly Contracts and Fixed-Price Contracts, failure by Client to decline or dispute an Hourly Invoice or request for payment is an authorization and instruction to release payment, as described more fully in the applicable Escrow Instructions. 6.3 DISBURSEMENTS TO FREELANCERS ON SERVICE CONTRACTSUnder the relevant Escrow Instructions, Upwork Escrow disburses funds that are available in the applicable Freelancer Escrow Account and payable to a Freelancer upon Freelancer’s request. A Freelancer can request disbursement of available funds any time on a one-time basis or by setting up an automatic disbursement schedule. If Freelancer does not request a disbursement, Upwork will automatically disburse available funds no more than 90 days after the Freelancer Fees are released to the Freelancer Escrow Account, unless the amount in the Escrow Account is less than the Minimum Threshold. For purposes of the Terms of Service, a “Minimum Threshold” is either (a) $100 for Freelancers within the United States, or (b) $1,000 for Freelancers outside the United States. When the funds in the Freelancer Escrow Account are below the Minimum Threshold, the automatic disbursement schedule is paused and the available and payable funds are released on the earlier of: (i) Freelancer’s request. (ii) on the first scheduled automatic disbursement occurring after the amount exceeds the Minimum Threshold. or (iii) 180 days after the funds are available in the Freelancer Escrow Account.Hourly Contracts. Freelancer Fees become available to Freelancers following the expiration of the dispute period and the five-day security period. Fixed-Price Contracts. Freelancer Fees become available to Freelancers following the expiration of the five-day security period after the funds are released as provided in the applicable Escrow Instructions. The security period begins after Client accepts and approves work submitted by Freelancer.Notwithstanding any other provision of the Terms of Service or the Escrow Instructions, Upwork Escrow, in its sole discretion and except as prohibited by applicable law, may refuse to process, may hold the disbursement of the Freelancer Fees or any other amounts and offset amounts owed to us, or take such other actions with respect to the Escrow Account as we deem appropriate in our sole discretion if: (a) we require additional information, such as Freelancer’s tax information, government-issued identification or other proof of identity, address, or date of birth. (b) we have reason to believe the Freelancer Fees may be subject to dispute or chargeback. (c) we suspect a User has committed or attempted to commit fraud or other illicit acts on or through the Site. (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service. or (e) we deem it necessary in connection with any investigation or required by applicable law. If, after investigation, we determine that the hold on the disbursement of the Freelancer Fees is no longer necessary, Upwork Escrow will release such hold as soon as practicable.In addition, notwithstanding any other provision of the Terms of Service or the Escrow Instructions and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or Project. (ii) discover erroneous or duplicate transactions. or (iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Client if you are a Freelancer, despite our provision of the Site Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by instructing Upwork Escrow to (and Upwork Escrow will have the right to) charge the applicable Escrow Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Site and Site Services and close your Account.6.4 NON-PAYMENTIf Client is in “default”, meaning the Client fails to pay the Freelancer Fees or any other amounts when due under the Terms of Service, or a written agreement for payment terms incorporating the Terms of Service (signed by an authorized representative of Upwork), Upwork will be entitled to the remedies described in this Section 6.4 in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, Client will be deemed to be in default on the earliest occurrence of any of the following: (a) Client fails to pay the Freelancer Fees when due. (b) Client fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days after accrual of the charge, an account current after a credit or debit card is declined or expires. (c) Client fails to pay an invoice issued to the Client by Upwork within the time period agreed or, if no period is agreed, within 30 days. (d) Client initiates a chargeback with a bank or other financial institution resulting in a charge made by Upwork for Freelancer Fees or such other amount due being reversed to the Client. or (e) Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s account.If Client is in default, we may, without notice, temporarily or permanently close Client’s Account and revoke Client’s access to the Site and Site Services, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Freelancer Services from other Users through the Site. However, Client will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on the Client’s Account as a result of the default. Without limiting other available remedies, Client must pay Upwork upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.At our discretion and to the extent permitted by applicable law, Upwork or its Affiliates, Upwork Escrow or Elance Ltd., may, without notice, charge all or a portion of any amount that is owed on any Account to Upwork or as Freelancer Fees or otherwise to any Payment Method on file on the Client’s Account. set off amounts due against other amounts received from Client or held by for Client by Upwork, Upwork Escrow or another Affiliate. make appropriate reports to credit reporting agencies and law enforcement authorities. and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.Upwork does not guarantee that Client is able to pay or will pay Freelancer Fees and Upwork is not liable for Freelancer Fees if Client is in default. Freelancer may use the dispute process as described in the applicable Escrow Instructions in order to recover funds from Client in the event of a default or may pursue such other remedies against Client as Freelancer chooses. If Upwork recovers funds from a Client in default pursuant to this Section 6.4, Upwork will disburse any portion attributable to Freelancer Fees to the applicable Freelancer to the extent not already paid by Client or credited by Upwork through any Payment Protection program.6.5 NO RETURN OF FUNDS AND NO CHARGEBACKSClient acknowledges and agrees that Upwork or its Affiliates, Upwork Escrow or Elance Ltd., will charge or debit Client’s designated Payment Method for the Freelancer Fees incurred as described in the applicable Escrow Instructions and the Fee and ACH Authorization Agreement and that once Upwork or its Affiliates, Upwork Escrow or Elance Ltd., charges or debits the Client’s designated Payment Method for the Freelancer Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Freelancer Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that Upwork or its Affiliates, Upwork Escrow or Elance Ltd., may dispute or appeal the chargeback and institute collection action against Client and take such other action it deems appropriate.6.6 PAYMENT METHODSIn order to use certain Site Services, Client must provide account information for at least one valid Payment Method.Client hereby authorizes Upwork, Upwork Escrow, and Elance Ltd., as applicable, to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment consistent with our Privacy Policy, and to charge Client’s credit card (or any other Payment Method) for the Freelancer Fees and any other amounts owed under the Terms of Service. To the extent permitted by applicable law and subject to our Privacy Policy, you acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage your Payment Method information.By providing Payment Method information through the Site and authorizing payments with the Payment Method, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information. (b) Client is legally authorized to make payments using the Payment Method(s). (c) if Client is an employee or agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on Upwork. and (d) such actions do not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.Upwork is not liable to any User if Upwork does not complete a transaction as a result of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. Upwork will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement and any applicable Escrow Instructions.6.7 U.S. DOLLARS AND FOREIGN CURRENCY CONVERSIONThe Site and the Site Services operate in U.S. Dollars. If a User's Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make or receive payments in U.S. Dollars, the Site may display foreign currency conversion rates that Upwork, Upwork Escrow, or our Affiliates currently make available to convert supported foreign currencies to U.S. Dollars. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Each User, at its sole discretion and risk, may authorize the charge, debit, or credit of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Site. A list of supported foreign currencies is available on the Site. If foreign currency conversion is required to make a payment in U.S. Dollars and Upwork or its Affiliate, Upwork Escrow or Elance Ltd., as applicable, does not support the foreign currency or the User does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Site, Upwork Escrow or one of our Affiliates will charge, debit, or credit the User's Payment Method in U.S. Dollars and the User's Payment Method provider will convert the payment at a foreign currency conversion rate selected by the User's Payment Method provider. The User's Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved. The User's authorization of a payment using a foreign currency conversion rate displayed on the Site is at the User's sole risk. Upwork, Upwork Escrow, Elance Ltd., and our Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. Upwork, Upwork Escrow, Elance Ltd., and our Affiliates are not responsible for currency fluctuations that occur when receiving or sending payments to and from the Escrow Account.7. NON-CIRCUMVENTION Section 7 discusses your agreement to make and receive payments only through Upwork for two years from the date you first identify or meet your Client or Freelancer on the Site, unless you pay a Conversion Fee. violating this Section 7 is a serious breach and your Account may be permanently suspended for violations, as detailed below. 7.1 MAKING PAYMENTS THROUGH UPWORK You acknowledge and agree that a substantial portion of the compensation Upwork receives for making the Site available to you is collected through the Service Fee described in Section 5.1 and that in exchange a substantial value to you is the relationships you make with other Users when you identify or are identified by another person through the Site or Site Services (the “Upwork Relationship”). Upwork only receives the Service Fee when a Client and a Freelancer pay and receive payment through the Site. Therefore, except as set out in Section 7.2, for 24 months from the start of an Upwork Relationship (the “Non-Circumvention Period”), you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that person or arising out of your relationship with that person and not to circumvent the Payment Methods offered on the Site unless you pay a fee to take the relationship off of the Site (the “Conversion Fee”). For the avoidance of doubt, if you, or the business you represent, did not identify and were not identified by another person through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention Period does not apply. If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the business or its successor when acting in that capacity with respect to the other User.By way of illustration and not in limitation of the foregoing, you agree not to:• Offer or solicit or accept any offer or solicitation from parties identified through the Site to contract, hire, invoice, pay, or receive payment in any manner other than through the Site.• Invoice or report on the Site or in a Conversion Fee request an invoice or payment amount lower than that actually agreed, made, or received between Users.• Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments other than through the Site.You agree to notify Upwork immediately if a person suggests to you making or receiving payments other than through the Site in violation of this Section 7 or if you receive unsolicited contact outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Upwork here.You acknowledge and agree that a violation of any provision in this Section 7.1 is a material breach of the Terms of Service. Your Account may be permanently suspended and charged the Conversion Fee (defined above) if you violate this Section 7.1. If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported on the Site, and therefore choose to cease using the Site, you may pay the Conversion Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.7.2 COMMUNICATING THROUGH THE SITE. NOT SHARING CONTACT DETAILS The provisions of this Section 7.2 apply to any interaction between Users where the Client has a Basic or Plus Account. The provisions of this Section 7.2 do not apply to any interaction between Users where the Client is an Enterprise Client. For purposes of the Terms of Service, “Enterprise Client ” means a Client, including a legacy Enterprise client or an Upwork Business Client, that has the following “Enterprise” badge displayed on its job post or search tile:For Users subject to this Section 7.2, Users agree to use the communication services available on the Site to communicate with other Users prior to entering into a Service Contract. You agree that prior to entering into a Service Contract, you (a) will use Upwork as the sole manner to communicate with other Users. (b) will not provide your Means of Direct Contact (defined below) to any other User or another person that you identified or were identified by through the Site. (c) will not use Means of Direct Contact of another user to attempt to or to communicate with, solicit, contact, or find the contact information of a User outside of Upwork. (d) will not ask for, provide, or attempt to identify through public means the contact information of another User. and (e) you will not include any Means of Direct Contact (defined below) or means by which your contact information could be discovered in any profile, proposal, job posting, invitation, or pre-hire communication through the Site’s communications services (including in each case in any attached file), except as otherwise provided on the Site.For purposes of the Terms of Service “Means of Direct Contact” means any information that would allow another person to contact you directly, including, without limitation, phone number, email address, physical address, a link to a contact form or form requesting contact information, any link to an applicant management system or means to submit a proposal or application outside of the Site, or any information that would enable a user to contact you on social media or other website or platform or application that includes a communications tool, such as Skype, Slack, Wechat, or Facebook. For the avoidance of doubt, information is a Means of Direct Contact if it would enable another user to identify any of the information above through other sources, such as going to a website that included an email address or identifying you on social media, such as through Facebook or LinkedIn.You acknowledge and agree that a violation of any provision of this Section 7.2 is a material breach of the Terms of Service. Your Account may be permanently suspended if you violate this Section 7.2.7.3 OPTING OUT You may opt out of the obligations in Section 7.1 with respect to each Upwork Relationship only if the Client or Freelancer pays Upwork a Conversion Fee which is a minimum of $1,000 USD and up to $50,000 USD for each Upwork Relationship.You agree that the Conversion Fee is 12% of the estimated earnings over a twelve (12) month period, which is calculated by taking the Hourly Rate (defined below) and multiplying it by 2,080. “Hourly Rate” means the highest of (a) the highest hourly rate charged by the Freelancer on any Service Contract, if any. (b) the highest hourly rate proposed by the Freelancer in any proposal, if any. or (c) the hourly rate in the Freelancer’s profile.The Conversion Fee may be calculated differently for Upwork Relationships when the Client is an Enterprise Client if the Enterprise Client contract with Upwork provides for different terms. To inquire about or pay the Conversion Fee, send an email message to conversionfee@upwork.com.You understand and agree that if Upwork determines, in its sole discretion, that you have violated Section 7, Upwork or its Affiliates may, to the maximum extent permitted by law (x) charge your Payment Method the Conversion Fee (including interest) if permitted by law or send you an invoice for the Conversion Fee (including interest), which you agree to pay within 30 days, (y) close your Account and revoke your authorization to use the Site and Site Services, and/or (z) charge you for all losses and costs (including any and all time of Upwork’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.8. RECORDS OF COMPLIANCE Section 8 discusses your agreement to make and keep all required records, as detailed below.Users will each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) provide copies of such records to Upwork upon request. Nothing in this subsection requires or will be construed as requiring Upwork to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Service Contract. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on Upwork’s part to store, backup, retain, or grant access to any information or data for any period.9. WARRANTY DISCLAIMER Section 9 discusses your agreement and understanding that the Site and Site Services may not always be available or work perfectly, as detailed below.YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. UPWORK MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, USER CONTENT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UPWORK DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 13 (AGREEMENT TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST UPWORK WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.10. LIMITATION OF LIABILITY Section 10 discusses your agreement that Upwork usually will not have to pay you damages relating to your use of the Site and Site Services and, if it is, at most it will be required to pay you $2,500, as detailed below.Upwork is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:<ul> <li>your use of or your inability to use our Site or Site Services;</li> <li>delays or disruptions in our Site or Site Services;</li> <li>viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;</li> <li>glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;</li> <li>damage to your hardware device from the use of the Site or Site Services;</li> <li>the content, actions, or inactions of third parties’ use of the Site or Site Services;</li> <li>a suspension or other action taken with respect to your Account;</li> <li>your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site. and</li> <li>your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.</li> </ul>ADDITIONALLY, IN NO EVENT WILL UPWORK, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF UPWORK, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500. OR (B) ANY FEES RETAINED BY UPWORK WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR FREELANCER DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.11. RELEASE Section 11 discusses your agreement not to hold us responsible for any dispute you may have with another User, as detailed below.In addition to the recognition that Upwork is not a party to any contract between Users, you hereby release Upwork, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Freelancer Services provided to Client by a Freelancer and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Escrow Instructions.TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”This release will not apply to a claim that Upwork failed to meet our obligations under the Terms of Service.12. INDEMNIFICATION Section 12 discusses your agreement to pay for any costs or losses we have as a result of a claim brought against us related to your use of the Site or Site Services or your illegal or harmful conduct, as detailed below.You will indemnify, defend, and hold harmless Upwork, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Site and the Site Services by you or your agents, including any payment obligations or default (described in Section 6.4 (Non-Payment)) incurred through use of the Site Services. (b) any Work Product or User Content developed, provided, or otherwise related to your use of the Site Services. (c) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Freelancer as an independent contractor. the classification of Upwork as an employer or joint employer of Freelancer. any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation. and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits. (d) failure to comply with the Terms of Service by you or your agents. (e) failure to comply with applicable law by you or your agents. (f) negligence, willful misconduct, or fraud by you or your agents. and (g) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 12, your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password.“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.13. AGREEMENT TERM AND TERMINATION Section 13 discusses your and Upwork’s agreement about when and how long this Agreement will last, when and how either you or Upwork can end this Agreement, and what happens if either of us ends the Agreement, as detailed below. 13.1 TERMINATION Unless both you and Upwork expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to legalnotices@upwork.com. In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. Upwork is not a party to any Service Contract between Users. Consequently, User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Project entered into between Users. If you attempt to terminate this Agreement while having one or more open Projects, you agree (a) you hereby instruct Upwork to close any open contracts. (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Projects have closed on the Site. (c) Upwork will continue to perform those Site Services necessary to complete any open Project or related transaction between you and another User. and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to Upwork for any Site Services or such other amounts owed under the Terms of Service and to any Freelancers for any Freelancer Services.Without limiting Upwork’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke or limit access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service. (ii) we suspect or become aware that you have provided false or misleading information to us. or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Upwork or our Affiliates. may be contrary to the interests of the Site or the User community. or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without Upwork’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF UPWORK DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, UPWORK HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT UPWORK WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY USER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE. 13.2 ACCOUNT DATA ON CLOSUREExcept as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Site and any closure of your Account may involve deletion of any content stored in your Account for which Upwork will have no liability whatsoever. Upwork, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.13.3 SURVIVALAfter this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or Upwork from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.14. DISPUTES BETWEEN YOU AND UPWORK Section 14 discusses your agreement with Upwork and our agreement with you about how we will resolve any disputes, including that we will both first try to resolve any dispute informally and, if you are in the United States, that we both agree to use arbitration instead of going to court or using a jury if we can’t resolve the dispute informally, as detailed below. 14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPEIf a dispute arises between you and Upwork or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 14.4.4 below, you, Upwork, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with Upwork (including without limitation any claimed employment with Upwork or one of our Affiliates or successors), the termination of your relationship with Upwork, or the Site Services (each, a “Claim”) in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”).Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Site, Site Services, the Terms of Service, any Service Contract, escrow payments or agreements, any payments or monies you claim are due to you from Upwork or our Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination, retaliation or harassment and claims arising under the Defend Trade Secrets Act of 2016, Civil Rights Act of 1964, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, Civil Rights Act of 1991, the Pregnancy Discrimination Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with Upwork or the termination of that relationship.Disputes between the parties that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Agreement.14.2 CHOICE OF LAWThe Site Terms of Use, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. However, notwithstanding the foregoing sentence, this Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.).14.3 INFORMAL DISPUTE RESOLUTIONBefore serving a demand for arbitration of a Claim, you and Upwork agree to first notify each other of the Claim. You agree to notify Upwork of the Claim at Attn: Legal, 2625 Augustine Dr., Suite 601, Santa Clara CA 95054 or by email to legalnotices@upwork.com, and Upwork agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Upwork then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or Upwork, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Upwork will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.14.4 BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)This Arbitration Provision applies to all Users except Users located outside of the United States and its territories.In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Upwork, and our Affiliates agree to resolve the Claim by final and binding arbitration before an arbitrator from JAMS, instead of a court or jury. JAMS may be contacted at www.jamsadr.com.14.4.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATIONThis Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with Upwork ends. Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to this Agreement, the Terms of Service and the Upwork Payroll Agreement. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.Except as otherwise provided herein, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a User that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the User is located. Claims by Freelancers that allege employment or worker classification disputes or will be conducted in the state and within 25 miles of where Freelancer is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures,” “JAMS Employment Arbitration Rules,” or “JAMS Consumer Arbitration Minimum Standards.” Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person.You and Upwork will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the Freelancer will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, with Upwork to make up the difference, if any. In any arbitration under the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect in which a User makes a claim under a consumer protection statute, the User will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, or $250.00, whichever is less, with Upwork to make up the difference, if any. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.This Arbitration Provision does not apply to litigation between Upwork and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth in Section 14.4.4, below. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section 14 unless all parties to that arbitration consent in writing to that amendment.This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits.Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Upwork will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.14.4.2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISIONThis Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement, or any other part of the Terms of Service is void or voidable.In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, below, of this Arbitration Provision is deemed to be unenforceable, you and Upwork agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.14.4.3. CLASS AND COLLECTIVE WAIVER Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects your ability to participate in class or collective actions. Both you and Upwork agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, or validity or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. You and Upwork agree that you will not be retaliated against, disciplined or threatened with discipline as a result of your filing or participating in a class or collective action in any forum. However, Upwork may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims. 14.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION You may opt out of the Arbitration Provision contained in this Section 14 by notifying Upwork in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to Upwork at Attn: Legal, 2625 Augustine Dr., Suite 601, Santa Clara CA 95054 that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement indicating that you wish to opt out of the Arbitration Provision. Alternatively, you may send this written notification to legalnotices@upwork.com. Opting out of this Arbitration Provision will not affect any other terms of this Agreement.If you do not opt out as provided in this Section 14.4.4, continuing your relationship with Upwork constitutes mutual acceptance of the terms of this Arbitration Provision by you and Upwork. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.14.4.5. Enforcement of this Arbitration Provision.This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, above, is deemed to be unenforceable, you and Upwork agree that this Arbitration Provision will be enforced to the fullest extent permitted by law. 15. GENERAL Section 15 discusses additional terms of the agreement between you and Upwork, including that the Terms of Service contain our full agreement, how the agreement will be interpreted and applied, and your agreement not to access the Site from certain locations, as detailed below. 15.1 ENTIRE AGREEMENTThis Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Upwork relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though Upwork drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Upwork because of the authorship of any provision of the Terms of Service.15.2 MODIFICATIONS. WAIVERNo modification or amendment to the Terms of Service will be binding upon Upwork unless they are agreed in a written instrument signed by a duly authorized representative of Upwork or posted on the Site by Upwork. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.15.3 ASSIGNABILITYUser may not assign the Terms of Service, or any of its rights or obligations hereunder, without Upwork’s prior written consent in the form of a written instrument signed by a duly authorized representative of Upwork. Upwork may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.15.4 SEVERABILITY. INTERPRETATIONIf and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.15.5 FORCE MAJEUREThe parties to this Agreement will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.15.6 PREVAILING LANGUAGE AND LOCATIONThe English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States.15.7 ACCESS OF THE SITE OUTSIDE THE UNITED STATESUpwork makes no representations that the Site is appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.In order to access or use the Site or Site Services, you must and hereby represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act. (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes. or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.15.8 CONSENT TO USE ELECTRONIC RECORDSIn connection with the Site Terms of Use, you may be entitled to receive, or we may otherwise provide, certain records from Upwork or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.16. DEFINITIONS Section 16 gives you some definitions of capitalized terms that appear in the Terms of Service but other capitalized terms are defined above, which you can tell because the term is put in quotation marks and bold font.Capitalized terms not defined below or above have the meanings described in the Site Terms of Use or elsewhere in the Terms of Service.“Client” means any authorized User utilizing the Site or Site Services, including Direct Contract Services, to seek and/or obtain Freelancer Services, including from another User.“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Freelancer or Client. (b) was lawfully received by User without restriction from a third party having the right to disseminate the information. (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality. or (d) was independently developed by User without use of another person’s Confidential Information.“Escrow Account” means Client Escrow Account, Freelancer Escrow Account, or Fixed-Price Escrow Account.“Escrow Instructions” means the Fixed-Price Escrow Instructions or the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions.“Fixed-Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Freelancer, prior to the commencement of a Service Contract, for the completion of all Freelancer Services contracted by Client for such Service Contract.“Freelancer” means any authorized User utilizing the Site or Site Services, including Direct Contract Services, to advertise or provide Freelancer Services to Clients, including Freelancer Accounts that are Agency Accounts or, if applicable, Agency Members. A Freelancer is a customer of Upwork with respect to use of the Site and Site Services.“Freelancer Fees” means: (a) for an Hourly Contract, the amount reflected in the Hourly Invoice (the number of hours invoiced by Freelancer, multiplied by the hourly rate charged by Freelancer). (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Freelancer. and (c) any bonuses or other payments made by a Client to a Freelancer.“Freelancer Services” means all services performed for or delivered to Clients by Freelancers.“Hourly Contract” means a Service Contract for which Client is charged based on the hourly rate charged by Freelancer.“Hourly Invoice” means the report of hours invoiced for a stated period by a Freelancer for Freelancer Services performed for a Client.The term “including” as used herein means including without limitation.“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, in each case, under the laws of any state, country, territory or other jurisdiction.“Payment Method” means a valid credit card issued by a bank acceptable to Upwork, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Upwork may accept from time to time in our sole discretion.“Project” means an engagement for Freelancer Services that a Freelancer provides to a Client under a Service Contract on the Site.“Staffing Employee” means a Freelancer enrolled in Upwork Payroll, accepted for employment by a Staffing Provider, and assigned by the Staffing Provider to provide Freelancer Services to one or more Client(s).“Service Contract” means, as applicable, (a) the contractual provisions between a Client and a Freelancer governing the Freelancer Services to be performed by a Freelancer for Client for a Project. (b) a Direct Contract as defined in the Upwork Direct Contract Terms. or (c) if you use Upwork Payroll, the contractual provisions between Freelancer and the Staffing Provider for the provision of services to Client, if any.“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.“Upwork App” means the online platform accessed using Upwork’s downloaded application or other software that enables time tracking and invoicing, chat, and screenshot sharing with other Users.“User Content” means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other content or information that you or any Site Visitor or User post to any part of the Site or provide to Upwork, including such content or information that is posted as a result of questions.“Work Product” means any tangible or intangible results or deliverables that Freelancer agrees to create for, or actually delivers to, Client as a result of performing the Freelancer Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith. Terms of Use Version 4.0 Effective June 26, 2020 Download Table of Contents <ol> </ol> TABLE OF CONTENTS1. Introduction2. Licenses and Third-Party Content2.1 Upwork’s Provision of the Site and Limited Site License2.2 Termination of the Limited Site License2.3 Upwork’s Intellectual Property 2.4 Your Intellectual Property2.5 Third-Party Intellectual Property 2.6 Complaints About Copyrighted Content on the Site3. Permitted Site Uses4. Prohibited Site Uses4.1 Examples of Prohibited Uses of the Site4.2 Enforcement4.3 Reporting and Correcting Violations5. Definitions 1. INTRODUCTIONThe Upwork Site Terms of Use describe when and the conditions under which you are allowed to access or use the Site (defined in Section 5 below). Please read these Site Terms of Use carefully before visiting our Site. Some visitors to our Site simply visit the publicly available portions of our Site or use the Public Site Services (defined in Section 5 below) (“you” or “Site Visitors”). If you do not agree to these Site Terms of Use, you may not visit, use, or access the Site or Site Services as a Site Visitor, User or otherwise and may not click to accept the Terms of Service when prompted on the Site.2. LICENSES AND THIRD-PARTY CONTENT 2.1 UPWORK’S PROVISION OF THE SITE AND LIMITED SITE LICENSE Section 2.1 discusses the rights we give to you to allow you to use the Site, as detailed below:As we describe in this Section 2.1, Upwork grants you a limited license to access the Site and Site Services. This license is subject to and conditioned on compliance with the Site Terms of Use and, to the extent applicable, the rest of the Terms of Service.We try to keep our Site and the Site Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. In fact, we might even stop providing the Site or Site Services completely or stop providing certain features without notice.2.2 TERMINATION OF THE LIMITED SITE LICENSE Section 2.2 explains that we can stop allowing you to use the Site, as detailed below:Upwork may terminate any license it has granted to any Site Visitor or User to access the Site and Site Services by providing notice, and the termination of such license shall be effective immediately upon Upwork providing such notice.2.3 UPWORK'S INTELLECTUAL PROPERTY Section 2.3 explains that even though we let you use the Site, we still retain all our rights, as detailed below:Upwork and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The Upwork logos and names are trademarks of Upwork and are registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners. Nothing in the Terms of Service grants you a right to use any Upwork Marks.2.4 YOUR INTELLECTUAL PROPERTY 2.4.1 YOUR OBLIGATIONS AND YOUR INDEMNIFICATION OF UPWORK Section 2.4.1 explains that you are solely responsible for your use of the Site and any content you post on the Site, and that if someone makes a claim against Upwork because of your content that you will pay Upwork for our fees and expenses, as detailed below:When you post User Content on the Site or through the Site Services or provide Upwork with User Content, you understand and acknowledge that you are solely responsible for such User Content. Further, you represent and warrant that you have the right, power, and authority to (a) post that User Content without violating the rights of third parties, and (b) grant the licenses specified below.You acknowledge and agree that the poster of User Content, and not Upwork, is responsible for any User Content including any harms caused to you, another User, or a third party by such User Content.You will indemnify, defend, and hold harmless Upwork, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to or arising out of any User Content you post.2.4.2 YOUR RIGHTS AND LICENSE TO UPWORK AND OTHER SITE VISITORS Section 2.4.2 explains that by posting content on the Site, you give others certain limited rights to that content, as detailed below:You retain all ownership rights in any User Content you post on Upwork. To the extent permitted by applicable law, you also grant to Upwork and our successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Site and Upwork’s, our successors’ and Affiliates’ businesses, including, without limitation, for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User and each Site Visitor a non-exclusive license to access your User Content through the Site and to use, reproduce, distribute, and display such User Content to the extent permitted through the normal functionality of the Site and subject to all applicable confidentiality and other provisions of the Terms of Service, our Privacy Policy, and applicable law. 2.4.3 YOUR COMMENTS AND IDEAS Section 2.4.3 explains when you can and what happens if you send your ideas to Upwork, as detailed below:You may submit comments or ideas about the Site and Site Services, including without limitation about how to improve the Site or Site Services (collectively, “Ideas”). By submitting any Ideas, you agree that: (a) your disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place Upwork under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties, and (c) you grant us a perpetual and royalty-free license to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission, Upwork does not waive any rights to use similar or related ideas, including those known or developed by Upwork or obtained from sources other than you.2.5 THIRD-PARTY INTELLECTUAL PROPERTY Section 2.5 explains that third parties, including other Users, are responsible for content posted or linked on the Site, as detailed below:Any information or content expressed or made available by a third party or any other Site Visitor or User is that of the respective author(s) or distributor(s) and not of Upwork. Upwork neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than Upwork’s authorized agents acting in their official capacities.The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites or applications are owned and operated by the third parties and/or their licensors. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website accessed via the Site is on an “as is” and “as available” basis without any warranty for any purpose.2.6 COMPLAINTS ABOUT COPYRIGHTED CONTENT ON THE SITE Section 2.6 explains what to do if you think content on the Site infringes your rights, as detailed below:Upwork is committed to complying with U.S. copyright and related laws and requires all Site Visitors and Users to comply with these laws. Accordingly, you may not use the Site to store any material or content, or disseminate any material or content, in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by U.S. copyright law. If you are the owner of any copyrighted work and believe your rights under U.S. copyright law have been infringed by any material on the Site, you may take advantage of certain provisions of the Digital Millennium Copyright Act (the "DMCA") by complying with Upwork’s Proprietary Rights Infringement Reporting Procedures.3. PERMITTED SITE USES Section 3 explains how you are allowed to use the Site, as detailed below:Upwork offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. Upwork makes the Site and Site Services available for Users to find one another, enter into service relationships, make and receive payments through escrow, and receive and provide Freelancer Services. In addition, certain Visitor Site Services, such as the Upwork Blog and Hiring Headquarters, provide, and may be used to obtain, general information and articles that we believe may be of interest to Site Visitors and Users. While we try to ensure that any information we post is both timely and accurate, errors may appear from time to time. We do not make any representations or warranties with respect to any information that is posted on the Site by us or anyone else. In no event should any content be relied on or construed as tax or legal advice or otherwise. You should independently verify the accuracy of any content.4. PROHIBITED SITE USES Section 4 explains uses of the Site that are not allowed, as detailed below:You may not use, or encourage, promote, facilitate, instruct or induce others to use, the Site or Site Services for any activities that violate any law, statute, ordinance or regulation. for any other illegal or fraudulent purpose or any purpose that is harmful to others. or to transmit, store, display, distribute or otherwise make available content that is illegal, fraudulent or harmful to others. 4.1 EXAMPLES OF PROHIBITED USES OF THE SITEThe following are examples of uses that are prohibited on the Site or when using the Site Services:<ul> <li>Seeking, offering, promoting, or endorsing and services, content, or activities that:<ul> <li>are defamatory, illegal, profane, vulgar, threatening, unlawfully discriminatory, illegal, pornographic, obscene, or sexually explicit in nature;</li> <li>would violate the intellectual property rights, such as and including copyrights, of another person, entity, service, product, or website;</li> <li>would violate (a) Upwork’s Terms of Service, (b) the terms of service of another website or any similar contractual obligations, or (c) the academic policies of any educational institution;</li> <li>regard the creation, publication, or distribution of “fake news”, “hoax news”, Deep Fake content or similar content, which is, in Upwork's sole discretion, determined to be intended to mislead recipients for personal, financial, political or other gain or advantage;</li> <li>regard or promote in any way any escort services, prostitution, or sexual acts. or</li> <li>are harassing toward another person based on the person's inclusion in a protected class as defined by applicable law;</li> </ul> </li> <li>Fraudulent or misleading uses or content, including:<ul> <li>fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the Upwork App, (ii) reporting, recording, or otherwise billing Clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;</li> <li>misrepresenting your experience, skills, or information, including by representing another person’s profile, or parts of another person’s profile, as your own;</li> <li>using a profile photo that misrepresents your identity or represents you as someone else;</li> <li>impersonating any person or entity, including, but not limited to, an Upwork representative, forum leader, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;</li> <li>falsely stating or implying a relationship with another User, including an Agency continuing to use a Freelancer’s profile or information after the Freelancer no longer works with the Agency;</li> <li>falsely attributing statements to any Upwork representative, forum leader, guide or host;</li> <li>falsely stating or implying a relationship with Upwork or with another company with whom you do not have a relationship;</li> <li>allowing another person to use your account, which is misleading to other Users. or</li> <li>falsely stating that one Freelancer will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Freelancer that is unable, unwilling, or unavailable to do the work; </li> </ul> </li> <li>Expressing an unlawful preference in a job post or proposal or otherwise unlawfully discriminating on a protected basis;</li> <li>Posting identifying information concerning another person;</li> <li>Spamming other Users with proposals or invitations, including by making unsolicited contact of Users off the Upwork platform, or by posting the same job multiple times so that more than one version remains active at a given time; </li> <li>Making or demanding bribes or other payments without the intention of providing services in exchange for the payment;</li> <li>Requesting or demanding free services, including requesting Freelancers to submit work as part of the proposal process for very little or no money or posting contests in which Freelancers submit work with no or very little pay, and only the winning submission is paid the full amount;</li> <li>Requesting a fee before allowing a User to submit a proposal; </li> <li>Attempting to or actually manipulating or misusing the feedback system, including by:<ul> <li>withholding payment or Work Product or engaging in any other conduct for the purpose of obtaining positive feedback from another User;</li> <li>attempting to coerce another User by threatening to give negative feedback;</li> <li>expressing views unrelated to the work, such as political, religious, or social commentary, in the feedback system. </li> <li>providing anything of value to any person (including to a third-party who provides assistance in obtaining feedback) or using any service of any type in order to obtain feedback. or </li> <li>offering services for the sole purpose of obtaining positive feedback of any kind;</li> </ul> </li> <li>Duplicating or sharing accounts;</li> <li>Selling, trading, or giving an account to another person without Upwork’s consent;</li> <li>Sharing or soliciting Means of Direct Contact with or from another User either directly through messages or by including Means of Direct Contact in a job post, profile, proposal or other User Content prior to entering into a Service Contract with such User, except as expressly allowed for Enterprise Clients;</li> <li>Directly or indirectly, advertising or promoting another website, product, or service or soliciting other Users for other websites, products, or services, including advertising on Upwork to recruit Freelancers and/or Clients to join an Agency or another website or company;</li> <li>Interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site, including by:<ul> <li>bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;</li> <li>attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site;</li> <li>using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission;</li> <li>attempting to or interfering with or compromising the system integrity or security or deciphering any transmissions to or from the servers running the Site;</li> <li>collecting or harvesting any personally identifiable information, including Account names, from the Site;</li> <li>attempting to or imposing an unreasonable or disproportionately large load (as determined in Upwork’s sole discretion) on the Site’s infrastructure. Introducing any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site that is designed to or known to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any software, firmware, hardware, computer system, or network of Upwork or any third party;</li> <li>accessing or attempting to access the Site or Site Services by any means or technology other than the interface provided. or</li> <li>framing or linking to the Site or Site Services except as permitted in writing by Upwork</li> </ul> </li> <li>Conduct or actions that could jeopardize the integrity of or circumvent the Site, Site Services or Upwork's proprietary information, including:<ul> <li>attempting to or actually reverse engineering, modifying, adapting, translating, preparing derivative works from, decompiling, interfering with the operation of, or otherwise attempting to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law or Upwork. or</li> <li>accessing or using the Site or Site Services to build a similar service or application, identify or solicit Upwork Users, or publish any performance or any benchmark test or analysis relating to the Site.</li> </ul> </li> </ul> 4.2 ENFORCEMENT We reserve the right, but do not assume the obligation, to investigate any potential violation of this Section 4 or any other potential violation of these Site Terms of Use and to remove, disable access to, or modify any content on the Site. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of these Terms of Use or the User Agreement.4.3 REPORTING AND CORRECTING VIOLATIONSIf you become aware of any violation of these Site Terms or Use, you must immediately report it to Customer Service. You agree to assist us with any investigation we undertake and to take any remedial steps we require in order to correct a violation of these Site Terms of Use.5. DEFINITIONS Section 5 gives you some definitions of capitalized terms that appear in the Site Terms of Use but other capitalized terms are defined above or in the User Agreement, which you can tell because the term is put in quotation marks and bold font.Capitalized terms not defined below have the meanings described in the Terms of Service. “Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Upwork.“Client” means any authorized User utilizing the Site to seek and/or obtain Freelancer Services from another User."Deep Fake" means media that is altered in order to replace a person in an existing image or video with someone else’s likeness in a realistic manner without permission or authorization of the person whose likeness is used.“Freelancer” means any authorized User utilizing the Site to advertise and/or provide Freelancer Services to Clients, including Freelancer Accounts that are Agency Accounts or, if applicable, Agency Members. A Freelancer is a customer of Upwork with respect to use of the Site and Site services.“Freelancer Services” means any services provided by Freelancers.“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.“Means of Direct Contract” has the meaning set forth in Section 7 of the User Agreement.“Public Site Services” means, collectively, all services, applications and products that are accessible by any Site Visitor who has not become a User through the Site, to the extent they are accessible by a Site Visitor who has not become a User.“Site” means, collectively, our website located at www.upwork.com, all affiliated websites and applications, including mobile websites and Upwork Mobile Applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (defined in the User Agreement).“Site Services” means, collectively, all services (except the Freelancer Services defined herein), applications and products that are accessible through the Site, including the Public Site Services, and all Upwork Mobile Applications.“Upwork Mobile Applications” means all mobile applications published by Upwork or our Affiliates for access to or use of the Site or any Site Services.“User Content” means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other information that you or any Site Visitor or User post to any part of the Site or provide to Upwork, including such information that is posted as a result of questions.“You” means any person who accesses our Site, including a Site Visitor or User and including any entity or agency on whose behalf any such person accesses or uses our Site. Direct Contracts Terms Version 3.1 Effective October 19, 2020 Download Table of Contents <ol> </ol> These Upwork Direct Contracts Terms (“Direct Contracts Terms”) define the terms and conditions under which Upwork offers and you agree to use Upwork’s Direct Contracts service, as described in these terms (“Direct Contracts Services”), and are part of and incorporate by reference the Upwork User Agreement and other Terms of Service. The Direct Contracts Terms are in addition to and, except where explicitly stated, do not supersede, replace, or limit other similar terms in the Terms of Service. Capitalized terms not defined herein are defined in the User Agreement or elsewhere in the Terms of Service.IN ORDER TO USE UPWORK’S DIRECT CONTRACTS SERVICE YOU AGREE TO BE BOUND BY THE DIRECT CONTRACT TERMS AND THE ARBITRATION AND CLASS ACTION WAIVER IN THE USER AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, INCLUDING THE ARBITRATION AND CLASS ACTION WAIVER, YOU MAY NOT ACCESS OR USE ANY DIRECT CONTRACTS SERVICES. 1. HOW IT WORKSWith the Direct Contracts Service, a Freelancer can create and send fixed-price or hourly contract proposals to any eligible Client. If the Client accepts the proposal, the Client and Freelancer will enter directly into a contract (the “Direct Contract”). 1.1 Fixed Price Direct ContractsAs described in the Fixed Price Direct Contract Escrow Instructions, upon acceptance of the proposal, the Client will place the Direct Contract project funds in escrow ("Direct Contract Funds”). When the work or a milestone is completed, the Freelancer will request that the Client release the Direct Contract Funds or portion of Direct Contract Funds for the milestone from escrow. If the Client approves the work, Upwork Escrow will release the Direct Contract Funds. Once the Direct Contract Funds are released from Escrow, the Direct Contract will end. 1.2 Hourly Direct ContractsAs described in the Hourly Direct Contract Escrow Instructions, upon acceptance of the proposal, the Client will fund a deposit equivalent to the hourly rate multiplied by the weekly hourly limit agreed to between Freelancer and Client (“Direct Contract Deposit”). Freelancer and Client agree and authorize Upwork to hold the Direct Contract Deposit in escrow through the term of the Hourly Direct Contract. Client agrees to separately fund payments to Freelancer on a weekly basis based on Freelancer’s submission of weekly invoices (“Direct Contract Weekly Funds”). If Client approves the submitted hours, Upwork Escrow will release the Direct Contract Weekly Funds to Freelancer. 2. ELIGIBILITYAny Freelancer that is eligible to use the Site is eligible to use the Direct Contract Services, subject to the limitations on Client eligibility in this Section 2. A Client is eligible to accept a Direct Contract only if the Client does not and has not ever had an Account on Upwork (or its predecessor oDesk). Clients do not need to register for an Account to accept a Direct Contract.3. FEESSolely with respect to fees charged on Direct Contracts, these Direct Contract Terms explicitly supersede and replace Section 2 (Fees Charged to Freelancers), Section 3 (Client Membership Fees), and Section 4 (Payment Processing Fees Charged to Client) in the Fee and ACH Authorization Agreement. The Fee and ACH Authorization Agreement otherwise remains in full force and effect, including, without limitation, on any Service Contract if a Freelancer or Client, who uses Direct Contracts, has a Service Contract (as defined in the User Agreement).For any Direct Contract, the following fees apply: Freelancer pays a 3.4% payment processing and administration fee (“Direct Contract Payment Fee”). Freelancer authorizes and instructs Upwork to automatically charge and deduct the Direct Contract Payment Fee from the Direct Contract Funds or Direct Contract Hourly Funds.Clients are not charged any fees on a Direct Contract, but do agree to Section 5 (Authorization for ACH Debits and Credits) of the Fee and ACH Authorization Agreement with respect to the payment or placement in escrow of any Direct Contract Funds or Direct Contract Weekly Funds.4. ESCROW SERVICESFreelancer and Client acknowledge and agree the Fixed Price Direct Contract Escrow Instructions apply to Fixed Price Direct Contracts. Freelancer and Client further acknowledge and agree that the Hourly Direct Contract Escrow Instructions apply to Hourly Direct Contracts.5. ROLE OF UPWORK AND USER RESPONSIBILITIESYou understand and agree that Upwork is not a party to any Direct Contract, is not involved in or responsible for any work performed by Freelancers, is not involved in or responsible for any payment made under a Direct Contract, and has no control over any Freelancer or Client. Upwork does not have any power or authority to, and does not, determine any eligibility standards for any Direct Contract, select or contract any Freelancer to provide services to a Client, determine or control any term or condition of the Direct Contract or Project, or cause any Freelancer or Client to accept any Direct Contract or perform any Freelancer Services. Upwork Escrow provides escrow services, but does not guarantee that Freelancer will be paid.6. OTHER TERMSTogether with the Upwork User Agreement and other Terms of Service, these Direct Contract Terms represent the entire agreement with Upwork and supersede all prior agreements and understandings with respect to the matters covered. You agree that you did not accept the Direct Contract Terms based on any representations, whether written or oral, other than those contained herein. No modification of or amendment to the Direct Contract Terms, nor any waiver of any rights, will be effective unless in writing signed by you and Upwork. Notwithstanding the foregoing, to the extent permitted by applicable law, Upwork may amend the Direct Contract Terms with prior notice at any time. The posting of the amended Direct Contract Terms on Upwork’s Site will constitute notice. Your continued use of the Direct Contract Services after the effective date of a revised version of the Direct Contract Terms or notice to you of updated Direct Contract Terms constitutes your acceptance of its terms and agreement to be bound by its terms. In the event of a conflict between these Direct Contract Terms and the applicable escrow instructions, the applicable escrow instructions shall govern. in the event of a conflict between these Direct Contract Terms and any other agreement in the Terms of Service, these Direct Contract Terms shall govern. Escrow Instructions Version 3.4 Effective October 19, 2020 Download Table of Contents <ol> </ol> Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions Fixed-Price Escrow Instructions Fixed Price Direct Contract Escrow Instructions Hourly Direct Contract Escrow Instructions Upwork Escrow Inc. Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions Version 3.1 Effective April 20, 2018 Download Table of Contents <ol> </ol> If Client and Freelancer enter into an Hourly Contract, if Client makes a bonus or expense payment to Freelancer, or if you use Upwork Payroll, this Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions (“Agreement”) applies.To the extent permitted by applicable law, we may modify this Agreement, and the Escrow Instructions it contains, without prior notice to you, and any revisions to the Agreement will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.This Agreement hereby incorporates by reference the Terms of Service. Capitalized terms not defined in this Agreement are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. The Escrow Instructions in this Agreement do not apply to Fixed-Price Escrow Accounts, except that they govern the making and receiving of bonus, expense and other miscellaneous payments for Fixed-Price Contracts.1. DIGITAL SIGNATUREBy clicking to accept an Hourly Contract or make a bonus payment, Client and Freelancer are deemed to have executed this Agreement electronically, effective on the date Freelancer clicks to accept an Hourly Contract, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as amended from time to time (the "E-Sign Act"). Doing so constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement and the Escrow Instructions it contains.2. MAKING OR RECEIVING AN HOURLY PAYMENT 2.1 WEEKLY HOURLY INVOICESFor Hourly Contracts, the weekly billing cycle starts Monday at 00:00 midnight UTC and ends Sunday at 23:59 UTC. Invoices for hours recorded on Upwork in the Work Diary are generated each Monday following the week in which the hours were billed (the "Hourly Invoice Deadline"). Freelancer irrevocably authorizes and instructs Upwork, as its agent, to (i) create an invoice on behalf of Freelancer for payment due based upon the hours that the freelancer recorded in the Work Diary before the Hourly Invoice Deadline (such invoice, the "Hourly Invoice"). and (ii) submit the Hourly Invoice on behalf of Freelancer to Freelancer's Client for payment. For the avoidance of doubt, the “Work Diary” is the section Upwork where hours can be recorded on an Hourly Contract.By recording time in the Work Diary and allowing an Hourly Invoice to be created based on the time recorded, Freelancer represents and warrants that (y) Freelancer has completed the applicable Freelancer Services fully and satisfactorily. and (z) the hours Freelancer reports are true, accurate, and complete. 2.2 HOURLY INVOICE REVIEWClient must review and approve or dispute the Hourly Invoice by 11:59 PM UTC of the Friday following submission of the Hourly Invoice. Payments will be held in escrow during the Dispute Period (defined below), providing four additional days to review and dispute the invoice before funds are released. During the Dispute Period, Client may initiate a Dispute as to some or all of the time invoiced on the Hourly Invoice.On the Friday of the week following submission of the Hourly Invoice, Client will be deemed to have approved all undisputed amounts on the Hourly Invoice, and irrevocably instructed Upwork’s Affiliate, Upwork Escrow Inc. (“Upwork Escrow“), to release escrow funds as described in this Agreement.Notwithstanding the foregoing, all hours recorded and submitted by Payroll Employee on the Upwork website will be deemed approved by Client automatically, and Client authorizes and irrevocably instructs Upwork Escrow to release payments for those hours to be paid to the Staffing Provider by Client's account each Monday following the week in which the hours were worked. Client may not reject time or file a Dispute for Payroll Employee time worked.3. MAKING OR RECEIVING A BONUS OR EXPENSE PAYMENTClient may also make a bonus, tip, expense, or other miscellaneous payment to Freelancer using the Site. To make such a payment to a Freelancer, Client must follow the instructions and links on the Site and provide the information requested. If Client clicks to pay such a payment to Freelancer, Client irrevocably instructs Upwork Escrow to and Upwork Escrow will release escrow funds as described in this Agreement.4. INSTRUCTIONS TO PAY IRREVOCABLEClient’s instruction to Upwork Escrow and its wholly owned subsidiaries to pay a Freelancer is irrevocable. Such instruction is Client’s authorization to transfer funds to Freelancer from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected, and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Freelancer, Upwork Escrow will transfer funds to the Freelancer and that Upwork, Upwork Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Agreement, Client agrees that once Upwork Escrow or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.5. RELEASE AND DELIVERY OF AMOUNTS IN ESCROWIn addition, Upwork Escrow is authorized to and will release applicable portions of the Client Escrow Account (each portion, a “Release”) to the Freelancer Escrow Account, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. The amount of the Release will be delivered to the Freelancer Escrow Account, in accordance with Freelancer’s and Client’s instructions, as applicable, these Escrow Instructions, and the other Terms of Service.5.1 RELEASE CONDITIONSAs used in these Escrow Instructions, “Release Condition” means any of the following:<ol> <li>Client and Freelancer have submitted joint written instructions for a Release.</li> <li>Client has approved all or a portion of the Freelancer's Hourly Invoice. This Release Condition will only apply to amounts invoiced by the Freelancer that Client has approved. Client’s failure to dispute an Hourly Invoice, or a portion of an Hourly Invoice, within the Dispute Period pursuant to this Agreement, or as otherwise provided in the Escrow Instructions, constitutes approval by the Client for purposes of this Release Condition.</li> <li>Freelancer is a Payroll Employee and has submitted an Hourly Invoice under a Services Contract that involves the use of Upwork Payroll.</li> <li>Upwork reviews Client's dispute of amounts invoiced on Freelancer's Hourly Invoice for an Hourly Contract with Work Diaries pursuant to this Agreement and determines that the time is related to the Hourly Contract requirements or Client's instructions.</li> <li>Client initiates a Dispute with respect to Freelancer's Hourly Invoice for an Hourly Contract without Work Diaries pursuant to this Agreement and Client and Freelancer resolve the dispute without the assistance of Upwork.</li> <li>Issuance of a final order of a court or arbitrator of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.</li> <li>We believe, in our sole discretion, that fraud, an illegal act, or a violation of Upwork's Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer hereby irrevocably authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.</li> </ol> 6. PAYMENT PROTECTIONUpwork provides limited payment protection to Users as detailed in this Section 6 ("Hourly Payment Protection").6.1 FOR FREELANCERSIn the rare event that a Freelancer’s Client does not make payment for legitimate services performed by a Freelancer, Upwork will provide Hourly Payment Protection to the Freelancer as detailed in this Section 6.1 as a membership benefit to foster fairness, reward loyalty, and encourage the Freelancer to continue to use the Site Services for their business needs. Hourly Payment Protection will be offered to a Freelancer only if all of the following criteria are met in Upwork's sole discretion:<ol> <li>Both Client and Freelancer must have agreed to use Work Diaries upon acceptance of the Hourly Contract, as part of the terms.</li> <li>Client must have an Account in good standing and a valid and verified Payment Method at the start of the Hourly Contract, and must agree to automatically pay for hours billed by Freelancer through Work Diaries.</li> <li>Freelancer's Account must be in good standing.</li> <li>Freelancer must have used Work Diaries enabled to document any and all hours covered by the Hourly Payment Protection for Freelancers.</li> <li>Prior to any Hourly Invoice being submitted, Freelancer must have annotated the screenshots documented in Work Diaries sufficient to demonstrate the work relates to the Hourly Contract.</li> <li>The screenshots documented by Work Diaries must be clearly related to the applicable Hourly Contract requirements or Client instructions.</li> <li>The number of hours billed in the Work Diaries must be within the hours authorized in the Hourly Contract for the week.</li> <li>Within five days after notification of rejected or unpaid time, Freelancer must submit a Dispute specifically identifying the documented work not otherwise paid for by their Client through the Escrow Services.</li> </ol>Upwork will investigate and determine in its sole discretion whether the above terms and conditions are met. Hourly Payment Protection does not apply to: (a) hours invoiced for work not agreed to or authorized by Client. (b) bonus payments. (c) refunds. (d) manual time. (e) time added after Client has disputed a billing and before the resolution of that dispute. (6) Fixed-Price Contracts. (f) hours reported by Payroll Employees. (g) any payments on Hourly Contracts where the Hourly Contract or the services provided thereunder are prohibited by the Terms of Service. (h) hours billed by Freelancers whom Upwork believes, in its sole discretion, to be aware of or complicit in another User’s violation of this Agreement or the other Terms of Service. or (i) Freelancers whom Upwork believes, in its sole discretion, to be involved in actual fraudulent activities or abuse of this Payment Protection.The maximum rate per hour protected by Upwork to Freelancer under the Hourly Payment Protection for Freelancers is the lesser of: (i) the rate provided in the Hourly Contract terms. (ii) the usual hourly rate billed by Freelancer on the Site across all Clients. and (iii) the going rate for the same skills on the Site in Freelancer's area (such determination to be made in Upwork's sole discretion). The maximum amount of coverage under the Hourly Payment Protection for Freelancers for the life of a relationship between the same Client and Freelancer is $2,500 or 50 hours logged in Work Diary, whichever is less.6.2. FOR CLIENTSFreelancer authorizes and instructs Upwork to adjust the Hourly Invoice to remove invoiced hours that are not (a) clearly related to either the Hourly Contract terms or work agreed to by the Client, and (b) within the hours authorized in the Hourly Contract for the week, subject to and conditioned on the following terms:<ul> <li>Both Client and Freelancer must agree to use Work Diaries as part of the Hourly Contract terms.</li> <li>Client must have an Account in good standing and a valid and verified default Payment Method, and Client must agree to automatically pay for hours billed by Freelancer in the Hourly Invoices. Within the Hourly Invoice Review Period, Client must submit a Dispute specifically identifying the time billed that is not clearly related to either the Hourly Contract requirements or Client instructions in the Work Diaries.</li> </ul>Upwork will investigate and determine in its sole discretion whether the above terms and conditions are met.Hourly Protection for Clients only protects Client from the obligation to pay for Freelancer’s work if the documented hours worked are not clearly related to the Hourly Contract requirements or Client instructions in the Work Diaries. If Client has requested that the Freelancer use functionality of the Site or third-party software that hides, blurs, or distorts images in the Work Diary, the screenshots will be deemed to be “clearly related” to the Hourly Contract requirements for purposes of the Client's eligibility for Hourly Payment Protection. Hourly Payment Protection for Clients does not create any warranties, express or implied, beyond those expressly stated in the User Agreement.Hourly Protection for Clients does not apply to: (1) Fixed-Price Contracts. (2) Hourly Contracts using Upwork Payroll. or (3) hours billed by Freelancers who are aware of or complicit in another User's violation of this Agreement or the Terms of Service.7. DISPUTES BETWEEN CLIENT AND FREELANCER 7.1 DISPUTES INITIATED VIA THE PLATFORM For Hourly Contracts, Client may dispute Freelancer’s hours invoiced on the Hourly Invoice for the prior week (Sunday 12:00 a.m. midnight UTC to Sunday 11:59 p.m. UTC) during the five days following the close of the weekly invoice period (Monday 12:00 a.m. midnight UTC to Friday 11:59 p.m. UTC) (the “Dispute Period“). It is Client’s responsibility to review the Hourly Invoice of every Hourly Contract on a weekly basis and to file any disputes during the Dispute Period. Once the Dispute Period expires, Client will be deemed to have accepted the Freelancer Services and Freelancer Fees and can no longer dispute them. Disputes handled by Upwork can only address the hours billed, not the quality of the Freelancer Services or the Work Product provided under Hourly Contracts. If Client disputes Freelancer’s hours invoiced in the Hourly Invoice under an Hourly Contract during the Dispute Period, Client and Freelancer are encouraged to resolve the dispute between themselves. If Client and Freelancer fail to come to a resolution, Upwork will promptly investigate the Hourly Invoice and determine, in our sole discretion, whether an adjustment is appropriate consistent with Client’s and Freelancer’s instructions in these Escrow Instructions. Upwork's determination of such dispute shall be final. If Client’s payment is unsuccessful, Upwork will review the Weekly Invoice to determine if it qualifies for Hourly Payment Protection. If Upwork, in its sole discretion, determines that the Weekly Invoice qualifies for Hourly Payment Protection, it will make payment to the Freelancer to cover the Hourly Invoice on behalf of the Client. In the event that Upwork makes payment on behalf of the Client, Freelancer hereby irrevocably assigns any right, title or interest in any payment from Client to Upwork for the amount paid by Upwork. Client may choose to approve Freelancer’s Weekly Invoice prior to the end of the Dispute Period thereby releasing payment for the Weekly Invoice. If Client releases payment to Freelancer prior to the end of the Dispute Period, Client certifies that it approves the Weekly Invoice, accepts the work, and waives any further right to dispute the work or Weekly Invoice through Upwork's Dispute Assistance (defined below).You acknowledge and agree that Upwork Escrow or its Affiliates may, at its sole discretion, withhold or delay payment in the event of dispute between a Client and a Freelancer. You further acknowledge and agree that Upwork and Affiliates are not and will not be a party to any dispute between a Client and Freelancer over an Hourly Invoice or Hourly Contract. Clients may not dispute hours worked with respect to any worker engaged as an employee through Upwork Payroll. The Dispute Period does not apply and payments are released immediately upon completion of the Hourly Invoice for the prior week for Hourly Contracts where the Client has one or more Service Contracts using Upwork Payroll.7.2 UPWORK DISPUTE ASSISTANCENon-binding dispute assistance (“Dispute Assistance”) is available within 30 days of the date of the last release of funds from Client to Freelancer. If Client or Freelancer contacts Upwork via support ticket within 30 days of the date of the last payment from Client to Freelancer and requests non-binding dispute assistance for any dispute among them (a “Dispute”), Upwork will attempt to assist Client and Freelancer by reviewing the Dispute and proposing a mutual, non-binding resolution. Upwork will only review the 30 days of work performed prior to the date a User requests Dispute Assistance.<ul> <li>The Upwork Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation.</li> <li>If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.</li> <li>The proposed resolution is non-binding. Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the proposed resolution.</li> <li>If Client or Freelancer rejects Upwork’s proposed, non-binding resolution then Client and/or Freelancer must pursue the Dispute independently.</li> <li>Upwork reserves the right to review the Freelancer’s work for 30 days prior to the date of the request for Dispute Assistance for compliance with Hourly Payment Protection requirements, and in its sole discretion, to make adjustments to invoices, and to direct Upwork Escrow to make appropriate releases to Client if it finds work that clearly does not relate Hourly Contract requirements or Client instructions in the Work Diaries or violations of the Terms of Service during its review of the work.</li> </ul>Dispute Assistance does not apply to Freelancer Services using Upwork Payroll.8. NO RESPONSIBILITY FOR SERVICES OR PAYMENTSUpwork and Affiliates merely provide a platform for Internet payment services. Upwork and Affiliates do not have any responsibility or control over the Freelancer Services that Client purchases. Nothing in this Agreement deems or will be interpreted to deem Upwork or any Affiliate as Client’s or Freelancer’s agent with respect to any Freelancer Services, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. For example, Upwork does not guarantee the performance, functionality, quality, or timeliness of Freelancer Services or that a Client can or will make payments. Fixed-Price Escrow Instructions Version 3.2 Effective March 18, 2020 Download Table of Contents <ol> </ol> *Upwork is committed to helping users experiencing hardships as a result of COVID-19. To that end, Upwork may extend or accommodate requests for extension of deadlines imposed by Section 6 of these Fixed-Price Escrow Instructions and related to disputes subject to the Dispute Assistance Program.*If a Client and a Freelancer enter into a Fixed-Price Contract, these Fixed-Price Escrow Instructions (“Escrow Instructions”) apply. These Escrow Instructions govern Fixed Price Escrow Accounts. If you have a Fixed-Price Contract and wish to make or receive a miscellaneous or bonus payment, those activities are governed by the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions.To the extent permitted by applicable law, we may modify these Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. These Escrow Instructions do not apply to Hourly Contracts.1. DIGITAL SIGNATUREBy clicking to fund Escrow (a “Funding Approval”) or to accept a Fixed-Price Contract, Client and Freelancer are deemed to have executed these Escrow Instructions electronically, effective on the date Freelancer clicks to accept the engagement, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as may be amended from time to time (the "E-Sign Act"). Doing so constitutes an acknowledgement that you are able to electronically receive, download, and print these Escrow Instructions. All references to the Escrow in these Escrow Instructions will include the initial Funding Approval and any additional Funding Approval for a Fixed-Price Contract.2. RELEASE AND DELIVERY OF AMOUNTS IN ESCROWClient and Freelancer irrevocably authorize and instruct Upwork Escrow Inc. (“Upwork Escrow“) to release applicable portions of the Fixed Price Escrow Account (each portion, a “Release”) to their Freelancer Escrow Account or Client Escrow Account, as applicable, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. The amount of the Release will be delivered to the applicable Escrow Account in accordance with Freelancer’s or Client’s instructions, as applicable, these Escrow Instructions, and the other Terms of Service.2.1 RELEASE CONDITIONSAs used in these Escrow Instructions, “Release Condition” means any of the following:<ol> <li>Client clicks to release funds to Freelancer.</li> <li>Client does not take any action for 14 days from the date of a Freelancer’s Release request, in which case Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Freelancer the amount associated with to the applicable milestone in connection with such Release request.</li> <li>Freelancer cancels the contract before a milestone payment has been released to Freelancer, in which case the funds are to be returned to the Client.</li> <li>Client and Freelancer have submitted joint written instructions for a Release to either Freelancer Escrow Account or Client Escrow Account, as applicable.</li> <li>Client and Freelancer agree to close the contract without release of funds, in which case the funds are to be returned to the Client.</li> <li>Client or Freelancer has failed to make its Arbitration payment or paid its fair share of the Arbitration costs pursuant to the Dispute Assistance Program, in which case the funds are released to the Party that has made its Arbitration Payment.</li> <li>Both Client and Freelancer have failed to timely submit to Arbitration for an unresolved Dispute as such term is defined in the Dispute Assistance Program, in which case the funds are released to the Client.</li> <li>Client or Freelancer has failed timely to respond to an Upwork Dispute Assistance notification as required by the Dispute Assistance Program, in which case the funds are released to the User that has participated.</li> <li>Client or Freelancer otherwise has failed to comply with the Dispute Assistance Program, in which case the funds are to be released to the User that has complied with the Dispute Assistance Program.</li> <li>Submittal of a final award of an arbitrator appointed pursuant to the Dispute Assistance Program, in which case the funds will be released in accordance with such award.</li> <li>Issuance of the final order of a court of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.</li> <li>We believe, in our sole discretion, that fraud, an illegal act, or a violation of Upwork's Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer irrevocably authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.</li> </ol> 3. INSTRUCTIONS IRREVOCABLEOn the occurrence of a Release Condition, Client and Freelancer are deemed to and hereby agree that the instruction to Upwork Escrow and its wholly owned subsidiaries to release funds is irrevocable. Without limiting the foregoing, Client’s instruction to Upwork Escrow and its wholly owned subsidiaries to pay a Freelancer is irrevocable. Such instruction is Client’s authorization to transfer funds to Freelancer from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Freelancer, Upwork Escrow will transfer funds to the Freelancer and that Upwork, Upwork Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Agreement, Client agrees that once Upwork Escrow or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.4. DORMANT ENGAGEMENTSTo be fair to Clients and Freelancers, Upwork has a procedure for Fixed-Price Contracts that appear Dormant (as defined below). For purposes of determining Dormant status, “activity” means business term or milestone updates or requests, Fixed-Price Escrow Funding, Fixed-Price Escrow Release, Fixed-Price Escrow Refunds, Funding requests, Release requests, requests to close the Fixed-Price Contract, Status Report submittals, or actions under the Fixed Price Dispute Assistance Program.A "Dormant Engagement" is a Fixed-Price Contract that has a Fixed-Price Escrow Account with a balance but has had no activity for 90 consecutive days after the last milestone date contained in the business terms. Dormant Engagements are subject to the following rules:<ol> <li>Upwork will notify Client when the Fixed-Price Contract becomes Dormant (“Dormant Date”).</li> <li>If no activity other than Release requests has occurred within 7 days after the Dormant Date, Upwork will notify the Freelancer that the Fixed-Price Contract is Dormant.</li> <li>If neither Freelancer nor Client take any action for 7 days after the Dormant Date, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release escrow funds to Client.</li> <li>If Freelancer submits a Release request and client does not take any action for 14 days from the date of the Release request, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Freelancer the amount related to the milestone with Release request.</li> <li>All funds released to Freelancer under this Section, Dormant Engagements, will be subject to the applicable Service Fees.</li> </ol> 5. REFUNDS AND CANCELLATIONSClient and Freelancer are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in escrow, Client or Freelancer can cancel the contract at any time by clicking to close the contract. If funds are held in escrow, refunds and cancellations must be initiated by Client or Freelancer by following the steps below.5.1 CANCELLATION BY FREELANCERIf Freelancer wants to cancel a contract with funds held in escrow, Freelancer must click to close the contract. When Freelancer clicks to close the contract, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Client all Escrow funds associated with the contract.5.2 CANCELLATION BY CLIENTIf Client wants to cancel a contract with funds held in escrow, Client must click to close the contract. Freelancer must either click to approve or dispute the Client’s cancellation within 7 days. If Freelancer approves the cancellation, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Client all escrow funds associated with the contract. If Freelancer is using the Site on a mobile device and do not have the ability to approve or dispute the cancellation with a click on the mobile website or application, Freelancer must dispute the Client’s cancellation via support ticket within 7 days. If Freelancer takes no action within 7 days from the date notification of the cancellation is sent to Freelancer, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Client all Escrow funds associated with the contract. If Freelancer disputes the cancellation, Freelancer and Client will be offered Upwork Dispute Assistance (as defined in Section 6).6. DISPUTE ASSISTANCE PROGRAMIf Client and Freelancer fail to come to a mutual resolution by way of the Refund and Cancellation process as stated in Section 5, Upwork provides this Dispute Assistance Program as a mechanism to resolve the Dispute.6.1 DEFINITIONS AND KEY DATES <ol> <li> “Arbitration” means binding non-appearance based Arbitration by a neutral third party as described in Section 6.</li> <li> “Arbitration Payment” means Client’s or Freelancer’s applicable portion of the costs of Arbitration as more particularly described in this Section 6.</li> <li> “Arbitration Limitations Date” means the date 30 days after the date a Dispute is filed via the Site or via support ticket with Upwork.</li> <li>"Contract Room" means the contract room on the Site for the particular Fixed-Price Contract, including the contract terms, messages and files, and milestones and payments. </li> <li>“Dispute” means a dispute between a Client and Freelancer concerning a Fixed-Price Contract and covered by this Dispute Assistance Program.</li> <li> “Dispute Assistance Deadline” means the date 30 days after the Client was billed for the last milestone.</li> <li>“Dispute Assistance Program” means the Dispute assistance program set forth in this Section 6. </li> <li> “Upwork Dispute Assistance” means the Dispute assistance provided by Upwork as set forth in this Section 6.</li> </ol> 6.2 AVAILABILITY OF UPWORK DISPUTE ASSISTANCEDispute Assistance is only available (i) after initial funding of the Fixed Price Escrow Account associated with the Fixed-Price Contract, and (ii) prior to the Dispute Assistance Deadline. Dispute Assistance is not available to either the Freelancer or the Client via the Site after the Dispute Assistance Deadline.6.3 NON-BINDING ASSISTANCEUpwork will first attempt to assist Client and Freelancer by reviewing the Dispute and proposing a mutual, non-binding resolution.<ul> <li>The Upwork Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation (if any).</li> <li>If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.</li> <li>The proposed resolution is non-binding. Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the proposed resolution.</li> <li>If Client or Freelancer rejects Upwork’s proposed, non-binding resolution, they may proceed to Arbitration. If Client and Freelancer do not choose to arbitrate, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Client all funds held in Escrow.</li> <li>If Client or Freelancer chooses to arbitrate by notifying Upwork via support ticket of their intent to arbitrate, Upwork will notify both Client and Freelancer via ticket that they must make the Arbitration Payment within 5 business days of the notice (the “First Arbitration Notice“). If both parties make the Arbitration Payment (including after initial notice of non-payment), then Upwork will deliver instructions for initiating Arbitration.</li> <li>If Client or Freelancer does not make the Arbitration Payment within 5 business days of the First Arbitration Notice, Freelancer and Client will be deemed to have irrevocably authorized and instructed Upwork Escrow to, and Upwork Escrow will, release the disputed funds to the party that paid the Arbitration Payment to the extent that any disputed funds remain in the Escrow Account. If no funds remain in the Escrow, Upwork will close the Dispute.</li> <li>If Client and Freelancer both do not make the Arbitration Payment by the Arbitration Limitations Date, then Client and Freelancer will be deemed to have authorized and instructed Upwork Escrow to, and Upwork Escrow will, release the disputed funds to Client, to the extent that any disputed funds remain in the Escrow Account, if no funds remain Upwork will close the Dispute.</li> </ul> 6.4 ARBITRATION FOR A FIXED-PRICE CONTRACTExcept for Fixed-Price Contracts where the Client is an Enterprise Client (defined in the Fee and ACH Authorization Agreement), Freelancer and Client each has the right to demand Arbitration of a Fixed-Price Contract before the Arbitration Limitations Date if the Fixed-Price Escrow associated with the Fixed-Price Contract has been funded at least once. If either Client or Freelancer demands Arbitration in accordance with these Escrow Instructions and you are not the party that requested Arbitration, you agree to submit to the Arbitration and pay your share of the Arbitration fees detailed below. In any Arbitration, each of you and the other Member is a “Dispute Party,” and collectively you are the “Dispute Parties.”Any such Arbitration will be conducted by a neutral third-party Arbitration service: the American Arbitration Association (the “AAA”).The Arbitration rules and fees for each are set out in Appendix A to these Escrow Instructions. By default, Arbitration will be conducted by AAA unless Upwork chooses another Arbitration service.6.5 FILING THE CASE WITH THE ARBITRATORWhen a User demands Arbitration (the “Arbitration Plaintiff”), or when the circumstances dictate that Upwork notify a User of its right to file for Arbitration as described above, Upwork will provide the User with instructions on initiating the Arbitration. After the parties have initiated the Arbitration, Upwork will provide the arbitrator with supporting documentation including but not limited to the documents submitted to Upwork during the dispute resolution process, information available via the Site, and access to the Site.If the Arbitration Plaintiff makes the Arbitration Payment, Upwork will contact the other party (“Arbitration Respondent”) to request that the Arbitration Respondent pay its portion of the Arbitration fees as well. If the Arbitration Respondent fails to make the Arbitration Payment and submit to such Arbitration within 5 business days after the First Arbitration Notice, Upwork will suspend the Arbitration Respondent’s account, and both parties will be deemed to have irrevocably authorized and instructed Upwork Escrow to, and Upwork Escrow will, release the funds sought by the Arbitration Plaintiff in the demand for Arbitration to the Arbitration Plaintiff, to the extent such funds remain in the Fixed-Price Escrow Account. If no funds remain in the Fixed-Price Escrow Account, Upwork will close the Dispute.If both parties pay their portion of the Arbitration fees, Upwork will instruct the parties on the process for initiating the Arbitration with the Arbitration service provider. After the parties have initiated the Arbitration, Upwork will provide the arbitrator with relevant documentation, including information collected in the informal dispute process and contents of the Contract Room.6.6 AUTHORIZATION TO COLLECT ARBITRATION FEESWhen you electronically authorize payment of the invoice for the Arbitration Payment as delivered to you by Upwork by email, you irrevocably authorize and instruct (i) Upwork Escrow or its Affiliates, as your agent, to charge your Payment Method for the amount of the payment for credit to your Escrow Account. and (ii) Upwork Escrow, as escrow agent, to immediately release that amount from your Escrow Account and pay it to Upwork. If Upwork Escrow or its Affiliates cannot collect sufficient funds to fulfill the Escrow for any reason, Upwork Escrow has no obligation with respect to making the payment to Upwork on your behalf, and you will be considered as not having paid your portion of the Arbitration fees as required by this Section 6.6.7 LIMITATIONS PERIOD FOR ARBITRATIONSIf both Freelancer and Client fail to demand binding Arbitration for an unresolved Dispute by the Arbitration Limitations Date, then Client and Freelancer will be deemed to have irrevocably authorized and instructed Upwork Escrow to, and Upwork Escrow will, release all funds in the Fixed-Price Escrow Account to Client.6.8 ARBITRATION AWARDYou agree that the arbitrator is authorized to decide the Dispute within its discretion. You agree that the arbitrator’s award is final, that it may be entered in and enforced by any court of competent jurisdiction, and that if the arbitrator delivers notice of any award to Upwork, then Upwork and Upwork Escrow have the right to treat such notice as conclusive and act in reliance thereon.6.9 SERVICE FEES FOR ESCROW FUNDS RELEASED FOLLOWING DISPUTE ASSISTANCE All Escrow Funds released under this program are subject to the normal Service Fees associated with Escrow Accounts, as detailed in the User Agreement and applicable Escrow Instructions.7. NOTICESAll notices to a User required by these Escrow Instructions will be made via email sent by Upwork to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Upwork, for checking their email and for responding to notices sent by Upwork to the User’s registered email address.8. COOPERATION WITH THE DISPUTE ASSISTANCE PROGRAMAll claims, disputes or other disagreements between you and another User that are covered by the Dispute Assistance Program must be resolved in accordance with the terms in the Dispute Assistance Program. All claims filed or brought contrary to the Dispute Assistance Program will be considered improperly filed, and Upwork will have the right to take any other action, including suspension or termination of your Account, and any other legal action as Upwork deems appropriate in its sole discretion.9. ABUSEUpwork, in its sole discretion, reserves the right to suspend or terminate your Account immediately upon giving notice to you if Upwork believes you may be abusing the Dispute Assistance Program or as otherwise permitted by the Terms of Service. However, any Disputes for any Fixed-Price Contracts that existed prior to termination will be subject to the Terms of Service. APPENDIX A RULES AND FEES FOR ARBITRATIONS CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION This Appendix A summarizes certain pertinent contractual terms that American Arbitration Association (the "AAA") has agreed to in providing arbitration services to Clients and Freelancers who choose the AAA as their arbitrator under the Fixed-Price Escrow Instructions. The AAA is solely a third-party arbitration service provider. Upwork and our affiliates have no direct or indirect affiliate, partnership, joint venture, ownership or control relationship with or interest in the AAA. Upwork and our Affiliates assume no responsibility or liability for the services of the AAA. Appointment of the Arbitrator All Arbitrations by the AAA are conducted by a single arbitrator.The AAA will provide the parties the opportunity to participate in arbitrator selection through a strike-and-rank process of pre-qualified arbitrators.<ol> <li>Each party will be provided with an identical list of five potential arbitrators and may have up to three calendar days to strike two potential arbitrators and rank the remaining in order of preference. If any party does not return the list within five calendar days, all persons named therein will be deemed acceptable.</li> <li>From among the arbitrators approved on both lists and in accordance with the designated order of mutual preference, the AAA will invite the arbitrator to serve. If for any reason the appointment cannot be made according to this procedure, the AAA will have the power to make the appointment without submission of additional lists.</li> <li>Any arbitrator will be impartial and independent and will perform his or her duties with diligence and in good faith, and will be subject to disqualification for any grounds provided by applicable law.</li> <li>Neither Upwork nor any party or party representative will communicate ex parte with an arbitrator or candidate for arbitrator concerning the Arbitration. Notwithstanding the above, Upwork and an arbitrator may communicate ex parte solely for the purpose of enabling the arbitrator to access and use the Site, and the Contract Room, and the information contained therein, associated with the Fixed-Price Contract in Dispute.</li> </ol> Rules of the Proceedings <ol> <li>The amount at issue in any claims or counterclaims relating to a Fixed-Price Contract will be limited to the sum still held in Escrow and the sum previously released from Escrow for the Fixed-Price Contract.</li> <li>The Arbitration Plaintiff may submit a statement of the case (“Initial Statement”), not to exceed 1,500 words, within three business days of being notified that the case has been filed with the AAA. The Arbitration Plaintiff will post the Initial Statement to the Contract Room.</li> <li>The Arbitration Respondent may submit a response (“Response Statement”), not to exceed 1,500 words, within three business days of receiving the Initial Statement. The Arbitration Respondent will post the Response Statement to the Contract Room.</li> <li>Either party may elect to use their dispute notice form or dispute response (as applicable) in lieu of creating a separate Initial Statement or Response Statement for the Arbitration. No party may submit new or different claims after the case has been initiated.</li> <li>All proceedings will be “on documents” and the evidence admissible will consist solely and exclusively of Contract Room contents at the time the Dispute was submitted to the Upwork Dispute resolution process. Any communication taking place outside the Contract Room must have been posted to the Contract Room within 24 hours of the original transmission of that communication in order to be admissible. Once Arbitration is initiated, the arbitrator can make an award based solely on the Contract Room contents and material submitted to initiate the Arbitration. The failure of one party or the other to respond to an arbitrator request or otherwise continue to participate in the Arbitration will not prevent the arbitrator from making an award.</li> <li>The language of the Arbitration will be English.</li> <li>At the arbitrator’s sole discretion, the arbitrator may permit or require the submission of additional written statements from the parties (“Additional Arguments”). The arbitrator is not required to permit Additional Arguments. If the arbitrator permits Additional Arguments, the arbitrator will establish the schedule and rules for the submission of such Additional Arguments, including any limits on the length of such Additional Arguments.</li> <li>The Arbitration will conclude within 30 calendar days from the date of submission to the AAA, and the arbitrator may grant an extension for good cause not to exceed 14 calendar days.</li> <li>Communications by either party to the arbitrator will be shared with all parties.</li> <li>All awards will be final, non-appealable and enforceable by any court of competent jurisdiction.</li> <li>Neither the AAA nor any arbitrator in a proceeding under these rules and procedures is a necessary or proper party in judicial proceedings relating to the Arbitration. The parties to an Arbitration under these rules and procedures will be deemed to have consented that neither the AAA nor any arbitrator will be liable to any party in any action for damages or injunctive relief for any act or omission in connection with any Arbitration under these rules and procedures.</li> </ol> The Award The AAA will provide Upwork and the parties with a written award promptly upon the conclusion of the Arbitration, and in no event later than 14 calendar days after conclusion of the Arbitration. At the arbitrator’s sole discretion, the arbitrator may provide, but is not required to provide, written reasons for the Award to the parties.Fees The fee for Arbitrations by the AAA is $875, regardless of the amount at issue.Each of the Dispute Parties and Upwork will share the cost equally ($291 each).Client and Freelancer will solely bear and pay any other costs it incurs related to the Arbitration. Fixed Price Direct Contract Escrow Instructions Version 2.0 Effective October 19, 2020 Download Table of Contents <ol> </ol> If a Client and a Freelancer enter into a Fixed Price Direct Contract, these Fixed Price Direct Contract Escrow Instructions (“Escrow Instructions”) apply. These Escrow Instructions govern Escrow Accounts for Fixed Price Direct Contracts. Service Contracts are governed by the applicable escrow instructions.To the extent permitted by applicable law, we may modify these Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. These Escrow Instructions do not apply to Fixed-Price Contracts or Hourly Contracts.1. DIGITAL SIGNATUREBy clicking to accept a Direct Contract, Client and Freelancer are deemed to have executed these Escrow Instructions electronically, effective on the date Client clicks to accept the Direct Contract, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as may be amended from time to time (the "E-Sign Act"). Doing so constitutes an acknowledgement that you are able to electronically receive, download, and print these Escrow Instructions. 2. FUNDING ESCROWBy accepting a Direct Contract, Client agrees to deposit funds for the amount of the first milestone (as defined on the Site) or the full amount of the Direct Contract if there is only one milestone. Additional milestones, if any, may be funded on the same contract by the Client by selecting the button to add an additional milestone or to activate the next milestone. Funds deposited by Clients remain in the Client Escrow Account until they are released to the Freelancer Escrow Account or released to the Client. Upwork Escrow will not release funds held in escrow except as described in these Escrow Instructions. 3. RELEASE AND DELIVERY OF AMOUNTS IN ESCROWClient and Freelancer irrevocably authorize and instruct Upwork Escrow Inc. (“Upwork Escrow“) to release applicable portions of the Direct Contract Escrow Account (each portion, a “Release”) to their Freelancer Escrow Account or Client Escrow Account, as applicable, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. If the funds are released to the Client Escrow Account, they will be automatically returned to the Client’s Payment Method that was charged to fund escrow. The amount of the Release will be delivered to the applicable Escrow Account in accordance with Freelancer’s or Client’s instructions, as applicable, these Escrow Instructions, and the other Terms of Service.3.1 RELEASE CONDITIONSAs used in these Escrow Instructions, “Release Condition” means any of the following:<ol> <li>Client clicks to release funds to Freelancer.</li> <li>Client does not take any action for 14 days from the date of a Freelancer’s Release request, in which case Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Freelancer the amount associated with the applicable milestone in connection with such Release request.</li> <li>Freelancer or Client cancels the contract before a payment has been released to Freelancer, in which case the funds are to be returned to the Client.</li> <li>Issuance of the final order of a court or arbitrator of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.</li> <li>We believe, in our sole discretion, that fraud, an illegal act, or a violation of Upwork's Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer irrevocably authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.</li> </ol> 4. INSTRUCTIONS IRREVOCABLEOn the occurrence of a Release Condition, Client and Freelancer are deemed to and hereby agree that the instruction to Upwork Escrow and its wholly owned subsidiaries to release funds is irrevocable. Without limiting the foregoing, Client’s instruction to Upwork Escrow and its wholly owned subsidiaries to pay a Freelancer is irrevocable. Such instruction is Client’s authorization to transfer funds to Freelancer from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Freelancer, Upwork Escrow will transfer funds to the Freelancer and that Upwork, Upwork Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Agreement, Client agrees that once Upwork Escrow or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.5. DORMANT ENGAGEMENTSTo be fair to Clients and Freelancers, Upwork has a procedure for Direct Contracts that appear Dormant (as defined below). For purposes of determining Dormant status, “activity” means business term or milestone updates or requests, Direct Contract Escrow Funding, Release requests, or requests to close the Contract.A "Dormant Engagement" is a Direct Contract that has a Direct Contract Escrow Account with a balance but has had no activity for 90 consecutive days after the last milestone date contained in the business terms. Dormant Engagements are subject to the following rules:<ol> <li>Upwork will notify Client when the Direct Contract becomes dormant (“Dormant Date”).</li> <li>If no activity other than Release requests has occurred within 7 days after the Dormant Date, Upwork will notify the Freelancer that the Direct Contract is Dormant.</li> <li>If neither Freelancer nor Client take any action for 7 days after the Dormant Date, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release escrow funds to Client.</li> <li>If Freelancer submits a Release request and client does not take any action for 14 days from the date of the Release request, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Freelancer the amount related to the milestone with Release request.</li> <li>All funds released to Freelancer under this Section, Dormant Engagements, will be subject to the applicable Fees as described in the Direct Contract Terms.</li> </ol> 6. REFUNDS AND CANCELLATIONSClient and Freelancer are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in escrow, Freelancer may issue a refund up to the full amount paid on the Direct Contract.7. NOTICESAll notices to a User required by these Escrow Instructions will be made via email sent by Upwork to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Upwork, for checking their email and for responding to notices sent by Upwork to the User’s registered email address.8. ABUSEUpwork, in its sole discretion, reserves the right to suspend or terminate your Account immediately upon giving notice to you if Upwork believes you may be abusing the Dispute Assistance Program or as otherwise permitted by the Terms of Service. However, any Disputes for any Fixed-Price Contracts that existed prior to termination will be subject to the Terms of Service. Hourly Direct Contract Escrow Instructions Version 1.0 Effective October 19, 2020 Download Table of Contents <ol> </ol> If Client and Freelancer enter into an Hourly Direct Contract, these Hourly Direct Contract Escrow Instructions apply. These Hourly Direct Contract Escrow Instructions govern Direct Contract Escrow Accounts for Hourly Direct Contracts. All other contracts, including Fixed-Price Direct Contracts and Service Contracts (as defined in the User Agreement), are governed by the applicable escrow instructions. To the extent permitted by applicable law, we may modify these Hourly Direct Contract Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. These Hourly Direct Contract Escrow Instructions do not apply to Fixed-Price Direct Contracts or Service Contracts. 1. DIGITAL SIGNATUREBy clicking to send an offer for or to accept an Hourly Direct Contract, Client and Freelancer are deemed to have executed this Agreement electronically, effective on the date Client clicks to accept an Hourly Direct Contract, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as amended from time to time (the “E-Sign Act”). Doing so constitutes an acknowledgement that you are able to electronically receive, download, and print these Hourly Direct Contract Escrow Instructions. 2. FUNDING ESCROWBy accepting an Hourly Direct Contract, Client agrees to deposit funds totaling the Freelancer’s hourly rate as agreed to by the parties multiplied by the weekly hourly limit agreed to by the parties (“Direct Contract Deposit”). Client authorizes Upwork Escrow Inc. (“Upwork Escrow”) to hold the Direct Contract Deposit in escrow through the term of the Hourly Direct Contract and further authorizes Upwork Escrow to release funds from the Direct Contract Deposit to the Freelancer in any instance(s) where the Freelancer invoices hours of work and the invoice is neither disputed or funded for payment by Client in accordance with these Hourly Escrow Instructions. In any such instance(s), Client agrees that Upwork Escrow may charge to Client’s Payment Method or Client will otherwise deposit additional funds into the Client Escrow Account to replenish the Direct Contract Deposit. Freelancer and Client agree and authorize Upwork Escrow to hold an amount equal to the Direct Contract Deposit in escrow through the termination of the Direct Contract, at which point the parties agree the Direct Contract Deposit will be released to Client if all payments due under the Hourly Direct Contract have been paid to Freelancer. In addition to the Direct Contract Deposit, Client agrees to fund through Client Escrow Account payments to Freelancer on a weekly basis for the amount of Freelancer’s applicable weekly invoices (“Direct Contract Weekly Funds”). If Client approves the submitted invoices in accordance with the below provisions, Upwork Escrow will release the Direct Contract Weekly Funds to Freelancer. 2.1 WEEKLY HOURLY INVOICESFor Hourly Direct Contracts, the weekly billing cycle starts Monday at 00:00 midnight UTC and ends Sunday at 23:59 UTC. Invoices for hours recorded by the Freelancer on Upwork within the weekly billing cycle (the "Hourly Invoice Deadline") will be generated each Monday following the week in which the hours were billed (such invoice, the "Hourly Invoice"). Freelancer irrevocably authorizes and instructs Upwork, as its agent, to (i) create an invoice on behalf of Freelancer for payment due based upon the hours that the freelancer recorded before the Hourly Invoice Deadline. and (ii) submit the Hourly Invoice on behalf of Freelancer to Freelancer's Client for payment. By recording time on Upwork and allowing an Hourly Invoice to be created based on the time recorded, Freelancer represents and warrants that (y) Freelancer has completed the applicable Freelancer Services fully and satisfactorily. and (z) the hours Freelancer reports are true, accurate, and complete.2.2 HOURLY INVOICE REVIEWClient must review and approve or dispute the Hourly Invoice by 11:59 PM UTC of the Thursday following the Sunday deadline for submission of the Hourly Invoice. Payments will be held in escrow during the Dispute Period (defined below), providing four days for Client to review and dispute the Hourly Invoice before funds are released. During the Dispute Period, Client may initiate a Dispute as to some or all of the time invoiced on the Hourly Invoice.On the Friday following the Sunday deadline for submission of the Hourly Invoice, Client will be deemed to have approved all undisputed amounts on the Hourly Invoice, and irrevocably instructed Upwork’s Affiliate, Upwork Escrow, to release escrow funds as described in these Hourly Direct Contract Escrow Instructions. 3. INSTRUCTIONS TO RELEASE FUNDS IRREVOCABLEClient’s instruction to Upwork Escrow and its wholly owned subsidiaries to release funds to a Freelancer is irrevocable. Such instruction is Client’s authorization to transfer funds to Freelancer from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected, and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Freelancer, Upwork Escrow will release funds to the Freelancer and that Upwork, Upwork Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described herein, Client agrees that once Upwork Escrow has charged Client’s Payment Method, the charge is non-refundable and any funds will only be returned pursuant to a Release Condition (see below). 4. RELEASE AND DELIVERY OF AMOUNTS IN ESCROWUpwork Escrow is authorized to and will release applicable portions of the Client Escrow Account (each portion, a “Release”) to the Freelancer Escrow Account, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. The amount of the Release will be delivered to the Freelancer Escrow Account, in accordance with Freelancer’s and Client’s instructions (as applicable), these Hourly Direct Contract Escrow Instructions, and the other Terms of Service.4.1 RELEASE CONDITIONSAs used in these Escrow Instructions, “Release Condition” means any of the following:<ol> <li>Client and Freelancer have submitted joint written instructions for a Release.</li> <li>Client has approved all or a portion of the Freelancer's Hourly Invoice. This Release Condition will only apply to amounts invoiced by the Freelancer that Client has approved. Client’s failure to dispute an Hourly Invoice, or a portion of an Hourly Invoice, within the Dispute Period pursuant to these Hourly Direct Contract Escrow Instructions, constitutes approval by the Client for purposes of this Release Condition.</li> <li>Upwork makes a determination with respect to the funds and determines that the time is related to the Hourly Direct Contract requirements or Client’s instruction, if Client initiates a Dispute with respect to Freelancer's Hourly Invoice pursuant to these Hourly Direct Contract Escrow Instructions. </li> <li>Pursuant to the agreement of Client and Freelancer, if Client initiates a Dispute with respect to Freelancer's Hourly Invoice pursuant to these Hourly Direct Contract Escrow Instructions and Client and Freelancer resolve the dispute without the assistance of Upwork. In any such instance, Client and Freelancer authorize and agree that Upwork Escrow will release funds in accordance with Client and Freelancer’s agreed resolution.</li> <li>Issuance of a final order of a court or arbitrator of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.</li> <li>We believe, in our sole discretion, that fraud, an illegal act, or a violation of Upwork's Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer hereby authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment. </li> </ol> 5. MAKING OR RECEIVING A BONUS OR EXPENSE PAYMENTClient may also make a bonus, tip, expense, or other miscellaneous payment to Freelancer using the Site. To make such a payment to a Freelancer, Client must follow the instructions and links on the Site and provide the information requested. If Client clicks to pay such a payment to Freelancer, Client irrevocably instructs Upwork Escrow to and Upwork Escrow will release escrow funds to Freelancer. 6. DISPUTES BETWEEN CLIENT AND FREELANCERFor Hourly Direct Contracts, Client may dispute Freelancer’s hours invoiced on the Hourly Invoice for the prior week (Monday 12:00 a.m. midnight UTC to Sunday 11:59 p.m. UTC) during the four days following the close of the weekly invoice period (Monday 12:00 a.m. midnight UTC to Thursday 11:59 p.m. UTC) (the “Dispute Period“). It is Client’s responsibility to review the Hourly Invoice of every Hourly Direct Contract on a weekly basis and to file any disputes during the Dispute Period. Once the Dispute Period expires, Client will be deemed to have accepted the Freelancer Services and Freelancer Fees and can no longer dispute them. Disputes handled by Upwork can only address the hours billed, not the quality of the Freelancer Services or the Work Product provided under Hourly Direct Contracts. If Client disputes Freelancer’s hours invoiced in the Hourly Invoice under an Hourly Direct Contract during the Dispute Period, Client and Freelancer are encouraged to resolve the dispute between themselves. If Client and Freelancer fail to come to a resolution, Upwork will promptly review the Hourly Invoice and determine, in our sole discretion, whether an adjustment is appropriate consistent with Client’s and Freelancer’s instructions in these Escrow Instructions. Upwork's determination of such dispute shall be final unless Client and Freelancer pursue legal proceedings, in which case funds will be released according to the final order from which appeal is not taken in accordance with Section 5.1 of these Hourly Direct Contract Escrow Instructions.You acknowledge and agree that Upwork Escrow or its Affiliates may, at its sole discretion, withhold or delay payment in the event of dispute between a Client and a Freelancer. You further acknowledge and agree that Upwork, Upwork Escrow, and other Affiliates are not and will not be a party to any dispute between a Client and Freelancer over an Hourly Invoice or Hourly Direct Contract. 7. NO RESPONSIBILITY FOR SERVICES OR PAYMENTSUpwork and Affiliates merely provide a platform for Internet payment services. Upwork and Affiliates do not have any responsibility or control over the Freelancer Services that Client purchases. Nothing in this Agreement deems or will be interpreted to deem Upwork or any Affiliate as Client’s or Freelancer’s agent with respect to any Freelancer Services, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. For example, Upwork does not guarantee the performance, functionality, quality, or timeliness of Freelancer Services or that a Client can or will make payments. 8. REFUNDS AND CANCELLATIONSClient and Freelancer are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in escrow, Freelancer may issue a refund via the Upwork platform up to the full amount paid on the Hourly Direct Contract. 9. NOTICESAll notices to a User required by these Escrow Instructions will be made via email sent by Upwork to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Upwork, for checking their email and for responding to notices sent by Upwork to the User’s registered email address. 10. ABUSEUpwork, in its sole discretion, reserves the right to suspend or terminate your Account immediately upon giving notice to you if Upwork believes you may be abusing the Dispute Assistance Program or as otherwise permitted by the Terms of Service. However, any Disputes for any Hourly Direct Contracts that existed prior to termination will be subject to the Terms of Service. Upwork Escrow Inc. Version 1.0 Effective September 1, 2016 Download Table of Contents <ol> </ol> Upwork Escrow Inc. provides escrow services solely to Users of Upwork and Elance. We provide these escrow services solely to deliver, hold, or receive payment for jobs for services engaged through, and to pay fees including service, membership and payment processing and administration fees to, Upwork. These escrow services are intended for business use, and the Users agree to use these escrow services only for business purposes and not for consumer, personal, family, or household purposes.UPWORK ESCROW INC. DOES NOT PROVIDE ESCROW SERVICES TO THE GENERAL PUBLIC.This escrow company holds California Department of Business Oversight License No. 963 5086. Fee and ACH Authorization Agreement Version 6.1 Effective July 13, 2020 Download Table of Contents <ol> </ol> This Fee and ACH Authorization Agreement (this “Agreement”) is between you and Upwork Global Inc. or Elance Inc. as described below in Section 1 (Parties). This Agreement provides information on the fees Upwork Global Inc. ("Upwork Global") and its Affiliates Elance Limited ("Elance Ltd.") and Upwork Escrow Inc. (“Upwork Escrow”) charge for use of the Site’s communication, invoicing, dispute resolution and payment services, including Payment Protection, and includes eligible Users’ authorization for debits and credits from and to their designated bank accounts via the automated clearing house network (“ACH”). This Agreement is part of the Terms of Service. Capitalized terms not defined in this Agreement are defined in the User Agreement, Site Terms of Use, or elsewhere in the Terms of Service.By clicking to accept the Terms of Service on the Site or by continuing to use the Site or the Site Services on or after the effective date noted above, you accept and agree to this Agreement. To the extent permitted by applicable law and except as otherwise provided in the Terms of Service, we may modify this Agreement without prior notice to you, and any revisions to this Agreement will take effect when posted on the Site unless otherwise stated. However, we will provide advance notice of any increase in prices or fees affecting current Users. Please check the Site often for updates.1. PartiesYou are entering into this Agreement with Upwork (also referred to as “we” and “us”).If you reside in the United States, you are entering into this Agreement with Upwork Global. If you reside outside the United States, you are entering into this Agreement with Elance Ltd.2. Fees Charged to FreelancersPursuant to the User Agreement, we charge Freelancers a Service Fee for each payment their Client makes to the Freelancer on a Service Contract. Depending on certain features of the Service Contract, the Service Fees will be charged either as "tiered" or "straight" pricing, as discussed in further detail in this Section 2. Where applicable, Upwork Global, Elance Ltd., or Upwork Escrow may also collect taxes (such as value added tax (VAT) in Europe) on Service Fees.Pursuant to the Freelancer Membership Agreement, we charge Freelancers a Membership Fee. These Membership Fees automatically renew until they are cancelled as described on the Site.Additionally, the use of various Payment Methods offered through the Site and the Site Services may incur added fees or charges. All Payment Methods will be posted on the Site along with any associated fees or charges, which we may update from time to time at our sole discretion. You hereby authorize us to charge to you and to collect from you (consistent with this Agreement, the User Agreement, or elsewhere in the Terms of Service) any fees, charges, or taxes described in this Section 2.2.1 Tiered PricingWe will charge you a Service Fee based on the total Freelancer Fees collected by you from your Client (less any refunds or reversals) for the duration of your relationship with your Client (the “Engagement Relationship”). Unless different pricing described in Section 2.2, 2.3, or 2.4 applies, the Service Fee rates decrease as the total Freelancer Fees you have collected from your Client for the Engagement Relationship meet certain thresholds as follows (“Tiered Pricing ”): TOTAL FREELANCER FEES COLLECTED FROM CLIENT (per Engagement Relationship) SERVICE FEE RATES $500.00 and below 20% $500.01 to $10,000.00 10% $10,000.01 and up 5% Below are some examples of Tiered Pricing. Example 1. Fixed-Price Contract. Repeat Service Contracts If a Freelancer and a Client who have never entered into a Service Contract together before agree to a $600 Fixed-Price Contract, the Service Fee will be calculated as follows:FREELANCER FEES SERVICE FEE RATES SERVICE FEES $500 20% $100 ($500 x 20%) $100 10% $10 ($100 x 10%) Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $600) Total Service Fees: $110 Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly. If the same Freelancer and Client agree to another $600 Fixed-Price Contract, the Service Fee will be calculated as follows: FREELANCER FEES SERVICE FEE RATE SERVICE FEES $600 10% $60 ($600 x 10%) Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $1,200) Total Service Fees: $60 If the same Freelancer and Client enter into additional Fixed-Price Contracts for different Service Contracts, the Freelancer Fees for each Service Contract will count toward the total Freelancer Fees collected for purposes of determining the Tiered Pricing that applies to the Service Fees. If the Freelancer collects $10,000 in Freelancer Fees from the Client, then the Service Fee on any additional Freelancer Fees for the Engagement Relationship with the Client will be 5% of the Freelancer Fees. For example, if the Freelancer has collected a total of $15,000 in Freelancer Fees during the Engagement Relationship and the Freelancer and Client enter into a new Fixed-Price Contract for $1,000, the Service Fee would be determined as follows: FREELANCER FEES SERVICE FEE RATE SERVICE FEES $1,000 5 % $50 ($1,000 x 5%) Total Freelancer Fees: $1,000 (Total Engagement Relationship Fees: $16,000) Total Service Fees: $50 Example 2. Hourly Contract If a Freelancer and Client enter into an Hourly Contract for $50 per hour, and the Freelancer works 400 hours, the Service Fees will be calculated as follows: HOURS WORKED FREELANCER FEES (hours x freelancer rate) SERVICE FEE RATES SERVICE FEES First 10 hours $500 20% $100 190 (Hour 11 to 200) $9,500 10% $950 200 (Hour 200 to 400) $10,000 5% $500 Total Hours: 400 Total Freelancer Fees: $20,000 Total Service Fees: $1,550 Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly. 2.2 Freelancers Working on Enterprise Client Contracts If you are a Freelancer with a Service Contract entered into with an Enterprise Client, the Service Fee rate is 10% of the Freelancer Fees, unless otherwise provided in the Enterprise Client contract. If you are a Freelancer with an active Contract with a Client whose Account is being converted to an Enterprise Client Account, then only on any Service Contract that is active at the time of the conversion, Upwork will honor the lower of (a) the Tiered Service Fee in effect at the time of the conversion, or (b) the Service Fee rate in the Enterprise Client contract for that Account. For purposes of the Terms of Service, “Enterprise Client ” means a Client, including a legacy Enterprise client or an Upwork Business Client, whose profile displays the following “Enterprise” badge: 2.3 Alternate Pricing Alternate Pricing (defined below) only applies to Service Contracts when any of the following are true:(a) you entered into the Service Contract before Upwork first started charging Tiered Pricing; (b) you entered into the Service Contract pursuant to a feature of the Site where we advertised a different Service Fee, such as our Featured Job Post for Clients. or(c) the Service Contract is with a Client who is not an Enterprise Client, but who has a legacy arrangement for lower fees that apply to the Service Contract.As described in this Section 2.3, if Alternate Pricing applies, we will typically charge you a Service Fee of a fixed percent (“Alternate Pricing ”), as shown in the examples below. The Service Fee under Alternate Pricing is a flat 10% unless other rates for Alternate Pricing are expressly communicated to you, including by communications through the Site. CONTRACT TYPE SERVICE FEE FREELANCER FEES SERVICE FEES Fixed-Price 10% $500 $50 Hourly 10% $50 per hour $5 per hour Note: Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly. For certain Service Contracts, the Alternate Pricing may be a lower flat percentage (such as through a “bring your own” program) or may have a different tiered fee rates (such as for a Featured Job Post), in each case as clearly stated on the Site at the time the Service Contract was or is entered into. When there is a different tiered fee rate, the initial rate will be as clearly stated on the Site, and once the Service Fees on the Engagement Relationship exceed $10,000, the Service Fee will be reduced to 5%, unless otherwise clearly communicated to you, including by communications through the Site.2.4 Other FeesFreelancers may also choose a membership with an associated membership fee (the “Freelancer Membership Fee”) and choose to purchase “Connects”, in each case as described in the Freelancer Membership Agreement and on the Site.3. Client Membership Fees Upwork offers several membership plans for Clients, and each includes access to certain features and services of the Site, as described on the Site here (each plan a “Client Membership Plan”). Current Client Membership Plans are Upwork Basic, Upwork Plus and Upwork Business. Upwork Basic is free and does not require a monthly membership fee. Fees for Client Membership Plans, if any, automatically renew until they are cancelled as described on the Site and this Agreement. Upwork reserves the right to change membership fees, change the features and services included in each Client Membership Plan, change the membership fees or fees for certain premium services or options, or institute new fees at any time, in each case upon reasonable notice posted in advance on the Site for existing Users. No refunds of fees already paid will be given. If Upwork exercises its right to cancel a membership, Upwork will not refund the membership fee already paid unless otherwise required by law. 3.1 Taxes Where applicable, Upwork Global, Elance Ltd., or Upwork Escrow may also collect taxes (such as value added tax (VAT) in Europe) on membership fees and the cost for premium services or features, as set forth in the User Agreement.3.2 Automatic Membership Renewal You must pay your Upwork membership fees through your Upwork Escrow Account. The membership billing period begins on the date that we receive payment. Upwork membership fees are calculated from the beginning of that billing period. After any free membership period, we automatically renew your Upwork monthly membership, and you irrevocably authorize and instruct us to make the required monthly payments to Upwork on your behalf. Automatic renewal occurs on the first day after the expiration date.If you have an Upwork Plus plan and your Account is suspended, then your Account will be downgraded to a free membership plan at the next membership renewal. If your Account is reinstated after the downgrade, we may resubscribe you to the Upwork Plus plan at the time of reinstatement and charge you the applicable membership fee. You may change your Client Membership Plan at any time pursuant to Section 3.3. 3.3 Changes to Membership Plans If you change your Client Membership Plan, the new program and new billing period will be based upon the date we receive payment of the new membership fee. If you upgrade a membership, it 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. Upwork reserves the right to modify its Client Membership Plans at any time, upon reasonable notice posted in advance on the Site. For more information on upgrading, downgrading, or canceling your membership, check the Site or contact Customer Support. 4. Payment Processing Fees Charged to Client Regardless of the type of Payment Method used and Membership Plan selected, we charge Clients a Payment Processing Fee (defined below) as described in this Section 4.Upwork charges Clients on the Upwork Basic plan a payment processing and administration fee of 3% on each payment made by the Client through Upwork (the “Payment Processing Fee”). For Clients on an Upwork Plus plan, their monthly membership fee includes the payment processing and administration fee for each payment made when the following criteria are all met: (a) the Client has been a user of Upwork for at least 90 days;(b) the Client has made payments of (i) at least $1,000.00 within the last year, and (ii) at least $25.00 more than 90 days ago;(c) the Client has not had any late or defaulted payments in the prior 12 months;(d) the Client has an Account in good standing, without violations of the Terms of Service. and(e) the Client uses a U.S. bank account as a Payment Method for the payment.If payments made by a Client are released to the Client Escrow Account for any reason or refunded by a Freelancer, the Payment Processing Fee will not be refunded. Upwork Business and Enterprise Clients are charged the rate(s) provided in the applicable Business or Enterprise Client contract and are not charged a separate Payment Processing Fee, unless otherwise provided in the applicable Enterprise Client contract.5. Authorization for Automatic Payment of Recurring Client Fees You must pay the Client Membership Plan fees, if any, through your Client Escrow Account. Each Client Membership Plan fee, if any, and each Flat Payment Processing Fee, if applicable, covers a monthly billing period beginning on the date that you first make payment and ending one month later. For example, if you select the Upwork Plus plan and are charged on the 15th of the month, the billing period will end on the 14th of the next month. You irrevocably authorize and instruct us to automatically charge the fees for the Client Membership Plan, if any, to your Client Escrow Account at the beginning of each billing period. This authorization will remain in full force and effect until you change your settings in your Profile to change your Client Membership Plan, otherwise notify us that you wish to revoke your authorization by contacting Customer Support, or cancel your Account. You can switch between Client Membership Plans at any time, but you will not receive a refund or a credit for any of the Client Membership Plan fee for a given month if you downgrade your membership, including by switching to a free Client Membership Plan, before the end of a billing period. However, if you switch to a free Client Membership Plan, you will still have your paid Client Membership Plan until the end of the billing period. 6. Authorization for ACH Debits and Credits and other Transactions If and to the extent permitted by Upwork in its sole discretion, Users may pay Freelancer Fees, Membership Fees, fees for Client Membership Plans, Payment Processing Fees, and other fees owed under the Terms of Service from their designated bank accounts. Subject to Upwork’s eligibility requirements, if you elect to pay Freelancer Fees or any other amounts owed under the Terms of Service via ACH transfers from your designated bank account, you hereby authorize us to electronically debit and, if necessary, electronically credit your designated bank account via ACH for such amounts pursuant to the Terms of Service, and you agree to comply with the ACH rules issued by the National Automated Clearing House (“NACHA”) and all applicable laws, including, but not limited to, the federal Bank Secrecy Act, the U.S.A. Patriot Act, and economic sanctions overseen by the Office of Foreign Assets Control (OFAC). Your authorization for ACH transfers contained in this Section 5 will remain in full force and effect until you notify us that you wish to revoke your authorization by removing your bank account information from you Profile or by contacting Customer Support. You understand that we require at least one (1) business day’s prior notice in order to cancel your authorization for ACH transfers contained in this Section 6. You must notify us of any change in your designated bank account’s information at least five (5) business days before any such change by updating your bank account information in your Profile or by contacting Customer Support. If we do not receive notice at least five (5) days before any such change, we may attempt, in our sole discretion, to implement such change prior to any ACH debit or credit transfer performed pursuant to your authorization provided in this Section 6. However, we assume no responsibility for our failure to do so. You may view a history of your Account transactions by logging in to the Site. You are solely responsible for promptly reconciling your Account transaction history with the transaction records for your bank account. You must notify us of any errors or discrepancies in your Account transaction history (each, an “Error”) within 30 days of when the Error could be viewed in your Account transaction history on the Site. If you do not notify us of an Error within 30 days of when the Error could be viewed in your Account transaction history on the Site, you will forfeit the right to contest the Error, except to the extent such forfeiture is prohibited by applicable law or the NACHA rules. Subject to the foregoing notice requirement: (a) if and to the extent an Error is caused by us, we will correct the Error and (b) if an Error is caused by you, we may, but are under no obligation to, attempt to correct the Error and will offset any costs we incur from any funds returned to your bank account or your Client Escrow Account, as applicable. Freelancer Membership Agreement Version 5.1 Effective December 1, 2020 Download Table of Contents <ol> </ol> This Freelancer Membership Agreement (“Agreement”) is between you and Upwork Global Inc. ("Upwork Global") or Elance Limited ("Elance Ltd.") as described below in Section 1 (Parties). This Agreement is part of and incorporates by reference the User Agreement and the other Terms of Service. You will be provided advance notice of any material change to this Agreement and your continued participation in a membership program after the last modified date will signify your acceptance of this Agreement. Capitalized terms not defined in this Agreement are defined in the Site Terms of Use, User Agreement, or elsewhere in the Terms of Service.1. PARTIESYou are entering into this Agreement with Upwork (also referred to as “we” and “us”).If you reside in the United States, you are entering into this Agreement with Upwork Global. If you reside outside the United States, you are entering into this Agreement with Elance Ltd.2. FREELANCER MEMBERSHIP PROGRAMSUpwork offers several membership programs for Freelancers and Agencies. For purposes of this Agreement, “Member” or “you” means a Freelancer or Agency participating in a membership program.Each membership program includes a certain number of “Connects,” which reserve monthly capacity for you to submit proposals for Clients' posted Projects, as described on the Site here. If your membership program does not include Connects or your membership otherwise gives you the right to purchase additional Connects, you may do so for the price advertised on the Site at the time of the purchase, subject to a cap determined by your membership program, if applicable. Connects that you do not use will be rolled over to the next month as described on the Site. The conditions under which unused Connects will rollover into the next month may vary from time to time and will depend on your membership program. For the details on Connects, please visit the Upwork Support page. Upwork reserves the right to change membership fees, change the monthly number of Connects included in each membership program, change the price for Connects or institute new fees at any time, in each case upon reasonable notice posted in advance on the Site. No refunds of fees already paid will be given. If Upwork exercises its right to cancel a membership, we will not refund the membership fee already paid.3. TAXES Where applicable, Upwork Global, Elance Ltd., or Upwork Escrow may also collect Taxes (such as value added tax (VAT) in Europe) on membership fees and the cost for Connects.4. AUTOMATIC MEMBERSHIP RENEWALYou must pay your Upwork membership fees and Connects through your Upwork Escrow Account. The membership billing period begins on the date that we receive payment. Upwork membership fees are calculated from the beginning of that billing period. Upwork automatically renews your Upwork monthly membership, and you irrevocably authorize and instruct us to make the required monthly payments to Upwork on your behalf. This authorization will remain in full force and effect until you change your settings in your Profile to change your membership plan, otherwise notify us that you wish to revoke your authorization by contacting Customer Support, or cancel your Account.5. CHANGES TO MEMBERSHIP PROGRAMYou can change your membership program at any time, including by moving to an unpaid plan, by going to the Site here. If you change your membership program, the new program and new billing period will be based upon the date Upwork receives payment of the new membership fee. If you upgrade a membership, it 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. instead your membership will continue to the end of your current billing period but will not renew. If your Account is suspended at the beginning of your billing period or you do not pay your membership fees, your Account will be automatically downgraded to an unpaid membership plan. If your Account is reinstated, you may change your membership plan as described in this Agreement. Upwork reserves the right to modify its membership programs at any time, upon reasonable notice posted in advance on the Site. For more information on upgrading, downgrading, or canceling your membership, check the Site or contact Customer Support. Optional Service Contract Terms Version 1.2 Effective April 17, 2020 Download Table of Contents <ol> </ol> Users who enter into a Service Contract on the Site with another User are free to agree to these Optional Service Terms in whole or in part, or to agree to different or additional terms for their Service Contract(s). However, if and to the extent that the Users who are party to a Service Contract have not agreed to different terms, then they agree to incorporate these Optional Terms. Users may not, by agreement amongst themselves, alter the rights or responsibilities of Upwork or Upwork Escrow, including any provision of the Escrow Instructions, or agree to any terms that would violate the Terms of Service. Neither Upwork, Upwork Escrow, nor any affiliate of Upwork is a party to any Service Contract by or between Users regardless of whether these Optional Terms are incorporated.You acknowledge and agree that Users have discretion whether to contract with each other and will negotiate and determine the specific terms of their Service Contracts with each other. The Optional Service Terms is a sample only, which may not be appropriate for all Service Contracts and which may be adjusted and added to as Users deem appropriate. Users choose whether to use the Optional Service Terms in whole or in part.1. PARTIESClient and Freelancer identified on the Site under the Service Contract are the parties to the Services Contract. The address of each party is the address entered under the tax information on the Site. Upwork is not a party to the Service Contract.2. SERVICESClient and Freelancer agree that the Freelancer is performing services as an independent contractor and that Freelancer is not an employee or agent of Client. Freelancer will perform the Freelancer Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Freelancer Services will be determined and controlled solely by Freelancer, which is engaged by Client as an independent contractor. The terms concerning the services to be performed under the Service Contract described on the Site form part of the Service Contract. Users agree that, once accepted, the terms of the Service Contract cannot be modified by a User without obtaining the consent of the other before making changes to the Service Contract, including by adding additional or different milestones, by closing a Service Contract, or making other changes to the Service Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Service Contract or accept such changes by continuing to work on the Service Contract.3. RESPONSIBILITY FOR EMPLOYEES AND SUBCONTRACTORS, INCLUDING AGENCY MEMBERSIf a User subcontracts with or employs third parties to perform Freelancer Services on behalf of the User for any Engagement, the User represents and warrants that it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations. Further, at all times a User that agreed to perform services under a Services Contract remains responsible for the quality of the services and represents and warrants that any employee or subcontractor has entered into agreements with such employees and subcontractors on confidentiality and intellectual property at least as strong as those in these Optional Service Terms.4. CLIENT PAYMENTS AND BILLINGFreelancer agrees to accurately report hourly invoices by billing hours worked under the Account of the User that worked the hours, including, if applicable, Agencies billing their Clients for hourly work done by Agency Members. 5. TERMINATION OF A SERVICE CONTRACTUnder Hourly Contracts, either Client or Freelancer has the right to terminate the Service Contract after providing any agreed-upon notice, or immediately on the end date specified in the Service Contract terms and/or upon completion of the Freelancer Services, in the event of a material breach, or with the consent of the other party. Except as required by law or as otherwise may be agreed to by the Parties, Client remains obligated to pay the Freelancer Fees for any Freelancer Services provided prior to termination of the Hourly Contract.Under Fixed-Price Contracts, once a Client’s Payment Method has been charged to fund the escrow account for the Engagement, absent a full refund to Client by Freelancer, the Service Contract does not terminate until the Freelancer Services are completed. However, either Client or Freelancer has the right to terminate a Fixed-Price Contract at any time with the consent of the other party or in the event of a material breach. If a Fixed-Price Contract is terminated, Client does not have the right to recover any payments already released to Freelancer from the escrow account for the Engagement.6. INTELLECTUAL PROPERTY RIGHTS 6.1 THIRD-PARTY RIGHTS Freelancer represents and warrants that Freelancer will not incorporate or use the materials of any third party including those of any other client or any employer, in performing the Freelancer Services that are not generally available for use by the public or have not been legally transferred to the Client. 6.2 BACKGROUND TECHNOLOGYFreelancer will disclose in the Engagement terms any Background Technology which Freelancer proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Freelancer discloses no Background Technology, Freelancer warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Freelancer will separately provide, with each delivery of Work Product to Client, a bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Freelancer, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Engagement terms, Freelancer agrees that it will not incorporate into Work Product or otherwise deliver to Client any software code for which the use or distribution of the code will create (or purport to create) obligations for Client to grant any rights or immunities under Client intellectual property to a third-party, including without limitation any obligation that the Work Product or Client software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.6.3 CLIENT MATERIALSClient grants Freelancer a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Materials as necessary solely for the performance of the Freelancer Services under the applicable Service Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Service Contract, or upon Client’s written request, Freelancer will immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables (except for Background Technology as permitted by the Service Contract) contained in or on Freelancer’s premises, systems, or any other equipment or location otherwise under Freelancer’s control. Within ten days of such request from Client, Freelancer agrees to provide written certification to Client that Freelancer has returned or destroyed all Client Materials and Work Product as provided in this subsection.6.4 OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTYUpon Freelancer’s receipt of full payment from Client, the Work Product (except for any Background Technology), including without limitation all Intellectual Property Rights in the Work Product (except for any Background Technology), will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Freelancer has any Intellectual Property Rights to the Work Product that are not owned by Client upon Freelancer’s receipt of payment from Client, Freelancer hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Freelancer retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual Property Rights. Freelancer hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered and paid for.6.5 LICENSE TO BACKGROUND TECHNOLOGYUpon Freelancer’s receipt of full payment from Client for delivery of Work Product, Freelancer hereby automatically grants to Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated in Work Product delivered for that payment. If payment is made only for partial delivery of Work Product, the license described herein applies only to the portion of Work Product delivered and paid for.6.6 LICENSE TO OR WAIVER OF OTHER RIGHTSIf Freelancer has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Client by Freelancer, Freelancer hereby automatically, upon Freelancer’s receipt of full payment from Client, unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Freelancer, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Freelancer has any rights to such Work Product that cannot be assigned or licensed, Freelancer hereby automatically, upon Freelancer’s receipt of payment from Client, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or related to Client’s customers, with respect to such rights, and will, at Client’s request and expense, consent to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.6.7 ASSISTANCEFreelancer will assist Client in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Contract, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Client is unable, after reasonable effort, to secure Freelancer’s signature on any document needed in connection with the foregoing, Freelancer hereby designates and appoints Client and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Freelancer.7. CONFIDENTIAL INFORMATION 7.1 CONFIDENTIALITYTo the extent a Client or Freelancer provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information. (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Freelancer Services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Freelancer). and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Freelancer Services. 7.2 RETURNIf and when Confidential Information is no longer needed for the performance of the Freelancer Services for a Services Contract or at Client’s or Freelancer’s written request (which may be made at any time at Client’s or Freelancer’s sole discretion), the party that received Confidential Information, will, at its expense, promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party’s written request for such certification.7.3 PUBLICATIONWithout limiting Section 7 (Confidentiality), Client and Freelancer will not publish, or cause to be published, any other party’s Confidential Information or Work Product, except as may be necessary for performance of Freelancer Services for a Services Contract.7.4 IMMUNITYA disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. Sec. 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law. or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. 8. DEFINITIONSThe following capitalized terms have the following meanings:“Background Technology” means all Inventions developed by Freelancer other than in the course of providing Freelancer Services to Client under the Service Contract and all Inventions that Freelancer incorporates into Work Product.“Client” means any person who entered into a Service Contract to obtain Freelancer Services from a Freelancer. “Client Deliverables” means requests, intellectual property, and any other information or materials that a Freelancer receives from a Client to perform Freelancer Services.“Client Materials” means requests, intellectual property, and any other information or materials that Client provides to Freelancer for Freelancer to perform Freelancer Services.“Confidential Information” means Client Deliverables, Freelancer Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract or to perform or assist in performing Freelancer Services, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that is known to the public or that: (a) is generally known by third parties as a result of no act or omission of Freelancer or Client. (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information. (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality. or (d) was independently developed by User without use of another person’s Confidential Information.“Engagement” means an engagement for Freelancer Services that a Freelancer provides to a Client under a Service Contract on the Site.“Escrow Instructions” means the Fixed-Price Escrow Instructions or the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.“Fixed-Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Freelancer, prior to the commencement of a Service Contract, for the completion of all Freelancer Services contracted by Client for such Service Contract.“Freelancer” means any person who entered into a Service Contract to perform Freelancer services for a Client.“Freelancer Deliverables” means requests, intellectual property, and any other information or materials that a Client receives from a Freelancer for a particular Service Contract.“Freelancer Fees” means: (a) for an Hourly Contract, an amount equal to the number of hours recorded by Freelancer in any Hourly Invoice, multiplied by the hourly rate set by the Freelancer. (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Freelancer. and (c) any bonuses or other payments made by a Client.“Freelancer Services” means all services performed for or delivered to Clients by Freelancers. “Hourly Contract” means a Service Contract for which Client is charged based on the hourly rate set by the Freelancer.“Hourly Invoice” means the report of hours recorded for a stated period by a Freelancer for the Freelancer Services performed for a Client.“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.“Service Contract” means, as applicable, (a) the contractual provisions between a Client and a Freelancer governing the Freelancer Services to be performed by a Freelancer for Client for an Engagement. or (b) if you use Upwork Payroll, the contractual provisions between Freelancer and the Staffing Provider for the provision of services to Client.“Work Product” means any tangible or intangible results or deliverables that Freelancer agrees to create for, or actually delivers to, Client as a result of performing the Freelancer Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith. Mark Use Guidelines Version 1.0 Effective April 20, 2018 Download Table of Contents <ol> </ol> These Mark Use Guidelines (“Guidelines”) let you know about Upwork’s rights with respect to its marks and when and how you can use them. The Guidelines are a part of and incorporate the Terms of Service. Capitalized terms not defined in these Guidelines are defined in the User Agreement or in the other Terms of Service or have the meanings given such terms on the Site. To the extent permitted by applicable law, Upwork may modify these Guidelines without prior notice to you, and any revisions to these Guidelines will take effect when posted on the Site, unless otherwise stated in the revised Guidelines. Please check the Site often for updates.1. UPWORK MARKSThe Upwork name and logo are trademarks of Upwork. These Guidelines explain the terms under which you are allowed to use the “Upwork Marks”, which for purposes of these Guidelines and the other Upwork Terms of Service means Upwork’s trademarks, including the following: Upwork Up Work Without Limits Upwork Enterprise Elance oDesk Elance-oDesk Private Talent Cloud Talent Cloud Work DifferentlyThe Upwork Marks are among our most valuable assets. In order to preserve and strengthen our identity, these Guidelines provide conditions of use and clear instructions on proper use of the Upwork Marks. 2. USE OF UPWORK LOGO MARKS The Upwork Marks that are also logos are also referred to in these Guidelines as the “Upwork Logo Marks ”. For example, the Upwork Logo Marks include: You may not use an Upwork Logo Mark unless you have a written license, granted by Upwork, permitting you to use the Upwork Logo Mark. If you have not been granted such a license, then you must not use, copy, modify, distribute, or post the Upwork Logo Mark for any reason. If you have such a license from Upwork Logo Mark to use the Upwork Logo Mark, you must use the Upwork Logo Mark only as licensed and only in accordance with these Guidelines. 3. USE OF OTHER UPWORK MARKSYou may use Upwork Marks other than the Logo Marks descriptively, provided you adhere to these Guidelines, or as otherwise permitted by law. Descriptive use includes instances where you are referring to Upwork or Upwork services, such as “I registered on Upwork’s website today”, “I attended Upwork’s Work Without Limits Executive Summit”, or “Upwork Enterprise services have saved my company money.”Keep these principles in mind as well:<ul> <li>Your use should never mislead anyone to believe Upwork sponsorship, affiliation, or endorsement of your company, products, or services exists when it does not.</li> <li>When referring to Upwork, use the Upwork name in a plain text font and format only.</li> <li>Upwork always appears as "Upwork," never as "UpWork", “UPWork”, "upwork", or "UPwork".</li> </ul> 4. PROHIBITED USE OF UPWORK MARKSUnless you have written permission from Upwork, you must never use any Upwork Mark: <ul> <li>On any letterhead, business card, or signature block;</li> <li>As part of your business name or a domain name;</li> <li>As part of a user ID, including on Upwork or social media;</li> <li>In association with any third-party trademark in a manner that might create potential confusion as to the ownership of the Upwork Mark;</li> <li>In any manner that suggests or could lead someone to believe you are acting on behalf of or in association with Upwork or that Upwork has endorsed or sponsored your product or services. or</li> <li>Outside of your relationship with us, except as permitted by Upwork in writing.</li> </ul>Even if you have permission to use an Upwork Logo Mark, you must never use any Upwork Logo Mark:<ul> <li>That has been reproduced from an unauthorized artwork;</li> <li>That has been modified, including color specifications, position and relative size of the letterings;</li> <li>That has been modified to use negative or reverse “drop-out” reproduction;</li> <li>Tightly confined in a band or bar. or</li> <li>With other seals, logos, or other marks of other entities.</li> </ul> 5. USE OF COPYRIGHTED WORKSYou may not use screenshots of or videos of navigation of the Site (as defined in the Site Terms of Use) or other works copyrighted by Upwork without Upwork’s written permission. Rights to screenshots of user profiles, communications, and work product on Upwork may need to be obtained from the User. You may not use such screenshots anywhere for any purpose without written authorization. Upwork cannot grant you permission to use screenshots that include third-party content. Upwork's Virtual Patent Marking Version 1.0 Effective August 7, 2020 Download Table of Contents <ol> </ol> Upwork Global Inc.’s products and services, whether accessed at www.upwork.com and/or via an application, are protected in the United States and elsewhere by one or more of the U.S. Patent(s) listed herein and patents pending. Upwork Global Inc. provides this webpage to satisfy the virtual patent marking provisions of various jurisdictions, including to serve as notice under 35 U.S.C. § 287(a), as amended by the America Invents Act.Upwork Global Inc.’s Upwork marketplace offering, including the Enterprise, Business, Plus, and Basic service offerings, whether accessed at www.upwork.com or via an application, are covered by U.S. Patent Nos.: 6,859,523. 6,938,048. 7,069,242. 7,155,400. 8,073,762. 8,380,709. 8,700,614. 8,706,607. 9,117,178. 9,117,180. 9,529,788. 9,672,491. 9,842,312. 9,940,594. 10,083,422. 10,102,501. 10,121,153. 10,152,695. 10,204,074. 10,223,653. 10,430,763. 10,489,745. 10,635,412. 10,650,332. and other patents pending. Upwork Global Inc.’s Upwork managed service offering is covered by U.S. Patent Nos.: 6,859,523. 6,938,048. 7,069,242. 7,155,400. 8,073,762. 8,380,709. 8,700,614. 8,706,607. 9,117,178. 9,117,180. 9,529,788. 9,672,491. 9,842,312. 9,940,594. 10,083,422. 10,102,501. 10,121,153. 10,152,695. 10,204,074. 10,223,653. 10,430,763. 10,489,745. 10,635,412. 10,650,332. and other patents pending. Upwork Global Inc.’s Upwork Direct Contract service offering is covered by U.S. Patent No. 10,121,153. and other patents pending.Other products and services not listed here may be protected by one or more patents in the United States and elsewhere. API Terms of Use Version 2.0 Effective December 14, 2016 Download Table of Contents <ol> </ol> These API Terms of Use (the “API Terms”), dated as of December 14, 2016 (the “Effective Date”), are made and entered into by and between Upwork Global Inc., a Delaware corporation and its affiliates (“Upwork” or “we”), and you (“Developer” or “you”). Upwork and Developer are sometimes referred to in the API Terms individually as a “Party” and collectively as the “Parties”. Upwork and Developer hereby agree as follows:1. Agreement to the API Terms.By registering a software application, website, or product you create or service that you offer (a “Developer Application”), you agree to be bound by the API Terms. You must read, agree to, and accept all of the terms and conditions contained in the API Terms in order to use the Upwork API. Additionally, you agree to and accept the Upwork Terms of Service, available at https://www.upwork.com/legal/. If you disagree with any of the terms of the API Terms or the Upwork Terms of Service, Upwork does not grant you a license to use the Upwork API. If you are using the Upwork API on behalf of a company or any other entity, you represent and warrant that you have full legal authority to register a Developer Application on behalf of that entity and bind it to the API Terms and the Upwork Terms of Service. If you are not authorized, you may not accept the API Terms or register a Developer Application for someone else.2. Definitions.Capitalized terms not defined in the API Terms have the meanings given to them in the Upwork Terms of Service.<ul> <li> Upwork API. A set of web-based services providing programmatic access to Upwork systems and data, together with all updates, revisions, and copies thereof. This also includes any associated tools and documentation that Upwork makes available under the API Terms.</li> <li> Upwork Content. Any data, content, or executables of or associated with the Upwork API or Site Services (as defined in the Upwork Terms of Service). This includes all Upwork User Data.</li> <li> Upwork User Data. Any content, information, and other data about persons who use the Upwork services received or collected by Developer through any instance of the Developer Application, the Upwork API, or otherwise in connection with the API Terms.</li> </ul> 3. Developer’s Use of the Upwork API. Developer wishes to use and access the Upwork API in connection with the development and distribution of a Developer Application and agrees to the additional requirements herein. Developer and Upwork hereby agree as follows:<ul> <li> Developer Registration. Before using the Upwork API, Developer must provide accurate information identifying its organization and the individual representative who will serve as a point of contact for Upwork. The registration may be completed and accepted by Upwork on the Site. Upon successful registration, Upwork shall make Access Credentials available to Developer. “Access Credentials” means the necessary security keys, secrets, tokens, and other credentials to access the Upwork API. All activities that occur using your Access Credentials are your responsibility. Access Credentials are specific to you and are confidential information. Keep them secret. You must not sell, transfer, or sublicense the Access Credentials. Do not try to circumvent them and do not require your users, employees, contractors, or agents to obtain their own Access Credentials to build, maintain, or use the Developer Application. Developer itself must request any Access Credentials to be used by any employee, contractor, or agent of Developer.</li> <li> Development of the Developer Application. Subject to the terms of these Terms of Use, Developer will develop one or more Developer Applications. Developer will ensure that all Developer Applications are and remain in compliance with the API Terms and the Upwork Terms of Service.<ul> <li> Permitted Uses of the Upwork API. Your use of the Upwork API is limited to the purpose of facilitating your own or your Users’ use of the Upwork Site and Site Services. Some examples of permitted uses of the Upwork API would be to create Applications that:<ul> <li>Allow Upwork Users to search for and browse Upwork job postings with a customized interface;</li> <li>Allow Upwork Users to manage active contracts;</li> <li>Allow Upwork Users to apply to jobs on Upwork. or</li> <li>Allow Upwork Users to manage invoices, billing, and communications on Upwork.</li> </ul> </li> <li> Prohibited Uses of the Upwork API. Developer must never do any of the following:<ul> <li>Use the Upwork API in any Developer Application that includes adult content, promotes gambling, involves the sale of tobacco or alcohol to persons under 21 years of age, promotes or offers malicious code, or violates any applicable law or regulation.</li> <li>Use the Upwork API to retrieve Upwork Content that is then aggregated with third-party search results in such a way that a user cannot attribute the Upwork Content to Upwork (such as aggregated search results).</li> <li>Distribute or allow access to the Upwork API to anyone other than the entity on whose behalf Developer agreed to these Terms, or create an application programming interface that enables access to Upwork Content</li> </ul> </li> <li> Prohibited Uses/Functions of Developer Application. Developer and the Developer Application must not do the following:<ul> <li>Implement features or business practices that unlawfully harm the professional reputation or relationships of Upwork or Upwork users.</li> <li>Use Upwork Content received from the Upwork API in any manner that facilitates bias, discrimination, or data “redlining,” whether intentional or inadvertent, based on sensitive or protected categories or characteristics.</li> <li>Impersonate Upwork or an Upwork user or intentionally misrepresent Upwork or any Upwork user or other third party when requesting or publishing information.</li> <li>Obfuscate or hide any Upwork buttons, sign-in functionality, or consent or authorization flows from your users.</li> <li>Proxy, request, or use Upwork account user names or passwords in any fashion for any reason.</li> <li>Request from the Upwork API more than the minimum data fields and application permissions the Developer Application needs.</li> <li>Try to exceed or circumvent limitations on calls and use. This includes creating multiple Developer Applications for identical, or largely similar, purposes.</li> <li>Download, scrape, post, or transmit, in any form or by any means, any part of the Site or Site Services, including data retrieved by web browser plugins.</li> <li>Copy, reformat, reverse-engineer, or otherwise modify the Upwork API, Access Credentials, the Site, the Site Services, or any Upwork Content.</li> <li>Promote or operate any product or service that competes with the Upwork Site Services.</li> <li>Interfere with or disrupt Upwork services, Upwork servers or networks connected to Upwork services, or disobey any requirements, procedures, policies or regulations of networks connected to the Upwork Site or Site Services.</li> <li>Engage in any conduct that fails to comply with, or is otherwise inconsistent with, any agreement between Developer and Upwork or any written instructions provided by Upwork.</li> </ul> </li> </ul> </li> </ul> 4. API License. <ul> <li> Using the Upwork API. As part of the API Terms, Upwork grants you a non-exclusive, non-transferable, and non-sublicensable (except as expressly permitted herein) license to use the Upwork API solely to do the following and subject to the restrictions set forth in the API Terms:<ul> <li>Enable your Application to interact with Upwork’s databases to retrieve information necessary to facilitate your own or Your Users’ use of the Site and Site Services through your Application;</li> <li>Make limited intermediate copies of Upwork Content only as necessary to perform activity permitted under the API Terms. You must delete all intermediate copies when they are no longer required for the purpose for which they were created;</li> <li>Rearrange or reorganize Upwork Content within your Application. and</li> <li>Display in your Application Upwork Content consistent with this Agreement.</li> </ul> </li> <li> Access Credentials. Upwork will provide you with Access Credentials that permit you to access the Upwork API. The Access Credentials are the property of Upwork and may be revoked if you share them with any third party (other than as allowed in the API Terms), if they are compromised, if you violate the API Terms or the Upwork Terms of Service, or if Upwork terminates the API Terms.</li> <li> API Call Limitations. The number of API calls you will permitted to make during any given time period may be limited. Upwork will determine call limits based on various factors, including the ways your Application may be used or the anticipated volume of use associated with your Application. Upwork may, in its sole discretion, charge you for API calls that exceed the call limits or terminate your access to the Upwork API in accordance with Section 17 (Suspension and Termination). Unused calls will not roll over to the next day or month, as applicable.</li> </ul> 5. Certification.At its discretion, Upwork may require or offer Certification for certain Applications. Certification will consist of confirmation by Upwork or a third party it designates that your Application’s technology complies with the API Terms and the Upwork Terms of Service. You will be responsible for all costs associated with certification and any modifications necessary to meet the certification requirements and you may not be permitted to access the Upwork API in certain cases until certification is complete. At Upwork’s discretion, future modifications of your Application or use or display of Upwork Content may be subject to re-certification. If Upwork requires certification, your failure to maintain certification is cause for immediate termination of the API Terms.6. Data Use. <ul> <li> Obligations to Upwork. Developer may only use, disclose, and otherwise process Upwork User Data in accordance with the written instructions of Upwork and applicable laws, rules and regulations.</li> <li> Prohibited Uses. Developer will not: <ul> <li>Use Upwork Content for any purpose except to the extent necessary for (1) the purpose of processing and supporting a specific transaction for the applicable Upwork user or (2) the purpose of providing services to Upwork.</li> <li>Use Upwork Content for any research or publication purpose without prior written consent and a license from Upwork to research or publish, as applicable, Upwork Content.</li> <li>Use Upwork Content for any other purpose (e.g., for Developer’s own benefit or for the benefit of any other entity or person).</li> <li>Use Upwork Content for user profiling purposes or for advertising purposes.</li> <li>Sell, lease, sublicense, or otherwise transfer, directly or indirectly, Upwork Content to any third party.</li> <li>Augment, commingle, or supplement Upwork Content with personally identifiable or confidential information (including any mobile device identifier or other unique identifier that identifies any particular user, browser, computer or device) from any third-party source.</li> <li>Use the user identification or authentication codes connected to any Upwork user to disclose information related to that user to any third party.</li> </ul> </li> </ul> 7. Data Storage.Except as provided in the API Terms, Developer may not copy or store any Upwork Content, or any information expressed by or representing Upwork Content (such as hashed or otherwise transformed data).<ul> <li> Authentication Tokens. Developer may store any Developer Application-specific alphanumeric user identification codes that Upwork provides to Developer for identifying individual users of the Developer Application or any tokens that Upwork provides to Developer when an Upwork user authenticates the Developer Application for the Upwork user’s account.</li> </ul> <ul> <li> Cached Content. Solely for the purpose of improving user experience, Developer may cache Upwork Content for no more than twenty-four (24) hours.</li> <li> Deletion. Developer must promptly and securely delete all Upwork User Data collected from Upwork users upon request of the Upwork user, when the Upwork user deactivates or uninstalls the Developer Application, when the Upwork user closes their account with Developer, and before, when possible, or promptly upon termination of the API Terms. Developer will promptly and securely delete all Upwork Content after completion of all activities reasonably necessary to operate or maintain the Developer Application and upon termination of the API Terms.</li> </ul> 8. User Consent and Agreement. <ul> <li> User Agreement and Privacy Policy. The Developer Application must include your own user agreement and privacy policy. Your user agreement and privacy policy must be prominently identified or located where members download or access the Development Application. Your privacy policy must meet applicable legal standards and accurately describe the collection, use, storage and sharing of data. You must promptly notify us of any breaches of your user agreement or privacy policy that impact or may impact Upwork users.</li> <li> User Consent. Before obtaining information from Upwork users, you must obtain their informed consent by telling them what information you collect and how it will be used, stored or shared, and by taking any additional steps required by law or regulation.</li> </ul> 9. Data Safeguards.Developer will protect Upwork User Data in accordance with all applicable laws. Your network, operating system, and software of your web servers, databases, and computer systems (collectively “Systems”) must be properly configured to securely operate the Developer Application and Upwork User Data. The Developer Application must use reasonable security measures to protect any Upwork User Data and any elements or components of the Upwork API. You shall not architect, design, or select Systems in a manner to avoid these obligations. You must promptly report to Upwork at legalnotices@upwork.comany security deficiencies in, or intrusions into, your Systems that you discover to Upwork. You will work with Upwork to correct any security deficiency and disconnect any intrusions or intruders as soon as practicable upon discovery of any such deficiency or intrusion. In the event of any security deficiency or intrusion involving the Developer Application or Upwork User Data, you will make no public statements without prior written and express permission from Upwork in each instance, unless otherwise required by law.10. Access to the Upwork API.Subject to the API Terms, Upwork may, in its sole discretion, make specific instances or versions of the Upwork API available to Developer for use in connection with Developer Applications. Upwork may terminate such access to the Upwork API, in whole or certain features, functions, or services thereof, for convenience, at any time. The Upwork API will be deemed to be a part of the Site Services as set forth in the Upwork Terms of Service.11. Upwork API Support and Changes.Upwork may provide technical support, upgrades, or modifications of the Upwork API in Upwork’s sole discretion. Upwork may cease providing technical support, upgrades, or modifications of the Upwork API at any time and for any reason without notice or liability to Developer. Upwork may release new versions of the Upwork API and require Developer to use the new version of the Upwork API. Developer’s use of new releases or versions of the Upwork API will be acceptance of all modifications of the Upwork API.12. Intellectual Property. <ul> <li> Upwork Materials. Upwork owns all rights, title, and interest, including all intellectual property rights, in and to, the Upwork API. all elements, components, and executables of the Upwork API. and all elements, components, and executables of the Site Services (collectively, the “Upwork Materials”). The only exception to this is any information or Content which you as an Upwork user have licensed to Upwork under the Upwork Terms of Service. Except for the express licenses granted in the API Terms, Upwork does not grant you any right, title, or interest in the Upwork Materials. Developer agrees to take such actions as Upwork may reasonably request to perfect Upwork’s rights to the Upwork Materials.</li> <li> Developer Property. Except to the extent the Developer Application contains Upwork Materials, Upwork claims no ownership or control over your Developer Application. During the term of the API Terms you hereby grant Upwork a paid-up, royalty-free, non-exclusive, worldwide, irrevocable right and license, under all of your intellectual property rights, to: (1) use, perform, and display the Developer Application and its content for purposes of marketing, demonstrating, and making the Developer Application available to Upwork users. (2) link to and direct Upwork users to the Developer Application. and (3) sublicense the foregoing rights to our affiliates.</li> <li> Feedback. Developer may, but is not required to, provide suggestions, comments, ideas, or know‐how, in any form, to Upwork related to Upwork products, services or technology (“Feedback”). To the extent Developer provides Feedback to Upwork, Developer grants Upwork the right to use such Feedback without any right to compensation from Upwork.</li> </ul> 13. Independent Development by Upwork. Developer understands and acknowledges that Upwork may be independently creating applications, content, and other products or services that may be similar to or competitive with the Developer Application. Nothing in the API Terms will be construed as restricting or preventing Upwork from creating and fully exploiting any applications, content, and other products or services, without any obligation to Developer. This paragraph will survive the termination or expiration of the API Terms.14. Confidential Information.Developer agrees that the content of the Upwork API, and any Upwork Content that by its nature should reasonably be known to be confidential, is deemed to be confidential information of Upwork and Developer will maintain the same in strict confidence and not disclose the same to any third party (other than employees, agents and contractors of Developer for the sole purpose of providing services to Developer to complete work permitted hereunder) or use the same for any purpose other than its performance under the Agreement. To the extent that you retain any Upwork Content after the termination or expiration of the API Terms, this paragraph will survive the termination or expiration of the API Terms.15. Effect.The provisions of the API Terms will control over any inconsistent provisions of the Upwork Terms of Service, and the Upwork Terms of Service, as modified and supplemented by the API Terms, will remain in full force and effect. Any “shrink wrap” or “click wrap” license agreement or any other terms and conditions associated with Developer’s Application is null and void, is not applicable hereunder, and is expressly excluded.16. Fees.Upwork currently provides the Upwork API without charge. However, Upwork reserves the right, at Upwork’s sole discretion, to charge fees for future use of or access to the Upwork API. Developer may not charge any fee to Upwork users for the Developer’s Application without the express written permission or agreement of Upwork. 17. Term and Termination. <ul> <li> Term. The term of the API Terms will commence on the date upon which you agree to the API Terms and will continue until terminated as set forth below.</li> </ul> <ul> <li> Developer’s Termination Rights. Developer may terminate the API Terms by discontinuing use of the Upwork API and returning all Upwork Content, including Upwork User Data.</li> <li> Suspension and Termination. Upwork may suspend or terminate Developer’s use of the Upwork API at any time if we believe you have violated the API Terms or Upwork Terms of Service, or if we believe the availability of the Upwork API in the Developer Application is not in our or our users’ best interests. Immediately upon termination of the API Terms, all licenses granted to Developer will cease and all data retrieved from the Upwork API or Site Services must be deleted.</li> <li> Effect of Termination. Upon termination of these Terms:<ul> <li>all rights and licenses granted to Developer will terminate immediately;</li> <li>Developer will promptly and securely destroy Upwork Content in your possession or control;</li> <li>neither party is liable to the other party solely because the API Terms have been terminated;</li> <li>unless we agree otherwise in writing or as stated explicitly in the API Terms, Developer must permanently delete all Upwork Content and Upwork User Data or other data which you stored pursuant to your use of the Upwork API. Upwork may require that you certify in writing your compliance with this section. and</li> <li>Upwork will make commercially reasonable efforts to remove all references and links to the Developer Application from the Site (Upwork has no other obligation to delete copies of, references to, or links to the Developer Application).</li> </ul> </li> </ul> 18. Warranties and Liabilities. <ul> <li> Disclaimer of Warranties. UPWORK PROVIDES THE UPWORK API, UPWORK CONTENT, AND ALL OTHER INFORMATION AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UPWORK DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. UPWORK DOES NOT GUARANTEE THAT THE UPWORK API WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. IN PARTICULAR, THE OPERATION OF THE UPWORK API MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. UPWORK DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, UPWORK DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE UPWORK API DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.</li> <li> Limitations of Liability. UPWORK AND OUR EMPLOYEES, AGENTS, SHAREHOLDERS, OR DIRECTORS, SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, PROFIT, REVENUE OR DATA TO YOU OR ANY THIRD PERSON ARISING FROM YOUR USE OF THE UPWORK API. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER (i) YOU BASE YOUR CLAIM ON CONTRACT, TORT, STATUTE, OR ANY OTHER LEGAL THEORY, (ii) WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES, OR (iii) THE LIMITED REMEDIES PROVIDED IN THIS SECTION FAIL OF THEIR ESSENTIAL PURPOSE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY DAMAGE THAT UPWORK MAY CAUSE YOU INTENTIONALLY OR KNOWINGLY IN VIOLATION OF THE API TERMS OR APPLICABLE LAW.</li> <li> Indemnification. You will defend, hold harmless, and indemnify Upwork (and our and their respective employees, agents, shareholders, and directors) from any claim or action brought by a third party, including all damages, liabilities, costs and expenses, including reasonable attorneys’ fees, to the extent resulting from, alleged to have resulted from, or in connection with: (i) your breach of your obligations herein. or (ii) the violation of any copyright, trademark, service mark, trade secret or United States patent by the Developer Application.</li> </ul> 19. General.<ul> <li> Relationship of the Parties. The parties are agreeing to the API Terms as independent contractors, and the API Terms will not be construed to create a partnership, joint venture or employment relationship between them. Neither party is authorized to or will represent itself to be an employee or agent of the other or enter into any agreement on the other’s behalf of or in the other’s name.</li> <li> Assignability. You may not assign the API Terms, nor any of your rights or obligations hereunder, without Upwork’s prior written consent. Upwork may freely assign the API Terms without your consent. Any attempted assignment or transfer in violation of this section will be null and void. Subject to the foregoing restrictions, the API Terms will inure to the benefit of successors and permitted assigns of the parties.</li> <li> Severability. If and to the extent any provision of the API Terms 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 enforceability 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.</li> <li> Choice of Law and Venue. The API Terms and any controversy, dispute or claim arising out of or relating to the API Terms 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). With respect to any User located outside the United States, the User agrees that the California state courts of Santa Clara County (or, if there is federal jurisdiction, the United States District Court for the Northern District of California) will have jurisdiction and venue with respect to any claim arising out of or relating to the API Terms and consents to the personal jurisdiction and venue of those courts.</li> <li> 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.</li> <li> Miscellaneous. The API Terms set forth the entire agreement and understanding of the parties relating to their subject matter and cancel and supersede any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them. No modification or amendment to the API Terms shall be binding upon Upwork unless in a written instrument signed by a duly authorized representative of Upwork.</li> </ul> Proprietary Rights Infringement Reporting Procedures Version 1.2 Effective June 24, 2019 Download Table of Contents <ol> </ol> Upwork Global Inc. (“Upwork”, “our”, “us” or “we”) provides these Proprietary Rights Infringement Reporting Procedures (these “Procedures”) to inform you of our policies and procedures regarding claims of infringement of proprietary rights by third parties on our website located at www.upwork.com. These Procedures may be updated from time to time. We will notify you of any material changes by posting the new Procedures on the Site. You are advised to consult these Procedures regularly for any changes.If you are a proprietary rights owner and you believe someone is using Upwork to infringe your proprietary rights, you may provide Upwork with the notice described below (the “Notice”) to Upwork's Legal Department by email to legalnotices@upwork.com or by mail to Attn: Legal Department, 2625 Augustine Drive, Suite 601, Santa Clara, CA 95054, USA. The Notice fulfills the requirements of the United States Digital Millennium Copyright Act, 17 U.S.C. Section 512(c)(3) ("DMCA"). The Legal Department is Upwork's designated agent under the DMCA.In response to your Notice, Upwork may remove or disable access to the allegedly infringing material, and take such other actions we deem appropriate in our sole discretion. Please bear in mind that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that material is infringing. If we remove or disable access, we will attempt to contact the poster of the allegedly infringing material so that the poster may provide a counter notification (the “Counter Notice”) as described below.Please include the following items in your Notice, and number them as follows:<ol> <li>Identify the proprietary rights that you claim are infringed. For example, identify your trademark or quote your copyrighted material. Provide a URL or link to where the material is located, if possible.</li> <li>Identify the website, webpage, posting, profile, feedback, or other material that you claim infringes your proprietary rights. Provide information reasonably sufficient to enable us to locate it.</li> <li>Identify yourself by name. Provide your address, telephone number, and email address.</li> <li>Provide contact information for the owner or administrator of the allegedly infringing material, if possible.</li> <li>Include the following statement: “I have a good faith belief that use of the material in the manner described is not authorized by the owner of the exclusive proprietary right, its agent, or the law.”</li> <li>Include the following statement: “The information in this notice is accurate.”</li> <li>Include the following statement: “I swear, under penalty of perjury, that I am authorized to act on behalf of the owner of the exclusive proprietary right that is allegedly infringed.”</li> <li>Sign and date the Notice.</li> </ol>The owner or administrator of the allegedly infringing material may provide Upwork with a Counter Notice by email to legalnotices@upwork.com or by postal mail to Attn: Legal Department, 2625 Augustine Drive, Suite 601, Santa Clara, CA 95054, USA. The Counter Notice fulfills the requirements of the United States Digital Millennium Copyright Act, 17 USC Section 512(g)(3).In response to a Counter Notice, Upwork may reinstate the allegedly infringing material. Please bear in mind that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that material is not infringing the proprietary rights of others.Please include the following items in your Counter Notice, and number them as follows:<ol> <li>Identify the website, webpage, posting, profile, feedback, or other material that Upwork has removed or to which Upwork has disabled access. Identify the location at which the material appeared before it was removed or access to it was disabled.</li> <li>Identify yourself by name. Provide your address, telephone number, and an email address where we can contact you.</li> <li>Include a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or San Mateo County, California, if your address is outside the United States), and that you will accept service of process from the person who provided the Notice or from an agent of that person.</li> <li>Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that each website, webpage, posting, profile, feedback or other material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”</li> <li>Sign and date the Counter Notice.</li> </ol>Please bear in mind that Upwork cannot give you legal advice. If you have questions about whether certain proprietary rights are valid or whether certain material is infringing, you should contact an attorney. Privacy Policy Version 2.18 Effective January 24, 2020 Download Table of Contents <ol> </ol> Upwork Global Inc. (“Upwork”) provides this Privacy Policy to let you know our policies and procedures regarding the collection, use and disclosure of information through www.upwork.com (the “Site”), and any other websites, features, applications, widgets or online services that are owned or controlled by Upwork and that post a link to this Privacy Policy (together with the Site, the “Service”), as well as any information Upwork collects offline in connection with the Service. It also describes the choices available to you regarding the use of, your access to, and how to update and correct your personal information. This Privacy Policy incorporates by reference the Upwork Global Data Processing Agreement. Note that we combine the information we collect from you from the Site, through the Service generally, or offline.If you have an unresolved privacy or data use concern that we have not addressed satisfactorily, please contact our U.S.-based third party dispute resolution provider free of charge at https://feedback-form.truste.com/watchdog/request. Please note that certain features or services referenced in this Privacy Policy may not be offered on the Service at all times. Please also review our Terms of Service, which governs your use of the Service, and which is accessible at https://www.upwork.com/legal/terms/ .We’ve provided short summaries in this Privacy Policy to help you understand what information we collect, how we use it, and what choices or rights you may have. While these summaries help explain some of these concepts in a simple and clear way, we encourage you to read the entire Privacy Policy to understand our data practices. TABLE OF CONTENTS <ol> <li>Information Collection </li> </ol> <ul> <ul> <li>Information You Provide to Us <ul> <li>Personal Information </li> <li>Payment Information </li> <li>Identity Verification </li> <li>General Audience Service </li> <li>Non-Identifying Information </li> <li>Combination of Personal and Non-Identifying Information </li> </ul> </li> <li>Information Received from Third Parties </li> <li>Information Collected Automatically <ul> <li>Cookies </li> <li>Web Beacons </li> <li>Embedded Scripts </li> </ul> </li> <li>How We Respond to Do Not Track Signals </li> <li>Work Diaries </li> <li>User Profiles </li> <li>Community Forums </li> <li>Work Listings Through the Service </li> <li>Feedback </li> <li>Email to Friends and Referral Program </li> <li>Social Networking Services </li> </ul> </ul> <ol> <li>Use of Information</li> <li>Data Retention </li> <li>Information Sharing and Disclosure </li> </ol> <ul> <ul> <li>Information about Freelancers Shared with Clients and Agencies or Teams </li> <li>Service Providers </li> <li>What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information </li> <li>Legal and Investigative Purposes </li> <li>Internal and Business Transfers </li> <li>Sweepstakes, Contests, and Promotions </li> </ul> </ul> <ol> <li>Third Party Analytics Providers, Ad Servers and Similar Third Parties</li> <li>Your Choices and Rights </li> <li>Security </li> <li>International Transfers of Personal Information </li> <li>Privacy Shield Notice </li> <li>Links to Other Sites </li> <li>Public Profile </li> <li>Phishing </li> <li>California and Nevada Residents – Your Privacy Rights </li> <li>Changes to this Policy </li> <li>Contacting Us </li> <li>Supplemental Privacy Notice for California Residents</li> </ol> 1. INFORMATION COLLECTIONUsers of the Service may be Clients, Freelancers, or Agencies (as each is defined in the User Agreement). Information You Provide to Us When you use the Service, you may provide us with information about you. This may include your name and contact information, financial information to make or receive payment for services obtained through the Upwork platform, or information to help us fill out tax forms. When you use the Service, we may also collect information related to your use of the Service and aggregate this with information about other users. This helps us improve our Services for you. You may also provide us with information about your contacts or friends if, for example, you’d like to add those contacts to a message room. Agencies may also provide us with information about Freelancers associated with the Agency. <ul> <li> Personal Information: In the course of using the Service (whether as a Client or Freelancer or Agency), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number. </li> <li> Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card or other financial account information, and billing address. </li> <li> Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement. </li> <li> General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com . </li> <li> Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.</li> <li> Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information. </li> <li> Collection of Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room. </li> </ul>You do not have a statutory obligation to provide us with any information, but you may have a contractual obligation to do so, and if we do not receive certain information from you, then we will not be able to provide our Service to you. If you have any questions regarding whether provision of information is mandatory and the consequences for withholding such information, please contact us using the contact information below. Information Received from Third Parties Third parties may also give us information about you. If we combine that information with information about you collected through the Service, we will still treat that combined information as set forth in this Privacy Policy. We also may receive information about you from third parties. For example, we may supplement the information we collect with outside records or third parties may provide information in connection with a co-marketing agreement or at your request (such as if you choose to sign in with a third-party service). If we combine the information we receive from others with information we collect through the Service, we will treat the combined information as described in this Privacy Policy. Information Collected Automatically Like other online companies, we receive technical information when you use our Services. We use these technologies to analyze how people use the Service, to improve how our Site functions, to save your log-in information for future sessions, and to serve you with advertisements that may interest you.We and our third party service providers, including analytics and third party content providers, may automatically collect certain information from you whenever you access or interact with the Service. This information may include, among other information, the browser and operating system you are using, the URL or advertisement that referred you to the Service, the search terms you entered into a search engine that led you to the Service, areas within the Service that you visited, which links you clicked on, which pages or content you viewed and for how long, other similar information and statistics about your interactions, such as content response times, download errors and length of visits to certain pages and other information commonly shared when browsers communicate with websites. We may combine this automatically collected log information with other information we collect about you. We do this to improve services we offer you, and to improve marketing, analytics, and site functionality.The information we collect also includes the Internet Protocol (“IP”) address or other unique device identifier (“Device Identifier”) for any device (computer, mobile phone, tablet, etc.) used to access the Service. A Device Identifier is a number that is automatically assigned or connected to the device you use to access the Service, and our servers identify your device by its Device Identifier. Some mobile service providers may also provide us or our third party service providers with information regarding the physical location of the device used to access the Service. Upwork and its partners use cookies or similar technologies to analyze trends, administer the website, track users’ movement around the website, the desktop app, and the mobile app, and to gather demographic information about our user base as a whole. The technology used to collect information automatically from Upwork Users may include the following: <ul> <li> Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service. For further information on cookies and how they are used for the Service, please visit our Cookie Policy at https://www.upwork.com/legal#cookie-policy. </li> <li> Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed. </li> <li> Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service. </li> </ul>In addition, we and our marketing partners, affiliates, analytics, and service providers may use a variety of other technologies (such as tags) that collect similar information for security and fraud detection purposes and we may use third parties to perform these services on our behalf. HOW WE RESPOND TO DO NOT TRACK SIGNALS Upwork does not respond to Do-Not-Track signals.Please note that your browser setting may allow you to automatically transmit a “Do Not Track” signal to websites and online services you visit. There is no consensus among industry participants as to what “Do Not Track” means in this context. Like many websites and online services, Upwork does not alter its practices when it receives a “Do Not Track” signal from a visitor’s browser. To find out more about “Do Not Track,” please visit http://www.allaboutdnt.com. The General Data Protection Regulation: Data Processing Agreement To streamline compliance with the General Data Protection Regulation (“GDPR”), Upwork has posted a Data Processing Agreement (“DPA”) governing the relationship between the Customer (as defined in the DPA) acting as a data controller or processor, as applicable (and as defined in the DPA), of personal data under European Data Protection Legislation. and Upwork (acting as a data processor or subprocessor, as applicable).Unless otherwise agreed to in writing by you and Upwork, to the extent Upwork processes any EU personal data for you as a controller (as defined by the General Data Protection Regulation (EU) 2016/679) in your role as a Customer, the Data Processing Agreement applies. Work Diaries and Work View We collect information about a Freelancer’s work for a Client, including automatically collected information about work on a particular project. If a Freelancer enables Work Diaries, we will share Work Diaries with the relevant Client and Agency. We tell Freelancers when we are capturing information for the Work Diary and allow Freelancers to block such data sharing.As part of the Service, when enabled by a Freelancer, we collect information about a Freelancer’s work on a project for a Client. This feature is known as Work Diary. Work Diaries include information provided by the Freelancer, such as a memo, as well as automatically gathered information about work on a project, such as number of mouseclicks and keyboard strokes and regularly taken screenshots (which may include a webcam picture of you if you have enabled this feature in your settings). In order to use Work Diaries, you must download and install the Team App software from www.upwork.com.We will share information contained in Work Diaries with the relevant Client and with any manager or administrator of any applicable Freelancer Agency. We inform Freelancers each time we capture information for Work Diary. As set forth in our Terms of Service, End User License Agreement, and help pages on the Site, a Freelancer may choose to block or delete the screen shot and associated data for a recorded work interval, but then the Freelancer may not be paid for that work interval. Upwork may use de-identified or aggregated information from Work Diaries for statistical analysis, product development, marketing and research. User Profiles Freelancers may create a profile, with certain or all information publicly available. Clients and Agencies may also create organization profiles.You may have the opportunity to create a profile, which consists of information about you, and may include Personal Information, photographs, examples of your work, information on work previously performed via the Service and outside the Service, skills, tests taken, test scores, hourly pay rates and earnings information, feedback/rating information and other information, including your username (“Profile”). The information in your Profile may be visible to all Upwork Users and the general public subject to the privacy choices you make within your Upwork Profile. You may edit certain information in your Profile via your account and may choose to limit who is able to view certain content you post to your Profile. Clients and Agencies of associated individual users or companies may also have the opportunity to create an organization Profile. If, in any case, you believe that an unauthorized profile has been created about you, you can request for it to be removed by contacting us at https://support.upwork.com or legalnotices@upwork.com. Identity Verification We place a premium on trust in our Service, so we may take steps to verify your identity.Before a Freelancer can complete registration on the Service, or at any time thereafter, we may request or re-request identity verification. Without limiting the manner in which we request identify verification, we may require Freelancers to participate in a video call after submitting their government issued ID to enable us to confirm that the Freelancer is indeed the individual in the ID. We may record such video calls and take screenshots of the user during the call. Upwork may use the information obtained from Identity Verification for purposes of verifying your identity, enforcing our Terms of Service and other agreements, and preventing fraud. Messaging Freelancers, Agencies, and Clients may communicate with each other through the Service. For example, Freelancers, Agencies, and Clients may wish to discuss Client needs and Freelancer work proposals. If you communicate with an Agency or Client, that Agency or Client will also be a “data controller” with respect to such communications. Community Forums We may offer public forums or blogs. If you participate, your comments and questions will be publicly displayed.The Service may provide you the opportunity to participate and post content publicly in forums, on blogs, through interactive features on Upwork and through other communication functionality (“Community Forums”). You may choose, through such features or otherwise, to submit or post questions, comments, or other content (collectively, “User Forum Content”). Please note that certain information, such as your name and Profile may be publicly displayed on the Service along with your User Forum Content. Please note that your use of Community Forums is subject to the Upwork Forum Rules and our Terms of Service.Note that anything you post to a Community Forum is public — others will have access to your User Forum Content and may use it or share it with third parties. If you choose to voluntarily disclose Personal Information in your User Forum Content or use Community Forums to link to your Profile, that information will be considered public information and the protections of this Privacy Policy will not apply.To request removal of your personal information from our blog or community forum, contact us at https://support.upwork.com or legalnotices@upwork.com . In some cases, we may not be able to remove your Personal Information, in which case we will let you know if we are unable to do so and why. Testimonials We display personal testimonials of satisfied customers on our Service, in addition to other endorsements. With your consent we may post your testimonial along with your name. If you wish to update or delete your testimonial, you can contact us at https://support.upwork.com or legalnotices@upwork.com. Work Listings Through the Service If you choose to post a work listing via the Service as a Client, the contents of such listing will be viewable publicly, unless you designate the listing as only viewable through the Service or as private using the settings available on the applicable website. Work listings include information such as budget, location, history of work listing(s) by the Client, the names of other Freelancers performing work for the Client, Client feedback and rating information and timing of project performance. Feedback We collect feedback from Upwork Users about their experience with other Upwork Users of our Service. Please note that any feedback you provide via the Service or feedback provided about you is publicly viewable via the Service. On very rare occasions, we may remove feedback pursuant to the relevant provisions of our Terms of Service, including the Terms of Use. Email to Friends and Referral Program Upwork lets you send project postings to friends via email. Upwork also offers the ability to send friends emails about providing or purchasing services through the Service. If you choose to use either feature, your friend’s email address will be used to send the requested posting and your email address will be used to copy you on the message to your friend or to send the message on your behalf. Upwork stores this information for the sole purpose of sending this one-time email and tracking the success of our referral program.Your friend may contact us at https://support.upwork.com or legalnotices@upwork.com to request that we remove this information from our database. Social Networking Services You may register for an account directly with our Site, or through a social networking service. If you register with a social networking service (or later link your account to one), we will collect certain information about you from that social networking service, and what we collect depends on your privacy settings with that social networking service. The Service may also allow you to “like” or share content with social networking services.You may register to join the Service directly via the Service or by logging into your account with a third party social networking service (“SNS”) via our Service (e.g., Facebook, Github and other third party services that let you sign in using your existing credentials with those services). If you choose to register via an SNS, or to later link your account with the Service to your account with an SNS, we will use the Personal Information you have provided to the SNS (such as your name, email address, gender and other information you make publicly available via the SNS) to create your account. Note that the information we collect from and through an SNS may depend on the privacy settings you have set with the SNS and the permissions you grant to us in connection with linking your account with the Service to your account with an SNS. Other than what we may share with the SNS as described below, the Personal Information an SNS has about you is obtained by the SNS independent of our Service, and Upwork is not responsible for it.The Upwork Service also may permit additional interactions between it and a third party website, service, or other content provider, such as enabling you to “like” or share content to a third party SNS. If you choose to “like” or share content, or to otherwise share information from or via our Service with a third party site or service, that information may be publicly displayed, and the third party may have access to information about you and your use of our Service (and we may have access to information about you from that third party). These features may collect your IP address, which page you are visiting on our site, and may set a cookie to enable the feature to function properly. Your interactions with third parties through an SNS or similar features are governed by the respective privacy policies of those third parties.You represent that you are entitled to use your SNS account for the purposes described herein without breach by you of any of the terms and conditions that govern the SNS, and without obligating Upwork to pay any fees or making Upwork subject to any usage limitations imposed by such SNS. You can disable the link between your Upwork account and your SNS account at any time through the “Settings” section of our Service. Please note that your relationship with any SNS is governed solely by your agreement(s) with such SNS. If your SNS account terminates, then functions enabled through the link between your Upwork account and your SNS account will terminate as well.2. USE OF INFORMATION We use information collected through the Service to provide and improve the Service, process your requests, prevent fraud, provide you with information and advertising that may interest you, comply with the law, and as otherwise permitted with your consent. WE USE INFORMATION WE COLLECT: <ul> <li>To provide and improve the Service, complete your transactions, address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes. </li> <li>To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below. </li> <li>To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online. </li> <li>To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent. </li> <li>To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports. </li> <li>To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users. </li> <li>For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy. </li> </ul>We use your Personal Information for the purposes described above:<ul> <li>To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at Users' request in anticipation of entering into a contract with them.</li> <li> For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:<ul> <li>Providing our Site and Service.</li> <li>Analyzing and improving our business.</li> <li>Communications, including marketing and responding to your inquiries about our services.</li> <li>Addressing information security needs and protecting our Users, Upwork, and others.</li> <li>Managing legal issues.</li> </ul> </li> <li>To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.</li> </ul> 3. DATA RETENTION Unless you request that we delete certain information (see Your Choices and Rights below), we retain the information you submit to verify your identity for 30 days and we retain other information we collect for at least 5 years. Your information may persist in copies made for backup and business continuity purposes for additional time. If you choose to provide us with Personal Information, we encourage you to routinely update the data to ensure that we have accurate and up-to-date information about you.4. INFORMATION SHARING AND DISCLOSURE We may share information about you to provide the Services, for legal and investigative purposes, in connection with sweepstakes and promotions, or if we are part of a merger or acquisition. We may also share non-identifying information with third parties. You have choices as to whether we share your personal information with third parties for their own marketing purposes.We may share aggregated Non-Identifying Information and we may otherwise disclose Non-Identifying Information (including, without limitation, Hashed Information) to third parties. We do not share your Personal Information with third parties for those third parties’ marketing purposes unless we first provide you with the opportunity to opt-in to or opt-out of such sharing. We may also share the information we have collected about you, including Personal Information, as disclosed at the time you provide your information, with your consent, as otherwise described in this Privacy Policy, or in the following circumstances:<ul> <li> Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to view a job post or submit a proposal for work as a Freelancer via the Service, we may share relevant information with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program. </li> <li> Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it. </li> <li> Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf. </li> <li> What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances. </li> <li> Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. </li> <li> Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy. </li> <li> Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list. </li> </ul> 5. THIRD PARTY ANALYTICS PROVIDERS, AD SERVERS AND SIMILAR THIRD PARTIES We may work with advertising agencies and vendors who use technology to help us understand how people use our Site. These vendors may use technologies to serve you advertisements that may interest you. You can choose to opt out of receiving interest-based advertising.Upwork works with (or may in the future work with) network advertisers, ad agencies, analytics service providers and other vendors to provide us with information regarding traffic on the Service, including pages viewed and the actions taken when visiting the Service. to serve our advertisements on other websites, within mobile apps and elsewhere online. and to provide us with information regarding the use of the Service and the effectiveness of our advertisements. Our service providers may collect certain information about your visits to and activity on the Service as well as other websites or services, they may set and access their own tracking technologies on your device (including cookies and web beacons), and may use that information to show you targeted advertisements. Some of these parties may collect Personal Information when you visit the Service or other online websites and services. We may also share certain Non-Identifying Information with these parties, including Hashed Information, in connection with the services they provide to us. If you wish to opt out of interest-based advertising, click here (or if located in the European Union, click here). If you choose to opt out, please note you will continue to receive generic ads.While we may use a variety of service providers to perform advertising services, some of these companies are members of the Network Advertising Initiative (“NAI”) or the Digital Advertising Alliance (“DAA”) Self-Regulatory Program for Online Behavioral Advertising. You may want to visit http://www.networkadvertising.org/managing/opt_out.asp, which provides information regarding targeted advertising and the “opt-out” procedures of NAI members. You may also want to visit http://www.aboutads.info/choices/, which provides information regarding targeted advertising and offers an “opt-out” by participating companies in the DAA Self-Regulatory Program.6. YOUR CHOICES AND RIGHTS You have certain choices regarding how we may communicate with you.Registered Upwork Users may update their choices regarding the types of communications you receive from us through your online account. You also may opt-out of receiving marketing emails from us by following the opt-out instructions provided in those emails. Please note that we reserve the right to send you certain communications relating to your account or use of the Service (for example, administrative and service announcements) via email and other means and these transactional account messages may be unaffected if you opt-out from receiving marketing communications. You may opt-out of receiving text messages by replying “STOP” to any text message received. Registered Upwork Users who access the Service by using an Upwork mobile application may, with permission, receive push notifications. Similarly, registered Upwork Users who access the Service by using certain desktop browsers may, with permission, receive push notifications. Notification preferences can be modified in the settings menu for the mobile application or the applicable browser.All Users may request access to or correction of any Personal Information we have about them or close their account and/or request deletion of all Personal Information we have about them. In certain jurisdictions, Users may have certain rights with regard to their Personal Information. We will honor User requests to the extent we can reasonably do so and as required by law, but some information will remain on the Services, such as information you posted publicly.Upon request Upwork will provide you with information about whether we hold any of your personal information. You are responsible for maintaining the accuracy of the information you submit to us, such as your contact information. You may access, correct, or request deletion of your personal information by making updates to that information or by contacting Upwork through your online account. If you request to access all personal information you’ve submitted, we will respond to your request to access within 30 days or as otherwise required by law. If your information is deleted, then your account may become deactivated. If your account is deactivated or you ask to close your account, you will no longer be able to use the Service. If you would like to close your account in our system, you can do so through the Upwork Service (once you have logged in, visit settings / user settings, and then click on the close my account link).Depending on where you are located, you may have certain rights with regard to your Personal Information (including, in certain cases, under the Privacy Shield, described below). For example, if you are located in the European Economic Area (“EEA”), in addition to the rights described above, you may contact us at the contact information provided below to (1) request a restriction on the processing of your Personal Information, (2) object to the processing of your Personal Information, or (3) exercise other rights with respect to your Personal Information. If you are a California resident, you may have other rights. Please see our Privacy Center for more information or to submit a request to us regarding your Personal Information. Upwork uses automated means to calculate the Job Success Score of Freelancers. If you believe that our services have miscalculated your Job Success Score or you would like to exercise any other rights with regard to your Personal Information, please email us at privacyrequests@upwork.com for assistance. We may be able to assist you by conducting a manual review of your Job Success Score, such as by assessing whether the information you’ve provided us is accurate. While we strongly encourage you to first raise any questions or concerns about your Personal Information directly with us, you have a right to lodge a complaint with the relevant supervisory authority and to seek judicial remedy.We will use commercially reasonable efforts to honor your requests for deletion. however, certain information will actively persist on the Service even if you close your account, including information in your Work Diaries and messages you posted to the Service. In addition, the rights described above may be limited, for example, if fulfilling your request would reveal personal information about another person, or if you ask us to delete information we are required by law to keep or have compelling legitimate interests in keeping (such as for fraud prevention purposes). Your Personal Information may remain in our archives and information you update or delete, or information within a closed account, may persist internally for our administrative purposes, to the extent permitted by law. In addition, we typically will not remove information you posted publicly through or on the Service. Bear in mind that neither you nor Upwork can delete all copies of information that has been previously shared with others on the Service.7. SECURITY We take a number of steps to protect your data, but no security is guaranteed.Upwork takes commercially reasonable steps to help protect and secure the information it collects and stores about Upwork Users. All access to the Site is encrypted using industry-standard transport layer security technology (“TLS”). When you enter sensitive information (such as tax identification number), we encrypt the transmission of that information using secure socket layer technology (“SSL”). We also use HTTP strict transport security to add an additional layer of protection for our Upwork Users. But remember that no method of transmission over the Internet, or method of electronic storage, is 100% secure. Thus, while we strive to protect your Personal Information, Upwork cannot ensure and does not warrant the security of any information you transmit to us.8. INTERNATIONAL TRANSFER OF PERSONAL INFORMATION Because we are a U.S. company, we process and store your information in the United States and our service providers may process and store it elsewhere.Upwork is a U.S. company. If you are located outside the United States and choose to provide information to us, Upwork transfers Personal Information to the United States for processing, and our service providers may process Personal Information in the United States and elsewhere. These countries may not have the same data protection laws as the country in which you initially provided the information. When we transfer your information to the United States, we will protect it as described in this Privacy Policy.When we transfer Personal Information from territories in the EEA or with similar laws to our affiliates or service providers in the United States and elsewhere outside the EEA, we rely on approved data transfer mechanisms, including standard contractual clauses approved by the European Commission and the Privacy Shield, as described below. You may request a copy of the standard contractual clauses relevant to your Personal Information, if any, using the contact information below.9. PRIVACY SHIELD NOTICEUpwork and its affiliates Upwork Inc., Upwork Escrow Inc., Elance, Inc., and Upwork Talent Group, Inc. have certified that their U.S. operations adhere to the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (“Privacy Shield”) with respect to the Personal Information that they receive in reliance on the Privacy Shield. Our Privacy Shield certification is available at https://www.privacyshield.gov/list. To learn more about the Privacy Shield program, please visit https://www.privacyshield.gov. When Upwork or one of its affiliates receives Personal Information under the Privacy Shield and then transfers it to a third party service provider acting as an agent on their behalf, Upwork or its affiliate may have certain responsibility under the Privacy Shield if both (i) the agent processes the information in a manner inconsistent with the Privacy Shield and (ii) Upwork or its affiliate is responsible for the event giving rise to the damage.Covered European residents should contact Upwork at the contact information below regarding Upwork’s or its affiliates' compliance with the Privacy Shield. Upwork will attempt to answer your questions and satisfy your concerns in a timely and complete manner as soon as possible. If, after discussing the matter with Upwork, your issue or complaint is not resolved, Upwork and the above-named affiliates have agreed to participate in the Privacy Shield independent dispute resolution mechanisms listed below, free of charge to you. PLEASE CONTACT UPWORK FIRST.For other Personal Information Upwork or its affiliates receive under the Privacy Shield, Upwork and its affiliates have committed to refer unresolved privacy complaints under the EU-U.S. and Swiss-U.S. Privacy Shield Principles to an independent dispute resolution mechanism, JAMS Privacy Shield Dispute Resolution, operated by JAMS. If you do not receive timely acknowledgment of your complaint, or if your complaint is not satisfactorily addressed, please visit https://www.jamsadr.com/eu-us-privacy-shield for more information and to file a complaint.If your complaint still is not resolved through these channels, under limited circumstances, an additional binding arbitration option may be available before a Privacy Shield panel, as described at https://www.privacyshield.gov. Every individual also has a right to lodge a complaint with the relevant supervisory authority.10. LINKS TO OTHER SITESOur Service contains links to other websites. If you choose to click on a third party link, you will be directed to that third party’s website. The fact that we link to a website is not an endorsement, authorization or representation of our affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices. We do not exercise control over third party websites. These other websites may place their own cookies or other files on your computer, collect data or solicit Personal Information from you. We encourage you to read the privacy policies or statements of the other websites you visit.11. PUBLIC PROFILEThe profile you create on our Site will be publicly accessible unless otherwise indicated. You may change the privacy settings of your profile through your account portal.12. PHISHINGPhishing websites imitate legitimate websites in order to obtain personal or financial information. Identity theft and the practice currently known as “phishing” are of great concern to Upwork. For more information about phishing, visit the website of the Federal Trade Commission at http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you believe you have received an email or had a similar interaction with a third party pretending to be Upwork, please report it at https://support.upwork.com.13. CALIFORNIA AND NEVADA RESIDENTS – YOUR PRIVACY RIGHTSNOTICE FOR CALIFORNIA RESIDENTSPlease see the Supplemental Notice for California Residents below for additional details on rights available to California residents, and how to exercise such rights.NOTICE FOR NEVADA RESIDENTSUnder Nevada law, certain Nevada residents may opt out of the sale of “personally identifiable information” for monetary consideration to a person for that person to license or sell such information to additional persons. “Personally identifiable information” includes first and last name, address, email address, phone number, Social Security Number, or an identifier that allows a specific person to be contacted either physically or online. We do not engage in such activity. however, if you are a Nevada resident who has purchased or leased goods or services from us, you may submit a request to opt out of any potential future sales under Nevada law by emailing privacyrequests@upwork.com. Please note we will take reasonable steps to verify your identity and the authenticity of the request. Once verified, we will maintain your request in the event our practices change.14. CHANGES TO THIS POLICY We may change this Privacy Policy. If we make substantial changes, we will provide notice.Upwork may update this Privacy Policy at any time and any changes will be effective upon posting. In the event that there are substantial changes to the way we treat your Personal Information, we will display a notice through the Services prior to the change becoming effective. We may also notify you by email, in our discretion. However, we will use your Personal Information in a manner consistent with the Privacy Policy in effect at the time you submitted the information, unless you consent to the new or revised policy.15. CONTACTING USIf you have any questions about this Privacy Policy, please contact us at https://support.upwork.com or legalnotices@upwork.com, or by mail addressed to Upwork, Attn: Legal, 2625 Augustine Drive, Suite 601, Santa Clara, CA 95054, USA. 16. SUPPLEMENTAL PRIVACY NOTICE FOR CALIFORNIA RESIDENTSThis Supplemental Privacy Notice for California Residents supplements the information in our Privacy Policy above, and except as provided herein, applies solely to California residents. It applies to personal information we collect on or through the Service and through other means (such as information collected offline, in person, and over the telephone). It does not apply to personal information we collect from our employees or job applicants in their capacity as employees and job applicants. It also does not apply to information we collect about businesses that use our Service -- including any employees, owners, directors, officers, or contractors of those businesses -- in the course of our provision or receipt of business-related services. Summary of Information We Collect California law requires us to disclose information regarding the categories of personal information that we have collected about California consumers (as that term is defined in the California Consumer Privacy Act ("CCPA")), the categories of sources from which the information was collected, the business or commercial purposes (as those terms are defined by applicable law) for which the information was collected, and the categories of parties with whom we share personal information. We or our service providers may collect the below categories of information for the following business or commercial purposes (as those terms are defined in applicable law):<ul> <li>Providing the Service (e.g., account servicing and maintenance, matching freelancer talent with client needs, customer service, advertising and marketing, analytics, and communication about the Service);</li> <li>Our or our service providers' operational purposes;</li> <li>Auditing consumer interactions on our site (e.g., measuring ad impressions);</li> <li>Detecting, protecting against, and prosecuting privacy and security incidents and fraudulent or illegal activity;</li> <li>Bug detection, error reporting, and activities to maintain the quality or safety of our Service;</li> <li>Investigating compliance with, enforcing, and/or complying with the law;</li> <li>Short-term, transient use, such as customizing content that we or our service providers display on the Service;</li> <li>Improving our existing Service and developing new services (e.g., by conducting research to develop new products or features);</li> <li>Other uses that advance our commercial or economic interests, such as third party advertising and communicating with you about relevant offers from us or third party partners;</li> <li>Other uses about which we notify you.</li> </ul>Examples of these types of uses are identified below. We may also use the below categories of personal information for compliance with applicable laws and regulations, and we may combine the information we collect (“aggregate”) or remove pieces of information (“de-identify”) to limit or prevent identification of any particular user or device.Categories of Personal Information We Collect Categories of Sources Examples of Uses Categories of Third Parties With Which We May Share That InformationIdentifiers (such as account information, name, email address, address, phone number, or social network account and profile data)YouYour use of the Service/automatically collected from youAffiliatesThird Parties (such as agents/service providers and other users) Providing the Service, including to process your transactions, address your inquiries, provide assistance to you in using the Service, and in connection with Upwork’s Enterprise Compliance and other premium offerings Fixing and improving the ServicePersonalizing contentMarketing and advertisingAdministering promotional activitiesCommunicating with youPreventing, detecting, investigating, and responding to possible fraud, unauthorized access/use of the Service, breaches of terms and policiesLegal and investigative purposes, such as responding to lawful subpoenas or other requests for information, in order to investigate compliance with, enforce and/or comply with the lawThird parties, such as service providers, Clients (e.g. where a Freelancer makes his/her information available to a Client), Agencies, Upwork Payroll vendors, and government agenciesAffiliates Commercial information (such as transaction data)YouYour use of the Service/automatically collected from youAffiliatesThird Parties (such as agents/service providers and other users)Providing the Service, including to process your transactions, address your inquiries, provide assistance to you in using the Service, and in connection with Upwork’s Enterprise Compliance and other premium offeringsFixing and improving the ServicePersonalizing contentMarketing and advertisingCommunicating with youPreventing, detecting, investigating, and responding to possible fraud, unauthorized access/use of the Service, breaches of terms and policiesLegal and investigative purposes, such as responding to lawful subpoenas or other requests for information, in order to investigate compliance with, enforce and/or comply with the lawThird parties, such as service providers, Clients (e.g. where a Freelancer makes his/her information available to a Client), Agencies, Upwork Payroll vendors, and government agenciesAffiliates Financial data (such as payment information)YouYour use of the Service/automatically collected from youAffiliatesThird Parties (such as agents/service providers)Providing the Service, including to process your transactions, address your inquiries, provide assistance to you in using the Service, and in connection with Upwork’s Enterprise Compliance and other premium offeringsFixing and improving the ServiceCommunicating with youPreventing, detecting, investigating, and responding to possible fraud, unauthorized access/use of the Service, breaches of terms and policiesLegal and investigative purposes, such as responding to lawful subpoenas or other requests for information, in order to investigate compliance with, enforce and/or comply with the lawThird parties, such as service providers, Clients (e.g. where a Freelancer makes his/her information available to a Client), Agencies, Upwork Payroll vendors, and government agenciesAffiliates Internet or other network or device activity (such as IP address, unique device and app identifiers, browsing history or other usage data)YouYour use of the Service/automatically collected from youAffiliatesThird Parties (such as agents/service providers)Providing the Service, including to process your transactions, address your inquiries, provide assistance to you in using the Service, and in connection with Upwork’s Enterprise Compliance and other premium offeringsFixing and improving the ServicePersonalizing contentMarketing and advertisingPreventing, detecting, investigating, and responding to possible fraud, unauthorized access/use of the Service, breaches of terms and policiesLegal and investigative purposes, such as responding to lawful subpoenas or other requests for information, in order to investigate compliance with, enforce and/or comply with the lawThird parties, such as service providers, Clients (e.g. where a Freelancer makes his/her information available to a Client), Agencies, Upwork Payroll vendors, and government agenciesAffiliates General Location information YouYour use of the Service/automatically collected from youAffiliatesThird Parties (such as agents/service providers)Providing the Service, including to process your transactions, address your inquiries, provide assistance to you in using the Service, and in connection with Upwork’s Enterprise Compliance and other premium offeringsFixing and improving the ServicePersonalizing contentMarketing and advertisingPreventing, detecting, investigating, and responding to possible fraud, unauthorized access/use of the Service, breaches of terms and policiesLegal and investigative purposes, such as responding to lawful subpoenas or other requests for information, in order to investigate compliance with, enforce and/or comply with the lawThird parties, such as service providers, Clients (e.g. where a Freelancer makes his/her information available to a Client), Agencies, Upwork Payroll vendors, and government agenciesAffiliates Sensory information (such as audio recordings if you call our customer service, video recording (if you provide permission), or screenshots from Work Diaries)YouYour use of the Service/automatically collected from youAffiliatesThird Parties (such as agents/service providers)Providing the Service, including to process your transactions, address your inquiries, provide assistance to you in using the Service, and in connection with Upwork’s Enterprise Compliance and other premium offeringsFixing and improving the ServicePreventing, detecting, investigating, and responding to possible fraud, unauthorized access/use of the Service, breaches of terms and policiesLegal and investigative purposes, such as responding to lawful subpoenas or other requests for information, in order to investigate compliance with, enforce and/or comply with the lawThird parties, such as service providers, Clients (e.g. where a Freelancer makes his/her information available to a Client), Agencies, Upwork Payroll vendors, and government agenciesAffiliates Other information that identifies or can be reasonably associated with you (such as user generated content, e.g. community posts, feedback and job postings, in each case, when the content can be used to identify you)YouYour use of the Service/automatically collected from youAffiliatesThird Parties (such as agents/service providers)Providing the Service, including to process your transactions, address your inquiries, provide assistance to you in using the Service, and in connection with Upwork’s Enterprise Compliance and other premium offeringsFixing and improving the ServicePersonalizing contentMarketing and advertisingAdminister promotional activitiesCommunicating with youPreventing, detecting, investigating, and responding to possible fraud, unauthorized access/use of the Service, breaches of terms and policiesLegal and investigative purposes, such as responding to lawful subpoenas or other requests for information, in order to investigate compliance with, enforce and/or comply with the lawThird parties, such as service providers, Clients (e.g. where a Freelancer makes his/her information available to a Client), Agencies, Upwork Payroll vendors, and government agenciesAffiliatesThe public if you or other users post content publicly RightsIf you are a California resident, you may have certain rights. California law may permit you to request that we:<ul> <li>Provide you the categories of personal information we have collected or disclosed about you in the last twelve months. the categories of sources of such information. the business or commercial purpose for collecting or selling your personal information. and the categories of third parties with whom we shared personal information. </li> <li>Provide access to and/or a copy of certain information we hold about you.</li> <li>Delete certain information we have about you.</li> </ul>You may have the right to receive information about the financial incentives that we offer to you, if any. You also have the right to not be discriminated against (as provided for in applicable law) for exercising certain of your rights. If you would like to exercise any of these rights, please submit a request through the Data Request Form available in our Privacy Center or email us at privacyrequests@upwork.com. You will be required to verify your identity before we fulfill your request. You can also designate an authorized agent to make a request on your behalf. To do so, you must provide us with written authorization or a power of attorney, signed by you, for the agent to act on your behalf. You will still need to verify your identity directly with us.Certain information may be exempt from such requests under applicable law. For example, we need certain types of information so that we can provide the Service to you. If you ask us to delete it, you may no longer be able to access or use the Service.The CCPA sets forth certain obligations for businesses that “sell” personal information. Based on the definition of “sell” under the CCPA and under current regulatory guidance, we do not believe we engage in such activity and have not engaged in such activity in the past twelve months. Privacy Center Version 3.1 Effective September 14, 2020 Download Table of Contents <ol> </ol> The General Data Protection Regulation (GDPR) is a data privacy law that gives residents of the European Economic Area (“EEA”) more clarity and control over how their personal data is used. Personal data is anything that can directly or indirectly identify a person, such as a photo, name, bank details, medical information, computer IP address, and so on. This European-wide law replaces the 1995 Data Protection Directive 95/46/EC.The California Consumer Privacy Act (CCPA) is a new data privacy law, effective January 1, 2020, that applies to certain businesses and is intended to enhance privacy rights and consumer protection for residents of California.Learn more about how Upwork is complying with the GDPR and the CCPA in our Privacy Policy. WHAT DOES THIS MEAN FOR YOU AND UPWORK?Upwork’s Legal and Information Security and Privacy teams have carefully analyzed applicable privacy laws and regulations and undertaken the necessary steps to ensure that Upwork is in compliance with their requirements.We value our users’ privacy and their rights to control their personal data. Regardless of where you call home, you may close your account or request the deletion of all personal information we have about you at any time. However, we will only be following the requirements outlined by the GDPR and the CCPA for those living in the EEA and in California, respectively. If you live elsewhere, we will be happy to consider your request to delete your data. Upwork DATA PROCESSING AGREEMENT (“DPA”) To streamline GDPR compliance, Upwork has posted a Data Processing Agreement (“DPA”), governing the relationship between the Customer (as defined in the DPA, acting as a data controller or processor, as applicable) of personal data under European Data Protection Legislation. and Upwork (acting as a data processor or subprocessor, as applicable).Unless otherwise agreed to in writing by you and Upwork, to the extent Upwork processes any EU personal data for you as a controller (as defined by the General Data Protection Regulation (EU) 2016/679) in your role as a Customer, the Data Processing Agreement applies. HOW DO I SUBMIT A DATA REQUEST? Depending on where you are located, you may have certain rights with regard to your personal information. These rights may be limited, for example, if fulfilling a request would reveal personal information about another person, or if you ask us to delete information which we are required by law to keep or have compelling legitimate interests in keeping (such as fraud prevention purposes or record retention requirements under applicable laws). In addition, we typically will not remove information you posted publicly or shared with others through or on the Service, as neither you nor Upwork can delete all copies of information that have been previously shared with others on the Service. If you would like to request to close your account in our system, you can do so through the Upwork Service (once you have logged in, visit settings / user settings, and then click on the close my account link). In addition, you can access, correct, or delete your personal information by making updates to that information through your account. You can also submit a request to us regarding your personal information by completing the below form or emailing privacyrequests@upwork.com. Please note that if your information is deleted, then your account may become deactivated. If your account is deactivated or you ask to close your account, you will no longer be able to use the Service.Click here to access the data request form. ADDITIONAL RESOURCES If you are likely to process EEA-based individuals’ personal data consider checking out these resources:<ul> <li>Upwork Privacy Policy</li> <li>Upwork Cookie Policy</li> <li>Data Protection Self-Assessment (UK Information Commissioner’s Office)</li> <li>GDPR FAQs for Small Organizations (UK Information Commissioner’s Office) </li> </ul> Cookie Policy Version 1.1 Effective June 24, 2019 Download Table of Contents <ol> </ol> This policy describes how Upwork uses cookies on http://www.upwork.com (the “Site”). We recommend that you also consult our Privacy Policy for additional information on how we collect and use information collected from visitors to the Site. This policy is effective May 5, 2015. Your continued use of the Site after that will signify your acceptance of this policy. We may modify this Agreement without notifying you, so please check back often for updates.By using the Site, you agree that we can use the cookies described in this Cookie Policy. You can stop cookies by changing the settings in your browser (more information on how to do this is provided below).What are cookies?Cookies are text files, containing small amounts of information, which are downloaded to your browsing device (such as a computer or smartphone) when you visit a website. Cookies can be recognized by the website that downloaded them — or other websites that use the same cookies. This helps websites know if the browsing device has visited them before.What are cookies used for?Cookies do lots of different jobs, like helping us understand how the Site is being used, letting you navigate between pages efficiently, remembering your preferences, and generally improving your browsing experience. Cookies can also help ensure marketing you see online is more relevant to you and your interests.What types of cookies does Upwork use?The type of cookies used on most websites can generally be put into one of six categories: Strictly Necessary, Performance, Functionality, Flash, Tailored Content and Targeting. In order to provide you with the best browsing experience, Upwork uses all of these categories on the Site. You can find out more about each cookie category in the sections below.Strictly Necessary CookiesThese cookies are essential, as they enable you to move around the Site and use its features, such as accessing secure areas. Without these cookies, some services you have asked for such as payment submission can’t be provided.Performance CookiesThese cookies collect information about how you use the Site, for example which pages you go to most often and if you get error messages from certain pages. These cookies don’t gather information that identifies you. All information these cookies collect is anonymous and is only used to improve how the Site works.Functionality CookiesThese cookies allow the Site to remember choices you make (such as your user name, language or the region you’re in). For instance, the Site uses functionality cookies to remember your language preference. These cookies can also be used to remember changes you’ve made to text size, font and other parts of pages that you can customize. They may also be used to provide services you’ve asked for such as watching a video or commenting on a blog. The information these cookies collect may be anonymous and they cannot track your browsing activity on other websites.Flash CookiesWe may, in certain circumstances, use Adobe Flash Player to deliver special content, such as video clips or animation. To improve your user experience, Local Shared Objects (commonly known as “Flash cookies”) are employed to provide functions such as remembering your settings and preferences. Flash cookies are stored on your device, but they are managed through an interface different from the one provided by your web browser. This means it is not possible to manage Flash cookies through your browser in the same way you would normally manage cookies. Instead, you can access your Flash management tools from Adobe’s website at http://www.macromedia.com/support/documentation/en/flashplayer/help/settings_manager.html.Tailored Content CookiesTailored content cookies help the Site provide enhanced features and display content in a way that is relevant to you. 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Persistent cookies stay on your browsing device until they expire or are deleted.First and third party cookiesFirst party cookies are cookies that belong to us, while third party cookies are cookies that another party places on your browsing device through our Site. For example, Facebook will place a cookie on your browsing device if you click on the Facebook link when browsing the Site.How to control and delete cookies through your browserThe browser you are using to view the Site can enable, disable or delete cookies. To do this, follow the instructions provided by your browser (usually located within the “Help,” “Tools” or “Edit” facility). Please note that if you set your browser to disable cookies, you may not be able to access certain parts of the Site for example applying for a job or posting a job. Other parts of the Site may also not work properly. You can find out more information about how to change your browser cookie settings at www.allaboutcookies.org.Contacting UsIf you have any questions about this Cookie Policy, please contact us at https://support.upwork.com/home or by mail addressed to Attn: Legal, 2625 Augustine Drive, Suite 601, Santa Clara, CA 95054, USA. Upwork Digital Accessibility Statement Version 2.1 Effective April 20, 2020 Download Table of Contents <ol> </ol> Upwork is committed to providing an accessible experience to our customers and the public, regardless of background, nationality, race, ethnicity, gender, gender identity, sexual orientation, disability status, veteran status, or other similarly protected characteristics. This Upwork Digital Accessibility Statement concerns our commitment to providing access to persons with disabilities. Please also see our Nondiscrimination Statement. Please contact our Accessibility Coordinator at accessibilitycoordinator@upwork.com or send a letter addressed to: Attn: Accessibility Coordinator, 2625 Augustine Drive, Suite 601, Santa Clara, CA 95054, USA, to learn more about accessibility support services Upwork. Reasonable AccommodationsIndividuals who need a reasonable accommodation to access Upwork’s services and information should send an email to accessibilitycoordinator@upwork.com or send a letter addressed to: Attn: Accessibility Coordinator, 2625 Augustine Drive, Suite 601, Santa Clara, CA 95054, USA to provide information about the nature of the requested accommodation. Requesters must include contact information such as an email address or telephone number at which they can be reached. Depending on the nature of the request, Upwork may need sufficient notice to provide a reasonable accommodation. Online AccessibilityUpwork strives to provide an accessible digital experience for our users. In the event that a user with a disability experiences accessibility issues with our website or mobile application, please notify us by sending an email to accessibilitycoordinator@upwork.com or sending a letter addressed to: Attn: Accessibility Coordinator, 2625 Augustine Drive, Suite 601, Santa Clara, CA 95054, USA. In your communication to us, please specify the nature of the accessibility difficulty, including the web address or mobile application that may have presented an accessibility challenge. Third-Party Websites Upwork's website may contain links to webpages hosted by third parties. Upwork does not make representations with regard to the accessibility of third-party websites and is not able to remediate accessibility barriers on such websites. FeedbackWe are always working to ensure that our products and services are accessible to all guests and the public, including individuals with disabilities. If you have an idea or question about accessibility support services at Upwork, please contact our accessibility coordinator by sending an email to accessibilitycoordinator@upwork.com or sending a letter addressed to: Attn: Accessibility Coordinator, 2625 Augustine Drive, Suite 601, Santa Clara, CA 95054, USA. Nondiscrimination Statement Version 1.3 Effective September 22, 2020 Download Table of Contents <ol> </ol> Upwork’s mission is to create economic opportunities so people have better lives. Key to our mission is that these opportunities should be equally available to all qualified talent in our community, regardless of background, nationality, race, ethnicity, sex, gender, gender identity, sexual orientation, actual or perceived disability status, veteran status, marital status, or other similarly protected characteristics. Upwork’s goal is for members of our community to feel welcome on the Site. A condition of using the Site is your agreement not to engage in any unlawful discrimination or harassing conduct. Such conduct is not permitted on Upwork by any member of our community. Upwork does not require Users to violate local laws or take actions that may subject them to legal liability. Upwork will take actions to enforce this policy. Users engaging in this activity are subject to Account closure. Please bring any reports of discrimination or harassment to our attention at legalnotices@upwork.com. Master Subscription Agreement (Enterprise Standard) Version 5.2 Effective September 9, 2020 Download Table of Contents <ol> </ol> MASTER SUBSCRIPTION AGREEMENT This Master Subscription Agreement governs each Order Form (collectively, the “Agreement”) entered into by Upwork Global Inc. (“Upwork”) and the subscriber identified in the Order Form (“Subscriber”). Any term used in this Master Subscription Agreement that is defined in the Order Form and is not otherwise defined herein will have the meaning ascribed to it in the Order Form. The parties hereby agree: <ol> <li> DEFINITIONS. The following terms will have the meanings ascribed to the below when used in this Agreement:</li> </ol>1.1 “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber or Upwork (as applicable), whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber or Upwork (as applicable).1.2 “Authorized Users” means Subscriber’s representatives who are permitted to access and use the Platform on Subscriber’s behalf. 1.3 “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to receive such Confidential Information.1.4 “BYO Freelancer” ” means a Freelancer that Subscriber brings to Upwork’s Platform that is not a registered freelancer on the Platform.1.5 “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.1.6 “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. For the purposes of Upwork’s indemnities owed to Subscriber hereunder, the term “Claims” excludes Excluded Claims.1.7 “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure. or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party. (b) were already known by the receiving party. (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure. or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.1.8 “Custom Compliance Costs” means all third-party costs incurred by Upwork, its Affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or applicable law.1.9 “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.1.10 “Employment Provider” means Upwork’s third-party employment provider(s) that employ Freelancers classified as employees in conjunction with Upwork Payroll Services.1.11 “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.1.12 “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.1.13 “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments as further described in Section 3.1 (Enterprise Billing Services).1.14 “Freelancer” means a user that advertises and provides services via the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers, regardless of their classification.1.15 “Freelancer Information” means any information regarding a Freelancer on the Platform.1.16 “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including, if applicable, expenses authorized by Subscriber or required by law.1.17 “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.1.18 “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber, including the Subscriber’s project post and description on the Platform.1.19 “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.1.20 “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.1.21 “Platform” means the website located at www.upwork.com, including any pages tailored to or viewable by a specific client thereon (e.g., private talent clouds).1.22 “Platform Content” has the meaning given to it in Section 5.2.1.23 “Platform Freelancer” means a Freelancer that is not a BYO Freelancer. 1.24 “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.1.25 "Service Contract" means the contractual provisions that govern each Engagement, including any independent contractor agreement, non-disclosure agreement, or other agreement between Client and Freelancer in connection with the Engagement, and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.1.26 “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.1.27 “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.1.28 “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generate interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing Services will not alter or remove any Subscriber responsibilities under the Agreement.1.29 “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, and occupation, in addition to taxes incurred on transactions between Upwork and its Affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.1.30 “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.1.31 “Term” has the meaning ascribed to it in the Order Form.1.32 “UTC” means Universal Time Coordinated.1.33 “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.1.34 “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.<ol> <li> PLATFORM AND SERVICES. </li> </ol>2.1 Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find, communicate with, and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting and instructing Authorized Users to protect passwords and login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches. 2.2 Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating Platform Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement. 2.3 Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork under romanette (i), (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement will remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User under romanette (ii), (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival). 2.4 Freelancer Services. 2.4.1 Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.2.4.2 Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber can dispute the Freelancer billing entries as described by this Section. The Freelancer invoice will cover the billing period that begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing records and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform at the end of the Subscriber Review Period, and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform. 2.4.3 Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked at the time Subscriber is invoiced for the work, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber. 2.4.4 Milestone Work. For Engagements where Freelancer Payments are tied to completing milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone. 2.4.5 Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.2.5 On-Site Engagements . Compliance with Worker Safety Laws. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.2.6 Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein. (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services. (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services. (iv) transmit information that identifies or relates to natural persons or confidential financial information through the Platform. (v) submit or post Platform Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person. (vii) submit or post Platform Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post Platform Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs. (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks. (viii) attempt to gain unauthorized access to the Services or its systems or networks. or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s Platform Content, it is permitted to monitor Platform Content and reserves the right to delete any Platform Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.2.8 Upgrading/Downgrading. If Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes and directs Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six-month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it may not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier. <ol> <li> FEES AND PAYMENTS. </li> </ol>3.1 Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.3.2 Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed. 3.3 Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services. 3.4 Fees Related to Upwork Payroll Services. The flat rate Service Fees set forth in the Order Form for BYO Freelancers and Platform Freelancers only applies to Freelancers located in the United States who are engaged using Upwork Payroll Services. A separate Upwork Payroll Fee, which varies by country, will apply to international Freelancer Engagements. For Upwork Payroll Service Engagements with respect to Freelancers located outside of the United States, the Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer as further detailed in Section 6.3 (Upwork Payroll Services).3.5 Taxes. All fees and charges payable in connection with this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes (e.g., VAT or GST), Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork will consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement. 3.6 Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment terms in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal. 3.7 Non-Circumvention. If Subscriber engages (or directs a third party to engage) the services of a Platform Freelancer that Subscriber found on the Platform through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber or, if never engaged by Subscriber through the Platform, within two years after the Platform Freelancer is first identified by Subscriber on the Platform, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages that Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision does not apply to (i) BYO Freelancers or (ii) Freelancers responding independently and without direct solicitation to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).<ol> <li> TERM AND TERMINATION. </li> </ol>4.1 Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form unless sooner terminated in accordance with the terms of this Master Subscription Agreement.4.2 Termination for Cause. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due. 4.3 Post-Termination Obligations.If Subscriber’s subscription to the Services or this Agreement ends early for any reason other than Subscriber’s termination pursuant to Section 4.2 (Termination for Cause), then, in addition to other amounts Subscriber may owe Upwork, Subscriber will be responsible for paying any unpaid Subscription Fees associated with the remainder of the current Term. 4.4 Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement. <ol> <li> INTELLECTUAL PROPERTY. </li> </ol> 5.1 Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.5.2 Platform Content. By submitting, uploading, or posting (including through Program Management Services) content (including text, images, video, audio, and other materials or information) to Upwork or the Platform for the purposes of such content being displayed or otherwise made available to users on the Platform or to the public (collectively “Platform Content”), Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable, perpetual, and transferable license to use, display, modify, reproduce, distribute, store, and prepare derivative works of such Platform Content to provide, expand, and promote the Services. For avoidance of doubt, the term “Platform Content” does not include Freelancer Work Product or Subscriber’s Confidential Information. Subscriber understands and acknowledges that Subscriber is solely responsible for all Platform Content and that Subscriber is the poster of the Platform Content and is responsible for any Platform Content, including any harms caused to Upwork, Subscriber, another user, or a third party by such Platform Content. 5.3 User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.5.4 Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.<ol> <li> REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS. </li> </ol> 6.1 Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established. (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder. (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms. and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.6.2 Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including the substantive terms of posts, the selection of a Freelancer, the decision to contract with a Freelancer, and the performance or receipt of Freelancer Services or provisioning of Freelancer Work Product. (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services. (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto. (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion. (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate, or what those rates will be. (vi) Upwork will not provide Freelancer with training or any equipment, tools, labor, or materials needed to complete their work. (vii) Upwork does not provide the premises at which the Freelancer will perform the work. (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute except for the dispute assistance described in Section 2.2.5 (Work Protection Program). (ix) Upwork is not an employer of or joint employer or integrated or single enterprise with any independent contractor Freelancer or Subscriber. and (x) unless otherwise agreed as part of the relevant Engagement, independent contractor Freelancers may hire employees or engage contractors or subcontractors (at his or her sole expense) to assist with providing the Freelancer Services. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform. the ability of Freelancers to deliver the Freelancer Services. or that Subscriber or Freelancer can or will actually complete a transaction. 6.3 Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via Upwork’s Payroll Services, then Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In addition to Subscriber’s responsibilities set forth in this Agreement, if Subscriber requests to use Upwork Payroll Services, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started. (ii) absent exigent circumstances, (a) provide at least 72 hours’ advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination. otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements. and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave. 6.4 Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their profiles, portfolios, resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform, is intended to be illustrative only and is not intended to be a guarantee or warranty by Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information. 6.5 Disclaimer. UPWORK, ITS AFFILIATES, PARTNERS, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.<ol> <li> CONFIDENTIALITY. </li> </ol> 7.1 Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential. (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission. (iii) exclusively use such Confidential Information for its intended purpose. and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.7.2 Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement. Subscriber and Upwork further acknowledge receipt of this notice under 18 U.S.C § 1833(b)(1) and that an individual will not be held criminally or civilly liable under any Federal or State trade secret law for disclosing a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney. and (ii) solely to report or investigate a suspected violation of law. or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. 7.3 Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the confidentiality terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession. 7.4 Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.<ol> <li> INDEMNIFICATION. </li> </ol> 8.1 Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights of a third party due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork. (ii) any modification to the Platform made by Subscriber. (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined. (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement. (v) Platform Content. (vi) Freelancer Services. or (vii) Freelancer Work Product.8.2 Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its Affiliates and their directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment. (ii) the misuse or unauthorized use of the Platform. (iii) Subscriber’s Platform Content. or (iv) the misclassification of a Freelancer under applicable classification laws and regulations. 8.3 Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement. (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice. and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim. Indemnifying Party is not permitted to enter into any settlement with respect to a Claim other than one for purely money paid by Indemnifying Party with a full release of liability with respect to Indemnified Party without Indemnified Party’s prior written consent, which will not be unreasonably withheld.<ol> <li> LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS OR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR (I) AMOUNTS DUE UPWORK FROM SUBSCRIBER UNDER THIS AGREEMENT, (II) AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO INDEMNIFICATION OBLIGATIONS HEREIN AND (III) BREACHES OF CONFIDENTIALITY UNDER SECTION 7.1 (CONFIDENTIALITY) WITH RESPECT TO CONFIDENTIAL INFORMATION, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR AN AMOUNT GREATER THAN THE TOTAL FEES PAID BY SUBSCRIBER TO UPWORK DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR WHICH LIABILITY IS SOUGHT TO BE IMPOSED. SUBSCRIBER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE UNDER THIS AGREEMENT ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.</li> <li> MISCELLANEOUS. </li> </ol> 10.1 Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork. and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.10.2 Insurance. Upwork shall maintain at minimum the following types and limits of insurance at its own expense at all times during the Term:(i) Commercial General Liability covering products/operations, bodily injury, property damage, and personal injury with limits of $1,000,000 per occurrence and $2,000,000 in the aggregate.(ii) Automobile Liability with a combined single limit of $1,000,000 for bodily injury and property damage covering both hired and non-owned automobiles used by Upwork to provide Services to Subscriber under this Agreement.(iii) Statutory Workers Compensation coverage as required by state law with employer’s liability limits of at least $1,000,000 per claim and $1,000,000 in the aggregate(iv) Errors and Omissions coverage including network security and privacy liability that includes third parties with limits of at least $10,000,000 per claim and in the aggregate. The foregoing policies will be issued on an occurrence basis and provided by a carrier with a rating of at least A-VII. The existence of these insurance policies will neither limit nor expand Upwork’s liability hereunder. Upon Subscriber’s request, Upwork will provide Subscriber with a certification evidencing the coverage described in this Section.10.3 Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement. 10.4 Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws. All disputes arising out of this Agreement between Upwork and Subscriber will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber and Upwork hereby consent to the personal and exclusive jurisdiction and venue of these courts and waive any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum. 10.5 Assignment. Neither party will be permitted to assign this agreement to a third party other than an Affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party. 10.6 Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties. provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. 10.7 Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences. 10.8 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties. 10.9 Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights. 10.10 Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail to legalnotices@upwork.com, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt. 10.11 Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. 10.12 Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers. 10.13 Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. 10.14 Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled. 10.15 Private Branding. Upwork is hereby authorized to display Subscriber’s name and logo on the internal-facing custom-branded enterprise portal that Upwork creates for Subscriber hereunder. Master Subscription Agreement (WPP) Version 2.2 Effective September 9, 2020 Download Table of Contents <ol> </ol> MASTER SUBSCRIPTION AGREEMENT This Master Subscription Agreement governs each Order Form (collectively, the “Agreement”) entered into by Upwork Global Inc. (“Upwork”) and the subscriber identified in the Order Form (“Subscriber”). Any term used in this Master Subscription Agreement that is defined in the Order Form and is not otherwise defined herein will have the meaning ascribed to it in the Order Form. The parties hereby agree: <ol> <li> DEFINITIONS. The following terms will have the meanings ascribed to the below when used in this Agreement:</li> </ol>1.1 “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber or Upwork (as applicable), whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber or Upwork (as applicable).1.2 “Authorized Users” means Subscriber’s representatives who are permitted to access and use the Platform on Subscriber’s behalf. 1.3 “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to receive such Confidential Information.1.4 “BYO Freelancer” ” means a Freelancer that Subscriber brings to Upwork’s Platform that is not a registered freelancer on the Platform.1.5 “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.1.6 “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. For the purposes of Upwork’s indemnities owed to Subscriber hereunder, the term “Claims” excludes Excluded Claims.1.7 “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure. or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party. (b) were already known by the receiving party. (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure. or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.1.8 “Custom Compliance Costs” means all third-party costs incurred by Upwork, its Affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or applicable law.1.9 “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.1.10 “Employment Provider” means Upwork’s third-party employment provider(s) that employ Freelancers classified as employees in conjunction with Upwork Payroll Services.1.11 “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.1.12 “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.1.13 “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments as further described in Section 3.1 (Enterprise Billing Services).1.14 “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of a Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) any of the following situations to the extent caused by incomplete or inaccurate information provided by Subscriber (including Subscriber’s failure to timely update information) or Subscriber’s acts or omissions: (a) Upwork’s misclassification of a Freelancer. (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations. or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer.1.15 “Freelancer” means a user that advertises and provides services via the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers, regardless of their classification.1.16 “Freelancer Information” means any information regarding a Freelancer on the Platform.1.17 “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including, if applicable, expenses authorized by Subscriber or required by law.1.18 “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.1.19 “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber, including the Subscriber’s project post and description on the Platform.1.20 “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.1.21 “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-premium. For avoidance of doubt, the parties agree that the Independent Contractor Agreement constitutes Upwork’s Confidential Information.1.22 “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.1.23 “Platform” means the website located at www.upwork.com, including any pages tailored to or viewable by a specific client thereon (e.g., private talent clouds).1.24 “Platform Content” has the meaning given to it in Section 5.2.1.25 “Platform Freelancer” means a Freelancer that is not a BYO Freelancer. 1.26 “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.1.27 “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.1.28 “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.1.29 “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generate interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing Services will not alter or remove any Subscriber responsibilities under the Agreement.1.30 “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, and occupation, in addition to taxes incurred on transactions between Upwork and its Affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.1.31 “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.1.32 “Term” has the meaning ascribed to it in the Order Form.1.33 “UTC” means Universal Time Coordinated.1.34 “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.1.35 “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.<ol> <li> PLATFORM AND SERVICES. </li> </ol>2.1 Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find, communicate with, and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting and instructing Authorized Users to protect passwords and login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.2.2 Compliance Services.2.2.1 Worker Classification. Upwork will determine the appropriate worker classification (e.g., independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on many factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.2.2.2 Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor, (ii) hire the Freelancer as an employee through Upwork Payroll Services, or (iii) if the classification is neither employment nor independent contractor, for example the “worker” classification in the United Kingdom, Upwork will engage the worker consistent with applicable law. Upwork may delegate the Engagement of Freelancers (and other obligations regarding Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions consistent with this Agreement.2.2.3 Custom Requirements . At Subscriber’s request, if legally permissible and subject to separate fees, Upwork will establish and administer mutually agreeable custom onboarding requirements, including, if applicable, background checks and drug tests. 2.2.4 Legal Compliance. Upwork, Employment Provider, or any third party acting to engage a Freelancer, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers. except that Upwork or Employment Provider shall not be liable for any non-compliance associated with any information provided by Subscriber.2.2.5 Work Protection Program. In connection with Engagements performed for Subscriber under this Agreement by Freelancers, Upwork will provide its Work Protection Program as described in this Section. 2.2.5.1 Freelancer Insurance Coverage. Prior to the commencement of any Engagement with a project value of $75,000 or more based on the project value as stated in the project description or for Engagements that exceed $75,000 through the addition of milestones or as a result of the hours approved in a project extension by Subscriber, Upwork will verify that the Freelancer (or the Employment Provider for Engagements using the Upwork Payroll Service) has at least $1,000,000 USD of professional liability or errors and omissions liability insurance coverage in place unless this requirement is waived by Subscriber. 2.2.5.2 Dispute Process. Before starting the Dispute Process (as described below), Subscriber shall use reasonable efforts to resolve any disputes with the Freelancer. To start the “Dispute Process” where Upwork will attempt to help Subscriber and the Freelancer resolve the dispute relating to Freelancer Services, Freelancer Work Product, or payment of Freelancer fees, for any Engagement(s), provided that for each such Engagement Subscriber shall (i) for milestone work, provide notice to Upwork by email that reasonably asserts in good faith that the Freelancer Work Product or Freelancer Services do not match the description of work product or services agreed upon, within seven days of acceptance of the milestone provided by Freelancer (or before acceptance of the milestone), or (ii) for hourly work, provide notice to Upwork by email that reasonably disputes in good faith the number of hours billed by the Freelancer within seven days of the earlier of (a) the acceptance by Subscriber of the hours worked by Freelancer, or (b) the end of the Subscriber Review Period (the deadline described in romanettes (i) and (ii), as applicable, are referred to herein as the “Work Protection Dispute Deadline”). Emails sent by Subscriber to Upwork in connection with the Dispute Process must be sent to work-protection-disputes@upwork.com. If Subscriber, with Upwork’s assistance, is unable to resolve the dispute to its satisfaction, including specifically to recover amounts from the Freelancer in an amount satisfactory to Subscriber, Upwork will provide Subscriber with a credit to use on Upwork equal to the amount disputed in connection with the disputed Freelancer Services or Freelancer Work Product up to the total amount paid by Subscriber (including applicable Service Fees, but net of any monies returned or to be returned to Subscriber by the Freelancer) in connection with the disputed services or work product (the “Work Protection Credit”). provided, however that Subscriber assigns in writing the right to Upwork to recover damages from the Freelancer. By accepting the Work Protection Credit, Subscriber agrees that it thereby automatically assigns to Upwork the right to recover damages from the Freelancer to the extent of the amount of the Work Protection Credit. To the extent that Subscriber is harmed beyond the amount of the Work Protection Credit, Subscriber retains the right to pursue recovery of any excess damages from the Freelancer. The Work Protection Credit will be provided at the “Team” level in Subscriber’s account or to Subscriber’s general account if no “Team” exists and will expire upon the earlier of (a) three months after the provision of such credit in Subscriber’s account or (b) termination of the Agreement. 2.2.5.3 Limitations on Work Protection. The Work Protection Program does not apply to Freelancer Work Product or Freelancer Services provided by BYO Freelancers or in cases where Subscriber has waived the insurance requirement described in Section 2.2.5.1 (Freelancer Insurance Coverage). For avoidance of doubt, the parties agree that (i) Freelancers are solely responsible for Freelancer Services and Freelancer Work Product. and (ii) the Work Protection Program is provided to Subscriber as a monetary remedy only and no guarantee is being made by Upwork with respect to Freelancer Work Product or Freelancer Services. Notwithstanding any other provision in this Agreement, Upwork (a) is not obligated to provide the credits described in this Section and may terminate this Agreement with 30 days prior notice to Subscriber if Upwork reasonably determines that allegations made by Subscriber under the Work Protection Program have not been made in good faith, and (b) is not obligated to provide the credits in this Section if Subscriber does not start the Dispute Process by the Work Protection Dispute Deadline. 2.3 Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating Platform Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement. 2.4 Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork under romanette (i), (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement will remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User under romanette (ii), (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival). 2.5 Freelancer Services. 2.5.1 Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber can dispute the Freelancer billing entries as described by this Section. The Freelancer invoice will cover the billing period that begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing records and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform at the end of the Subscriber Review Period, and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform. 2.5.2 Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked at the time Subscriber is invoiced for the work, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber. 2.5.3 Milestone Work. For Engagements where Freelancer Payments are tied to completing milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone. 2.5.4 Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.2.6 On-Site Engagements . Compliance with Worker Safety Laws. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.2.7 Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein. (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services. (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services. (iv) transmit information that identifies or relates to natural persons or confidential financial information through the Platform. (v) submit or post Platform Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person. (vii) submit or post Platform Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post Platform Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs. (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks. (viii) attempt to gain unauthorized access to the Services or its systems or networks. or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s Platform Content, it is permitted to monitor Platform Content and reserves the right to delete any Platform Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.2.8 Upgrading/Downgrading. If Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes and directs Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six-month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it may not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier. For Downgrades from a Compliance product, when a Freelancer contract is opened in the lower service tier as described in this Section, the new contract will be set up with the same worker classification applied as it was under the Compliance product.<ol> <li> FEES AND PAYMENTS. </li> </ol>3.1 Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.3.2 Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed. 3.3 Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services. 3.4 Fees Related to Upwork Payroll Services. The flat rate Service Fees set forth in the Order Form for BYO Freelancers and Platform Freelancers only applies to Freelancers located in the United States who are engaged using Upwork Payroll Services. A separate Upwork Payroll Fee, which varies by country, will apply to international Freelancer Engagements. For Upwork Payroll Service Engagements with respect to Freelancers located outside of the United States, the Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer as further detailed in Section 6.3 (Upwork Payroll Services).3.5 Taxes. All fees and charges payable in connection with this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes (e.g., VAT or GST), Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork will consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement. 3.6 Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment terms in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal. 3.7 Non-Circumvention. If Subscriber engages (or directs a third party to engage) the services of a Platform Freelancer that Subscriber found on the Platform through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber or, if never engaged by Subscriber through the Platform, within two years after the Platform Freelancer is first identified by Subscriber on the Platform, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages that Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision does not apply to (i) BYO Freelancers or (ii) Freelancers responding independently and without direct solicitation to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).<ol> <li> TERM AND TERMINATION. </li> </ol>4.1 Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form unless sooner terminated in accordance with the terms of this Master Subscription Agreement.4.2 Termination for Cause. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due. 4.3 Post-Termination Obligations.If Subscriber’s subscription to the Services or this Agreement ends early for any reason other than Subscriber’s termination pursuant to Section 4.2 (Termination for Cause), then, in addition to other amounts Subscriber may owe Upwork, Subscriber will be responsible for paying any unpaid Subscription Fees associated with the remainder of the current Term. 4.4 Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement. <ol> <li> INTELLECTUAL PROPERTY. </li> </ol> 5.1 Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.5.2 Platform Content. By submitting, uploading, or posting (including through Program Management Services) content (including text, images, video, audio, and other materials or information) to Upwork or the Platform for the purposes of such content being displayed or otherwise made available to users on the Platform or to the public (collectively “Platform Content”), Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable, perpetual, and transferable license to use, display, modify, reproduce, distribute, store, and prepare derivative works of such Platform Content to provide, expand, and promote the Services. For avoidance of doubt, the term “Platform Content” does not include Freelancer Work Product or Subscriber’s Confidential Information. Subscriber understands and acknowledges that Subscriber is solely responsible for all Platform Content and that Subscriber is the poster of the Platform Content and is responsible for any Platform Content, including any harms caused to Upwork, Subscriber, another user, or a third party by such Platform Content. 5.3 User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.5.4 Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.<ol> <li> REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS. </li> </ol> 6.1 Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established. (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder. (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms. and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.6.2 Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including the substantive terms of posts, the selection of a Freelancer, the decision to contract with a Freelancer, and the performance or receipt of Freelancer Services or provisioning of Freelancer Work Product. (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services. (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto. (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion. (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate, or what those rates will be. (vi) Upwork will not provide Freelancer with training or any equipment, tools, labor, or materials needed to complete their work. (vii) Upwork does not provide the premises at which the Freelancer will perform the work. (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute except for the dispute assistance described in Section 2.2.5 (Work Protection Program). (ix) Upwork is not an employer of or joint employer or integrated or single enterprise with any independent contractor Freelancer or Subscriber. and (x) unless otherwise agreed as part of the relevant Engagement, independent contractor Freelancers may hire employees or engage contractors or subcontractors (at his or her sole expense) to assist with providing the Freelancer Services. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform. the ability of Freelancers to deliver the Freelancer Services. or that Subscriber or Freelancer can or will actually complete a transaction. 6.3 Upwork Payroll Services. If, pursuant to Section 2.2.1 (Worker Classification), Upwork determines that the appropriate classification for a Freelancer should be as an employee, then Subscriber directs Upwork to hire that Freelancer via Upwork’s Payroll Service. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. Subscriber directs and authorizes Upwork to, on Subscriber’s behalf, cancel or revoke any Independent Contractor Agreements offered to Freelancers in the United States by Subscriber so that an employment offer can be made. In addition to Subscriber’s responsibilities set forth in this Agreement, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started. (ii) absent exigent circumstances, (a) provide at least 72 hours’ advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination. otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements. and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave. 6.4 Actions Affecting Freelancers. Subscriber agrees that it will not request or allow a Freelancer to commence work before the worker classification process (including contracting, if applicable) is complete and both Freelancer and Subscriber have been informed of the result. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an Affiliate of Subscriber. (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor or otherwise act inconsistent with the independent contractor classification. and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the worker classification of a Freelancer without prior written approval from Upwork. 6.5 Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their profiles, portfolios, resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform, is intended to be illustrative only and is not intended to be a guarantee or warranty by Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information. 6.6 Disclaimer. UPWORK, ITS AFFILIATES, PARTNERS, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.<ol> <li> CONFIDENTIALITY. </li> </ol> 7.1 Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential. (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission. (iii) exclusively use such Confidential Information for its intended purpose. and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.7.2 Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement. Subscriber and Upwork further acknowledge receipt of this notice under 18 U.S.C § 1833(b)(1) and that an individual will not be held criminally or civilly liable under any Federal or State trade secret law for disclosing a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney. and (ii) solely to report or investigate a suspected violation of law. or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. 7.3 Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the confidentiality terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession. 7.4 Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.<ol> <li> INDEMNIFICATION. </li> </ol> 8.1 Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights of a third party due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork. (ii) any modification to the Platform made by Subscriber. (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined. (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement. (v) Platform Content. (vi) Freelancer Services. or (vii) Freelancer Work Product.8.2 Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under the Fair Labor Standards Act, the Internal Revenue Code, state wage and hour law or any other law. (ii) the failure of Upwork or Employment Provider to make, when due, a payment to a Freelancer related to this Agreement. (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations. or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.8.3 Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its Affiliates and their directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment. (ii) the misuse or unauthorized use of the Platform. (iii) Subscriber’s Platform Content. (iv) the misclassification of a Freelancer under the Fair Labor Standards Act, the Internal Revenue Code, state wage and hour law or any other law based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber. (v) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber. (vi) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services. or (vii) Subscriber’s breach of its obligations in Section 6.4 (Actions Affecting Freelancers). 8.4 Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement. (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice. and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim. Indemnifying Party is not permitted to enter into any settlement with respect to a Claim other than one for purely money paid by Indemnifying Party with a full release of liability with respect to Indemnified Party without Indemnified Party’s prior written consent, which will not be unreasonably withheld.<ol> <li> LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS OR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR (I) AMOUNTS DUE UPWORK FROM SUBSCRIBER UNDER THIS AGREEMENT, (II) AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO INDEMNIFICATION OBLIGATIONS HEREIN AND (III) BREACHES OF CONFIDENTIALITY UNDER SECTION 7.1 (CONFIDENTIALITY) WITH RESPECT TO CONFIDENTIAL INFORMATION, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR AN AMOUNT GREATER THAN THE TOTAL FEES PAID BY SUBSCRIBER TO UPWORK DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR WHICH LIABILITY IS SOUGHT TO BE IMPOSED. SUBSCRIBER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE UNDER THIS AGREEMENT ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.</li> <li> MISCELLANEOUS. </li> </ol> 10.1 Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork. and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.10.2 Insurance. Upwork shall maintain at minimum the following types and limits of insurance at its own expense at all times during the Term:(i) Commercial General Liability covering products/operations, bodily injury, property damage, and personal injury with limits of $1,000,000 per occurrence and $2,000,000 in the aggregate.(ii) Automobile Liability with a combined single limit of $1,000,000 for bodily injury and property damage covering both hired and non-owned automobiles used by Upwork to provide Services to Subscriber under this Agreement.(iii) Statutory Workers Compensation coverage as required by state law with employer’s liability limits of at least $1,000,000 per claim and $1,000,000 in the aggregate(iv) Errors and Omissions coverage including network security and privacy liability that includes third parties with limits of at least $10,000,000 per claim and in the aggregate. The foregoing policies will be issued on an occurrence basis and provided by a carrier with a rating of at least A-VII. The existence of these insurance policies will neither limit nor expand Upwork’s liability hereunder. Upon Subscriber’s request, Upwork will provide Subscriber with a certification evidencing the coverage described in this Section.10.3 Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement. 10.4 Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws. All disputes arising out of this Agreement between Upwork and Subscriber will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber and Upwork hereby consent to the personal and exclusive jurisdiction and venue of these courts and waive any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum. 10.5 Assignment. Neither party will be permitted to assign this agreement to a third party other than an Affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party. 10.6 Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties. provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. 10.7 Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences. 10.8 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties. 10.9 Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights. 10.10 Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail to legalnotices@upwork.com, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt. 10.11 Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. 10.12 Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers. 10.13 Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. 10.14 Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled. 10.15 Private Branding. Upwork is hereby authorized to display Subscriber’s name and logo on the internal-facing custom-branded enterprise portal that Upwork creates for Subscriber hereunder. Master Subscription Agreement (Compliance) Version 4.2 Effective September 9, 2020 Download Table of Contents <ol> </ol> MASTER SUBSCRIPTION AGREEMENT This Master Subscription Agreement governs each Order Form (collectively, the “Agreement”) entered into by Upwork Global Inc. (“Upwork”) and the subscriber identified in the Order Form (“Subscriber”). Any term used in this Master Subscription Agreement that is defined in the Order Form and is not otherwise defined herein will have the meaning ascribed to it in the Order Form. The parties hereby agree: <ol> <li> DEFINITIONS. The following terms will have the meanings ascribed to the below when used in this Agreement:</li> </ol>1.1 “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber or Upwork (as applicable), whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber or Upwork (as applicable).1.2 “Authorized Users” means Subscriber’s representatives who are permitted to access and use the Platform on Subscriber’s behalf. 1.3 “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to receive such Confidential Information.1.4 “BYO Freelancer” ” means a Freelancer that Subscriber brings to Upwork’s Platform that is not a registered freelancer on the Platform.1.5 “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.1.6 “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. For the purposes of Upwork’s indemnities owed to Subscriber hereunder, the term “Claims” excludes Excluded Claims.1.7 “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure. or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party. (b) were already known by the receiving party. (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure. or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.1.8 “Custom Compliance Costs” means all third-party costs incurred by Upwork, its Affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or applicable law.1.9 “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.1.10 “Employment Provider” means Upwork’s third-party employment provider(s) that employ Freelancers classified as employees in conjunction with Upwork Payroll Services.1.11 “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.1.12 “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.1.13 “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments as further described in Section 3.1 (Enterprise Billing Services).1.14 “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of a Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) any of the following situations to the extent caused by incomplete or inaccurate information provided by Subscriber (including Subscriber’s failure to timely update information) or Subscriber’s acts or omissions: (a) Upwork’s misclassification of a Freelancer. (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations. or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer.1.15 “Freelancer” means a user that advertises and provides services via the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers, regardless of their classification.1.16 “Freelancer Information” means any information regarding a Freelancer on the Platform.1.17 “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including, if applicable, expenses authorized by Subscriber or required by law.1.18 “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.1.19 “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber, including the Subscriber’s project post and description on the Platform.1.20 “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.1.21 “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-premium. For avoidance of doubt, the parties agree that the Independent Contractor Agreement constitutes Upwork’s Confidential Information.1.22 “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.1.23 “Platform” means the website located at www.upwork.com, including any pages tailored to or viewable by a specific client thereon (e.g., private talent clouds).1.24 “Platform Content” has the meaning given to it in Section 5.2.1.25 “Platform Freelancer” means a Freelancer that is not a BYO Freelancer. 1.26 “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.1.27 “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.1.28 “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.1.29 “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generate interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing Services will not alter or remove any Subscriber responsibilities under the Agreement.1.30 “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, and occupation, in addition to taxes incurred on transactions between Upwork and its Affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.1.31 “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.1.32 “Term” has the meaning ascribed to it in the Order Form.1.33 “UTC” means Universal Time Coordinated.1.34 “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.1.35 “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.<ol> <li> PLATFORM AND SERVICES. </li> </ol>2.1 Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find, communicate with, and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting and instructing Authorized Users to protect passwords and login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.2.2 Compliance Services.2.2.1 Worker Classification. Upwork will determine the appropriate worker classification (e.g., independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on many factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.2.2.2 Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor, (ii) hire the Freelancer as an employee through Upwork Payroll Services, or (iii) if the classification is neither employment nor independent contractor, for example the “worker” classification in the United Kingdom, Upwork will engage the worker consistent with applicable law. Upwork may delegate the Engagement of Freelancers (and other obligations regarding Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions consistent with this Agreement.2.2.3 Custom Requirements . At Subscriber’s request, if legally permissible and subject to separate fees, Upwork will establish and administer mutually agreeable custom onboarding requirements, including, if applicable, background checks and drug tests. 2.2.4 Legal Compliance. Upwork, Employment Provider, or any third party acting to engage a Freelancer, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers. except that Upwork or Employment Provider shall not be liable for any non-compliance associated with any information provided by Subscriber. 2.3 Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating Platform Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement. 2.4 Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork under romanette (i), (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement will remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User under romanette (ii), (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival). 2.5 Freelancer Services. 2.5.1 Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber can dispute the Freelancer billing entries as described by this Section. The Freelancer invoice will cover the billing period that begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing records and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform at the end of the Subscriber Review Period, and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform. 2.5.2 Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked at the time Subscriber is invoiced for the work, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber. 2.5.3 Milestone Work. For Engagements where Freelancer Payments are tied to completing milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone. 2.5.4 Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.2.6 On-Site Engagements . Compliance with Worker Safety Laws. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.2.7 Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein. (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services. (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services. (iv) transmit information that identifies or relates to natural persons or confidential financial information through the Platform. (v) submit or post Platform Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person. (vii) submit or post Platform Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post Platform Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs. (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks. (viii) attempt to gain unauthorized access to the Services or its systems or networks. or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s Platform Content, it is permitted to monitor Platform Content and reserves the right to delete any Platform Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.2.8 Upgrading/Downgrading. If Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes and directs Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six-month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it may not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier. For Downgrades from a Compliance product, when a Freelancer contract is opened in the lower service tier as described in this Section, the new contract will be set up with the same worker classification applied as it was under the Compliance product.<ol> <li> FEES AND PAYMENTS. </li> </ol>3.1 Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.3.2 Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed. 3.3 Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services. 3.4 Fees Related to Upwork Payroll Services. The flat rate Service Fees set forth in the Order Form for BYO Freelancers and Platform Freelancers only applies to Freelancers located in the United States who are engaged using Upwork Payroll Services. A separate Upwork Payroll Fee, which varies by country, will apply to international Freelancer Engagements. For Upwork Payroll Service Engagements with respect to Freelancers located outside of the United States, the Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer as further detailed in Section 6.3 (Upwork Payroll Services).3.5 Taxes. All fees and charges payable in connection with this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes (e.g., VAT or GST), Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork will consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement. 3.6 Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment terms in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal. 3.7 Non-Circumvention. If Subscriber engages (or directs a third party to engage) the services of a Platform Freelancer that Subscriber found on the Platform through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber or, if never engaged by Subscriber through the Platform, within two years after the Platform Freelancer is first identified by Subscriber on the Platform, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages that Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision does not apply to (i) BYO Freelancers or (ii) Freelancers responding independently and without direct solicitation to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).<ol> <li> TERM AND TERMINATION. </li> </ol>4.1 Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form unless sooner terminated in accordance with the terms of this Master Subscription Agreement.4.2 Termination for Cause. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due. 4.3 Post-Termination Obligations.If Subscriber’s subscription to the Services or this Agreement ends early for any reason other than Subscriber’s termination pursuant to Section 4.2 (Termination for Cause), then, in addition to other amounts Subscriber may owe Upwork, Subscriber will be responsible for paying any unpaid Subscription Fees associated with the remainder of the current Term. 4.4 Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement. <ol> <li> INTELLECTUAL PROPERTY. </li> </ol> 5.1 Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.5.2 Platform Content. By submitting, uploading, or posting (including through Program Management Services) content (including text, images, video, audio, and other materials or information) to Upwork or the Platform for the purposes of such content being displayed or otherwise made available to users on the Platform or to the public (collectively “Platform Content”), Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable, perpetual, and transferable license to use, display, modify, reproduce, distribute, store, and prepare derivative works of such Platform Content to provide, expand, and promote the Services. For avoidance of doubt, the term “Platform Content” does not include Freelancer Work Product or Subscriber’s Confidential Information. Subscriber understands and acknowledges that Subscriber is solely responsible for all Platform Content and that Subscriber is the poster of the Platform Content and is responsible for any Platform Content, including any harms caused to Upwork, Subscriber, another user, or a third party by such Platform Content. 5.3 User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.5.4 Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.<ol> <li> REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS. </li> </ol> 6.1 Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established. (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder. (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms. and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.6.2 Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including the substantive terms of posts, the selection of a Freelancer, the decision to contract with a Freelancer, and the performance or receipt of Freelancer Services or provisioning of Freelancer Work Product. (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services. (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto. (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion. (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate, or what those rates will be. (vi) Upwork will not provide Freelancer with training or any equipment, tools, labor, or materials needed to complete their work. (vii) Upwork does not provide the premises at which the Freelancer will perform the work. (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute except for the dispute assistance described in Section 2.2.5 (Work Protection Program). (ix) Upwork is not an employer of or joint employer or integrated or single enterprise with any independent contractor Freelancer or Subscriber. and (x) unless otherwise agreed as part of the relevant Engagement, independent contractor Freelancers may hire employees or engage contractors or subcontractors (at his or her sole expense) to assist with providing the Freelancer Services. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform. the ability of Freelancers to deliver the Freelancer Services. or that Subscriber or Freelancer can or will actually complete a transaction. 6.3 Upwork Payroll Services. If, pursuant to Section 2.2.1 (Worker Classification), Upwork determines that the appropriate classification for a Freelancer should be as an employee, then Subscriber directs Upwork to hire that Freelancer via Upwork’s Payroll Service. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. Subscriber directs and authorizes Upwork to, on Subscriber’s behalf, cancel or revoke any Independent Contractor Agreements offered to Freelancers in the United States by Subscriber so that an employment offer can be made. In addition to Subscriber’s responsibilities set forth in this Agreement, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started. (ii) absent exigent circumstances, (a) provide at least 72 hours’ advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination. otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements. and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave. 6.4 Actions Affecting Freelancers. Subscriber agrees that it will not request or allow a Freelancer to commence work before the worker classification process (including contracting, if applicable) is complete and both Freelancer and Subscriber have been informed of the result. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an Affiliate of Subscriber. (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor or otherwise act inconsistent with the independent contractor classification. and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the worker classification of a Freelancer without prior written approval from Upwork. 6.5 Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their profiles, portfolios, resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform, is intended to be illustrative only and is not intended to be a guarantee or warranty by Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information. 6.6 Disclaimer. UPWORK, ITS AFFILIATES, PARTNERS, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.<ol> <li> CONFIDENTIALITY. </li> </ol> 7.1 Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential. (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission. (iii) exclusively use such Confidential Information for its intended purpose. and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.7.2 Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement. Subscriber and Upwork further acknowledge receipt of this notice under 18 U.S.C § 1833(b)(1) and that an individual will not be held criminally or civilly liable under any Federal or State trade secret law for disclosing a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney. and (ii) solely to report or investigate a suspected violation of law. or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. 7.3 Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the confidentiality terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession. 7.4 Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.<ol> <li> INDEMNIFICATION. </li> </ol> 8.1 Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights of a third party due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork. (ii) any modification to the Platform made by Subscriber. (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined. (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement. (v) Platform Content. (vi) Freelancer Services. or (vii) Freelancer Work Product.8.2 Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under the Fair Labor Standards Act, the Internal Revenue Code, state wage and hour law or any other law. (ii) the failure of Upwork or Employment Provider to make, when due, a payment to a Freelancer related to this Agreement. (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations. or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.8.3 Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its Affiliates and their directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment. (ii) the misuse or unauthorized use of the Platform. (iii) Subscriber’s Platform Content. (iv) the misclassification of a Freelancer under the Fair Labor Standards Act, the Internal Revenue Code, state wage and hour law or any other law based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber. (v) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber. (vi) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services. or (vii) Subscriber’s breach of its obligations in Section 6.4 (Actions Affecting Freelancers). 8.4 Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement. (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice. and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim. Indemnifying Party is not permitted to enter into any settlement with respect to a Claim other than one for purely money paid by Indemnifying Party with a full release of liability with respect to Indemnified Party without Indemnified Party’s prior written consent, which will not be unreasonably withheld.<ol> <li> LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS OR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR (I) AMOUNTS DUE UPWORK FROM SUBSCRIBER UNDER THIS AGREEMENT, (II) AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO INDEMNIFICATION OBLIGATIONS HEREIN AND (III) BREACHES OF CONFIDENTIALITY UNDER SECTION 7.1 (CONFIDENTIALITY) WITH RESPECT TO CONFIDENTIAL INFORMATION, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR AN AMOUNT GREATER THAN THE TOTAL FEES PAID BY SUBSCRIBER TO UPWORK DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR WHICH LIABILITY IS SOUGHT TO BE IMPOSED. SUBSCRIBER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE UNDER THIS AGREEMENT ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.</li> <li> MISCELLANEOUS. </li> </ol> 10.1 Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork. and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.10.2 Insurance. Upwork shall maintain at minimum the following types and limits of insurance at its own expense at all times during the Term:(i) Commercial General Liability covering products/operations, bodily injury, property damage, and personal injury with limits of $1,000,000 per occurrence and $2,000,000 in the aggregate.(ii) Automobile Liability with a combined single limit of $1,000,000 for bodily injury and property damage covering both hired and non-owned automobiles used by Upwork to provide Services to Subscriber under this Agreement.(iii) Statutory Workers Compensation coverage as required by state law with employer’s liability limits of at least $1,000,000 per claim and $1,000,000 in the aggregate(iv) Errors and Omissions coverage including network security and privacy liability that includes third parties with limits of at least $10,000,000 per claim and in the aggregate. The foregoing policies will be issued on an occurrence basis and provided by a carrier with a rating of at least A-VII. The existence of these insurance policies will neither limit nor expand Upwork’s liability hereunder. Upon Subscriber’s request, Upwork will provide Subscriber with a certification evidencing the coverage described in this Section.10.3 Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement. 10.4 Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws. All disputes arising out of this Agreement between Upwork and Subscriber will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber and Upwork hereby consent to the personal and exclusive jurisdiction and venue of these courts and waive any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum. 10.5 Assignment. Neither party will be permitted to assign this agreement to a third party other than an Affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party. 10.6 Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties. provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. 10.7 Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences. 10.8 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties. 10.9 Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights. 10.10 Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail to legalnotices@upwork.com, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt. 10.11 Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. 10.12 Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers. 10.13 Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. 10.14 Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled. 10.15 Private Branding. Upwork is hereby authorized to display Subscriber’s name and logo on the internal-facing custom-branded enterprise portal that Upwork creates for Subscriber hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Master Subscription Agreement by their duly authorized officers or representatives. Independent Contractor Agreement Version 2.0 Effective January 27, 2020 Download Table of Contents <ol> </ol> UTG INDEPENDENT CONTRACTOR AGREEMENT UPWORK CONFIDENTIAL THIS UTG INDEPENDENT CONTRACTOR AGREEMENT (this “Agreement”) is entered into by and between Upwork Talent Group Inc. (“UTG”), a Delaware corporation with its principal place of business at 2625 Augustine Drive, Suite 601, Santa Clara, CA 95054, and Freelancer, as of the date Freelancer accepts this Agreement via the Site (the “Effective Date”). UTG and Freelancer are sometimes referred to collectively herein as the “Parties” and individually as a “Party.” “Upwork Client” refers to [UPWORK ENTERPRISE COMPLIANCE CLIENT]. UTG and Freelancer agree as follows:1.BACKGROUND AND INITIAL OBLIGATIONS. 1.1 Use of Platform. UTG and Freelancer agree to use the marketplace for services owned and operated by Upwork Global Inc. (“Upwork”) at the domain and sub-domains of http://www.upwork.com (the “Site”) for the designation of, delivery of and payment for Freelancer’s services under this Agreement. UTG and Freelancer specifically incorporate into this Agreement and agree to be bound by the Site’s Terms of Service available at https://www.upwork.com/legal/ (“Terms of Service”), as they may be amended from time to time. Capitalized terms not defined in this Agreement have the meanings given to them in the Terms of Service. To the extent that any provision of this Agreement conflicts with a provision of the Terms of Service, the applicable provision of this Agreement will control.1.2 Identity of Freelancer. The “Freelancer” is the self-employed individual or entity whose legal name and address are listed in the Tax Information section of the Account on the Site of the User accepting this Agreement via the Site.a. Any person who accepts this Agreement on behalf of a corporation, limited company or other legal entity represents and warrants that they accept this Agreement on behalf of such legal entity and that they have the legal authority and authorization to contractually bind that legal entity. A Freelancer that is a legal entity further represents and warrants that it is in good standing under the laws of the jurisdiction(s) where Freelancer conducts business and will promptly provide proof of its organization, registration and good standing upon request. b. If Freelancer was offered the Project as an Agency Member, Freelancer represents and warrants that it is accepting this Agreement on behalf of the Agency whose Agency Account it is associated with and that Freelancer has the legal authority and authorization to do so. In such cases, except as used in this paragraph, the term “Freelancer” in this Agreement refers to and includes the Agency.1.3 Work for Upwork Client. UTG has contracted with Freelancer to provide certain services or deliverables to the Upwork Client (the “Project”). Freelancer acknowledges and agrees that the Upwork Client is an express third-party beneficiary of this Agreement, including without limitation the Arbitration Provision contained in section 15, below, having the right to enforce this Agreement in accordance with its terms.1.4 UPWORK CLIENT CONFIDENTIALITY. THE IDENTITY OF THE UPWORK CLIENT AND THE NATURE OF THE UPWORK CLIENT’S WORK ARE UPWORK CONFIDENTIAL INFORMATION AND THE UPWORK CLIENT CONFIDENTIAL INFORMATION UNDER THIS AGREEMENT. FREELANCER AGREES NOT TO DISCLOSE THIS INFORMATION AT ANY TIME, DURING OR AFTER THE PROJECT, WITHOUT ADVANCE WRITTEN APPROVAL BY THE UPWORK CLIENT. 1.5 The Project. Freelancer agrees to complete the Project described in the contract offer on the Site related to this Project and to comply with all terms or specifications about the work to be completed agreed to by Freelancer on the Site (collectively, “Project Terms”). Freelancer further agrees that Project Terms are incorporated into this Agreement by this reference.1.6 Use of the Upwork Site. Freelancer agrees to use the Site, including Upwork Messages, for any communications with UTG, to record time spent working on hourly contracts, to request payment for contract milestones, and to submit any other invoice under this Agreement. Freelancer further understands and agrees that in order to receive payment for the Project all invoicing and payment must be completed through the Site.1.7 Upwork Enterprise. Freelancer agrees that Freelancer’s profile may be included in the Upwork Client’s Talent Cloud network on the Site for future consideration by the Upwork Client.1.8 Upwork Enterprise Compliance. For clarity, and for the avoidance of doubt, this Independent Contractor Agreement exclusively applies to Upwork Enterprise Compliance clients where UTG is the agent of record.1.9 Information Provided by Freelancer.Freelancer represents and warrants that the information is and has been provided to Upwork or UTG is accurate and that Freelancer will provide notice of any material changes, including, without limitation, changes to Freelancer’s location, insurance coverage, tax residence or identification number, or changes to Freelancer’s business licensure, registration, or similar status.2. PROJECT AND PERFORMANCE OF SERVICES. 2.1 Project Work Product. Freelancer agrees to complete the Project specified by the Upwork Client in the Project Terms and to deliver the Work Product (defined below) to the Upwork Client by any deadline(s) set forth in the Project Terms or such other time as Freelancer may agree. UTG will pay Freelancer for Work Product in accordance with this Agreement and the Project Terms. As used in this Agreement, the term “Work Product” means any and all work and work product developed by Freelancer in completing the Project or delivered to the Upwork Client in performing the Project. This Agreement is only for the Work Product completed in accordance with this Agreement, and UTG will not pay Freelancer a regular salary or any minimum regular payment.2.2 Performance of Services. Freelancer will perform the services necessary to complete the Project in a timely and professional manner, consistent with industry standards, at a location, place and time (including specific hours), that Freelancer deems appropriate. Freelancer has the sole right to determine and control, and will determine and control, the manner and means of performing the Project. In completing the Project, Freelancer will provide and use Freelancer’s own equipment, tools, and other materials at Freelancer’s own expense. UTG is the agent of record for contracting purposes and is not involved in Freelancer’s work performance or completion of the Work Product. Freelancer is not performing services for this Project on Upwork’s behalf. Freelancer will perform the Project Terms without training from UTG or Upwork Client regarding the project performance. Freelancer will not perform services at UTG’s physical business location. Freelancer will not include in the Work Product any material that is owned by, copyrighted by, or that requires licensing, permission or authorization from a third party without the advance written permission of the Upwork Client.2.3 Agreements with Upwork Client. Freelancer acknowledges that Freelancer has contracted to perform work for the Upwork Client, and that material conditions of UTG agreeing to contract with Freelancer are that Freelancer maintain the Upwork Client’s confidentiality and that the Upwork Client owns all Work Product created by Freelancer while providing services to the Upwork Client, all as provided in this Agreement. Freelancer acknowledges that Upwork Client may require Freelancer to enter into a direct agreement addressing confidentiality and Work Product obligations as a condition to accepting the Project and performing services under it. In such instances, Freelancer agrees that it will not accept any Project from the Upwork Client or otherwise provide any services to Upwork Client unless and until Freelance reviews, accepts and enters into any such direct agreement required by the Upwork Client.3. COMPENSATION. UTG will, subject to the terms and conditions of this Agreement, pay Freelancer the fee specified in the Project Terms. Payment will be made by UTG to Freelancer through the Site in accordance with the applicable provisions of the Terms of Service. Freelancer agrees that UTG will make payment under this section provided the Upwork Client’s account is current at the time the Freelancer’s payment is due. Freelancer also agrees that the Upwork Client is responsible for payment of the fee specified in the Project Terms if the Upwork Client’s account is terminated or suspended. Freelancer will be responsible for all expenses incurred in performing services under this Agreement.4. INDEPENDENT CONTRACTOR RELATIONSHIP. Freelancer’s relationship with UTG, the Upwork Client and any of their parents, subsidiaries, affiliates, or successors will be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship.4.1 No Employment or Agency. Freelancer acknowledges and agrees that Freelancer (a) is not an employee of UTG, the Upwork Client or any of their parents, subsidiaries, affiliates, or successors. (b) is not the agent of UTG, the Upwork Client or any of their parents, subsidiaries, affiliates, or successors. (c) is not authorized to make or hold itself out as authorized to make any statement, representation, contract, or commitment on behalf of UTG, the Upwork Client or any of their parents, subsidiaries, affiliates, or successors. and (d) is not and will not be entitled to any of the benefits that UTG, the Upwork Client or any of their parents, subsidiaries, affiliates, or successors makes available to its employees, such as group insurance, stock plans, profit-sharing or retirement benefits (and waives the right to receive any such benefits).4.2 Tax and Regulatory Compliance. Freelancer is and will at all times remain solely responsible for all tax returns and payments required to be filed with or made to any national, federal, state, or local tax authority with respect to Freelancer’s performance of services and/or receipt of fees under this Agreement. If applicable, UTG will report amounts paid to Freelancer by filing a Form 1099 with the Internal Revenue Service (IRS), as required by law. Freelancer agrees to complete the tax information fields on the Site and, as requested by UTG, to complete an IRS Form W-9, Form W-8 or other tax form. Freelancer accepts sole and exclusive liability for complying with all applicable national, federal, state, provincial and local laws, including laws governing self-employed individuals and other businesses, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to Freelancer under this Agreement. Where such coverage is required by law, Freelancer represents and warrants that Freelancer has appropriate workers’ compensation coverage or, if it does not already have such coverage, agrees to obtain coverage before beginning work under this Agreement. Neither UTG nor any Upwork Client will withhold or make payments for social security, any pension or social insurance plan, unemployment insurance or disability insurance contributions, any employer health taxes or other payroll taxes, including penalties and interest, or obtain workers’ compensation insurance on Freelancer’s behalf. Freelancer hereby agrees to make any such required payments and obtain any required insurance and to indemnify and defend and hold harmless UTG and the Upwork Client from and against any and all such taxes or contributions, including penalties and interest. Freelancer agrees to provide proof of payment of appropriate taxes on any fees paid to Freelancer under this Agreement upon reasonable request by UTG.4.3 Withholding. Upon execution of this Agreement and thereafter as may be reasonably requested by UTG, Freelancer shall complete and provide to UTG any form reasonably requested by UTG or required by a relevant taxing authority in order to certify that UTG is not required to withhold from Freelancer’s fees or pay on Freelancer’s behalf any income or other tax withholding on any payment of fees under this Agreement. In the event any such tax is required by law to be withheld by UTG on compensation payable under this Agreement, UTG may terminate this Agreement immediately. If UTG elects to continue the Agreement, UTG will have the right to pay such tax on behalf of Freelancer to the appropriate governmental authority, offset the compensation by such tax and furnish Freelancer with proof of payment of such tax. Any such tax required to be withheld will be an expense of and borne by Freelancer. 5. INTELLECTUAL PROPERTY RIGHTS. 5.1 Definition of Inventions and Intellectual Property Rights. “Invention” means any copyrightable material, notes, records, ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, techniques, or trade secrets conceived, authored, discovered, invented, developed or reduced to practice by Freelancer, solely or in collaboration with others, during the term of this Agreement, and all Intellectual Property Rights therein. “Intellectual Property Rights” means all trade secrets, copyrights, trademarks, mask work rights, patents, moral rights, and other intellectual property rights recognized by the laws of any country.5.2 Definition of use of Background Technology. As used in this Agreement, the term “Background Technology” means all Inventions developed by Freelancer other than in the course of providing services hereunder and all Inventions acquired or licensed by Freelancer that Freelancer uses in performing services under this Agreement or incorporates in the Work Product. Freelancer will disclose in advance in writing to the Upwork Client and in the Project Terms any Background Technology that Freelancer proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. The Upwork Client will have the right to reject the use or incorporation of such Background Technology in the Upwork Client’s sole and absolute discretion. If Freelancer discloses no Background Technology, Freelancer warrants that it will not incorporate any Background Technology into Work Product. Freelancer will separately provide, with each delivery of Work Product to the Upwork Client, a third-party bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and will provide, for each item of Background Technology identified, (a) the name and any associated version number (b) the applicable license or licensing terms, (c) whether the item has been modified by Freelancer, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Project Terms, Freelancer agrees that it will not incorporate into Work Product or otherwise deliver to the Upwork Client any software code for which the use or distribution of the code will create (or purport to create) obligations for the Upwork Client to grant any rights or immunities under the Upwork Client’s Intellectual Property Rights to a third party, including, without limitation, any obligation that the Work Product or the Upwork Client software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.5.3 Ownership and Assignment of Work Product. Upon receipt of payment of undisputed amounts from UTG, Freelancer hereby unconditionally and irrevocably assigns to the Upwork Client, without further consideration, all right, title and interest worldwide in and to all Work Product, including without limitation all Intellectual Property Rights in and to the Work Product. Except as set forth below, Freelancer retains no rights to use the Work Product and agrees not to challenge the validity of the Upwork Client’s exclusive rights in and ownership of the Work Product, including without limitation all Intellectual Property Rights therein. Freelancer hereby waives unconditionally and irrevocably for the benefit of the Upwork Client and its successors and assigns, without further consideration, any and all moral or similar rights in or to any Work Product (including without limitation, any rights of identification of authorship. any rights of approval. or restrictions or limitations on use, subsequent modification or development of derivative works) in which copyright may subsist in each jurisdiction throughout the world, to the extent that such rights may be waived in each respective jurisdiction. Freelancer agrees to, at the request of the Upwork Client and without any right to further consideration, sign all lawful papers, make all rightful oaths and execute all divisional, continuing, continuation-in-part or reissue applications, all assignments, all registration applications and all other instruments or papers, to carry into full force and effect, the assignment hereby made or intended to be made and generally do everything necessary or helpful for title to the Work Product, and all Intellectual Property Rights therein, to be clearly and exclusively owned and held by the Upwork Client. Freelancer hereby grants to the Upwork Client a power of attorney to execute any of the aforementioned documents on Freelancer’s behalf in order to give effect to the assignment hereby made.5.4 License to Background Technology. Freelancer hereby automatically upon receipt of payment of undisputed amounts from UTG, and without further consideration, grants to the Upwork Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable, non-terminable and world-wide right, with rights to sublicense through multiple levels or tiers of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated or used in the Work Product. 5.5 License to or Waiver of Other Rights. If Freelancer has any right to the Work Product that cannot be assigned by Freelancer to the Upwork Client, Freelancer hereby automatically upon receipt of payment of undisputed amounts from UTG unconditionally and irrevocably grants to the Upwork Client, without further consideration and during the term of such rights, an exclusive, even as to Freelancer, irrevocable, perpetual, non-terminable, worldwide, fully paid up and royalty-free license, with rights to sublicense through multiple levels or tiers of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale and exercise any and all such rights. If Freelancer has any rights to the Work Product that cannot be assigned or licensed to the Upwork Client, Freelancer hereby automatically upon receipt of payment of undisputed amounts from UTG unconditionally and irrevocably, without further consideration, waives the enforcement of such rights around the world, and all claims and causes of action of any kind against the Upwork Client, its successors and assigns, or related to the Upwork Client’s customers, with respect to such rights, and agrees, at UTG or the Upwork Client’s request and expense, to consent to and join in any action to enforce such rights.5.6 Assistance. Freelancer agrees to, at the request of the Upwork Client and without any right to further consideration, to assist the Upwork Client in every way, during and after the term of this Agreement, to obtain and enforce United States and foreign Intellectual Property Rights relating to the Work Product, in all countries, including to sign all lawful papers, make all rightful oaths and execute all divisional, continuing, continuation-in-part or reissue applications, all assignments, all registration applications and all other instruments or papers, to carry into full force and effect the assignment hereby made or intended to be made and generally do everything necessary or helpful for title to the Work Product, and all Intellectual Property Rights therein, to be clearly and exclusively owned and held by the Upwork Client, including testifying in a suit or other proceeding regarding such Inventions. Freelancer hereby grants to the Upwork Client a power of attorney to execute any of the aforementioned documents on Freelancer’s behalf in order to give effect to the assignment hereby made. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable. Freelancer further agrees that Freelancer’s obligations under this Section 5.6 shall continue after termination of this Agreement.6. CONFLICTING PROJECTS. UTG and the Upwork Client acknowledge that Freelancer may enter into other contracts and accept work from any other persons or entities during the term of this Agreement. however, Freelancer agrees not to enter into a contract or accept an obligation that would conflict with the provisions of this Agreement or prevent Freelancer from meeting its obligations under this Agreement. Freelancer represents and warrants that there is no such contract or obligation in effect as of the Effective Date. Freelancer further agrees not to disclose to, deliver to, or induce UTG or the Upwork Client to use any confidential information that belongs to anyone other than UTG, the Upwork Client or Freelancer. 7. CONFIDENTIAL INFORMATION OF THE UPWORK CLIENT. Freelancer agrees that during the term of this Agreement and thereafter, except as expressly authorized in writing by the Upwork Client, Freelancer (a) will not use or permit the use of Client Confidential Information (defined below) in any manner or for any purpose not expressly set forth in this Agreement. (b) will not disclose, lecture upon, publish, or permit others to disclose, lecture upon, or publish any such Client Confidential Information to any third party without first obtaining the Upwork Client’s express written consent on a case-by-case basis. (c) will limit access to Client Confidential Information to Freelancer Personnel who need to know such information in connection with the Project and who are likewise bound by non-use and non-disclosure obligations at least as restrictive as those set forth in this section. and (d) will not remove any tangible embodiment of any Client Confidential Information from the Upwork Client’s premises without the Upwork Client’s prior written consent. “Client Confidential Information” means and includes, but is not limited to, all Work Product and all non-public information related to the business of the Upwork Client or any of its parents, subsidiaries, affiliates, or successors and the actual or anticipated research and development of the Upwork Client or any of its parents, subsidiaries, affiliates, or successors, including without limitation (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, databases, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques. (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers. (iii) information regarding the skills and compensation of the Upwork Client’s employees, contractors, and any other Freelancers. (iv) the existence of any business discussions, negotiations, or agreements between the Upwork Client and any third party. and (v) all such information related to any third party that is disclosed during the course of the Project. Confidential Information will not include any such information which Freelancer can establish (x) was publicly known or made generally available prior to the time of disclosure to Freelancer. (y) becomes publicly known or made generally available after disclosure to Freelancer through no wrongful action or inaction of Freelancer. or (z) is in the rightful possession of Freelancer, without confidentiality obligations, at the time of disclosure as shown by Freelancer’s then-contemporaneous written records. provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception. To the extent Freelancer (1) collects, stores, transmits, discloses, processes, and/or otherwise uses information that identifies a particular individual (“Personal Information”) or (2) accesses Upwork Client’s computer systems or networks in providing services under this Agreement, Freelancer will comply with the privacy and security requirements in Exhibit 1, and will ensure Freelancer Personnel comply with such requirements, for the purpose of conforming with applicable laws.8. CONFIDENTIAL INFORMATION OF UTG. Freelancer agrees that during the term of this Agreement and thereafter, except as expressly authorized in writing by UTG, it (a) will not use or permit the use of UTG Confidential Information (defined below) in any manner or for any purpose not expressly set forth in this Agreement. (b) will not disclose, lecture upon, publish, or permit others to disclose, lecture upon, or publish any such UTG Confidential Information to any third party without first obtaining UTG’s express written consent on a case-by-case basis. (c) will limit access to UTG Confidential Information to Freelancer Personnel who need to know such information in connection with their work for UTG and who are likewise bound by non-use and non-disclosure obligations at least as restrictive as those set forth in this section. and (d) will not remove any tangible embodiment of any UTG Confidential Information from UTG’s premises without UTG’s prior written consent. “UTG Confidential Information” means and includes, but is not limited to, all non-public information related to UTG’s and/or its affiliates’, subsidiaries’, or parent company’s business and its/their actual or anticipated research and development, including without limitation (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, databases programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques. (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers. (iii) information regarding the skills and compensation of UTG’s, its affiliates’, subsidiaries’, or parent company’s employees, contractors, and any other Freelancers. (iv) the existence of any business discussions, negotiations, or agreements between UTG, its affiliates, subsidiaries, or parent company, and any third party. and (v) all such information related to any third party that is disclosed during the course of the Project. Confidential Information will not include any such information which Freelancer can establish (x) was publicly known or made generally available prior to the time of disclosure to Freelancer. (y) becomes publicly known or made generally available after disclosure to Freelancer through no wrongful action or inaction of Freelancer. or (z) is in the rightful possession of Freelancer, without confidentiality obligations, at the time of disclosure as shown by Freelancer’s then-contemporaneous written records. provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception. To the extent Freelancer (1) collects, stores, transmits, discloses, processes, and/or otherwise uses information that identifies a particular individual (“Personal Information”) or (2) accesses Upwork Client’s computer systems or networks in providing services under this Agreement, Freelancer will comply with the privacy and security requirements in Exhibit 1, and will ensure Freelancer Personnel comply with such requirements, for the purpose of conforming with applicable laws.Immunity for Certain Disclosures. As set forth in the U.S. Defend Trade Secrets Act, 18 U.S.C. section 1833, please note that a disclosure of trade secrets or other Confidential Information is immune from prosecution or civil action under U.S. Federal or State trade secret law if the disclosure (a) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney. and (ii) solely for the purpose of reporting or investigating a suspected violation of law. or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.Provision Applicable to New York City. Nothing in this Agreement, including but not limited to its provisions relating to confidentiality, prohibits (or should be construed as prohibiting) any Freelancer residing in, or engaged to provide services in, New York City under this Agreement from disclosing the terms of this Agreement to the Director of the Office of Labor Standards.9. FREELANCER’S AGENTS AND SUBCONTRACTORS.Freelancer is free to rely on its employees or subcontractors to assist with performance of services under this Agreement. If at any time Freelancer has any employee, independent contractor or other person or entity performing work on Freelancer’s behalf in connection with the Project, however, Freelancer agrees Freelancer remains responsible for the quality of the Work Product and agrees to the following representations and obligations:9.1 Project and Performance of Services. a. Work Product Ownership, Confidential Information and Other Contractual Provisions. Before any employee, independent contractor or other person or entity employed or engaged by Freelancer (collectively, “Freelancer Personnel”) performs any services in connection with the Project or has access to any Client Confidential Information or UTG Confidential Information, Freelancer will enter into a binding written agreement with such Freelancer Personnel that (i) contains provisions with the same effect as the Agreement sections titled “Intellectual Property Rights,” “Confidential Information of Upwork Client” and “Confidential Information of UTG”. and (ii) specifies that Freelancer Personnel do not have any employment relationship with Upwork Client or UTG or any of their parents, subsidiaries, affiliates or successors and are not entitled to or eligible for any benefits that Upwork Client or UTG or any of their parents, subsidiaries, affiliates or successors may make available to any of their respective employees. In addition, Freelancer will limit access to Client Confidential Information and UTG Confidential Information to Freelancer Personnel who have a reasonable need to have such access in order to perform services for the Project.b. Freelancer Personnel Not Employed by Upwork Client or UTG. Freelancer acknowledges and agrees that Freelancer Personnel are not engaged by, supervised by, directed by or assigned work by Upwork Client, UTG, or any of their respective parents, subsidiaries or affiliates. Freelancer further acknowledges and agrees that neither Upwork Client nor UTG determine or control, or have the right to determine or control, any terms and conditions of employment or engagement of any Freelancer Personnel, including without limitation their selection, hiring, work assignment, work hours, compensation, work methods, discipline, working conditions, or termination. For the avoidance of doubt, Freelancer Personnel are not employees of Upwork Client or UTG or any of their respective parents, subsidiaries or affiliates. Freelancer will be fully responsible for the acts, work and safety of Freelancer Personnel at all times.c. Freelancer Personnel Compensation, Taxes and Benefits. In accordance with all applicable law, Freelancer will be solely responsible for determining and paying all compensation of Freelancer Personnel and will be solely responsible for and pay any taxes, contributions and/or benefits owed to or on behalf of Freelancer Personnel. Neither Upwork Client nor UTG nor any of their respective parents, subsidiaries or affiliates will be liable to Freelancer or to Freelancer Personnel for Freelancer’s failure to perform Freelancer’s compensation, tax or benefit obligations with respect to Freelancer Personnel. Freelancer will indemnify, defend and hold Upwork Client and UTG and any of their parents, subsidiaries, affiliates or successors harmless from and against all such taxes, contributions and benefits and will comply with all associated governmental regulations, including the filing of all necessary reports and tax returns.d. Background Screening of Freelancer Personnel. If requested by UTG or Upwork Client and permitted by applicable law, Freelancer will conduct reasonable background screening measures with respect to Freelancer Personnel (the “Screenings”) and will be responsible for all costs and fees relating to such Screenings. Freelancer will conduct Screenings in accordance with applicable laws and will obtain written authorization from Freelancer Personnel to share the results of such screening with Upwork Client and/or UTG upon request.e. Work Diary. Freelancer agrees to record and invoice through Work Diary on the Site all work performed by any Freelancer Personnel for Projects performed on a time and material or hourly basis under this Agreement. Freelancer acknowledges that UTG has no obligation to pay Freelancer, and may not approve payment of Freelancer, for time spent on hourly Projects that is not recorded in the Work Diary.9.2 Freelancer Responsible for Freelancer Personnel. a. Employees. With respect to Freelancer Personnel, Freelancer is solely responsible for and will comply with all applicable employment laws, including without limitation laws governing workers’ compensation, unemployment and disability insurance, health insurance and other employee benefits, wage and hour, employment discrimination and harassment, leaves of absence, and health and safety. Freelancer is responsible for providing meal and rest breaks to employees in accordance with any applicable laws and for complying with all paycheck requirements. If applicable, Freelancer will also comply with all licensing and other regulatory steps necessary to employ workers. Freelancer assumes full responsibility for any claims brought by, on behalf of or in connection with Freelancer’s employees (or other Freelancer Personnel alleging they are or should have been classified as employees) and agrees to indemnify, defend and hold Upwork Client, UTG and any of their parents, subsidiaries, affiliates and successors harmless from and against any such claims. b. Independent Contractors. With respect to Freelancer Personnel, Freelancer is solely responsible for properly classifying and engaging any Freelancer Personnel as independent contractors or as its employees and will comply with all applicable laws defining or governing the independent contractor or employment relationship. Freelancer warrants and represents that any Freelancer Personnel treated as an independent contractor is properly classified and assumes full responsibility for any claims brought by, on behalf of or in connection with Freelancer Personnel working as independent contractors and agrees to indemnify, defend and hold Upwork Client, UTG and any of their parents, subsidiaries, affiliates and successors harmless from and against any such claims. 9.3 Intellectual Property Rights. Freelancer agrees that all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets conceived, discovered, developed or reduced to practice by Freelancer Personnel, solely or in collaboration with others, during the term of this Agreement that relate in any manner to the business of Upwork Client will belong exclusively to Upwork Client. Freelancer will ensure that Freelancer Personnel execute appropriate agreements with Freelancer to confirm such ownership, narrowed if and to the extent required by applicable law to be enforceable in the applicable jurisdiction, and to confirm that Freelancer Personnel will not challenge the validity of Upwork Client’s ownership in Work Product, including without limitation the Intellectual Property Rights in Work Product. 9.4 Indemnification. In addition to the indemnification obligations set forth elsewhere in this Agreement, Freelancer will defend, indemnify, and hold harmless UTG, Upwork Client and each of their parents, subsidiaries, affiliates and successors, individually and collectively, against any damage, cost, loss or expense arising from any claim, suit, proceeding, investigation, government inquiry or other action brought against UTG, Upwork Client or any of their parents, subsidiaries, affiliates or successors (a) alleging that any Freelancer Personnel is an employee of UTG, Upwork Client or any of their parents, subsidiaries, affiliates or successors or (b) arising out of the failure (whether negligent, willful, intentional, or unintended in cases of strict liability) of Freelancer to comply with this Agreement or any applicable law or regulation. 10. FREELANCER’S COVENANTS, REPRESENTATIONS AND WARRANTIES. Freelancer hereby covenants, represents and warrants to UTG and to Upwork Client that (a) Freelancer will perform the services necessary to perform the Project in a timely and professional manner, consistent with industry standards, and all in accordance with this Agreement. (b) except any pre-approved Background Technology used or incorporated as part of the Work Product, the Work Product will be an original work of Freelancer and any third parties will have executed assignment of rights prior to being allowed to participate in the development of the Work Product. (c) the Work Product will fully conform to the requirements and terms set forth in this Agreement, including any Project Terms. (d) the Work Product will be free from material errors, faults and defects of any kind. (e) the Work Product will not contain any virus, Trojan horse, malicious code, trap door, time bomb, or shutdown mechanism, or any other software code or functionality that will “lock” or prevent the use of or access to the Work Product or otherwise cause the Work Product to cease functioning, or which is otherwise designed to harm any systems, servers, computers or websites of Upwork Client, UTG or any of their parents, subsidiaries, affiliates or successors. (f) neither the Work Product nor any element thereof does or will infringe or misappropriate the Intellectual Property Rights of any third party. (g) neither the Work Product nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, or encumbrances. (h) Freelancer will not grant, directly or indirectly, any rights or interest whatsoever in the Work Product to third parties other than the Upwork Client. (i) Freelancer has full right and power to enter into and perform this Agreement without the consent of any third party. (j) Freelancer has an unqualified right to grant the license to all Background Technology as set forth in the section titled “License to Background Technology”. (k) if Freelancer is required to possess or maintain any license, registration, or other authorization necessary to provide the Work Product or to provide independent contractor services under this Agreement, then it possess such a license, registration, or other authorization and will maintain such license, registration, or other authorization during the term of this Agreement. (l) Freelancer will not use or incorporate as part of the Work Product any Open Source Code other than as expressly authorized in this Agreement. (m) Freelancer will promptly update changes to Freelancer’s contact information as outlined in the Terms of Service. and (n) Freelancer will comply with all laws and regulations applicable to Freelancer’s obligations under this Agreement.11. UTG DISCLAIMER. LIMITATION OF LIABILITY. 11.1 Disclaimer. UTG MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PROJECT, THE PROJECT TERMS, OR IN CONNECTION WITH UTG’S PERFORMANCE OF ITS OBLIGATIONS AND RESPONSIBILITIES HEREUNDER, AND FREELANCER ACKNOWLEDGES AND AGREES THAT THE SAME ARE BEING PROVIDED OR PERFORMED HEREUNDER “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. UTG HEREBY EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, WRITTEN, ORAL OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND/OR VALIDITY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.11.2 Limitation of Liability. IN NO EVENT WILL UTG, UPWORK CLIENT OR ANY OF THEIR PARENTS, SUBSIDIARIES, AFFILIATES, OR SUCCESSORS BE LIABLE TO FREELANCER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION, LOST PROFITS), EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THEY WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY UNDER WHICH ANY SUCH DAMAGES ARE SOUGHT. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS AND LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.12. INDEMNIFICATION. Freelancer will defend, indemnify, and hold harmless UTG, Upwork Client or any of their parents, subsidiaries, affiliates, or successors, individually and collectively, against any and all damage, cost, loss or expense arising from any claim, suit or proceeding, actual or alleged, brought or asserted against UTG, Upwork Client and/or any of their parents, subsidiaries, affiliates, or successors (a) alleging that any Work Product that Freelancer delivers pursuant to this Agreement or the Project infringes upon any intellectual property rights. (b) alleging that any Work Product that Freelancer delivers pursuant to this Agreement or the Project misappropriates any trade secrets of UTG, Upwork Client and any of their parents and affiliates, or any third party. (c) arising from or related to Freelancer’s breach of any representation or warranty. (d) arising from or related to Freelancer’s failure to pay any taxes or fees due as a result of Freelancer’s work under this Agreement. (e) arising from or related to Freelancer’s or Freelancer’s personnel’s failure to comply with any applicable law or regulation. or (f) arising from or related to Freelancer’s breach of any other terms of this Agreement.13. INSURANCE. Freelancer, at its sole cost and expense, will maintain appropriate insurance in accordance with any applicable laws and regulations and in no event less than industry standards, including but not limited to unemployment and workers’ compensation insurance. Upon request, Freelancer will furnish proof of insurance in a form acceptable to UTG and the Upwork Client.14.TERM AND TERMINATION. 14.1 Term. The term of this Agreement (the “Term”) will begin on the Effective Date and will terminate on the first to occur of: (a) the end date in the Project Terms. or (b) the date that the Project is fully completed and thus closed on the Site. 14.2 Termination with Cause.Either Party has the right to terminate this Agreement immediately in the event that the other Party has materially breached the Agreement and fails to cure such breach within 15 calendar days of receipt of notice by the non-breaching Party, setting forth in reasonable detail the nature of the breach. UTG may also terminate this Agreement immediately, in writing, in its sole discretion in the event of Freelancer’s material breach of section 5, 6, 7, 8 or 9 (including subsections), or if Freelancer engages in unlawful activities while rendering the services specified in the Project.14.3 Return of Property. Upon termination of the Agreement or upon UTG’s or Upwork Client’s request at any other time, Freelancer will deliver to UTG or Upwork Client, as applicable, all of UTG’s or the Upwork Client’s property together with all copies thereof and any other documents or materials that contain any Work Product, Client Confidential Information or UTG Confidential Information.14.4 Survival. The following provisions will survive the expiration or termination of this Agreement for any reason: sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14.3, 14.4, 15, and 16, each including subsections. For the avoidance of doubt, Freelancer acknowledges and agrees that the license rights and other rights granted by Freelancer in section 5 above are perpetual in nature and will continue in perpetuity notwithstanding the expiration or termination of this Agreement, regardless of the cause, and the expiration or termination of this Agreement will not affect, limit, or otherwise impair such rights. 15. DISPUTES. ARBITRATION PROVISION. 15.1 Dispute Process. The Parties agree to resolve any claim, dispute, or controversy that arises out of or relates to (a) this Agreement, (b) Freelancer’s relationship with or work or UTG, the Upwork Client or any of their parents, subsidiaries, affiliates, or successors (each of which are express third-party beneficiaries of this Arbitration Provision), including without limitation any claimed employment, or the termination of any relationship referred to in this Agreement, and/or (c) the Site or the Site Services (each, a “Claim”) in accordance with this section 15 (sometimes referred to as “Arbitration Provision”).15.2 Informal Dispute Resolution. Before serving a demand for arbitration of a Claim, or otherwise seeking relief for any Claim, Freelancer and UTG agree to first notify the other Party or Parties (the “Notice”). The Parties will then seek informal resolution of the Claim. The Notice must be in writing and include Freelancer’s name, pertinent account information, a brief description of the Claim, and the drafting Party’s contact information, so that the receiving Party may evaluate and attempt to informally resolve the Claim. The receiving Party will have 60 calendar days from the date of its receipt of the Notice to informally resolve the Claim, which, if successful, will avoid the need for further action. Notice to UTG of the Claim will be sent to Upwork Global Inc. Headquarters as listed on its Site (https://www.upwork.com/about/contact/), Attn: Legal or legalnotices@upwork.com. Notice to the Upwork Client will be made through any means by which Freelancer communicates with the Upwork Client about the Work Product. Notice to Freelancer will be provided to the most current physical or email address on the Site. 15.3 Binding Arbitration and Class Action/Jury Trial Waiver (Does Not Apply to Freelancers Located Outside the United States and Its Territories). This Arbitration Provision applies to all Freelancers except Freelancers located outside of the United States and its territories. In the unlikely event the Parties are unable to resolve a Claim within 60 calendar days of the receipt of the applicable Notice, Freelancer, UTG and any of their parents, subsidiaries, affiliates, or successors, and Upwork Client and any of its parents, subsidiaries, affiliates, or successors agree to resolve the Claim by final and binding arbitration before an arbitrator from JAMS. JAMS may be contacted at www.jamsadr.com. If for any reason JAMS will not administer the arbitration, either Party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.a. Scope of Arbitration Agreement and Conduct of ArbitrationArbitration as provided in this Arbitration Provision is governed by the United States Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). This Arbitration Provision applies to any and all Claims (as defined in section 15.1). For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Project, the Terms of Service, escrow payments or agreements, any payments or monies Freelancer claims are due, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, worker classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, retaliation, discrimination or harassment and all claims arising under the Defend Trade Secrets Act, the Civil Rights Act of 1964, 42 U.S.C. §1981, the Rehabilitation Act, the Civil Rights Acts of 1866 and 1871, the Civil Rights Act of 1991, the Pregnancy Discrimination Act, the Equal Pay Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act, the Affordable Care Act, the Genetic Information Non-Discrimination Act, the Uniformed Services Employment and Reemployment Rights Act, the Worker Adjustment and Retraining Notification Act, all state statutes or regulations addressing the same or similar subject matters, and all other federal, state or local legal claims arising out of or relating to Freelancer’s relationship with or work for UTG or the Upwork Client or any of their parents, subsidiaries, affiliates, or successors and/or the termination of that relationship. The Upwork Client is an express third party beneficiary and may enforce the agreement to the full extent as though it were a signatory.Disputes between the parties that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Agreement. Except as otherwise provided herein, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures under the Optional Expedited Arbitration Procedures then in effect for JAMS. Notwithstanding the foregoing, any Claims by Freelancers that allege employment or worker classification disputes will be conducted within 25 miles of where Freelancer is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures” or “JAMS Employment Arbitration Rules.” The Parties agree that any Party will have the right to appear at the arbitration by telephone and/or video rather than in person.The Parties will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, Freelancer will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, with UTG to make up the difference, if any. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.This Arbitration Provision does not apply to litigation to which Freelancer is a party that is or was already pending in a state or federal court or arbitration before the Effective Date. This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits. Either Freelancer or UTG may apply to a court of competent jurisdiction for provisional injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief. the arbitrator will render the final judgment in the matter. Nothing in this Arbitration Provision prevents Freelancer from making a report to or filing a claim or charge with a government agency, including without limitation the U.S. Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. UTG will not retaliate against Freelancer for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.b. Interpretation and Enforcement of this Arbitration ProvisionThis Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims and replaces all prior agreements between Freelancer and UTG regarding the arbitration of disputes covered by this Arbitration Provision. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator will have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including, except as otherwise provided in this Arbitration Provision, the enforceability, revocability, scope, or validity of the Arbitration Provision or whether any portion of the Arbitration Provision is void or voidable. All such matters will be decided by an arbitrator and not by a court. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection c, below, of this Arbitration Provision is deemed to be unenforceable, the Parties agree that this Arbitration Provision will be enforced to the fullest extent permitted by law. c. Class and Collective Action Waiver Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects the Parties’ ability to participate in class or collective actions. The Parties agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS Rules, disputes regarding the enforceability, revocability, scope, or validity or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. Freelancer will not be retaliated against, disciplined or threatened with discipline as a result of exercising any rights under Section 7 of the National Labor Relations Act, if applicable, by filing or participating in a class or collective action in any forum. However, any Party may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims. d. Right to Opt Out of the Arbitration Provision. Freelancer may opt out of the Arbitration Provision by notifying UTG in writing within 30 calendar days of the Effective Date. To opt out, Freelancer must send a written notification to UTG to Upwork Global Inc. headquarters as listed on its Site (https://www.upwork.com/about/contact/), Attn: Legal or legalnotices@upwork.com that includes (a) Freelancer’s account username, (b) Freelancer’s name, (c) Freelancer’s address, (d) Freelancer’s telephone number, (e) Freelancer’s email address, and (f) a statement that Freelancer wishes to opt out of the Arbitration Provision. Freelancer understands that Freelancer has the right to consult with counsel of Freelancer’s choice concerning this Agreement and the Arbitration Provision. 16. GENERAL PROVISIONS 16.1 Choice of Law. Except as otherwise specifically provided herein, this Agreement and any Claims will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). provided, however, that any Claims by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resided at the time the Project was performed. 16.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Section 15.3(c) governs severability of the Class Action Waiver.16.3 No Assignment. This Agreement, and the Parties’ respective rights and obligations herein, may not be assigned or otherwise transferred by either Party without the other’s prior written consent, and any attempted assignment or transfer in violation of the foregoing will be null and void. provided, however, UTG may assign this Agreement, its rights and its obligations to an affiliate or to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. The terms of this Agreement will be binding upon assignees. 16.4 Injunctive Relief. Freelancer acknowledges that, because its services are personal and unique and because Freelancer will have access to Confidential Information of UTG and Upwork Client, any breach of this Agreement by Freelancer would cause irreparable injury to UTG or Upwork Client for which monetary damages would not be an adequate remedy and, therefore, will entitle UTG or Upwork Client to injunctive relief (including specific performance). The rights and remedies provided to each Party in this Agreement are cumulative and in addition to any other rights and remedies available to such Party at law or in equity not otherwise waived by this Agreement.16.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.16.6 Export. Freelancer agrees not to export, directly or indirectly, any U.S. technical data acquired from UTG, Upwork or Upwork Client, or any products utilizing such data, to countries outside the United States, because such export could be in violation of the United States export laws or regulations.16.7 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by Freelancer and UTG.16.8 Electronic Acceptance. The Parties expressly agree that this Agreement may be electronically signed and accepted, and that the Site’s record of Freelancer’s acceptance will be treated, for purposes of validity, enforceability and admissibility, the same as written signatures.THE PARTIES AGREE THAT BY ACCEPTING THIS AGREEMENT VIA THE SITE, FREELANCER HAS BOUND ITSELF TO THIS AGREEMENT AND CREATED AN AGREEMENT THAT IS ENFORCEABLE AGAINST ALL PARTIES. FREELANCER ACKNOWLEDGES AND AGREES THAT FREELANCER HAS BEEN GIVEN THE OPPORTUNITY TO OBTAIN INDEPENDENT LEGAL ADVICE WITH RESPECT TO THIS AGREEMENT BEFORE ACCEPTING IT, AND THAT FREELANCER VOLUNTARILY AGREES TO BE BOUND BY THIS AGREEMENT WITH FULL KNOWLEDGE AND UNDERSTANDING OF ITS TERMS. EXHIBIT A Privacy and Information Security Exhibit To the extent Freelancer (1) collects, stores, transmits, discloses, processes, and/or otherwise uses information that identifies a particular individual (“Personal Information”) or (2) accesses Upwork Client’s computer systems or networks in providing services under this Agreement, Freelancer will comply with the privacy and security requirements in this Exhibit for the purpose of conforming with applicable laws regarding protection of Personal Information. Freelancer is expected to be familiar with such laws and take whatever additional security measures may be warranted by the particular circumstances. Privacy Requirements 1. Personal Information: Freelancer will collect, store, transmit, disclose, process, destroy, or otherwise process Personal Information only (a) for purposes of providing the Services and as otherwise instructed by Upwork Client, (b) in accordance with this Exhibit 1, and (c) in compliance with applicable law. In the event of any conflict between applicable law and this Exhibit 1, Freelancer will comply with applicable law. Personal Information includes any information related to an identified or identifiable natural person where such information is protected under applicable data protection law. 2. Notification Of Security Incident: Freelancer will notify Upwork Client of any actual or suspected security incident involving Personal Information as soon as possible after becoming aware of the incident, but never later than 24 hours after learning of the incident. Freelancer will cooperate with Upwork Client on any investigation of the security incident. A “security incident” is a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information transmitted, stored or otherwise processed. 3. Security Standards: Freelancer will utilize reasonable and physical, technical and administrative safeguards to protect Personal Information and comply at all times with applicable laws concerning the protection and securing of Personal Information. For as long as Freelancer has access to Personal Information or to Upwork Client’s systems/networks, Freelancer will update security practices and controls at Freelancer’s own cost. 4. Malware Protection: Freelancer will use up-to-date, commercially reasonable virus protection software (i.e. anti-virus) for the duration of the Engagement. 5. Device and Software Management: Before the start of the Engagement and at all times while Freelancer accesses any Personal Information or Upwork Client’s systems/networks, Freelancer will: <ol> <li>Use up-to-date software and firmware that includes any current patches and updates and that is configured to automatically update/patch;</li> <li>Use a firewall to protect Freelancer’s own information systems;</li> <li>Use strong, unique passwords of at least 8 characters (with a mix of letters, numbers, and special characters where possible) for access to devices and applications;</li> <li>Use password-activated screensavers to lock hardware or devices after a period of inactivity;</li> <li>Configure devices and applications to require new passwords at least every 90 days;</li> <li>Ensure that multiple failed login attempts (no more than 10) to devices and applications result in lockout (check security settings on applications). and</li> <li>Disable Bluetooth on devices (except when use is necessary). </li> </ol> 6. Secure Practices: <ol> <li>Freelancer will only connect to trusted, private wireless networks that use complex passwords not known or easily accessible to the public (e.g., not Starbucks).</li> <li>Freelancer will not share hardware or devices with other people (roommates, spouses, children, etc.) while performing the Engagement until all Personal Information is removed/destroyed from the hardware or device. Hardware and devices shall be housed in secure places when not in use.</li> <li>Freelancer will not download and install unsolicited software. Software downloaded to hardware or devices that connect to Upwork Client’s systems/network could be used to distribute malware.</li> <li>Freelancer will not share passwords used to access Personal Information with anyone or post passwords near hardware or devices.</li> </ol> 7. Disposal: When no longer needed for the Engagement, and always upon completion of the Engagement or at Upwork Client’s request, Freelancer will return all Personal Information received, compiled or created in the course of the Engagement. Further, Freelancer will securely delete any and all copies of such Personal Information (including backups) in Freelancer’s possession (e.g., hard copies shredded, desktop/email trashcan emptied, etc.). Personal Information in electronic form will be deleted with a “wiping” program that overwrites data on the hardware. paper documents containing Personal Information will be shredded. Deleting files using standard keyboard commands is not sufficient because data may remain on the computer’s hard drive. Wiping programs are available at most office supply stores. Freelancer understands that a failure to delete Personal Information in Freelancer’s possession after completion of the Engagement may constitute theft of Personal Information.8. Data Protection: <ol> <li>Freelancer will not disclose Personal Information to a subcontractor without Upwork Client’s prior, written consent. Freelancer will not disclose Personal Information to any other third party without Upwork Client’s prior, written consent except as required by law. Freelancer will not ever sell Personal Information. Freelancer will promptly notify Upwork Client of any legally binding request for the production or disclosure of Personal Information (unless prohibited by law from doing so) to allow Upwork Client sufficient time to object to the request.</li> <li>Freelancer will not attempt to link, identify, or otherwise create a relationship between Personal Information made available to Freelancer by Upwork Client with any other data without the express authorization of Upwork Client. </li> <li>In the event Freelancer access to, or storage of, Personal Information results in the transfer of Personal Information to a country outside the country where the Personal Information originated, Freelancer will, at Upwork Client’s request and to the extent required by applicable law, take such reasonable steps as Upwork Client deems necessary (e.g., execute a data transfer agreement) to comply with any law in the country of origin that restricts the international transfer of Personal Information.</li> <li>Freelancer will cooperate with Upwork Client’s reasonable request for assistance in responding to a request to Upwork Client by an individual to exercise his or her rights under applicable data protection law, including but not limited to requests to delete Personal Information, and requests to access Personal Information. In the event Freelancer receives such a request directly from an individual concerning Personal Information in Freelancer’s possession, Freelancer will promptly forward the request to Upwork Client so that Upwork Client can respond to the individual.</li> <li>Freelancer will make available, upon Upwork Client’s reasonable request, information necessary to demonstrate compliance with this Exhibit 1 and will allow for audits or inspection by Upwork Client or its designee concerning Freelancer’s handling of Personal Information in accordance with this Exhibit 1.</li> <li>In the event the Personal Information relates to an individual located in the European Economic Area, Attachment A to this Exhibit 1 describes the nature and purpose of the processing of Personal Information, the type of Personal Information processed, and the categories of data subjects.</li> </ol>Additional information on best practices for protecting Personal Information may be found at https://www.bulkorder.ftc.gov/publications/protecting-personal-information-guide-business. Freelancer is encouraged to obtain and read a copy of this free publication. Attachment A Description Of The Processing Nature Of Processing By Freelancer: Purposes Of Processing By Freelancer: Categories Of Data Subjects Whose Personal Information Is Processed By Freelancer: Categories Of Personal Information Processed By Freelancer: Independent Contractor Agreement Premium Version 1.3 Effective April 10, 2020 Download Table of Contents <ol> </ol> UTG INDEPENDENT CONTRACTOR AGREEMENT UPWORK CONFIDENTIAL THIS UTG INDEPENDENT CONTRACTOR AGREEMENT (this “Agreement”) is entered into by and between Upwork Talent Group Inc. (“UTG”), a Delaware corporation with its principal place of business at 2625 Augustine Drive, Suite 601, Santa Clara, CA 95054, and Freelancer, as of the date Freelancer accepts this Agreement via the Site (the “Effective Date”). UTG and Freelancer are sometimes referred to collectively herein as the “Parties” and individually as a “Party.” “Upwork Client” refers to [UPWORK ENTERPRISE COMPLIANCE CLIENT]. UTG and Freelancer agree as follows:1.BACKGROUND AND INITIAL OBLIGATIONS. 1.1 Use of Platform. UTG and Freelancer agree to use the marketplace for services owned and operated by Upwork Global Inc. (“Upwork”) at the domain and sub-domains of http://www.upwork.com (the “Site”) for the designation of, delivery of and payment for Freelancer’s services under this Agreement. UTG and Freelancer specifically incorporate into this Agreement and agree to be bound by the Site’s Terms of Service available at https://www.upwork.com/legal (“Terms of Service”), as they may be amended from time to time. Capitalized terms not defined in this Agreement have the meanings given to them in the Terms of Service. To the extent that any provision of this Agreement conflicts with a provision of the Terms of Service, the applicable provision of this Agreement will control.1.2 Identity of Freelancer. The “Freelancer” is the self-employed individual or entity whose legal name and address are listed in the Tax Information section of the Account on the Site of the User accepting this Agreement via the Site.a. Any person who accepts this Agreement on behalf of a corporation, limited company or other legal entity represents and warrants that they accept this Agreement on behalf of such legal entity and that they have the legal authority and authorization to contractually bind that legal entity. A Freelancer that is a legal entity further represents and warrants that it is in good standing under the laws of the jurisdiction(s) where Freelancer conducts business and will promptly provide proof of its organization, registration and good standing upon request. b. If Freelancer was offered the Project as an Agency Member, Freelancer represents and warrants that it is accepting this Agreement on behalf of the Agency whose Agency Account it is associated with and that Freelancer has the legal authority and authorization to do so. In such cases, except as used in this paragraph, the term “Freelancer” in this Agreement refers to and includes the Agency.1.3 Work for Upwork Client. UTG has contracted with Freelancer to provide certain services or deliverables to the Upwork Client (the “Project”). Freelancer acknowledges and agrees that the Upwork Client is an express third-party beneficiary of this Agreement, including without limitation the Arbitration Provision contained in section 15, below, having the right to enforce this Agreement in accordance with its terms.1.4 UPWORK CLIENT CONFIDENTIALITY. THE IDENTITY OF THE UPWORK CLIENT AND THE NATURE OF THE UPWORK CLIENT’S WORK ARE UPWORK CONFIDENTIAL INFORMATION AND THE UPWORK CLIENT CONFIDENTIAL INFORMATION UNDER THIS AGREEMENT. FREELANCER AGREES NOT TO DISCLOSE THIS INFORMATION AT ANY TIME, DURING OR AFTER THE PROJECT, WITHOUT ADVANCE WRITTEN APPROVAL BY THE UPWORK CLIENT. 1.5 The Project. Freelancer agrees to complete the Project described in the contract offer on the Site related to this Project and to comply with all terms or specifications about the work to be completed agreed to by Freelancer on the Site (collectively, “Project Terms”). Freelancer further agrees that Project Terms are incorporated into this Agreement by this reference.1.6 Use of the Upwork Site. Freelancer agrees to use the Site, including Upwork Messages, for any communications with UTG, to record time spent working on hourly contracts, to request payment for contract milestones, and to submit any other invoice under this Agreement. Freelancer further understands and agrees that in order to receive payment for the Project all invoicing and payment must be completed through the Site.1.7 Upwork Enterprise. Freelancer agrees that Freelancer’s profile may be included in the Upwork Client’s Talent Cloud network on the Site for future consideration by the Upwork Client.1.8 Upwork Enterprise Compliance. For clarity, and for the avoidance of doubt, this Independent Contractor Agreement exclusively applies to Upwork Enterprise Compliance clients where UTG is the agent of record.1.9 Information Provided by Freelancer.Freelancer represents and warrants that the information is and has been provided to Upwork or UTG is accurate and that Freelancer will provide notice of any material changes, including, without limitation, changes to Freelancer’s location, insurance coverage, tax residence or identification number, or changes to Freelancer’s business licensure, registration, or similar status.2. PROJECT AND PERFORMANCE OF SERVICES. 2.1 Project Work Product.Freelancer agrees to complete the Project specified by the Upwork Client in the Project Terms and to deliver the Work Product (defined below) to the Upwork Client by any deadline(s) set forth in the Project Terms or such other time as Freelancer may agree. UTG will pay Freelancer for Work Product in accordance with this Agreement and the Project Terms. As used in this Agreement, the term “Work Product” means any and all work and work product developed by Freelancer in completing the Project or delivered to the Upwork Client in performing the Project. This Agreement is only for the Work Product completed in accordance with this Agreement, and UTG will not pay Freelancer a regular salary or any minimum regular payment.2.2 Performance of Services. Freelancer will perform the services necessary to complete the Project in a timely and professional manner, consistent with industry standards, at a location, place and time (including specific hours), that Freelancer deems appropriate. Freelancer has the sole right to determine and control, and will determine and control, the manner and means of performing the Project. In completing the Project, Freelancer will provide and use Freelancer’s own equipment, tools, and other materials at Freelancer’s own expense. UTG is the agent of record for contracting purposes and is not involved in Freelancer’s work performance or completion of the Work Product. Freelancer is not performing services for this Project on Upwork’s behalf. Freelancer will perform the Project Terms without training from UTG or Upwork Client regarding the project performance. Freelancer will not perform services at UTG’s physical business location. Freelancer will not include in the Work Product any material that is owned by, copyrighted by, or that requires licensing, permission or authorization from a third party without the advance written permission of the Upwork Client.2.3 Agreements with Upwork Client. Freelancer acknowledges that Freelancer has contracted to perform work for the Upwork Client, and that material conditions of UTG agreeing to contract with Freelancer are that Freelancer maintain the Upwork Client’s confidentiality and that the Upwork Client owns all Work Product created by Freelancer while providing services to the Upwork Client, all as provided in this Agreement. Freelancer acknowledges that Upwork Client may require Freelancer to enter into a direct agreement addressing confidentiality and Work Product obligations as a condition to accepting the Project and performing services under it. In such instances, Freelancer agrees that it will not accept any Project from the Upwork Client or otherwise provide any services to Upwork Client unless and until Freelance reviews, accepts and enters into any such direct agreement required by the Upwork Client.3. COMPENSATION. UTG will, subject to the terms and conditions of this Agreement, pay Freelancer the fee specified in the Project Terms. Payment will be made by UTG to Freelancer through the Site in accordance with the applicable provisions of the Terms of Service. Freelancer agrees that UTG will make payment under this section provided the Upwork Client’s account is current at the time the Freelancer’s payment is due. Freelancer also agrees that the Upwork Client is responsible for payment of the fee specified in the Project Terms if the Upwork Client’s account is terminated or suspended. Freelancer will be responsible for all expenses incurred in performing services under this Agreement.4. INDEPENDENT CONTRACTOR RELATIONSHIP. Freelancer’s relationship with UTG, the Upwork Client and any of their parents, subsidiaries, affiliates, or successors will be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship.4.1 No Employment or Agency. Freelancer acknowledges and agrees that Freelancer (a) is not an employee of UTG, the Upwork Client or any of their parents, subsidiaries, affiliates, or successors. (b) is not the agent of UTG, the Upwork Client or any of their parents, subsidiaries, affiliates, or successors. (c) is not authorized to make or hold itself out as authorized to make any statement, representation, contract, or commitment on behalf of UTG, the Upwork Client or any of their parents, subsidiaries, affiliates, or successors. and (d) is not and will not be entitled to any of the benefits that UTG, the Upwork Client or any of their parents, subsidiaries, affiliates, or successors makes available to its employees, such as group insurance, stock plans, profit-sharing or retirement benefits (and waives the right to receive any such benefits).4.2 Tax and Regulatory Compliance. Freelancer is and will at all times remain solely responsible for all tax returns and payments required to be filed with or made to any national, federal, state, or local tax authority with respect to Freelancer’s performance of services and/or receipt of fees under this Agreement. If applicable, UTG will report amounts paid to Freelancer by filing a Form 1099 with the Internal Revenue Service (IRS), as required by law. Freelancer agrees to complete the tax information fields on the Site and, as requested by UTG, to complete an IRS Form W-9, Form W-8 or other tax form. Freelancer accepts sole and exclusive liability for complying with all applicable national, federal, state, provincial and local laws, including laws governing self-employed individuals and other businesses, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to Freelancer under this Agreement. Where such coverage is required by law, Freelancer represents and warrants that Freelancer has appropriate workers’ compensation coverage or, if it does not already have such coverage, agrees to obtain coverage before beginning work under this Agreement. Neither UTG nor any Upwork Client will withhold or make payments for social security, any pension or social insurance plan, unemployment insurance or disability insurance contributions, any employer health taxes or other payroll taxes, including penalties and interest, or obtain workers’ compensation insurance on Freelancer’s behalf. Freelancer hereby agrees to make any such required payments and obtain any required insurance and to indemnify and defend and hold harmless UTG and the Upwork Client from and against any and all such taxes or contributions, including penalties and interest. Freelancer agrees to provide proof of payment of appropriate taxes on any fees paid to Freelancer under this Agreement upon reasonable request by UTG.4.3 Withholding. Upon execution of this Agreement and thereafter as may be reasonably requested by UTG, Freelancer shall complete and provide to UTG any form reasonably requested by UTG or required by a relevant taxing authority in order to certify that UTG is not required to withhold from Freelancer’s fees or pay on Freelancer’s behalf any income or other tax withholding on any payment of fees under this Agreement. In the event any such tax is required by law to be withheld by UTG on compensation payable under this Agreement, UTG may terminate this Agreement immediately. If UTG elects to continue the Agreement, UTG will have the right to pay such tax on behalf of Freelancer to the appropriate governmental authority, offset the compensation by such tax and furnish Freelancer with proof of payment of such tax. Any such tax required to be withheld will be an expense of and borne by Freelancer. 5. INTELLECTUAL PROPERTY RIGHTS. 5.1 Definition of Inventions and Intellectual Property Rights. “Invention” means any copyrightable material, notes, records, ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, techniques, or trade secrets conceived, authored, discovered, invented, developed or reduced to practice by Freelancer, solely or in collaboration with others, during the term of this Agreement, and all Intellectual Property Rights therein. “Intellectual Property Rights” means all trade secrets, copyrights, trademarks, mask work rights, patents, moral rights, and other intellectual property rights recognized by the laws of any country.5.2 Definition of use of Background Technology. As used in this Agreement, the term “Background Technology” means all Inventions developed by Freelancer other than in the course of providing services hereunder and all Inventions acquired or licensed by Freelancer that Freelancer uses in performing services under this Agreement or incorporates in the Work Product. Freelancer will disclose in advance in writing to the Upwork Client and in the Project Terms any Background Technology that Freelancer proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. The Upwork Client will have the right to reject the use or incorporation of such Background Technology in the Upwork Client’s sole and absolute discretion. If Freelancer discloses no Background Technology, Freelancer warrants that it will not incorporate any Background Technology into Work Product. Freelancer will separately provide, with each delivery of Work Product to the Upwork Client, a third-party bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and will provide, for each item of Background Technology identified, (a) the name and any associated version number (b) the applicable license or licensing terms, (c) whether the item has been modified by Freelancer, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Project Terms, Freelancer agrees that it will not incorporate into Work Product or otherwise deliver to the Upwork Client any software code for which the use or distribution of the code will create (or purport to create) obligations for the Upwork Client to grant any rights or immunities under the Upwork Client’s Intellectual Property Rights to a third party, including, without limitation, any obligation that the Work Product or the Upwork Client software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.5.3 Ownership and Assignment of Work Product. Upon receipt of payment of undisputed amounts from UTG, Freelancer hereby unconditionally and irrevocably assigns to the Upwork Client, without further consideration, all right, title and interest worldwide in and to all Work Product, including without limitation all Intellectual Property Rights in and to the Work Product. Except as set forth below, Freelancer retains no rights to use the Work Product and agrees not to challenge the validity of the Upwork Client’s exclusive rights in and ownership of the Work Product, including without limitation all Intellectual Property Rights therein. Freelancer hereby waives unconditionally and irrevocably for the benefit of the Upwork Client and its successors and assigns, without further consideration, any and all moral or similar rights in or to any Work Product (including without limitation, any rights of identification of authorship. any rights of approval. or restrictions or limitations on use, subsequent modification or development of derivative works) in which copyright may subsist in each jurisdiction throughout the world, to the extent that such rights may be waived in each respective jurisdiction. Freelancer agrees to, at the request of the Upwork Client and without any right to further consideration, sign all lawful papers, make all rightful oaths and execute all divisional, continuing, continuation-in-part or reissue applications, all assignments, all registration applications and all other instruments or papers, to carry into full force and effect, the assignment hereby made or intended to be made and generally do everything necessary or helpful for title to the Work Product, and all Intellectual Property Rights therein, to be clearly and exclusively owned and held by the Upwork Client. Freelancer hereby grants to the Upwork Client a power of attorney to execute any of the aforementioned documents on Freelancer’s behalf in order to give effect to the assignment hereby made.5.4 License to Background Technology. Freelancer hereby automatically upon receipt of payment of undisputed amounts from UTG, and without further consideration, grants to the Upwork Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable, non-terminable and world-wide right, with rights to sublicense through multiple levels or tiers of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated or used in the Work Product. 5.5 License to or Waiver of Other Rights.If Freelancer has any right to the Work Product that cannot be assigned by Freelancer to the Upwork Client, Freelancer hereby automatically upon receipt of payment of undisputed amounts from UTG unconditionally and irrevocably grants to the Upwork Client, without further consideration and during the term of such rights, an exclusive, even as to Freelancer, irrevocable, perpetual, non-terminable, worldwide, fully paid up and royalty-free license, with rights to sublicense through multiple levels or tiers of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale and exercise any and all such rights. If Freelancer has any rights to the Work Product that cannot be assigned or licensed to the Upwork Client, Freelancer hereby automatically upon receipt of payment of undisputed amounts from UTG unconditionally and irrevocably, without further consideration, waives the enforcement of such rights around the world, and all claims and causes of action of any kind against the Upwork Client, its successors and assigns, or related to the Upwork Client’s customers, with respect to such rights, and agrees, at UTG or the Upwork Client’s request and expense, to consent to and join in any action to enforce such rights.5.6 Assistance. Freelancer agrees to, at the request of the Upwork Client and without any right to further consideration, to assist the Upwork Client in every way, during and after the term of this Agreement, to obtain and enforce United States and foreign Intellectual Property Rights relating to the Work Product, in all countries, including to sign all lawful papers, make all rightful oaths and execute all divisional, continuing, continuation-in-part or reissue applications, all assignments, all registration applications and all other instruments or papers, to carry into full force and effect the assignment hereby made or intended to be made and generally do everything necessary or helpful for title to the Work Product, and all Intellectual Property Rights therein, to be clearly and exclusively owned and held by the Upwork Client, including testifying in a suit or other proceeding regarding such Inventions. Freelancer hereby grants to the Upwork Client a power of attorney to execute any of the aforementioned documents on Freelancer’s behalf in order to give effect to the assignment hereby made. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable. Freelancer further agrees that Freelancer’s obligations under this Section 5.6 shall continue after termination of this Agreement.6. CONFLICTING PROJECTS. UTG and the Upwork Client acknowledge that Freelancer may enter into other contracts and accept work from any other persons or entities during the term of this Agreement. however, Freelancer agrees not to enter into a contract or accept an obligation that would conflict with the provisions of this Agreement or prevent Freelancer from meeting its obligations under this Agreement. Freelancer represents and warrants that there is no such contract or obligation in effect as of the Effective Date. Freelancer further agrees not to disclose to, deliver to, or induce UTG or the Upwork Client to use any confidential information that belongs to anyone other than UTG, the Upwork Client or Freelancer. 7. CONFIDENTIAL INFORMATION OF THE UPWORK CLIENT. Freelancer agrees that during the term of this Agreement and thereafter, except as expressly authorized in writing by the Upwork Client, Freelancer (a) will not use or permit the use of Client Confidential Information (defined below) in any manner or for any purpose not expressly set forth in this Agreement. (b) will not disclose, lecture upon, publish, or permit others to disclose, lecture upon, or publish any such Client Confidential Information to any third party without first obtaining the Upwork Client’s express written consent on a case-by-case basis. (c) will limit access to Client Confidential Information to Freelancer Personnel who need to know such information in connection with the Project and who are likewise bound by non-use and non-disclosure obligations at least as restrictive as those set forth in this section. and (d) will not remove any tangible embodiment of any Client Confidential Information from the Upwork Client’s premises without the Upwork Client’s prior written consent. “Client Confidential Information” means and includes, but is not limited to, all Work Product and all non-public information related to the business of the Upwork Client or any of its parents, subsidiaries, affiliates, or successors and the actual or anticipated research and development of the Upwork Client or any of its parents, subsidiaries, affiliates, or successors, including without limitation (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, databases, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques. (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers. (iii) information regarding the skills and compensation of the Upwork Client’s employees, contractors, and any other Freelancers. (iv) the existence of any business discussions, negotiations, or agreements between the Upwork Client and any third party. and (v) all such information related to any third party that is disclosed during the course of the Project. Confidential Information will not include any such information which Freelancer can establish (x) was publicly known or made generally available prior to the time of disclosure to Freelancer. (y) becomes publicly known or made generally available after disclosure to Freelancer through no wrongful action or inaction of Freelancer. or (z) is in the rightful possession of Freelancer, without confidentiality obligations, at the time of disclosure as shown by Freelancer’s then-contemporaneous written records. provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception. To the extent Freelancer (1) collects, stores, transmits, discloses, processes, and/or otherwise uses information that identifies a particular individual (“Personal Information”) or (2) accesses Upwork Client’s computer systems or networks in providing services under this Agreement, Freelancer will comply with the privacy and security requirements in Exhibit 1, and will ensure Freelancer Personnel comply with such requirements, for the purpose of conforming with applicable laws.8. CONFIDENTIAL INFORMATION OF UTG. Freelancer agrees that during the term of this Agreement and thereafter, except as expressly authorized in writing by UTG, it (a) will not use or permit the use of UTG Confidential Information (defined below) in any manner or for any purpose not expressly set forth in this Agreement. (b) will not disclose, lecture upon, publish, or permit others to disclose, lecture upon, or publish any such UTG Confidential Information to any third party without first obtaining UTG’s express written consent on a case-by-case basis. (c) will limit access to UTG Confidential Information to Freelancer Personnel who need to know such information in connection with their work for UTG and who are likewise bound by non-use and non-disclosure obligations at least as restrictive as those set forth in this section. and (d) will not remove any tangible embodiment of any UTG Confidential Information from UTG’s premises without UTG’s prior written consent. “UTG Confidential Information” means and includes, but is not limited to, all non-public information related to UTG’s and/or its affiliates’, subsidiaries’, or parent company’s business and its/their actual or anticipated research and development, including without limitation (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, databases programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques. (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers. (iii) information regarding the skills and compensation of UTG’s, its affiliates’, subsidiaries’, or parent company’s employees, contractors, and any other Freelancers. (iv) the existence of any business discussions, negotiations, or agreements between UTG, its affiliates, subsidiaries, or parent company, and any third party. and (v) all such information related to any third party that is disclosed during the course of the Project. Confidential Information will not include any such information which Freelancer can establish (x) was publicly known or made generally available prior to the time of disclosure to Freelancer. (y) becomes publicly known or made generally available after disclosure to Freelancer through no wrongful action or inaction of Freelancer. or (z) is in the rightful possession of Freelancer, without confidentiality obligations, at the time of disclosure as shown by Freelancer’s then-contemporaneous written records. provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception. Immunity for Certain Disclosures. As set forth in the U.S. Defend Trade Secrets Act, 18 U.S.C. section 1833, please note that a disclosure of trade secrets or other Confidential Information is immune from prosecution or civil action under U.S. Federal or State trade secret law if the disclosure (a) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney. and (ii) solely for the purpose of reporting or investigating a suspected violation of law. or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.Provision Applicable to New York City. Nothing in this Agreement, including but not limited to its provisions relating to confidentiality, prohibits (or should be construed as prohibiting) any Freelancer residing in, or engaged to provide services in, New York City under this Agreement from disclosing the terms of this Agreement to the Director of the Office of Labor Standards.9. FREELANCER’S AGENTS AND SUBCONTRACTORS.Freelancer is free to rely on its employees or subcontractors to assist with performance of services under this Agreement. If at any time Freelancer has any employee, independent contractor or other person or entity performing work on Freelancer’s behalf in connection with the Project, however, Freelancer agrees Freelancer remains responsible for the quality of the Work Product and agrees to the following representations and obligations:9.1 Project and Performance of Services. a. Work Product Ownership, Confidential Information and Other Contractual Provisions. Before any employee, independent contractor or other person or entity employed or engaged by Freelancer (collectively, “Freelancer Personnel”) performs any services in connection with the Project or has access to any Client Confidential Information or UTG Confidential Information, Freelancer will enter into a binding written agreement with such Freelancer Personnel that (i) contains provisions with the same effect as the Agreement sections titled “Intellectual Property Rights,” “Confidential Information of Upwork Client” and “Confidential Information of UTG”. and (ii) specifies that Freelancer Personnel do not have any employment relationship with Upwork Client or UTG or any of their parents, subsidiaries, affiliates or successors and are not entitled to or eligible for any benefits that Upwork Client or UTG or any of their parents, subsidiaries, affiliates or successors may make available to any of their respective employees. In addition, Freelancer will limit access to Client Confidential Information and UTG Confidential Information to Freelancer Personnel who have a reasonable need to have such access in order to perform services for the Project.b. Freelancer Personnel Not Employed by Upwork Client or UTG. Freelancer acknowledges and agrees that Freelancer Personnel are not engaged by, supervised by, directed by or assigned work by Upwork Client, UTG, or any of their respective parents, subsidiaries or affiliates. Freelancer further acknowledges and agrees that neither Upwork Client nor UTG determine or control, or have the right to determine or control, any terms and conditions of employment or engagement of any Freelancer Personnel, including without limitation their selection, hiring, work assignment, work hours, compensation, work methods, discipline, working conditions, or termination. For the avoidance of doubt, Freelancer Personnel are not employees of Upwork Client or UTG or any of their respective parents, subsidiaries or affiliates. Freelancer will be fully responsible for the acts, work and safety of Freelancer Personnel at all times.c. Freelancer Personnel Compensation, Taxes and Benefits. In accordance with all applicable law, Freelancer will be solely responsible for determining and paying all compensation of Freelancer Personnel and will be solely responsible for and pay any taxes, contributions and/or benefits owed to or on behalf of Freelancer Personnel. Neither Upwork Client nor UTG nor any of their respective parents, subsidiaries or affiliates will be liable to Freelancer or to Freelancer Personnel for Freelancer’s failure to perform Freelancer’s compensation, tax or benefit obligations with respect to Freelancer Personnel. Freelancer will indemnify, defend and hold Upwork Client and UTG and any of their parents, subsidiaries, affiliates or successors harmless from and against all such taxes, contributions and benefits and will comply with all associated governmental regulations, including the filing of all necessary reports and tax returns.d. Background Screening of Freelancer Personnel. If requested by UTG or Upwork Client and permitted by applicable law, Freelancer will conduct reasonable background screening measures with respect to Freelancer Personnel (the “Screenings”) and will be responsible for all costs and fees relating to such Screenings. Freelancer will conduct Screenings in accordance with applicable laws and will obtain written authorization from Freelancer Personnel to share the results of such screening with Upwork Client and/or UTG upon request.e. Work Diary. Freelancer agrees to record and invoice through Work Diary on the Site all work performed by any Freelancer Personnel for Projects performed on a time and material or hourly basis under this Agreement. Freelancer acknowledges that UTG has no obligation to pay Freelancer, and may not approve payment of Freelancer, for time spent on hourly Projects that is not recorded in the Work Diary.9.2 Freelancer Responsible for Freelancer Personnel. a. Employees. With respect to Freelancer Personnel, Freelancer is solely responsible for and will comply with all applicable employment laws, including without limitation laws governing workers’ compensation, unemployment and disability insurance, health insurance and other employee benefits, wage and hour, employment discrimination and harassment, leaves of absence, and health and safety. Freelancer is responsible for providing meal and rest breaks to employees in accordance with any applicable laws and for complying with all paycheck requirements. If applicable, Freelancer will also comply with all licensing and other regulatory steps necessary to employ workers. Freelancer assumes full responsibility for any claims brought by, on behalf of or in connection with Freelancer’s employees (or other Freelancer Personnel alleging they are or should have been classified as employees) and agrees to indemnify, defend and hold Upwork Client, UTG and any of their parents, subsidiaries, affiliates and successors harmless from and against any such claims. b. Independent Contractors. With respect to Freelancer Personnel, Freelancer is solely responsible for properly classifying and engaging any Freelancer Personnel as independent contractors or as its employees and will comply with all applicable laws defining or governing the independent contractor or employment relationship. Freelancer warrants and represents that any Freelancer Personnel treated as an independent contractor is properly classified and assumes full responsibility for any claims brought by, on behalf of or in connection with Freelancer Personnel working as independent contractors and agrees to indemnify, defend and hold Upwork Client, UTG and any of their parents, subsidiaries, affiliates and successors harmless from and against any such claims. 9.3 Intellectual Property Rights. Freelancer agrees that all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets conceived, discovered, developed or reduced to practice by Freelancer Personnel, solely or in collaboration with others, during the term of this Agreement that relate in any manner to the business of Upwork Client will belong exclusively to Upwork Client. Freelancer will ensure that Freelancer Personnel execute appropriate agreements with Freelancer to confirm such ownership, narrowed if and to the extent required by applicable law to be enforceable in the applicable jurisdiction, and to confirm that Freelancer Personnel will not challenge the validity of Upwork Client’s ownership in Work Product, including without limitation the Intellectual Property Rights in Work Product. 9.4 Indemnification. In addition to the indemnification obligations set forth elsewhere in this Agreement, Freelancer will defend, indemnify, and hold harmless UTG, Upwork Client and each of their parents, subsidiaries, affiliates and successors, individually and collectively, against any damage, cost, loss or expense arising from any claim, suit, proceeding, investigation, government inquiry or other action brought against UTG, Upwork Client or any of their parents, subsidiaries, affiliates or successors (a) alleging that any Freelancer Personnel is an employee of UTG, Upwork Client or any of their parents, subsidiaries, affiliates or successors or (b) arising out of the failure (whether negligent, willful, intentional, or unintended in cases of strict liability) of Freelancer to comply with this Agreement or any applicable law or regulation. 10. FREELANCER’S COVENANTS, REPRESENTATIONS AND WARRANTIES. Freelancer hereby covenants, represents and warrants to UTG and to Upwork Client that (a) Freelancer will perform the services necessary to perform the Project in a timely and professional manner, consistent with industry standards, and all in accordance with this Agreement. (b) except any pre-approved Background Technology used or incorporated as part of the Work Product, the Work Product will be an original work of Freelancer and any third parties will have executed assignment of rights prior to being allowed to participate in the development of the Work Product. (c) the Work Product will fully conform to the requirements and terms set forth in this Agreement, including any Project Terms. (d) the Work Product will be free from material errors, faults and defects of any kind. (e) the Work Product will not contain any virus, Trojan horse, malicious code, trap door, time bomb, or shutdown mechanism, or any other software code or functionality that will “lock” or prevent the use of or access to the Work Product or otherwise cause the Work Product to cease functioning, or which is otherwise designed to harm any systems, servers, computers or websites of Upwork Client, UTG or any of their parents, subsidiaries, affiliates or successors. (f) neither the Work Product nor any element thereof does or will infringe or misappropriate the Intellectual Property Rights of any third party. (g) neither the Work Product nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, or encumbrances. (h) Freelancer will not grant, directly or indirectly, any rights or interest whatsoever in the Work Product to third parties other than the Upwork Client. (i) Freelancer has full right and power to enter into and perform this Agreement without the consent of any third party. (j) Freelancer has an unqualified right to grant the license to all Background Technology as set forth in the section titled “License to Background Technology”. (k) if Freelancer is required to possess or maintain any license, registration, or other authorization necessary to provide the Work Product or to provide independent contractor services under this Agreement, then it possess such a license, registration, or other authorization and will maintain such license, registration, or other authorization during the term of this Agreement. (l) Freelancer will not use or incorporate as part of the Work Product any Open Source Code other than as expressly authorized in this Agreement. (m) Freelancer will promptly update changes to Freelancer’s contact information as outlined in the Terms of Service. and (n) Freelancer will comply with all laws and regulations applicable to Freelancer’s obligations under this Agreement.11. UTG DISCLAIMER. LIMITATION OF LIABILITY. 11.1 Disclaimer. UTG MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PROJECT, THE PROJECT TERMS, OR IN CONNECTION WITH UTG’S PERFORMANCE OF ITS OBLIGATIONS AND RESPONSIBILITIES HEREUNDER, AND FREELANCER ACKNOWLEDGES AND AGREES THAT THE SAME ARE BEING PROVIDED OR PERFORMED HEREUNDER “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. UTG HEREBY EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, WRITTEN, ORAL OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND/OR VALIDITY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.11.2 Limitation of Liability. IN NO EVENT WILL UTG, UPWORK CLIENT OR ANY OF THEIR PARENTS, SUBSIDIARIES, AFFILIATES, OR SUCCESSORS BE LIABLE TO FREELANCER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION, LOST PROFITS), EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THEY WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY UNDER WHICH ANY SUCH DAMAGES ARE SOUGHT. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS AND LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.12. INDEMNIFICATION. Freelancer will defend, indemnify, and hold harmless UTG, Upwork Client or any of their parents, subsidiaries, affiliates, or successors, individually and collectively, against any and all damage, cost, loss or expense arising from any claim, suit or proceeding, actual or alleged, brought or asserted against UTG, Upwork Client and/or any of their parents, subsidiaries, affiliates, or successors (a) alleging that any Work Product that Freelancer delivers pursuant to this Agreement or the Project infringes upon any intellectual property rights. (b) alleging that any Work Product that Freelancer delivers pursuant to this Agreement or the Project misappropriates any trade secrets of UTG, Upwork Client and any of their parents and affiliates, or any third party. (c) arising from or related to Freelancer’s breach of any representation or warranty. (d) arising from or related to Freelancer’s failure to pay any taxes or fees due as a result of Freelancer’s work under this Agreement. (e) arising from or related to Freelancer’s or Freelancer’s personnel’s failure to comply with any applicable law or regulation. or (f) arising from or related to Freelancer’s breach of any other terms of this Agreement.13. INSURANCE. Freelancer, at its sole cost and expense, will maintain appropriate insurance in accordance with any applicable laws and regulations and in no event less than industry standards, including but not limited to unemployment and workers’ compensation insurance. Without limiting the foregoing sentence, Freelancer and UTG agree that for any Project where the fees are anticipated to be over $75,000, a minimum of $1,000,000 professional liability insurance is reasonable and appropriate and Freelancer will maintain such levels of insurance. Upon request, Freelancer will furnish proof of insurance in a form acceptable to UTG and the Upwork Client. Freelancer agrees that Freelancer will promptly inform UTG of any cancellation or lapse in coverage required to be maintained by this Agreement.14.TERM AND TERMINATION. 14.1 Term. The term of this Agreement (the “Term”) will begin on the Effective Date and will terminate on the first to occur of: (a) the end date in the Project Terms. or (b) the date that the Project is fully completed and thus closed on the Site. 14.2 Termination with Cause.Either Party has the right to terminate this Agreement immediately in the event that the other Party has materially breached the Agreement and fails to cure such breach within 15 calendar days of receipt of notice by the non-breaching Party, setting forth in reasonable detail the nature of the breach. UTG may also terminate this Agreement immediately, in writing, in its sole discretion in the event of Freelancer’s material breach of section 5, 6, 7, 8 or 9 (including subsections), or if Freelancer engages in unlawful activities while rendering the services specified in the Project.14.3 Return of Property. Upon termination of the Agreement or upon UTG’s or Upwork Client’s request at any other time, Freelancer will deliver to UTG or Upwork Client, as applicable, all of UTG’s or the Upwork Client’s property together with all copies thereof and any other documents or materials that contain any Work Product, Client Confidential Information or UTG Confidential Information.14.4 Survival. The following provisions will survive the expiration or termination of this Agreement for any reason: sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14.3, 14.4, 15, and 16, each including subsections. For the avoidance of doubt, Freelancer acknowledges and agrees that the license rights and other rights granted by Freelancer in section 5 above are perpetual in nature and will continue in perpetuity notwithstanding the expiration or termination of this Agreement, regardless of the cause, and the expiration or termination of this Agreement will not affect, limit, or otherwise impair such rights. 15. DISPUTES. ARBITRATION PROVISION. 15.1 Dispute Process. The Parties agree to resolve any claim, dispute, or controversy that arises out of or relates to (a) this Agreement, (b) Freelancer’s relationship with or work for UTG, the Upwork Client or any of their parents, subsidiaries, affiliates, or successors (each of which are express third-party beneficiaries of this Arbitration Provision), including without limitation any claimed employment, or the termination of any relationship referred to in this Agreement, and/or (c) the Site or the Site Services (each, a “Claim”) in accordance with this section 15 (sometimes referred to as “Arbitration Provision”). Without limiting the rights of Upwork and UTG in any way, Freelancer acknowledges and agrees that Upwork Client may assign its Claim to Upwork or UTG and, if Upwork Client does so, Upwork or UTG may pursue recovery of damages, fees, costs and any other remedies permitted by law arising out of the Claim directly from Freelancer.15.2 Informal Dispute Resolution. Before serving a demand for arbitration of a Claim, or otherwise seeking relief for any Claim, Freelancer and UTG agree to first notify the other Party or Parties (the “Notice”). The Parties will then seek informal resolution of the Claim. The Notice must be in writing and include Freelancer’s name, pertinent account information, a brief description of the Claim, and the drafting Party’s contact information, so that the receiving Party may evaluate and attempt to informally resolve the Claim. The receiving Party will have 60 calendar days from the date of its receipt of the Notice to informally resolve the Claim, which, if successful, will avoid the need for further action. Notice to UTG of the Claim will be sent to Upwork Global Inc. Headquarters as listed on its Site (https://www.upwork.com/about/contact/), Attn: Legal or legalnotices@upwork.com. Notice to the Upwork Client will be made through any means by which Freelancer communicates with the Upwork Client about the Work Product. Notice to Freelancer will be provided to the most current physical or email address on the Site. 15.3 Binding Arbitration and Class Action/Jury Trial Waiver (Does Not Apply to Freelancers Located Outside the United States and Its Territories). This Arbitration Provision applies to all Freelancers except Freelancers located outside of the United States and its territories. In the unlikely event the Parties are unable to resolve a Claim within 60 calendar days of the receipt of the applicable Notice, Freelancer, UTG and any of their parents, subsidiaries, affiliates, or successors, and Upwork Client and any of its parents, subsidiaries, affiliates, or successors agree to resolve the Claim by final and binding arbitration before an arbitrator from JAMS. JAMS may be contacted at www.jamsadr.com. If for any reason JAMS will not administer the arbitration, either Party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.a. Scope of Arbitration Agreement and Conduct of ArbitrationArbitration as provided in this Arbitration Provision is governed by the United States Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). This Arbitration Provision applies to any and all Claims (as defined in section 15.1). For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Project, the Terms of Service, escrow payments or agreements, any payments or monies Freelancer claims are due, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, worker classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, retaliation, discrimination or harassment and all claims arising under the Defend Trade Secrets Act, the Civil Rights Act of 1964, 42 U.S.C. §1981, the Rehabilitation Act, the Civil Rights Acts of 1866 and 1871, the Civil Rights Act of 1991, the Pregnancy Discrimination Act, the Equal Pay Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act, the Affordable Care Act, the Genetic Information Non-Discrimination Act, the Uniformed Services Employment and Reemployment Rights Act, the Worker Adjustment and Retraining Notification Act, all state statutes or regulations addressing the same or similar subject matters, and all other federal, state or local legal claims arising out of or relating to Freelancer’s relationship with or work for UTG or the Upwork Client or any of their parents, subsidiaries, affiliates, or successors and/or the termination of that relationship. The Upwork Client is an express third party beneficiary and may enforce the agreement to the full extent as though it were a signatory.Disputes between the parties that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Agreement. Except as otherwise provided herein, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures under the Optional Expedited Arbitration Procedures then in effect for JAMS. Notwithstanding the foregoing, any Claims by Freelancers that allege employment or worker classification disputes will be conducted within 25 miles of where Freelancer is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures” or “JAMS Employment Arbitration Rules.” The Parties agree that any Party will have the right to appear at the arbitration by telephone and/or video rather than in person.The Parties will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, Freelancer will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, with UTG to make up the difference, if any. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.This Arbitration Provision does not apply to litigation to which Freelancer is a party that is or was already pending in a state or federal court or arbitration before the Effective Date. This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits. Either Freelancer or UTG may apply to a court of competent jurisdiction for provisional injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief. the arbitrator will render the final judgment in the matter. Nothing in this Arbitration Provision prevents Freelancer from making a report to or filing a claim or charge with a government agency, including without limitation the U.S. Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. UTG will not retaliate against Freelancer for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.b. Interpretation and Enforcement of this Arbitration ProvisionThis Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims and replaces all prior agreements between Freelancer and UTG regarding the arbitration of disputes covered by this Arbitration Provision. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator will have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including, except as otherwise provided in this Arbitration Provision, the enforceability, revocability, scope, or validity of the Arbitration Provision or whether any portion of the Arbitration Provision is void or voidable. All such matters will be decided by an arbitrator and not by a court. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection c, below, of this Arbitration Provision is deemed to be unenforceable, the Parties agree that this Arbitration Provision will be enforced to the fullest extent permitted by law. c. Class and Collective Action Waiver Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects the Parties’ ability to participate in class or collective actions. The Parties agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS Rules, disputes regarding the enforceability, revocability, scope, or validity or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. Freelancer will not be retaliated against, disciplined or threatened with discipline as a result of exercising any rights under Section 7 of the National Labor Relations Act, if applicable, by filing or participating in a class or collective action in any forum. However, any Party may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims. d. Right to Opt Out of the Arbitration Provision. Freelancer may opt out of the Arbitration Provision by notifying UTG in writing within 30 calendar days of the Effective Date. To opt out, Freelancer must send a written notification to UTG to Upwork Global Inc. headquarters as listed on its Site (https://www.upwork.com/about/contact/), Attn: Legal or legalnotices@upwork.com that includes (a) Freelancer’s account username, (b) Freelancer’s name, (c) Freelancer’s address, (d) Freelancer’s telephone number, (e) Freelancer’s email address, and (f) a statement that Freelancer wishes to opt out of the Arbitration Provision. Freelancer understands that Freelancer has the right to consult with counsel of Freelancer’s choice concerning this Agreement and the Arbitration Provision. 16. GENERAL PROVISIONS 16.1 Choice of Law. Except as otherwise specifically provided herein, this Agreement and any Claims will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). provided, however, that any Claims by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resided at the time the Project was performed. 16.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Section 15.3(c) governs severability of the Class Action Waiver.16.3 No Assignment. This Agreement, and the Parties’ respective rights and obligations herein, may not be assigned or otherwise transferred by either Party without the other’s prior written consent, and any attempted assignment or transfer in violation of the foregoing will be null and void. provided, however, UTG may assign this Agreement, its rights and its obligations to an affiliate or to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. The terms of this Agreement will be binding upon assignees. 16.4 Injunctive Relief. Freelancer acknowledges that, because its services are personal and unique and because Freelancer will have access to Confidential Information of UTG and Upwork Client, any breach of this Agreement by Freelancer would cause irreparable injury to UTG or Upwork Client for which monetary damages would not be an adequate remedy and, therefore, will entitle UTG or Upwork Client to injunctive relief (including specific performance). The rights and remedies provided to each Party in this Agreement are cumulative and in addition to any other rights and remedies available to such Party at law or in equity not otherwise waived by this Agreement.16.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.16.6 Export.Freelancer agrees not to export, directly or indirectly, any U.S. technical data acquired from UTG, Upwork or Upwork Client, or any products utilizing such data, to countries outside the United States, because such export could be in violation of the United States export laws or regulations.16.7 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by Freelancer and UTG.16.8 Electronic Acceptance. The Parties expressly agree that this Agreement may be electronically signed and accepted, and that the Site’s record of Freelancer’s acceptance will be treated, for purposes of validity, enforceability and admissibility, the same as written signatures.THE PARTIES AGREE THAT BY ACCEPTING THIS AGREEMENT VIA THE SITE, FREELANCER HAS BOUND ITSELF TO THIS AGREEMENT AND CREATED AN AGREEMENT THAT IS ENFORCEABLE AGAINST ALL PARTIES. FREELANCER ACKNOWLEDGES AND AGREES THAT FREELANCER HAS BEEN GIVEN THE OPPORTUNITY TO OBTAIN INDEPENDENT LEGAL ADVICE WITH RESPECT TO THIS AGREEMENT BEFORE ACCEPTING IT, AND THAT FREELANCER VOLUNTARILY AGREES TO BE BOUND BY THIS AGREEMENT WITH FULL KNOWLEDGE AND UNDERSTANDING OF ITS TERMS. EXHIBIT A Privacy and Information Security Exhibit To the extent Freelancer (1) collects, stores, transmits, discloses, processes, and/or otherwise uses information that identifies a particular individual (“Personal Information”) or (2) accesses Upwork Client’s computer systems or networks in providing services under this Agreement, Freelancer will comply with the privacy and security requirements in this Exhibit for the purpose of conforming with applicable laws regarding protection of Personal Information. Freelancer is expected to be familiar with such laws and take whatever additional security measures may be warranted by the particular circumstances. Privacy Requirements 1. Personal Information: Freelancer will collect, store, transmit, disclose, process, destroy, or otherwise process Personal Information only (a) for purposes of providing the Services and as otherwise instructed by Upwork Client, (b) in accordance with this Exhibit 1, and (c) in compliance with applicable law. In the event of any conflict between applicable law and this Exhibit 1, Freelancer will comply with applicable law. Personal Information includes any information related to an identified or identifiable natural person where such information is protected under applicable data protection law. 2. Notification Of Security Incident: Freelancer will notify Upwork Client of any actual or suspected security incident involving Personal Information as soon as possible after becoming aware of the incident, but never later than 24 hours after learning of the incident. Freelancer will cooperate with Upwork Client on any investigation of the security incident. A “security incident” is a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information transmitted, stored or otherwise processed. 3. Security Standards: Freelancer will utilize reasonable and physical, technical and administrative safeguards to protect Personal Information and comply at all times with applicable laws concerning the protection and securing of Personal Information. For as long as Freelancer has access to Personal Information or to Upwork Client’s systems/networks, Freelancer will update security practices and controls at Freelancer’s own cost. 4. Malware Protection: Freelancer will use up-to-date, commercially reasonable virus protection software (i.e. anti-virus) for the duration of the Engagement. 5. Device and Software Management: Before the start of the Engagement and at all times while Freelancer accesses any Personal Information or Upwork Client’s systems/networks, Freelancer will: <ol> <li>Use up-to-date software and firmware that includes any current patches and updates and that is configured to automatically update/patch;</li> <li>Use a firewall to protect Freelancer’s own information systems;</li> <li>Use strong, unique passwords of at least 8 characters (with a mix of letters, numbers, and special characters where possible) for access to devices and applications;</li> <li>Use password-activated screensavers to lock hardware or devices after a period of inactivity;</li> <li>Configure devices and applications to require new passwords at least every 90 days;</li> <li>Ensure that multiple failed login attempts (no more than 10) to devices and applications result in lockout (check security settings on applications). and</li> <li>Disable Bluetooth on devices (except when use is necessary). </li> </ol> 6. Secure Practices: <ol> <li>Freelancer will only connect to trusted, private wireless networks that use complex passwords not known or easily accessible to the public (e.g., not Starbucks).</li> <li>Freelancer will not share hardware or devices with other people (roommates, spouses, children, etc.) while performing the Engagement until all Personal Information is removed/destroyed from the hardware or device. Hardware and devices shall be housed in secure places when not in use.</li> <li>Freelancer will not download and install unsolicited software. Software downloaded to hardware or devices that connect to Upwork Client’s systems/network could be used to distribute malware.</li> <li>Freelancer will not share passwords used to access Personal Information with anyone or post passwords near hardware or devices.</li> </ol> 7. Disposal: When no longer needed for the Engagement, and always upon completion of the Engagement or at Upwork Client’s request, Freelancer will return all Personal Information received, compiled or created in the course of the Engagement. Further, Freelancer will securely delete any and all copies of such Personal Information (including backups) in Freelancer’s possession (e.g., hard copies shredded, desktop/email trashcan emptied, etc.). Personal Information in electronic form will be deleted with a “wiping” program that overwrites data on the hardware. paper documents containing Personal Information will be shredded. Deleting files using standard keyboard commands is not sufficient because data may remain on the computer’s hard drive. Wiping programs are available at most office supply stores. Freelancer understands that a failure to delete Personal Information in Freelancer’s possession after completion of the Engagement may constitute theft of Personal Information.8. Data Protection: <ol> <li>Freelancer will not disclose Personal Information to a subcontractor without Upwork Client’s prior, written consent. Freelancer will not disclose Personal Information to any other third party without Upwork Client’s prior, written consent except as required by law. Freelancer will not ever sell Personal Information. Freelancer will promptly notify Upwork Client of any legally binding request for the production or disclosure of Personal Information (unless prohibited by law from doing so) to allow Upwork Client sufficient time to object to the request.</li> <li>Freelancer will not attempt to link, identify, or otherwise create a relationship between Personal Information made available to Freelancer by Upwork Client with any other data without the express authorization of Upwork Client. </li> <li>In the event Freelancer access to, or storage of, Personal Information results in the transfer of Personal Information to a country outside the country where the Personal Information originated, Freelancer will, at Upwork Client’s request and to the extent required by applicable law, take such reasonable steps as Upwork Client deems necessary (e.g., execute a data transfer agreement) to comply with any law in the country of origin that restricts the international transfer of Personal Information.</li> <li>Freelancer will cooperate with Upwork Client’s reasonable request for assistance in responding to a request to Upwork Client by an individual to exercise his or her rights under applicable data protection law, including but not limited to requests to delete Personal Information, and requests to access Personal Information. In the event Freelancer receives such a request directly from an individual concerning Personal Information in Freelancer’s possession, Freelancer will promptly forward the request to Upwork Client so that Upwork Client can respond to the individual.</li> <li>Freelancer will make available, upon Upwork Client’s reasonable request, information necessary to demonstrate compliance with this Exhibit 1 and will allow for audits or inspection by Upwork Client or its designee concerning Freelancer’s handling of Personal Information in accordance with this Exhibit 1.</li> <li>In the event the Personal Information relates to an individual located in the European Economic Area, Attachment A to this Exhibit 1 describes the nature and purpose of the processing of Personal Information, the type of Personal Information processed, and the categories of data subjects.</li> </ol>Additional information on best practices for protecting Personal Information may be found at https://www.bulkorder.ftc.gov/publications/protecting-personal-information-guide-business. Freelancer is encouraged to obtain and read a copy of this free publication. Attachment A Description Of The Processing Nature Of Processing By Freelancer: Purposes Of Processing By Freelancer: Categories Of Data Subjects Whose Personal Information Is Processed By Freelancer: Categories Of Personal Information Processed By Freelancer: Upwork Payroll Agreement Version 3.1 Effective November 1, 2018 Download Table of Contents <ol> </ol> If a Client signs up to use Upwork Payroll, this Upwork Payroll Agreement (this “Agreement”) applies to Client. Your use of the Site after the effective date will signify your acceptance of and agreement to this Agreement. Please refer to the Terms of Service for the complete terms governing your usage of the Site and Site Services. Capitalized terms not defined in this Agreement have the meanings in the Terms of Services.This Agreement is a binding legal agreement by and between Client (“Client” and “you”) and Upwork Global Inc. (“Upwork” or “we”) and supersedes and replaces all prior agreements between Client and Upwork concerning Upwork Payroll.1. UPWORK PAYROLL STAFFING PROVIDERWhen a Client uses Upwork Payroll, which is described on the Site here (“Upwork Payroll”), a third-party staffing vendor will employ the Freelancer (the “Staffing Provider”). Freelancer (if accepted for employment as described below) will become an employee of the Staffing Provider. The Staffing Provider will assign Freelancer to work for Client, and Client will be responsible for supervising Freelancer. When, and only if, a Freelancer has been accepted for employment by the Staffing Provider and assigned to Client, Freelancer becomes a “Payroll Employee” for purposes of this Agreement, but also remains a Freelancer under the Terms of Service.Your ability to use Upwork Payroll may depend on certain factors, including, without limitation, the location of the Freelancer, the estimated length of the engagement, the wage to be paid, and the nature of the work to be performed. A request to use Upwork Payroll may be rejected for any lawful reason.2. INTERNATIONAL PAYROLL SERVICESUpwork Payroll is currently only available for Freelancers who will work in the United States. Requests regarding international employment and associated fees can be addressed on a case-by-case basis by contacting upworkpayroll@upwork.com.3. HIRING PROCESSAs a Client, you will select a Freelancer to be employed by the Staffing Provider and assigned to work for you via Upwork Payroll. No work can begin until the engagement is active on the Upwork Site, and Client is informed that the Freelancer has started employment and may begin work. After Freelancer’s employment begins, Client will continue to pay for each Freelancer’s services through the Site unless Client pays the Opt-Out Fee.4. HIRING DECISIONS. LIMITATIONS ON HIRINGClient acknowledges and agrees that Client selects a Freelancer to become a Payroll Employee based upon Client’s determination that Freelancer possesses the skills, background, and education to satisfy the requirements of the assignment. Upwork does not (a) select the Freelancer. (b) have the authority or ability to decide to engage or end the engagement of the Freelancer on behalf of Client. (c) make any independent evaluation or investigation or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. or (d) make any representations or warranties as to the skills, experience, background, or education of any Freelancer or Payroll Employee. All information regarding a Payroll Employee posted on or to the Site or provided by Upwork is intended to be indicative or illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and shall have no liability for Client’s use of or reliance on any Freelancer information posted or provided by Upwork.The Staffing Provider has the right not to hire a Freelancer for any lawful reason or no reason at all, including if the Freelancer does not meet the Staffing Provider’s standards for employment or the job is considered, in the Staffing Provider’s sole discretion, too hazardous or not covered by the applicable workers’ compensation insurance policy. No Payroll Employee may be engaged to perform services that require the Payroll Employee to handle hazardous materials or operate heavy machinery.5. DISCLAIMER OF LIABILITY FOR UPWORK Client acknowledges and agrees that Client and Freelancer are solely responsible for Freelancer Services and for all work performed and Work Product. Upwork provides no express warranty of, will have no implied warranty of, and will have no responsibility for, the Staffing Provider’s services, Freelancer Services and/or Work Product. Upwork expressly disclaims all express and implied warranties for Freelancer Services and/or Work Product, including, without limitation, warranties of non-infringement, merchantability, and fitness for a particular purpose. As between Upwork and Client, Freelancer Services, Work Product, and deliverables are provided AS IS. 6. UPWORK PAYROLL SERVICESThe following are the services provided by the Staffing Provider for Payroll Employees assigned to Client: (a) calculation and payment of wages (including any applicable overtime wages) based upon submitted timesheets. (b) collection, payment, and reporting of all required taxes on such wages. (c) unemployment insurance and workers’ compensation coverage. (d) administration of legally required benefits, including health insurance, disability insurance, paid sick leave, paid vacation, severance, notice or termination costs, retirement benefits or other welfare or pension benefits. and (e) administration of legally required leaves of absence, wage garnishments, and unemployment claims.7. WORK ENVIRONMENTClient acknowledges and agrees that neither Upwork nor the Staffing Provider will control the work environment in which a Payroll Employee will perform services for Client. Client will be solely responsible for ensuring that the work environment is safe and free from harassment and discrimination as required by applicable law.8. PAYROLL EMPLOYEE SUPERVISION AND LIMITATIONS ON SCOPE OF EMPLOYMENTClient will be solely responsible for protecting its property, including by implementing and enforcing any agreements, policies or procedures to protect Client’s intellectual property and confidential information.If Client assigns a Payroll Employee any supervisory duties or gives a Payroll Employee authority to sign tax returns, render accounting or legal opinions, issue negotiable instruments, or make final decisions of the nature of those generally made by Client’s executives, officers, or directors, Client agrees that Client and Freelancer are solely responsible for any such decisions or actions by the Payroll Employee.Client will inform Staffing Provider through Upwork (at upworkpayroll@upwork.com) if any Payroll Employee supervises other Client employees or Payroll Employees or will handle hazardous materials or operate heavy machinery.If a Payroll Employee is required to possess or maintain any license or be supervised by a supervisor with a special license, Client will be responsible for verifying such license and/or providing such supervision.Client acknowledges and agrees that Payroll Employees are not employees of Upwork and that Upwork does not supervise or control Payroll Employees. Client further acknowledges and agrees that (a) Upwork does not have the power or ability to require a Freelancer to start or stop work. (b) Upwork does not determine or control any term or condition of Freelancer’s employment (including, but not limited to, pay, work hours, work schedules, work locations, performance evaluations, discipline, and termination). (c) Upwork merely provides the platform for Client to assign work to Freelancer and separately facilitates the relationship between Staffing Provider and Freelancer. and (d) Upwork is not an employer or joint employer of the Freelancer.9. COMPLIANCE WITH LEGAL REQUIREMENTSWith respect to all Payroll Employees, Client will comply with all applicable legal requirements, including without limitation all laws prohibiting discrimination, harassment, and retaliation and all laws concerning meal and rest breaks, expense reimbursements, leave, and safety. Client will also comply with all reasonable directives by the Staffing Provider regarding the Payroll Employee.Client will immediately inform Staffing Provider through Upwork (at upworkpayroll@upwork.com) of (a) any complaint by or against a Payroll Employee of harassment, discrimination, retaliation or unlawful activity. or (b) any request by a Payroll Employee for a leave of absence or disability accommodation or any awareness by Client of a potential disability or need for leave or accommodation. Client will cooperate with Staffing Provider to complete a prompt and thorough investigation of any complaint or to provide any leave or accommodation required by law.All Payroll Employees must be paid on an hourly, non-exempt basis unless the Staffing Provider explicitly approves an exempt determination. If the Staffing Provider approves an exempt determination, the Client is solely responsible for ensuring the determination remains appropriate. Client agrees never to request, encourage, or require Payroll Employees to work off the clock or without reporting time to the Staffing Provider. Client will not prohibit or discourage any Payroll Employee from taking any meal or rest break authorized by law and/or by the Staffing Provider.10. PAYING PAYROLL EMPLOYEES 10.1 General Payment Obligations Your payments for Upwork Payroll are governed by the terms below, as well as the Hourly and Miscellaneous Payment Agreement with Escrow Instructions.You recognize and agree that all hours recorded and submitted to the Staffing Provider by your Payroll Employees will automatically be deemed approved by you, and you authorize those hours to be paid by you. In addition, Payroll Employees do not pay any Service Fees to Upwork. Instead, the Client pays the fees, as described below. Client also understands and agrees that Client is responsible for covering the cost of all Payroll Employee wages, even if, for example, a Payroll Employee reports having worked more than the number of hours authorized by Client.10.2 Client Bill Rate. Payroll Employee Pay RateThe total amount the Client pays is the “Bill Rate”, which includes the Payroll Employee’s hourly rate or salary amount (the “Pay Rate”) as well as Upwork fees. The Client will pay Upwork’s service fees for the use of the platform and the use of Upwork Payroll (collectively, the “ Payroll Service Fees ”). The Payroll Service Fees are 23% of the Bill Rate. For example, if the Client Bill Rate is $25.00 per hour, the Payroll Employee’s Pay Rate would be $19.25. All fees are paid by the Client, and there are no Upwork fees paid by Freelancers for engagements using Upwork Payroll.To use Upwork Payroll, Client acknowledges and agrees that the Pay Rate on Upwork must be at least the minimum wage in the location where the Payroll Employee works.In addition to the Bill Rate, Client acknowledges and agrees that it will be responsible for any additional costs required under applicable law. These additional costs vary based on the location of the Payroll Employee and include overtime premiums, expense reimbursements, sick leave, vacation, severance, notice or termination costs, health insurance (including costs under the Affordable Care Act), and other similar benefits (collectively, “Additional Costs”). For more information on these Additional Costs, please email upworkpayroll@upwork.com.10.3 Funding and Making PaymentsClient’s payments of amounts for wages, expense reimbursements, miscellaneous invoices, and bonuses are governed by the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.The workweek begins at 00:00 midnight UTC on Monday and ends at 23:59 UTC on Sunday. The workday begins at 00:00 midnight UTC and ends at 23:59 UTC. The Bill Rate (for employees who are paid by salary) or the Bill Rate multiplied by the number of hours worked for the previous workweek, including any overtime premium pay (for employees paid by the hour) will be charged to Client’s Payment Method on the Monday following the end of the workweek or at such other time as communicated by Upwork or Staffing Provider in writing. Additional Costs will be charged to Client’s Payment Method after Client is provided notice of the Additional Costs. Bonuses and expense reimbursements will be charged to Client’s Payment Method after they are approved by Client.11. REQUIRED NOTIFICATIONSClient can provide notices required under this Agreement to upworkpayroll@upwork.com.Client will provide written notice within 24 hours of its own receipt of any notice of a work-related accident or injury, and within three days of its receipt of any notice of any garnishment orders, involuntary deduction orders, notices of IRS liens, and other forms of legal process affecting the payment of wages to a Payroll Employee.Client will provide written notice within three days of any changes to the job description or work hours of a Payroll Employee, including any change from part-time to full-time status.Client will provide written notice of the termination of a Payroll Employee’s assignment (whether initiated by Client or the Payroll Employee) by providing notice of the termination, including the Payroll Employee name, Client, and termination date to upworkpayroll@upwork.com either (a) at least three business days before the Payroll Employee’s last day of employment. (b) immediately if employee quits without notice. or (c) such longer time as may be required to provide the Payroll Employee with adequate notice of termination under the law where the Payroll Employee resides or is legally organized. Failure to timely provide notice may result in additional obligations to the Payroll Employee under applicable law, and Client agrees to pay any such costs.Client also will provide Upwork notice, as provided above, if a Payroll Employee performs no work for Client for more than 10 consecutive Business Days due to any reason other than planned time off or legally required leave (which includes, without limitation, legally required medical or family leave).12. INDEMNIFICATIONIn addition to the indemnification obligations set forth in the User Agreement, Client agrees to (a) release, indemnify, hold harmless, protect, and defend Upwork and its respective partners, employees, directors, officers, agents, affiliates, and subsidiaries (each an “Indemnified Party”) from and against any and all claims by any person or entity, including a Freelancer or Payroll Employee. and (b) reimburse any Indemnified Party for any claims, expenses, costs (including attorneys’ fees and court costs), obligations, losses, and damages (whether joint or several and including special, consequential, compensatory, or punitive damages), whether arising in contract, tort, or otherwise, related to: (i) actual or alleged acts, errors, or omissions (including, but not limited to, breaches of contract or violations of statutes, laws, rules, or regulations) by Client, its employees (including Payroll Employee(s)), partners, agents, affiliates, members, subsidiaries, representatives, and officers. (ii) any breach of or failure to perform under this Agreement, including, but not limited to, Client’s failure to accurately or timely report wages, hours, expenses, and other reimbursements owed a Payroll Employee or payment of taxes for which Client is responsible. (iii) any alleged failure to properly classify one or more Payroll Employees as exempt from overtime. (iv) actual or alleged errors in any timesheet(s) provided to Upwork and/or the Staffing Provider. (v) Client’s failure to pay a timesheet properly submitted for payment by Payroll Employee. (vi) the actual or alleged failure of Client to comply in any respect with any workplace law or law related to the employment of persons, including, but not limited to, any location’s laws with respect to the payment of wages or the treatment of employees, and including, without limitation, the Fair Labor Standards Act, the Occupational Safety and Health Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Family and Medical Leave Act of 1993, and Title VII of the 1964 Civil Rights Act (collectively, “Employment Laws and Regulations”), or (vii) the actual or alleged failure of Upwork or the Staffing Provider to comply in any respect with the Employment Laws and Regulations based in whole or in part (A) on any instruction(s), act(s), or failure(s) to act of Client. or (B) on any incorrect, misleading, or false information provided by Client to Upwork or the Staffing Provider. This indemnification provision will survive the expiration or other termination of this Agreement or Client’s relationship with Upwork.13. CHANGE OF STAFFING PROVIDERUpwork may enter into a contract with a new provider or multiple providers to act as the employer of Payroll Employees (“New Company”) and may end or change contracts with existing providers. If requested as a result of such changes, Client will cooperate with such New Company in every reasonable manner to ensure uninterrupted performance of Upwork Payroll.14. TERMINATION OF UPWORK PAYROLLWithout limiting Upwork’s ability to terminate services provided to Client under other Terms of Service, Upwork may terminate Upwork Payroll at any time after providing Client with notice of such termination at least 30 days in advance of the final day Upwork Payroll will be offered (the “Termination Date”). The Staffing Provider will have the obligation for wages and benefits accrued to Payroll Employees through and including the Termination Date, at which point such duties will cease. Additionally, all obligations of the Staffing Provider to maintain workers’ compensation insurance coverage and/or health care coverage on behalf of Payroll Employees will cease on the Termination Date.Client, or another third party designated by Client in Client’s sole discretion and only if it elects to designate a third party, as the case may be, will immediately assume all federal, state, and local obligations of an employer to the Payroll Employees and will immediately assume full responsibility for providing payroll services and workers’ compensation coverage. Client will inform Payroll Employees that they are no longer covered by the Staffing Provider’s workers’ compensation and/or health care policies.Upon the Termination Date, Upwork will immediately be released from such obligations as are permitted by law, but Upwork and the Staffing Provider will not be relieved of any such obligations that accrued or occurred prior to the Termination Date.15. GENERAL PROVISIONS 15.1 Governing Law This Agreement and any Claim or action related thereto will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). Clients located in the United States and its territories agree that any Claim between Client and Upwork must be resolved as described in the subsections of the User Agreement titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration and Class Action/Jury Trial Waiver.” 15.2 Severability If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by applicable law. 15.3 No AssignmentThis Agreement, and the parties’ rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by a party without the other party’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.15.4 WaiverAny waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.15.5 Execution and Delivery. Binding EffectThe parties will evidence execution and delivery of this Agreement with the intention of becoming legally bound, by accepting the Terms of Service on the Site.16. CONTACTING USIf you have any questions, or need assistance, please contact upworkpayroll@upwork.com. Upwork Talent Scout User Agreement Version 3.0 Effective October 6, 2020 Download Table of Contents <ol> </ol> CONFIDENTIALThis Upwork Talent Scout Agreement (“Talent Scout Agreement”) defines the agreement between you (the “Client”) and Upwork Global Inc. (“Upwork”) regarding Talent Scout services, as described in this Talent Scout Agreement (“Talent Scout Services”), and are part of and incorporate by reference the Upwork User Agreement and other Terms of Service (collectively, the “Agreement”). The Talent Scout Agreement is in addition to and, except where explicitly stated, does not supersede, replace, or limit other similar terms in the Terms of Service. Capitalized terms not defined herein are defined in the User Agreement or elsewhere in the Terms of Service.IN ORDER TO USE TALENT SCOUT SERVICES, YOU AGREE TO BE BOUND BY THE TALENT SCOUT CONTRACT TERMS AND THE DISPUTE PROCESS AND ARBITRATION AND CLASS ACTION WAIVER IN THE USER AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, INCLUDING THE ARBITRATION AND CLASS ACTION WAIVER, YOU MAY NOT ACCESS OR USE ANY TALENT SCOUT SERVICES. 1. TALENT SCOUT SERVICESUpwork agrees to provide assistance to Client engaging Talent Scout Services to use the Site to source Freelancers and enter into contractual relationships between Client and Freelancers to receive services. Acting at the request and as agent of Client (“Agent of Record”), Upwork will enter into a contractual relationship with Freelancer on Client’s behalf (once accepted, the “Talent Scout Contract”). For the avoidance of doubt, the Talent Scout Services include acting as Agent of Record on behalf of each Client and Freelancer for purposes of each Talent Scout Contract. Upwork is entering into contractual relationships on behalf of Client and Freelancer in each case at the direction of and with the authority of Client and Freelancer, as applicable. Once the Service Contract has been accepted by the Freelancer, Upwork will, acting as Agent of Record for the Freelancer, request the Client to place the Talent Scout Contract project funds, inclusive of Upwork Talent Scout Fees (defined below) (collectively, “Talent Scout Contract Funds”), in escrow via Upwork’s escrow services. As provided in the applicable escrow instructions (see below), when the work is completed, the Freelancer will request, via Upwork’s Freelancer Agent of Record services, that the Client release the Talent Scout Contract Funds from escrow, which, upon receiving instruction from Client, Upwork will do on Client’s behalf.2. ELIGIBILITYClient agrees that it meets the eligibility requirements in the User Agreement related to use of Upwork Talent Scout. Upwork Talent Scout is available to any Freelancer who enters into a Talent Scout Contract with Client.3. ESCROW SERVICESClient acknowledges and agrees that the Direct Contract Escrow Instructions apply to Client’s Talent Scout Contracts. For purposes of Talent Scout Contracts, Client understands and agrees that Upwork will act as Agent of Record for Freelancer for purposes of the Direct Contract Escrow Instructions, and for the purposes of such instructions “Freelancer” as used in the instructions shall mean either “Freelancer” or “Upwork acting as Agent of Record for Freelancer”, as applicable.4. ROLE OF UPWORK A. AGENT OF RECORD SERVICESClient agrees that, in regards to Client activity in connection with Upwork Talent Scout, Upwork acts only at the direction of and with the authority of Client. Client further understands and agrees that, through its additional agreement with Freelancer, Upwork will act as Agent of Record of Freelancer. Client agrees that Upwork is not taking on any additional responsibilities or liabilities by acting as Agent of Record except as expressly provided in this Talent Scout Agreement.B. UPWORK LIMITATIONSClient understands and agrees that Upwork is not involved in or responsible for any work performed by Freelancer(s), is not involved in or responsible for any payment made under a Talent Scout Contract except as provided in Section 4(c) (Payment Services), and has no control over any Freelancer or Client. Upwork does not guarantee that Client or Freelancer will perform on the Talent Scout Contract. Upwork does not have any power or authority to, and does not, determine any eligibility standards for any Talent Scout Contract, select or contract any Freelancer to provide services to Client, determine or control any term or condition of the Talent Scout Contract or Project, or cause any Freelancer to accept any Talent Scout Contract or perform any Freelancer Services. The Parties agree that Client will select the freelancer, that the scope of work will be set exclusively by agreement between Client and Freelancer, and that Client and Freelancer will take up any issues with the work and/or its scope between each other.C. PAYMENT SERVICESUpwork Escrow provides escrow services, but does not guarantee that Freelancer will be paid except and only to the extent that all of the following are true: (a) Upwork holds funds on behalf of Client, (b) Client has directed such funds to be released to Freelancer, and (c) any hold or security period has passed. Upwork otherwise does not guarantee that Client is able to or will pay Freelancer.D. SERVICE FEES. UPWORK FEESClient understands that Upwork, acting as Agent of Record for Freelancer and on instruction from Freelancer, will collect from Client the fees that Freelancer will receive as agreed in the Talent Scout Contract and the fees that Upwork receives for the services provided under this Talent Scout Agreement. Client agrees that Upwork will remit to Freelancer only that portion of the fees agreed to with Freelancer and Upwork will retain the fees for Upwork’s services.D. NO OTHER FREELANCER SERVICE FEESThe Service Fees typically charged to Freelancers described in the Fee and ACH Authorization Agreement or the Upwork Direct Service Contract Terms do not apply to payments on Talent Scout Contract engagements. The Fee and ACH Authorization Agreement otherwise remains in full force and effect, including, without limitation, on any Service Contract if a Freelancer or Client, who uses Talent Scout Contracts, has a Service Contract (as defined in the User Agreement).5. FREELANCER ENGAGEMENTA. ENGAGEMENTActing as an Agent of Record, Upwork will engage the Freelancer (the “Engagement”) as an independent contractor or hire the Freelancer as an employee by a third-party employer of record provider (“Employment Provider”) through Upwork Payroll Services. Upwork will engage the worker consistent with applicable law. Upwork may delegate the Engagement of Freelancer(s) (and other obligations regarding Freelancer(s) under this Talent Scout Agreement) to one or more third parties. Upwork and Employment Provider as applicable, reserve the right not to engage or hire a Freelancer in their sole discretion. If Upwork or Employment Provider decline to engage a Freelancer, Upwork will assist Client in sourcing a satisfactory replacement. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an independent contractor agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an agreement containing confidentiality and intellectual property assignment provisions consistent with this Talent Scout Agreement.B. LEGAL COMPLIANCEUpwork, Employment Provider, or any third party acting to engage a Freelancer, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers. except that Upwork or Employment Provider shall not be liable for any non-compliance of or caused by Client.C. OWNERSHIP OF FREELANCER WORK PRODUCTOwnership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Client. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from a Talent Scout Contract accrue to the benefit of Upwork, Upwork hereby assigns such rights to Client.6. CLIENT RESPONSIBILITIESA. TALENT SCOUT CONTRACTSClient will inform Upwork 72 hours in advance, if possible, or as soon as possible thereafter, of the termination of any Talent Scout Contract. Client further agrees to immediately inform Upwork of any complaint or request made by Freelancer concerning any employment-related matter, such as a request for a leave of absence or disability accommodation or a complaint about harassment or discrimination..B. NONDISCRIMINATION. COMPLIANCE WITH LAWSClient agrees to comply with, and to require any person who may interact with Freelancer on behalf of Client to comply with, Upwork’s Nondiscrimination Statement, and with all applicable laws in connection with the engagement of Freelancers, including without limitation, as applicable, worker safety laws, nondiscrimination laws, accommodation and leave laws, and privacy laws.C. NON-CIRCUMVENTIONClient agrees and understands that the non-circumvention provisions of the User Agreement, together with the remainder of the User Agreement, apply to this Talent Scout Agreement. For purposes of the non-circumvention provision, you agree that the “Hourly Rate” shall be the highest hourly rate you have paid on any Talent Scout Contract with the applicable Freelancer.D. CLIENT ACKNOWLEDGEMENTSOther than as stated in this Talent Scout Agreement, Client expressly acknowledges, agrees, and understands that: (i) except for the Agent of Record services, Upwork is not a party to the dealings between Client and Freelancer, including the substantive terms of posts, the selection of a Freelancer, the decision to contract with a Freelancer, and the performance or receipt of Freelancer Services or provisioning of Freelancer Work Product. (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services. (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto. (iv) Upwork does not set Freelancer’s work hours, work schedules, or location of work. (vi) Upwork will not provide Freelancer with training or any equipment, tools, labor, or materials needed to complete their work. (vii) Upwork does not provide the premises at which the Freelancer will perform the work. (viii) if there is a dispute between Client and Freelancer, that dispute is solely between Client and the Freelancer and Upwork will not be responsible or liable with respect to such dispute except for the dispute assistance described in the Direct Contract Escrow Instructions. (ix) neither Upwork nor its Affiliates is an employer of or joint employer or integrated or single enterprise with any independent contractor Freelancer or Client. and (x) unless otherwise agreed as part of the relevant Talent Scout Contract, independent contractor Freelancer(s) may hire employees or engage contractors or subcontractors (at his or her sole expense) to assist with providing the Freelancer Services. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Site. the ability of Freelancers to deliver the Freelancer Services. or that Client or Freelancer can or will actually complete a transaction.7. CLIENT AUTHORIZATIONClient represents and warrants that it has the authority to agree to this Talent Scout Agreement on behalf of him- or herself and the business entity he or she represents. Client authorizes, and represents that he or she has the authority to authorize, Upwork personnel to assist Client by taking actions on the Site and communicating with Freelancers on behalf of Client as directed by Client, including without limitation, posting projects, creating Content, preparing and offering contracts to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Upwork personnel on the Site at Client’s direction, express or implied, will be considered to be actions by and at the direction of Client.8. INDEMNIFICATIONA. INTERACTION WITH USER AGREEMENTThis Talent Scout Agreement shall control any express conflicts between the User Agreement and this Talent Scout Agreement concerning indemnification obligations and limitation of liability of Upwork or Client with respect to Talent Scout Services only. B. INDEMNIFICATION BY UPWORKUpwork will indemnify, defend, and hold harmless Client and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under the Fair Labor Standards Act, the Internal Revenue Code, state wage and hour law or any other law. (ii) the failure of Upwork or Employment Provider to make, when due, a payment to a Freelancer related to this Talent Scout Agreement. (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations. or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.C. INDEMNIFICATION BY CLIENTClient will indemnify, defend and hold harmless Upwork and its Affiliates and their directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with Client’s or any director, officer, agent, employee of Client, or any other person with apparent or actual authority to act on behalf of Client: (i) violation of any law or regulation, including laws related to illegal discrimination or harassment. (ii) misuse or unauthorized use of the Site. (iii) content posted by or on behalf of Client or at Client’s direction. (iv) failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Client or which Client failed to update or was caused by Client. (v) direction, participation or involvement with the Freelancer or Freelancer Services. or (vi) breach of Client’s obligations in Section 6 (Client Responsibilities). D. INDEMNIFICATION REQUIREMENTSThe indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Talent Scout Agreement. (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice. and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of an indemnified Claim.9. LIMITATION OF LIABILITYIN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS OR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR (I) AMOUNTS DUE UPWORK FROM CLIENT UNDER THIS AGREEMENT, (II) AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO INDEMNIFICATION OBLIGATIONS HEREIN AND (III) BREACHES OF CONFIDENTIALITY UNDER SECTION 7.1 (CONFIDENTIALITY) WITH RESPECT TO CONFIDENTIAL INFORMATION, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR AN AMOUNT GREATER THAN THE TOTAL FEES PAID BY CLIENT TO UPWORK DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR WHICH LIABILITY IS SOUGHT TO BE IMPOSED. CLIENT ACKNOWLEDGES THAT THE AMOUNTS PAYABLE UNDER THIS AGREEMENT ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.10. OTHER TERMSThis Agreement, including this Talent Scout Agreement along with the Upwork User Agreement and other Terms of Service, represents the entire agreement with Upwork and supersedes all prior agreements and understandings with respect to Talent Scout Services. To the extent of an express conflict between this Talent Scout Agreement and the other Terms of Service, this Talent Scout Agreement shall govern any matters involving Talent Scout Services. Provisions of the User Agreement and other Terms of Service that do not expressly conflict with any provision of the Talent Scout Agreement or are being applied to any products or services other than the Talent Scout Services apply in full force and effect. Without voiding or affecting the applicability of any other provision of the User Agreement to the Talent Scout Agreement, Client specifically reiterates its agreement to comply with the DISPUTE PROCESS AND ARBITRATION AND CLASS ACTION WAIVER contained in Upwork’s User Agreement, and agrees that this provision applies with full force and effect to the Talent Scout Agreement. You agree that you did not accept the Talent Scout Agreement based on any representations, whether written or oral, other than those contained in this Talent Scout Agreement along with the Upwork User Agreement and other Terms of Service. No modification of or amendment to the Talent Scout Agreement, nor any waiver of any rights, will be effective unless in writing signed by you and Upwork. Upwork Talent Scout User Agreement Version 1.0 Effective October 6, 2020 Download Table of Contents <ol> </ol> CONFIDENTIALThis Upwork Talent Scout Agreement (“Talent Scout Agreement”) defines the agreement between you (the “Client”) and Upwork Global Inc. (“Upwork”) regarding Talent Scout services, as described in this Talent Scout Agreement (“Talent Scout Services”), and are part of and incorporate by reference the Upwork User Agreement and other Terms of Service (collectively, the “Agreement”). The Talent Scout Agreement is in addition to and, except where explicitly stated, does not supersede, replace, or limit other similar terms in the Terms of Service. Capitalized terms not defined herein are defined in the User Agreement or elsewhere in the Terms of Service.IN ORDER TO USE TALENT SCOUT SERVICES, YOU AGREE TO BE BOUND BY THE TALENT SCOUT CONTRACT TERMS AND THE DISPUTE PROCESS AND ARBITRATION AND CLASS ACTION WAIVER IN THE USER AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, INCLUDING THE ARBITRATION AND CLASS ACTION WAIVER, YOU MAY NOT ACCESS OR USE ANY TALENT SCOUT SERVICES. 1. TALENT SCOUT SERVICESUpwork agrees to provide assistance to Client engaging Talent Scout Services to use the Site to source Freelancers and enter into contractual relationships between Client and Freelancers to receive services. Acting at the request and as agent of Client (“Agent of Record”), Upwork will enter into a contractual relationship with Freelancer on Client’s behalf (once accepted, the “Talent Scout Contract”). For the avoidance of doubt, the Talent Scout Services include acting as Agent of Record on behalf of each Client and Freelancer for purposes of each Talent Scout Contract. Upwork is entering into contractual relationships on behalf of Client and Freelancer in each case at the direction of and with the authority of Client and Freelancer, as applicable. Once the Service Contract has been accepted by the Freelancer, Upwork will, acting as Agent of Record for the Freelancer, request the Client to place the Talent Scout Contract project funds, inclusive of Upwork Talent Scout Fees (defined below) (collectively, “Talent Scout Contract Funds”), in escrow via Upwork’s escrow services. As provided in the applicable escrow instructions (see below), when the work is completed, the Freelancer will request, via Upwork’s Freelancer Agent of Record services, that the Client release the Talent Scout Contract Funds from escrow, which, upon receiving instruction from Client, Upwork will do on Client’s behalf.2. ELIGIBILITYClient agrees that it meets the eligibility requirements in the User Agreement related to use of Upwork Talent Scout. Upwork Talent Scout is available to any Freelancer who enters into a Talent Scout Contract with Client.3. ESCROW SERVICESClient acknowledges and agrees that the Direct Contract Escrow Instructions apply to Client’s Talent Scout Contracts. For purposes of Talent Scout Contracts, Client understands and agrees that Upwork will act as Agent of Record for Freelancer for purposes of the Direct Contract Escrow Instructions, and for the purposes of such instructions “Freelancer” as used in the instructions shall mean either “Freelancer” or “Upwork acting as Agent of Record for Freelancer”, as applicable.4. ROLE OF UPWORK A. AGENT OF RECORD SERVICESClient agrees that, in regards to Client activity in connection with Upwork Talent Scout, Upwork acts only at the direction of and with the authority of Client. Client further understands and agrees that, through its additional agreement with Freelancer, Upwork will act as Agent of Record of Freelancer. Client agrees that Upwork is not taking on any additional responsibilities or liabilities by acting as Agent of Record except as expressly provided in this Talent Scout Agreement.B. UPWORK LIMITATIONSClient understands and agrees that Upwork is not involved in or responsible for any work performed by Freelancer(s), is not involved in or responsible for any payment made under a Talent Scout Contract except as provided in Section 4(c) (Payment Services), and has no control over any Freelancer or Client. Upwork does not guarantee that Client or Freelancer will perform on the Talent Scout Contract. Upwork does not have any power or authority to, and does not, determine any eligibility standards for any Talent Scout Contract, select or contract any Freelancer to provide services to Client, determine or control any term or condition of the Talent Scout Contract or Project, or cause any Freelancer to accept any Talent Scout Contract or perform any Freelancer Services. The Parties agree that Client will select the freelancer, that the scope of work will be set exclusively by agreement between Client and Freelancer, and that Client and Freelancer will take up any issues with the work and/or its scope between each other.C. PAYMENT SERVICESUpwork Escrow provides escrow services, but does not guarantee that Freelancer will be paid except and only to the extent that all of the following are true: (a) Upwork holds funds on behalf of Client, (b) Client has directed such funds to be released to Freelancer, and (c) any hold or security period has passed. Upwork otherwise does not guarantee that Client is able to or will pay Freelancer.D. SERVICE FEES. UPWORK FEESClient understands that Upwork, acting as Agent of Record for Freelancer and on instruction from Freelancer, will collect from Client the fees that Freelancer will receive as agreed in the Talent Scout Contract and the fees that Upwork receives for the services provided under this Talent Scout Agreement. Client agrees that Upwork will remit to Freelancer only that portion of the fees agreed to with Freelancer and Upwork will retain the fees for Upwork’s services.D. NO OTHER FREELANCER SERVICE FEESThe Service Fees typically charged to Freelancers described in the Fee and ACH Authorization Agreement or the Upwork Direct Service Contract Terms do not apply to payments on Talent Scout Contract engagements. The Fee and ACH Authorization Agreement otherwise remains in full force and effect, including, without limitation, on any Service Contract if a Freelancer or Client, who uses Talent Scout Contracts, has a Service Contract (as defined in the User Agreement).5. FREELANCER ENGAGEMENTA. ENGAGEMENTActing as an Agent of Record, Upwork will engage the Freelancer (the “Engagement”) as an independent contractor or hire the Freelancer as an employee by a third-party employer of record provider (“Employment Provider”) through Upwork Payroll Services. Upwork will engage the worker consistent with applicable law. Upwork may delegate the Engagement of Freelancer(s) (and other obligations regarding Freelancer(s) under this Talent Scout Agreement) to one or more third parties. Upwork and Employment Provider as applicable, reserve the right not to engage or hire a Freelancer in their sole discretion. If Upwork or Employment Provider decline to engage a Freelancer, Upwork will assist Client in sourcing a satisfactory replacement. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an independent contractor agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an agreement containing confidentiality and intellectual property assignment provisions consistent with this Talent Scout Agreement.B. LEGAL COMPLIANCEUpwork, Employment Provider, or any third party acting to engage a Freelancer, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers. except that Upwork or Employment Provider shall not be liable for any non-compliance of or caused by Client.C. OWNERSHIP OF FREELANCER WORK PRODUCTOwnership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Client. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from a Talent Scout Contract accrue to the benefit of Upwork, Upwork hereby assigns such rights to Client.6. CLIENT RESPONSIBILITIESA. TALENT SCOUT CONTRACTSClient will inform Upwork 72 hours in advance, if possible, or as soon as possible thereafter, of the termination of any Talent Scout Contract. Client further agrees to immediately inform Upwork of any complaint or request made by Freelancer concerning any employment-related matter, such as a request for a leave of absence or disability accommodation or a complaint about harassment or discrimination..B. NONDISCRIMINATION. COMPLIANCE WITH LAWSClient agrees to comply with, and to require any person who may interact with Freelancer on behalf of Client to comply with, Upwork’s Nondiscrimination Statement, and with all applicable laws in connection with the engagement of Freelancers, including without limitation, as applicable, worker safety laws, nondiscrimination laws, accommodation and leave laws, and privacy laws.C. NON-CIRCUMVENTIONClient agrees and understands that the non-circumvention provisions of the User Agreement, together with the remainder of the User Agreement, apply to this Talent Scout Agreement. For purposes of the non-circumvention provision, you agree that the “Hourly Rate” shall be the highest hourly rate you have paid on any Talent Scout Contract with the applicable Freelancer.D. CLIENT ACKNOWLEDGEMENTSOther than as stated in this Talent Scout Agreement, Client expressly acknowledges, agrees, and understands that: (i) except for the Agent of Record services, Upwork is not a party to the dealings between Client and Freelancer, including the substantive terms of posts, the selection of a Freelancer, the decision to contract with a Freelancer, and the performance or receipt of Freelancer Services or provisioning of Freelancer Work Product. (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services. (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto. (iv) Upwork does not set Freelancer’s work hours, work schedules, or location of work. (vi) Upwork will not provide Freelancer with training or any equipment, tools, labor, or materials needed to complete their work. (vii) Upwork does not provide the premises at which the Freelancer will perform the work. (viii) if there is a dispute between Client and Freelancer, that dispute is solely between Client and the Freelancer and Upwork will not be responsible or liable with respect to such dispute except for the dispute assistance described in the Direct Contract Escrow Instructions. (ix) neither Upwork nor its Affiliates is an employer of or joint employer or integrated or single enterprise with any independent contractor Freelancer or Client. and (x) unless otherwise agreed as part of the relevant Talent Scout Contract, independent contractor Freelancer(s) may hire employees or engage contractors or subcontractors (at his or her sole expense) to assist with providing the Freelancer Services. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Site. the ability of Freelancers to deliver the Freelancer Services. or that Client or Freelancer can or will actually complete a transaction.7. CLIENT AUTHORIZATIONClient represents and warrants that it has the authority to agree to this Talent Scout Agreement on behalf of him- or herself and the business entity he or she represents. Client authorizes, and represents that he or she has the authority to authorize, Upwork personnel to assist Client by taking actions on the Site and communicating with Freelancers on behalf of Client as directed by Client, including without limitation, posting projects, creating Content, preparing and offering contracts to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Upwork personnel on the Site at Client’s direction, express or implied, will be considered to be actions by and at the direction of Client.8. INDEMNIFICATIONA. INTERACTION WITH USER AGREEMENTThis Talent Scout Agreement shall control any express conflicts between the User Agreement and this Talent Scout Agreement concerning indemnification obligations and limitation of liability of Upwork or Client with respect to Talent Scout Services only. B. INDEMNIFICATION BY UPWORKUpwork will indemnify, defend, and hold harmless Client and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under the Fair Labor Standards Act, the Internal Revenue Code, state wage and hour law or any other law. (ii) the failure of Upwork or Employment Provider to make, when due, a payment to a Freelancer related to this Talent Scout Agreement. (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations. or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.C. INDEMNIFICATION BY CLIENTClient will indemnify, defend and hold harmless Upwork and its Affiliates and their directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with Client’s or any director, officer, agent, employee of Client, or any other person with apparent or actual authority to act on behalf of Client: (i) violation of any law or regulation, including laws related to illegal discrimination or harassment. (ii) misuse or unauthorized use of the Site. (iii) content posted by or on behalf of Client or at Client’s direction. (iv) failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Client or which Client failed to update or was caused by Client. (v) direction, participation or involvement with the Freelancer or Freelancer Services. or (vi) breach of Client’s obligations in Section 6 (Client Responsibilities). D. INDEMNIFICATION REQUIREMENTSThe indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Talent Scout Agreement. (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice. and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of an indemnified Claim.9. LIMITATION OF LIABILITYIN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS OR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR (I) AMOUNTS DUE UPWORK FROM CLIENT UNDER THIS AGREEMENT, (II) AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO INDEMNIFICATION OBLIGATIONS HEREIN AND (III) BREACHES OF CONFIDENTIALITY UNDER SECTION 7.1 (CONFIDENTIALITY) WITH RESPECT TO CONFIDENTIAL INFORMATION, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR AN AMOUNT GREATER THAN THE TOTAL FEES PAID BY CLIENT TO UPWORK DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR WHICH LIABILITY IS SOUGHT TO BE IMPOSED. CLIENT ACKNOWLEDGES THAT THE AMOUNTS PAYABLE UNDER THIS AGREEMENT ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.10. OTHER TERMSThis Agreement, including this Talent Scout Agreement along with the Upwork User Agreement and other Terms of Service, represents the entire agreement with Upwork and supersedes all prior agreements and understandings with respect to Talent Scout Services. To the extent of an express conflict between this Talent Scout Agreement and the other Terms of Service, this Talent Scout Agreement shall govern any matters involving Talent Scout Services. Provisions of the User Agreement and other Terms of Service that do not expressly conflict with any provision of the Talent Scout Agreement or are being applied to any products or services other than the Talent Scout Services apply in full force and effect. Without voiding or affecting the applicability of any other provision of the User Agreement to the Talent Scout Agreement, Client specifically reiterates its agreement to comply with the DISPUTE PROCESS AND ARBITRATION AND CLASS ACTION WAIVER contained in Upwork’s User Agreement, and agrees that this provision applies with full force and effect to the Talent Scout Agreement. You agree that you did not accept the Talent Scout Agreement based on any representations, whether written or oral, other than those contained in this Talent Scout Agreement along with the Upwork User Agreement and other Terms of Service. No modification of or amendment to the Talent Scout Agreement, nor any waiver of any rights, will be effective unless in writing signed by you and Upwork. WEWORK CLIENT ADDENDUM FOR UPWORK ENTERPRISE SERVICES Version 1.0 Effective August 1, 2017 Download Table of Contents <ol> </ol> This WeWork Client Addendum for Upwork Enterprise Services (this “Addendum”) supplements the terms and conditions set forth in the click-through Upwork User Agreement (https://www.upwork.com/legal/) applicable to the use of the features and functionality made available through the Upwork website located at www.upwork.com, as it may be updated from time to time (the “Upwork User Agreement”). Unless otherwise expressly noted herein, this Addendum is governed by the terms of the Upwork User Agreement, and each capitalized term used in this Addendum but not defined herein shall have the same meaning as in the Upwork User Agreement. “Client” as used in this Addendum shall refer to you. YOU UNDERSTAND THAT BY CLICKING ON THE “I ACCEPT” BUTTON, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS ADDENDUM AND THE UPWORK USER AGREEMENT WITH RESPECT TO UPWORK ENTERPRISE SERVICES. IF YOU DO NOT ACCEPT THIS ADDENDUM, YOU MAY NOT ACCESS OR USE THE UPWORK ENTERPRISE SERVICES. IF YOU AGREE TO THIS ADDENDUM ON BEHALF OF A COMPANY (E.G. BY PROVIDING YOUR COMPANY NAME TO UPWORK), YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS ADDENDUM AND THAT YOU ARE AGREEING TO THIS ADDENDUM ON BEHALF OF YOUR COMPANY. IN THAT EVENT, YOUR COMPANY WILL OWN THE ACCOUNT AND BE BOUND BY THIS ADDENDUM AND “YOU” AND “CLIENT” WILL REFER AND APPLY TO YOUR COMPANY.Section 1. Upwork Enterprise ServicesUpwork Enterprise. With Upwork Enterprise, Client will have access to a premium Upwork technology and platform service that allows Client to aggregate and engage, in Client’s Talent Cloud® network, groups of Freelancers found on the Upwork platform or brought by Client to the Upwork platform. Talent Sourcing and Job Post Assistance Services. Client may also request Talent Sourcing Services and Job Post Assistance Services, where Upwork will provide Client with: (i) access to expert Freelancers that Upwork has pre-vetted based on their skills and professional capabilities (“Upwork Pro Talent Pool”) (ii) a shortlist of Freelancers advertising the skills that Client seeks. and (iii) a dedicated talent specialist to help Client post projects on the Upwork platform (with Client’s approval).Enterprise Billing. In addition, Upwork will pay the amounts owed by Client to Freelancers for work and services by Freelancers pursuant to the Upwork User Agreement (“Client Payment”) and Client will be invoiced such amounts by WeWork pursuant to Client’s arrangement with WeWork. Notwithstanding the foregoing, Upwork reserves its right to collect any Client Payment and the Upwork Service Fee (defined below) directly from Client if Client does not remit such payments to WeWork.The services described in this Section 1 are Site Services as defined in the User Agreement.Section 2. Service Fee Service Fee. In addition to the Client Payment, Client will pay a service fee equal to 10% of the Client Payment to Upwork (the “Upwork Service Fee”). Client Payment includes any applicable fees payable to Upwork pursuant to the User Agreement. Where applicable, Upwork may collect taxes on the service fee.Section 3. Client Duties and Role of Upwork Client Duties. Client acknowledges and agrees that Client shall be solely responsible for undertaking the necessary research and due diligence to evaluate any Freelancer information posted or provided by or through Upwork. Client assumes all responsibility for engaging any Freelancer based on any Freelancer information received through Upwork in connection with Upwork Enterprise Services. Client understands and agrees that Client is solely responsible for selecting which Freelancers to engage. determining whether to engage each Freelancer as an independent contractor or as an employee. negotiating and determining the amount and type of payment for Freelancer Services. describing the work to be done by each Freelancer and all communications regarding the work. and determining when Freelancer Services shall commence and end. Any information from Upwork regarding the foregoing for any Freelancer engagement shall not be construed as advice to Client or as binding on Client. Role of Upwork. If Client requests Talent Sourcing Services from Upwork, Upwork will review Client’s project requirements as described by Client and provide Client with access to certain profiles of Freelancers from the Upwork platform and the Upwork Pro Talent Pool, subject to the Upwork Pro Talent Pool containing Freelancers who appear to have the skills, availability and interest to meet those requirements. Accordingly, all information regarding a Freelancer posted on or to the Site, the platform, and or provided as part of the Upwork Enterprise Services, is intended to be indicative or illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and shall have no liability for Client’s use of or reliance on any Freelancer information posted or provided by Upwork.Section 4. Other Terms Marks.Client grants Upwork a non-exclusive, non-transferable, fully revocable license to use Client’s name and logo (the “Client Marks”) during the Term in marketing Upwork services on the Site and elsewhere. All rights in and to and ownership of all Client Marks are vested in Client absolutely. All uses of the Client Marks will inure to the benefit of Client. Upwork has no right, title or interest in the Client Marks aside from this license. Upon termination or expiration of this Addendum, or notice from Client, the license to the Client Marks will automatically expire and Upwork will immediately cease using the Client Marks on the Site and in any new materials.Buy-out Fee.Client agrees to pay a buy-out fee of $10,000 for each Freelancer whose profile was provided to Client as part of the Upwork Enterprise Services and hired by Client off of or outside the Upwork platform as an employee of Client during the Buy-out Period. This provision shall not apply if Client had already engaged such freelancer on the Upwork platform prior to receipt of the freelancer profile from Upwork. The “Buy-out Period” is the 24 month period immediately after the date that Upwork provides Client with the profile of the Freelancer that is hired by Client outside of or off the Upwork platform. The Non-Circumvention provision in the Upwork User Agreement shall continue to apply to all other cases not described in this section.Term and Termination.This Addendum shall be effective as of the date Client accepts this Addendum via the web link provided to Client (the “Effective Date”) and shall continue until terminated by either the Client or Upwork. Either party may terminate this Addendum with 15 days prior written notice to the other. Either Client or Upwork may terminate this Addendum immediately if the other party (A) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (B) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (C) has wound up or liquidated.General. Entire Agreement. This Addendum together with the User Agreement represents the entire agreement between the Client and Upwork, and this Addendum together with the User Agreement supersedes all prior agreements and understandings with respect to the matters covered by it. In the event of conflict between the terms of this Addendum and the terms of the Upwork User Agreement, the terms of the Upwork User Agreement will control. Client agrees that Client did not enter in this Addendum based on any representations other than those contained in this Addendum. No modification of or amendment to this Addendum by Client, nor any waiver of any rights under this Addendum, shall be effective unless in writing signed by both Client and Upwork. Notwithstanding the foregoing, to the extent permitted by applicable law, Upwork may amend this Addendum by posting revisions to this Addendum online. Your continued use of the Upwork Enterprise Services after the effective date of a revised version of this Addendum or notice to you of an updated Addendum constitutes your acceptance of its terms and agreement to be bound by its terms. This Addendum will be binding upon and inure to the benefit of Client or Upwork, as applicable, and their respective successors and permitted assigns. Client will not assign or otherwise transfer this Addendum or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without Upwork’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Upwork will have the right to assign this Addendum to any affiliate or successor to its business or assets to which this Addendum relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Starter Project Program Terms of Use for Clients and Freelancers Version 1.0 Effective June 6, 2017 Download Table of Contents <ol> </ol> These Starter Project Program Terms of Use for Clients and Freelancers (“Starter Project Terms”) are part of and incorporate by reference the Upwork User Agreement and other Terms of Service. The Starter Project Terms are in addition to and do not supersede, replace, or limit other similar terms in the Terms of Service. Capitalized terms not defined herein are defined in the User Agreement or elsewhere in the Terms of Service.YOU AGREE TO BE BOUND BY THE STARTER PROJECT TERMS. IF YOU DO NOT ACCEPT THE STARTER PROJECT TERMS, YOU MAY NOT ACCESS OR USE ANY STARTER PROJECT SERVICES FOR ANY ENGAGEMENT.SECTION 1. STARTER PROJECT SERVICES DEFINEDThe Starter Project Program aims to help new Clients learn to use the Site to post projects quickly and efficiently. For this purpose, Upwork may make sample project descriptions and budgets available for optional use and help connect Clients with Freelancers who have indicated interest in completing such projects (“Starter Project Services”).SECTION 2. SCOPE AND LIMITATIONSStarter Project Services may be used subject to the following parameters and limitations, which you understand and acknowledge.Clients may only use Starter Project Services while they are learning to use the Site up to a maximum of ten (10) projects. Once Client has learned to use the Site, Client will post projects without using Starter Project Services.All information about a project, Freelancer or Client obtained in connection with Starter Project Services is intended to be illustrative only and will not constitute any requirement, guarantee or warranty by Upwork. Users have discretion whether to contract with each other and will negotiate and determine the specific terms of their Service Contracts with each other. Project descriptions and budgets available through Starter Project Services are samples only, which may be adjusted and added to as Users deem appropriate. Users choose whether to use any sample project description and may add any milestones to their Service Contracts and/or post different terms using the job post, contract offer or other features available on the Site.SECTION 3. ROLE OF UPWORK AND CLIENT RESPONSIBILITIESYou understand and agree that Upwork is not a party to any Service Contract, is not involved in or responsible for any work performed by Freelancers, and has no control over any Freelancer or Client. Upwork does not have any power or authority to, and does not, determine any eligibility standards for any Engagement, select or contract any Freelancer to provide services to a Client, determine or control any term or condition of the Service Contract or Engagement, or cause any Freelancer to accept any Service Contract or perform any Freelancer Services.Client assumes all responsibility for selecting which Freelancers to contract, determining and completing any screening requirements, determining or negotiating the amount and type of payment and any other Service Contract terms or conditions, and describing the work to be done by Freelancers. Any information from Upwork regarding the foregoing will not be construed as advice to Client or as binding on Client.SECTION 4. OTHER TERMSTogether with the Upwork User Agreement and other Terms of Service, these Starter Project Terms represent the entire agreement with Upwork and supersede all prior agreements and understandings with respect to the matters covered. You agree that you did not accept the Starter Project Terms based on any representations, whether written or oral, other than those contained herein. No modification of or amendment to the Starter Project Terms, nor any waiver of any rights, will be effective unless in writing signed by you and Upwork. Notwithstanding the foregoing, to the extent permitted by applicable law, Upwork may amend the Starter Project Terms with prior notice at any time. Your continued use of the Starter Project Services after the effective date of a revised version of the Starter Project Terms or notice to you of updated Starter Project Terms constitutes your acceptance of its terms and agreement to be bound by its terms. 'Upwork Team' Software License Agreement Version 1.0 Effective May 5, 2015 Download Table of Contents <ol> </ol> IMPORTANT – PLEASE READ CAREFULLY: This End User License Agreement (“EULA”) is a legal agreement between you and Upwork Global Inc. and its affiliates (“Upwork”, “we”, or “us”). This EULA governs your use of the Upwork software and any third party software that may be distributed therewith (collectively the “Software”). Upwork agrees to license the Software to you (personally and/or on behalf of your employer) (collectively “you” or “your”) only if you accept all the terms contained in this EULA. By installing, using, copying, or distributing all or any portion of the software, you accept and agree to be bound by all of the terms and conditions of this EULA. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS EULA, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.Your use of the Software is also subject to your agreements with us concerning your use of the upwork.com website (the “Site”) and the services provided through that website. This EULA hereby incorporates by reference all terms, conditions rules, policies and guidelines on the Site, including the Upwork Terms of Service (the “Terms of Service”). Please also see the Upwork Privacy Policy (the “Privacy Policy”) at https://www.upwork.com/legal/privacy-policy/. Capitalized terms not defined in this EULA are defined in the Terms of Service.1. CONDITIONAL LICENSE. 1.1. License Grant: Subject to your compliance with the terms and conditions of this EULA, Upwork grants you a non-exclusive, non-transferable right to use the executable code version of the Software for your use solely in connection with work you perform on or through the Site.1.2. Restrictions on Use:You agree not to modify, display, adapt, translate, loan, distribute, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software. You may not publish, redistribute, sublicense or sell the Software or any information or material associated with the Software. You may not rent, lease or otherwise transfer your rights to the Software. You may not use the Software in any manner that could damage, disable, overburden or impair the Site, nor may you use the Software in any manner that could interfere with any other party’s use and enjoyment of the Site. You agree that you will use the Software for lawful purposes and only in compliance with all applicable laws, including but not limited to copyright and other intellectual property laws. In addition, you shall not perform, nor release the results of any testing of the Software to any third party without the prior written consent of Upwork. You also agree not to remove, obscure, or alter any copyright notice, trademarks or other proprietary rights notices contained within or accessed in conjunction with or through the Software.1.3. Intellectual Property Rights:The Software is licensed, not sold, to you for use pursuant to the terms of this EULA. All rights not expressly granted to you are reserved to Upwork or its licensors or third party providers. You acknowledge that Upwork or its licensors or third party providers own all rights, title and interest, including without limitation all Intellectual Property Rights, in and to the Software, portions thereof, or any information or material provided through or in conjunction with the Software. Your rights to use the Software shall be limited to those expressly granted in this Section 1. All rights not expressly granted to you are reserved by Upwork, its licensors or third party providers. “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all other proprietary rights, and all applications, registrations, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.2. DISCLAIMER OF WARRANTIES. 2.1. “As Is”. No Warranty: THE SOFTWARE IS PROVIDED BY UPWORK AND ANY OF OUR LICENSORS OR OUR THIRD-PARTY SERVICE PROVIDERS “AS IS,” WITH NO WARRANTIES WHATSOEVER. UPWORK EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. COMPUTER PROGRAMS ARE INHERENTLY COMPLEX, AND THE SOFTWARE MAY NOT BE FREE OF ERRORS. THE SOFTWARE IS PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. UPWORK DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SOFTWARE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND USE THE SOFTWARE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE.2.2. Privacy Disclaimer:TO THE FULLEST EXTENT PERMITTED BY LAW, UPWORK DISCLAIMS LIABILITY IN THE EVENT OF THE UNAUTHORIZED ACCESS TO OR MISAPPROPRIATION OF YOUR PERSONAL INFORMATION OR PRIVATE COMMUNICATIONS BY THIRD PARTIES.2.3. Jurisdictional Limitations:SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN JURISDICTIONS WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE OR TO THE MINIMUM PRESCRIBED BY LAW. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.2.4. Survival of Disclaimer:The provisions of this Section 2 and of Section 3 shall survive the termination of this EULA, but this shall not imply or create any continued right to use the Software after termination of this EULA.3. LIMITATION OF LIABILITY 3.1. Limitation of Liability: IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL UPWORK, OUR LICENSORS OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER’S USE OR MISUSE OF THE SOFTWARE. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE (EVEN IF UPWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE, FROM THE PERFORMANCE OR MISPERFORMANCE OF THE SOFTWARE, FROM INABILITY TO USE THE SOFTWARE, OR FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SOFTWARE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.3.2. Damages Cap:EXCEPT AS LIMITED BY APPLICABLE LAW, REGARDLESS OF THE BASIS FOR YOUR CLAIM, UPWORK’S, LICENSORS’ AND THIRD PARTY PROVIDERS’ TOTAL LIABILITY UNDER THIS EULA SHALL BE LIMITED TO DIRECT DAMAGES WHICH SHALL NOT EXCEED THE AMOUNT OF FEES PAID FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM, OR ONE U.S. DOLLAR ($1.00), WHICHEVER IS LESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING PROVISIONS SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY FOR MONETARY DAMAGES IN RESPECT OF ANY BREACH OF OR DEFAULT UNDER THIS AGREEMENT BY UPWORK.4. INDEMNIFICATIONTo the maximum extent permitted by applicable law, you agree to indemnify and hold harmless Upwork and its subsidiaries, affiliates, joint ventures, suppliers, officers, directors, shareholders, employees and agents, from any claim or demand made by any third party due to or arising directly or indirectly out of your conduct or in connection with your use of the Software or its features, any alleged violation of these terms, or any alleged violation of any applicable law or regulation. Upwork reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, but doing so shall not excuse your indemnity obligations.5. PRIVACY AND SECURITYThe Software creates a means for others to record the visual output (“Screenshot”) of your computer. You hereby acknowledge and agree that each time you activate the Software, the Software may periodically transmit Screenshots to Upwork. These Screenshots may be displayed in the Upwork work diary when the Screenshot is captured. These Screenshots may include, without limitation, the visual output of all open programs, windows, backgrounds, taskbars, system trays, multiple screens, title bars, menus, graphics, screen savers, and any information, images, and text therein. You acknowledge and agree that, if your confidential information is displayed as visual output of your computer while the Software is active, such confidential information may be included in a Screenshot, transmitted to Upwork, and displayed in the applicable work diary. In order to prevent transmission of your confidential information to Upwork, you agree not to access your confidential information while the Software is active. Although we have taken reasonable measures to prevent unauthorized persons from gaining access to your computer via the Software, we cannot foresee or control the actions of third parties. Therefore, use of the Software could make you vulnerable to security breaches that you might not otherwise face and could result in the loss of your privacy or property. You agree that Upwork is not liable to you for security breaches resulting from your use of the Software or otherwise.6. NO NOTICE OF UPDATES.Upwork reserves the right to modify or change this EULA from time to time without notice to You. The latest version will be available on the Site. Upwork also may update or modify the Software from time to time at its discretion. Your election to continue use of the Software, after the date of posting of these modifications to the EULA or to the Software constitutes acceptance of those modifications. If you do not agree with the modifications, do not use the Software.7. EXPORT CONTROLS.You are responsible for complying with trade regulations and both foreign and domestic laws. You acknowledge that the Software or its underlying technology may not be downloaded to or exported or re-exported: (a) into (or to a resident or national of) Cuba, Iraq, Iran, Libya, North Korea, Syria or any other country subject to United States embargo. (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or on the U.S. Commerce Department’s Denied Party or Entity List. and (c) you will not export or re-export the Software to any prohibited country, person, end-user or entity specified by U.S. Export Laws.8. TERM AND TERMINATION: 8.1. Termination:This EULA is effective as soon as you install, use, copy or distribute the Software and shall continue until it is terminated by Upwork or you, as provided for under the terms of this Section. Unless otherwise agreed to in writing with us, either you or we may terminate the contractual agreement represented by this EULA at any time upon notice to the other party. This EULA, including without limitation your right to the Software as specified in Section 1, terminates immediately and without notice from Upwork if you fail to comply with any of its provisions. Upon termination you shall immediately discontinue use of and destroy the Software and all copies or portions thereof, including any master copy, and within ten (10) days certify in writing to Upwork that all copies have been destroyed. 8.2. Survival of Termination:Sections 1.3, 2, 3, 4, 7, 8.2 and 9 of these terms will survive any termination of this EULA. The termination of this EULA does not limit Upwork’s other rights it may have by law.9. MISCELLANEOUS PROVISIONS. 9.1. Severance. Waiver: If for any reason a court of competent jurisdiction finds any provision or portion of this EULA to be unenforceable, it shall be enforced to the maximum extent permissible, and the remaining provisions shall remain in full force.9.2. Audit.You agree that, on Upwork’s request, you will certify in writing your compliance with the terms of this EULA.9.3. Assignment.You may not assign this EULA or sublicense, assign, transfer or delegate any right or duty hereunder, without the prior written consent of Upwork, at our sole discretion. Notwithstanding the foregoing, Upwork may assign or transfer this EULA or any rights granted hereunder without your prior consent. This EULA is binding on and will inure to the benefit of the parties successors and permitted assigns.9.4. Entire Agreement.This EULA and the terms expressly incorporated by reference herein, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Team Builder Terms for Clients Version 2.0 Effective August 9, 2017 Download Table of Contents <ol> </ol> These Team Builder Terms for Clients (“Team Builder Terms”) are part of and incorporate by reference the Upwork User Agreement and other Terms of Service governing use of the Site and the Site Services. The Team Builder Terms are in addition to and do not supersede, replace, or limit other similar terms in the Terms of Service. Capitalized terms not defined herein are defined in the User Agreement or elsewhere in the Terms of Service.YOU UNDERSTAND THAT BY USING TEAM BUILDER SERVICES FOR AN ENGAGEMENT, YOU ARE AGREEING TO BE BOUND BY THE TEAM BUILDER TERMS. IF YOU DO NOT ACCEPT THE TEAM BUILDER TERMS, YOU MAY NOT ACCESS OR USE THE TEAM BUILDER SERVICES TO ENGAGE A FREELANCER. IF YOU AGREE TO THE TEAM BUILDER TERMS ON BEHALF OF A COMPANY, YOU REPRESENT AND WARRANT THAT (1) YOU HAVE THE AUTHORITY TO BIND THE COMPANY. AND (2) YOU ARE AGREEING TO THE TEAM BUILDER TERMS ON BEHALF OF THE COMPANY. IN THAT EVENT, YOUR COMPANY WILL OWN THE ACCOUNT AND BE BOUND BY THE TEAM BUILDER TERMS, AND “YOU” AND “CLIENT” WILL REFER AND APPLY TO THE COMPANY IN ADDITION TO THE INDIVIDUAL ACCEPTING THESE TERMS.SECTION 1. TEAM BUILDER SERVICESTo help with efficient use of the Site, Upwork offers Clients that post jobs seeking Freelancers for certain Longer Engagements an optional service whereby a talent scout will highlight profiles of Freelancers that are also seeking such Longer Engagements (“Team Builder Services”). Team Builder Services are a Site Service as defined in the User Agreement.Team Builder Services are available only for Clients who have a verified payment method on file for their Upwork Account and who are seeking Freelancers for Longer Engagements. For purposes of the Team Builder Terms, “Longer Engagements” are defined as Hourly Engagements of more than 3 months with a weekly minimum payment in an amount equal to at least 30 hours of Freelancer Services at the rate agreed on by the Client and Freelancer (hereinafter, “Weekly Minimum Payment”). By using Team Builder Services for an Engagement, Client represents and agrees that Client is seeking to pay the Weekly Minimum Payment to the Freelancer in order to secure the Freelancer’s availability. Client (1) will pay the Freelancer the Weekly Minimum Payment for each weekly billing period starting the second Monday after the Service Contract begins, except for any week when the Service Contract is paused for billing on the Site for any period of time. and (2) authorizes Upwork or its Affiliates to automatically charge the Client’s Payment Method on file for the Weekly Minimum Payment for each weekly billing period when the Service Contract is not paused for billing for any period of time or closed. Client understands and agrees that the Weekly Minimum Payment is paid to secure the Freelancer’s availability and therefore will apply even if less than 30 hours of services were provided and may not be disputed by the Client on the ground that less than 30 hours of work was given to the Freelancer in any given week. Client will pay the agreed rate to the Freelancer for all services provided in any week that exceed 30 hours. however, Client may review and approve or dispute any hours above 30 in a week during the Dispute Period as set forth in the Hourly Escrow Instructions. Client understands and agrees that (1) Client is choosing these Engagement terms and (2) Client may set up a contract that does not use Team Builder Services for any Engagement for which Client is seeking different Engagement terms. Team Builder Services consist of a talent scout highlighting for Client the profiles and/or proposals of Freelancers who (i) are advertising skills in the category sought by the Client and (ii) have indicated they are seeking Longer Engagements. Client understands that any “screening” conducted for Team Builder Services relates only to these factors, and any statements about whether a Freelancer is “qualified” relates only to these factors and must be verified by the Client independently. Upwork does not determine or complete the screening requirements for any Client’s particular Engagement and does not determine whether any Freelancer is qualified for any Client’s Engagement. SECTION 2. ROLE OF UPWORKAs detailed in the User Agreement, the Site is a venue for Freelancers and Clients to find and enter into Service Contracts with each other. Upwork is not responsible for evaluating, investigating, or otherwise conducting any due diligence regarding Freelancers or their qualifications, skills, background, prior experience, worker classification, licensing, registrations or legal or tax compliance. All information regarding a Freelancer posted on the Site or provided as part of Team Builder Services is intended to be indicative or illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Client’s use of or reliance on any Freelancer information posted or provided by or through Upwork or any talent scout.Client understands and agrees that Upwork is not a party to the Service Contract, does not determine or control any term or condition of the Service Contract or Engagement, and has no control over any Freelancer or any Freelancer Services. Upwork does not have any power or authority to, and will not, determine any eligibility standards for any Engagement, select or hire any Freelancer to provide services to Client, negotiate or determine the amount or type of payment for Freelancer Services, or cause any Freelancer to accept any Service Contract or start or stop work. Client understands and agrees that Upwork does not determine or have any involvement with Freelancer assignments, productivity standards, scheduling, work hours, work locations, work methods, or working conditions. does not train, supervise, counsel, discipline, evaluate or terminate any Freelancer. does not give any instructions to any Freelancer about the Freelancer Services. and does not have any involvement with the work performed by any Freelancer. This Section 2 is in addition to and does not supersede, replace, or limit other similar terms in the User Agreement.SECTION 3. CLIENT RESPONSIBILITIESClient acknowledges and agrees that Client is solely responsible for undertaking the necessary research and due diligence to evaluate any Freelancer and any Freelancer information posted or posted or provided by or through Upwork or any talent scout. Client assumes all responsibility for engaging any Freelancer based on any Freelancer information received in connection with Team Builder Services.Client further understands and agrees that Client is solely responsible for determining eligibility standards, determining and completing any screening requirements, and selecting which Freelancers to engage. negotiating and agreeing with the Freelancer on the amount and type of payment for Freelancer Services and any other terms or conditions of the Service Contract. describing the work to be done by each Freelancer and all communications regarding the work. and determining when Freelancer Services will commence and end. Any information from Upwork regarding the foregoing for any Engagement will not be construed as advice to Client or as binding on Client.As set forth in greater detail in the User Agreement, Client is responsible and assumes all liability for determining whether Freelancers are independent contractors or employees while providing services to Client and for engaging them accordingly. Client understands and agrees that Upwork does not make any representation or provide any advice regarding the proper worker classification for any Engagement. For Freelancers that should be classified as employees, Client must sign up for and participate in the Upwork Payroll program made available on the Site, unless Client pays the Opt-Out Fee. For independent contractor relationships, Client may not require an exclusive relationship. a Freelancer classified as an independent contractor is free at all times to provide services to persons or businesses other than Client, including any competitor of Client. This Section 3 is in addition to and does not supersede, replace, or limit other similar terms in the User Agreement.SECTION 4. OTHER TERMSThese Team Builder Terms together with the Upwork User Agreement and other Terms of Service represent the entire agreement between the Client and Upwork and supersede all prior agreements and understandings with respect to the matters covered by it. Client agrees that Client did not accept the Team Builder Terms based on any representations, whether written or oral, other than those contained herein. No modification of or amendment to the Team Builder Terms by Client, nor any waiver of any rights, will be effective unless in writing signed by both Client and Upwork. Notwithstanding the foregoing, to the extent permitted by applicable law, Upwork may amend the Team Builder Terms with prior notice to Client at any time. Your continued use of the Team Builder Services after the effective date of a revised version of the Team Builder Terms or notice to you of updated Team Builder Terms constitutes your acceptance of its terms and agreement to be bound by its terms. Global Data Processing Agreement Version 1.2 Effective November 5, 2020 Download Table of Contents <ol> </ol> Page: / Please download the PDF to view this document. Download Work Together Talent Grants Terms and Conditions Version 1.2 Effective April 27, 2020 Download Table of Contents <ol> </ol> These Work Together Talent Grants Terms and Conditions (the “Grant Terms”) apply to any Application for a Grant under Upwork’s Work Together Talent Grant Program. By submitting an Application, an Applicant agrees to these Grant Terms. Pursuant to these Grant Terms, the Work Together Talent Grant program is a program where Upwork will provide Applicants credits in order to complete projects in response to COVID-19 and successful Applicants agree to create and to be featured by Upwork in Promotional Materials.Terms not defined in text are defined below in Section 9 (Definitions).1. Grant ProgramUpwork is offering to provide $1,000,000 USD in grants under the Work Together Talent Grant program (each, a “Grant”). The Grants will be awarded starting on or after April 27, 2020, to approved Applicants (each approved Applicant, a “Recipient”). Upwork will review Applications on a rolling basis and will award Grants until it has awarded $1,000,000 USD in Grants, unless it discloses publicly (including by posting on the Site) that it is suspended or ending the Work Together Talent Grant offer. Upwork will announce when funds are exhausted and will attempt to award all Grants by June 30, 2020, unless it is unable to identify sufficient eligible Applicants. If Upwork is unable to identify sufficient eligible Applicants, it may solicit additional Applications.The Grants will be awarded to Applicants to be used for the sole purpose of funding work that will directly further the COVID-19 response, subject to each Applicant’s agreement to and compliance with these Grant Terms, including, without limitation, the agreement to create content for and participate in promotional materials and to assign the rights to the same to Upwork, as described and assigned in Section 5 (License to Content. Company Name and Logo. Likeness). Upwork will award Grants in its sole discretion except as explicitly stated herein.Upwork will give priority to Applications that propose serving underrepresented groups. Upwork will not unlawfully discriminate against any Applicant on the basis of nationality, race, ethnicity, sex, gender, gender identity, sexual orientation, disability status, veteran status, marital status, or other similarly protected characteristics.2. EligibilityThese Grant Terms provide information on the minimum eligibility requirements for a Grant. In order to be eligible for a Grant, an Applicant must (a) meet all the criteria in these Grant Terms, unless a criterion is explicitly waived in writing by Upwork, (b) agree to these Grant Terms, and (c) sign an agreement reaffirming the terms of these Grant Terms outlining the Grant received and the services and content Recipient agrees to provide to Upwork (the “Grant Agreement”) . Upwork may waive eligibility criteria in its sole discretion by providing a writing to the Applicant explicitly referencing the criteria and stating it is waived.a. Eligibility Criteria <ul> <li>An Application must be completed at www.upwork.com/worktogether and must be completed in a truthful and accurate manner, contain a permitted purpose for a response or relief effort for COVID-19, and contain sufficient information for Upwork to evaluate the likely success of the Proposal in meeting its intended purpose;</li> <li>The Applicant (a) must be a registered user of the site, www.Upwork.com, before the Grant is made, (b) must be a business or non-profit entity (natural persons are not eligible for a Grant and may only complete Applications as authorized agents of a business entity), and (c) may not be (i) a religious entity, (ii) a lobbying or political advocacy entity. or (ii) an entity that engages in discriminatory practices;</li> <li>The Applicant must cooperate with Upwork and provide additional information about Applicant or the Application upon request;</li> <li>The Applicant’s Account (as defined in the Upwork Terms of Service) must be in good standing at the time the Application is made and at the time the Grant is awarded;</li> <li>The Proposal may not, in whole or in part, be for any prohibited purpose (each, below, a “Prohibited Purpose”):<ul> <li>Any purpose that is in conflict with Upwork’s values or mission,</li> <li>A religious purpose,</li> <li>Any purpose that will involve unlawful discrimination,</li> <li>A personal purpose of the Applicant or any other person, e.g., to pay personal bills,</li> <li>Political or lobbying efforts,</li> <li>Litigation purposes, or</li> <li>Any purpose other than to further a COVID-19 response</li> </ul> </li> </ul> b. No Entitlement Even if you meet all the eligibility criteria, you acknowledge that you have no entitlement to any Grant. Upwork may reject any Application for any lawful reason in its sole discretion, including, without limitation, concern about the truthfulness, reliability, or completeness of the Application. concerns about the legitimacy or trustworthiness of Applicant. determination that the Proposal would be ineffective. belief that the Applicant or Proposal are inconsistent with Upwork’s mission or values. or any other lawful reason.3. Grant Recipients and Awards a. Notification. Upwork will notify each Recipient about the Grant and the amount of the Grant by email to Recipient’s email included in the Application including the Grant Agreement (the “Notification”). Grant amounts will typically be between $5,000 USD and $25,000 USD.b. Acceptance. Recipient can accept or decline the Grant by signing the Grant Agreement within five (5) calendar days of the date of the Notification. By accepting the Grant, Recipient affirms that Recipient will complete the proposal and Promotional Materials as described in the Application under these Grant Terms, including Section 4 (Conditions of Grant) and Section 5 (License to Use Company Name and Logo. Likenesses). If there is a conflict between the Application and these Grant Terms, these Grant Terms will apply. If Recipient cannot complete the Proposal for any reason, Recipient may not accept the Grant and must immediately notify Upwork. Such notification will revoke the Grant, which will only be reissued in Upwork’s sole discretion.c. Award. Within ten (10) days of Recipient’s (a) signing the Grant Agreement and (b) provision of a W9, W-8BEN-E, or any other requested documentation, Upwork will issue a credit to Recipient’s Upwork Account which can be used to pay for Services to complete the Proposal, subject to Recipient’s compliance with these Grant Terms, including, without limitation, Section 5 (License to Use Company Name and Logo. Likenesses).d. Complimentary Plus Membership. In addition to the Grant, Recipients will be awarded a complimentary Plus plan for three (3) months to enable Recipient to more effectively use the Site to find and engage qualified Freelancers and Agencies. If a Recipient already has a Plus plan, the fees will be waived for three (3) months. The complimentary Plus plan does not apply to clients with an Enterprise or Business membership.4. Conditions of GrantBy accepting a Grant, Recipient agrees to comply with the following conditions:<ul> <li>To sign a Grant Agreement;</li> <li>To use the Grant funds for the stated Proposal in the Application;</li> <li>To create Promotional Materials and to be featured, and for your content to be featured, in promotional materials, including, without limitation, advertisements promoting Upwork, and to assign the rights to all such materials to Upwork for marketing purposes, as described and assigned in Section 5;</li> <li>To comply with Upwork’s Nondiscrimination Statement;</li> <li>To subscribe to marketing emails;</li> <li>To use the Grant by December 27, 2020, and agrees that the failure to do so is authorization for Upwork to remove any remaining funds from Recipient’s Account</li> <li>It will not use Grant funds to pay any Freelancer or Agency that Recipient invited to join the Site (a “BYO Talent”);</li> <li>It will not use Grant funds for any Prohibited Purpose.</li> </ul>Recipient further acknowledges that (a) by accepting a Grant, it agrees to provide, upon request, (i) a written confirmation that the funds were used as described in the Application and consistent with these Grant Terms, and (ii) accounting of how the Grant funds were used, and (b) if Recipient fails to comply with any of these conditions or other Grant Terms will result in a forfeiture of any funds remaining in the Account, which Recipient authorizes Upwork to reclaim, and that Recipient will return any used Grant funds within 30 days of Upwork’s demand that Recipient do so, provided Upwork provides a reasonable basis for its demand.Recipient is not eligible for any credit from Upwork for any Grant funds under Upwork’s Payment Protection programs.5. License to Content. Company Name and Logo. LikenessesBy applying for a Grant, you agree to grant Upwork the rights to use your story in marketing assets and, without limiting the foregoing, create and provide Promotional Materials, including, without limitation, any video, film, recording, audio and/or photograph(s) as agreed in the Grant Agreement to be used by Upwork in its marketing and promotional materials. Upwork shall have complete ownership of any such video, film, recording, audio and/or photograph(s), including any copyright interests, and you hereby waive any all interest and ownership rights therein. Upwork will have the right to edit and alter any such video, film, recording, audio and/or photograph(s) and you waive any right of approval.By applying for a Grant, you hereby grant to Upwork and our successors and affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, exclusive (except non-exclusive with respect to your name, logo, voice and likeness), worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, and publicly display, any and all content you create or participate in, your logo (including those of the entity you represent), your name, voice, and/or likeness, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, including for promoting, marketing, and redistributing Upwork or part or all of the Site (and derivative works thereof) in any media formats and through any media channels.6. Upwork Service FeesFor any Service Contract Recipient pays with Grant funds, Upwork will waive all associated fees and costs on the Service Contract, including payment processing fees and Freelancer Service Fees. If Upwork inadvertently charges fees due to an administrative oversight, Upwork will promptly refund any such fees upon request or upon discovery of the oversight.7. AuthorityIf you submit an Application as an employee or agent on behalf of a business or non-profit entity, you represent and warrant that you are authorized to bind yourself and your entity.8. PrivacyYour privacy is important to Upwork and your information, including information submitted in an Application, will be handled in accordance with our Privacy Policy, which is part of the Terms of Service, and applicable law.9. Additional DefinitionsTerms not defined above have the definitions stated here:“Agency” has the meaning defined in the Upwork Terms of Service.An “Applicant” means the authorized agent of and the business or non-profit entity that completes an Application through its authorized agent.An “Application” means an application for a Grant submitted at www.upwork.com/worktogether.“Freelancer” has the meaning defined in the Upwork Terms of Service.“Payment Protection” has the meaning defined in the Upwork Terms of Service.“Proposal” means the proposed COVID-19 response efforts described in an Application.“Promotional Materials” means content created by Recipient for use in promotional activities by Upwork in any medium in any jurisdiction and as further agreed in the Grant Agreement.“Services” means any services provided by a Freelancer or Agency engaged and paid through the Site pursuant to a Service Contract.“Service Contract” has the meaning defined in the Upwork Terms of Service.The “Site” has the meaning defined in the Upwork Terms of Service.“Upwork” means Upwork Inc.The terms “you” and “your” refer to an Applicant. Jumpstarter Projects Program Terms of Use Version 1.3 Effective December 10, 2018 Download Table of Contents <ol> </ol> These Jumpstarter Projects Program Terms of Use (“Jumpstarter Terms”) are part of and incorporate by reference the Upwork User Agreement and other Terms of Service. The Jumpstarter Terms are in addition to and do not supersede, replace, or limit other similar terms in the Terms of Service. Capitalized terms not defined herein are defined in the User Agreement or elsewhere in the Terms of Service. YOU AGREE TO BE BOUND BY THE JUMPSTARTER TERMS. IF YOU DO NOT ACCEPT THE JUMPSTARTER TERMS, YOU MAY NOT ACCESS OR USE ANY JUMPSTARTER SERVICES FOR ANY PROJECT. SECTION 1. JUMPSTARTER PROJECT SERVICES DEFINEDThe Jumpstarter Program aims to help Clients use the Site to post projects quickly and efficiently. For this purpose, Upwork may make sample project descriptions and budgets available for optional use and help connect Clients with Freelancers who have indicated interest in completing such projects (“Jumpstarter Services” and such projects posted by Clients, “Jumpstarter Projects”). If such sample project descriptions and budgets are not acceptable to Clients or not appropriate for the scope of the project, Client will post a project outside of the Jumpstarter Program. Upwork will assist Clients in using the Site if needed. If Freelancer does not consider the terms acceptable for any reason or for no reason at all, Freelancer is under no obligation to accept any Jumpstarter Project.SECTION 2. SCOPE AND LIMITATIONSJumpstarter Services may be used subject to the following parameters and limitations, which you understand and acknowledge.Clients may only use Jumpstarter Services when they conclude that the scope and price are appropriate for their project. If the Client has needs that are not consistent with the Jumpstarter Projects, Client agrees that Client will post projects without using Jumpstarter Services. Freelancer is under no obligation whatsoever to accept any Jumpstarter Project at all, and, if the Freelancer chooses, may decline every Jumpstarter Project. Freelancer’s acceptance or non-acceptance of any Jumpstarter Project will not affect in any way Freelancer’s ability to continue to use the Site for their business needs. By accepting a Jumpstarter Project, Freelancer understands and agrees that Freelancer will enter into a Services Contract directly with the Client on the stated terms.All information about a project, Freelancer or Client obtained in connection with Jumpstarter Services is intended to be illustrative only and will not constitute any requirement, guarantee or warranty by Upwork. Users have discretion whether to contract with each other and, if they do not agree to the terms of the Jumpstarter Projects, agree that they will negotiate and determine the specific terms of their Service Contracts with each other. Users choose whether to use any Jumpstarter Project and may enter into new Services Contracts to add any milestones to their Service Contracts and/or post different terms using the job post, contract offer or other features available on the Site. SECTION 3. ROLE OF UPWORK AND CLIENT RESPONSIBILITIESYou understand and agree that Upwork is not a party to any Service Contract, is not involved in or responsible for any work performed by Freelancers, and has no control over any Freelancer or Client. Upwork does not have any power or authority to, and does not, determine any eligibility standards for any Services Contract, select or contract any Freelancer to provide services to a Client, determine or control any term or condition of the Service Contract or Project, or cause any Freelancer to accept any Service Contract or perform any Freelancer Services. SECTION 4. OTHER TERMSTogether with the Upwork User Agreement and other Terms of Service, these Jumpstarter Terms represent the entire agreement with Upwork and supersede all prior agreements and understandings with respect to the matters covered. You agree that you did not accept the Jumpstarter Terms based on any representations, whether written or oral, other than those contained herein. No modification of or amendment to the Jumpstarter Terms, nor any waiver of any rights, will be effective unless in writing signed by you and Upwork. Notwithstanding the foregoing, to the extent permitted by applicable law, Upwork may amend the Jumpstarter Terms with prior notice at any time. Your continued use of the Jumpstarter Services after the effective date of a revised version of the Jumpstarter Terms or notice to you of updated Jumpstarter Terms constitutes your acceptance of its terms and agreement to be bound by its terms. Legal Center powered by PactSafe Copyright © 2020, Upwork Global Inc.

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On 2020-12-14 19:44:56 UTC, michielbdejong (6) Staff wrote:

On 2020-12-14 19:44:56 UTC, michielbdejong ⁽⁶⁾ Staff wrote: