WORKINGCLUB - TERMS OF SERVICE LAST UPDATED: AUGUST 6, 2020
1. WORKINGCLUB ACCOUNTS Section 1 discusses what you must agree to before using the Platform and the different types of accounts that can be created on the Platform, as detailed below.
1.1 REGISTRATION AND ACCEPTANCE By registering for an account to use the Platform (an “Account”), by using the Platform 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 Platform, you agree to abide by this Agreement and the other Terms of Service.
To access and use certain portions of the Platform and the Platform Services, you must register for an Account. Subject to the Platform Terms of Service, certain portions of the Platform are available to Platform Visitors, including those portions before your Account registration is accepted. Workingclub reserves the right to decline a registration to join Workingclub or to add an Account type as a Company 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 this Terms of Service, on behalf of yourself and the company.
1.2 ACCOUNT ELIGIBILITY Workingclub offers the Platform for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Platform, you must, and hereby represent that you (a) have or are an employee or agent of and authorized to act for an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Platform for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of Freelance Services; and (d) a legal entity or an individual 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) who can form legally binding contracts.
1.3 ACCOUNT PROFILE To register for an Account to join the Platform, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Platform or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
1.4 ACCOUNT TYPES We reserve the right to revoke the privileges of the Account or access to or use of the Platform, 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. Account types are collectively called (“Users”).
1.4.1 COMPANY ACCOUNT You can register for an Account or add an Account type to use the Platform as a Company (a “Company Account”). Each User under a Company Account (“Team Member”) can be given different permissions to act on behalf of the Company Account. Team Members can post projects on Workingclub and reach out to Freelancers.
1.4.2 WORKINGCLUB ACCOUNT You can register for an Account or add an Account type to use the Platform as a Club Member (a “Workingclub Account”). In order to register for an Account, you must have explicit approval from Workingclub. Only Workingclub Accounts can complete projects. Furthermore, Club Members must have all suitable hardware and or software licenses to complete commercial work.
1.5 ACCOUNT PERMISSIONS You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, including as a Team, you represent and warrant that (a) the User is authorized to act on your behalf, (b) you are financially responsible for the User’s actions taken in accordance with those permissions, including, if applicable, entering into binding contracts on behalf of the owner of the Account, and (c) you are fully responsible and liable for any action of any User to whom you have provided any permissions and any other person who uses the Account, including making payments and entering into Engagements and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Platform. Upon closure of an Account, Workingclub 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 Workingclub. You authorize Workingclub, 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.
1.7 USERNAMES AND PASSWORDS When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person who is not authorized to use your Account. You authorize Workingclub to assume that any person using the Platform 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 Platform if (a) you are not authorized to use either or (b) the use would violate the Terms of Service.
2. PURPOSE OF WORKINGCLUB Section 2 discusses what Workingclub does and does not do when providing the Platform and some of your responsibilities when using the Platform to find or enter into an engagement with a Freelancer or Company, as detailed below.
The Platform is a marketplace where Companies and Freelancers can identify each other and advertise, buy, and sell Freelance Services online. Subject to the Terms of Service, Workingclub provides the Platform Services to Users, including hosting and maintaining the Platform, facilitating payment and reviews, and assisting Users in resolving disputes. When a User enters an engagement the User uses the Platform to invoice and pay any amounts owed.
2.1 RELATIONSHIP WITH WORKINGCLUB Workingclub merely makes the Platform available to enable Freelancers and Companies to find and transact directly with each other. Through the Platform, Freelancers may be notified of Companies that may be seeking the services they offer, and Companies may be notified of Freelancer that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Project, Company, or Freelancer on their own. If Users decide to enter into an engagement, the Engagement is directly between the Users, and Workingclub is not a party to that Engagement.
You acknowledge, agree, and understand that Workingclub is not a party to the relationship or any dealings between Company 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 an engagement (such as any interviews, vetting, background checks, or similar actions), (c) negotiating, agreeing to, and executing any terms or conditions of Engagements, (d) performing Freelancer Services, or (e) paying for Engagements or Freelancer Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into an engagement with another User and for verifying any information about another User. Workingclub does not make any representations about or guarantee the truth or accuracy of any Freelancer’s or Company’s listings or other User Content on the Platform; does not verify any feedback or information provided by Users about Freelancers or Companies. You acknowledge, agree, and understand that Workingclub 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. Workingclub makes no representations about and does not guarantee, and you agree not to hold Workingclub 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 Companies to pay for Freelancer Services; User Content, statements or posts made by Users; or the ability or willingness of a Company or Freelancer to actually complete a transaction.
You also acknowledge, agree, and understand that Freelancers are solely responsible for determining, and have the sole right to determine, which Projects to accept; the time, place, manner, and means of providing any Freelancer Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Workingclub, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Workingclub will not have any liability or obligations under or related to Engagements and/or Freelancer Services for any acts or omissions by you or other Users; (iii) Workingclub 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 Workingclub does not set or have any control over Freelancer’s pricing, work hours, work schedules, or work location, nor is Workingclub 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 Company in a given Engagement, and Workingclub does not, in any way, provide or guarantee Freelancer a regular salary or any minimum, regular payment; (vi) Workingclub does not provide Freelancers with training or any equipment, labor, tools, or materials related to any Engagement; and (vii) Workingclub does not provide the premises at which Freelancers will perform the work. Freelancers are free to use subcontractors or employees to perform Freelancers Services and may delegate work on fixed-price contracts or by agreeing with their Companies to have hourly contracts for Freelancer’s subcontractor(s) or employee(s). If a Freelancer uses subcontractors or employees, Freelancer further agrees and acknowledges that this paragraph applies to Workingclub’s relationship, if any, with Freelancer’s subcontractors and employees as well and Freelancer is solely responsible for Freelancer’s subcontractors and employees.
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 BENEFITS Freelancer acknowledges and agrees that Freelancer is solely responsible (a) for all tax liability associated with payments received from Freelancer’s Companies and through Workingclub, and that Workingclub 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 Workingclub; (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 Workingclub is required by applicable law to withhold any amount of the Freelancer Fees and for notifying Workingclub of any such requirement and indemnifying Workingclub for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Workingclub, Freelancer agrees to promptly cooperate with Workingclub 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 Workingclub.
Workingclub will assist with the issuance of 1099k’s in line with being a third party payment processor.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT You hereby acknowledge and agree that Users publish and request Workingclub to publish on their behalf information on the Platform 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 Companies voluntarily submit to Workingclub and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Workingclub; Workingclub 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 Platform and you specifically request that Workingclub post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Platform. You acknowledge and agree that feedback results for you wherever referenced, and other User Content highlighted by Workingclub on the Platform or otherwise (“Composite Information ”), if any, will include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that Workingclub will make Composite Information available to other Users, including composite or compiled feedback. Workingclub provides its feedback system as a means through which Users can share their opinions of other Users publicly, and Workingclub 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.
Workingclub does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content if such User Content is legally actionable or defamatory. Workingclub is not legally responsible for any feedback or comments posted or made available on the Platform 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, Workingclub reserves the right (but is under no obligation) to remove posted feedback or information that, in Workingclub’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 Workingclub. You acknowledge and agree that you will notify Workingclub of any error or inaccurate statement in your feedback results, including the Composite Information , and that if you do not do so, Workingclub may rely on the accuracy of such information.
3. CONTRACTUAL RELATIONSHIP BETWEEN COMPANY AND FREELANCER Section 3 discusses the relationship you may decide to enter into with another User, including Engagements between Users, as detailed below.
3.1 ENGAGEMENTS If a Company and Freelancer decide to enter into an engagement, the Engagement is a contractual relationship directly between the Company and Freelancer. Company and Freelancer have complete discretion both with regard to whether to enter into an engagement with each other and with regard to the terms of any Engagement. You acknowledge, agree, and understand that Workingclub is not a party to any Engagement, that the formation of an engagement between Users will not, under any circumstance, create an employment or other service relationship between Workingclub and any Freelancer or a partnership or joint venture between Workingclub and any User.
With respect to any Engagement, Companies and Freelancers may enter into any additional 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 Workingclub’s rights and obligations under the Terms of Service.
3.2 DISPUTES AMONG USERS Non-binding dispute assistance (“Dispute Assistance”) is available within 30 days of the date of the last release of funds from Company to Freelancer. If Company or Freelancer contacts Workingclub via email to support@Workingclub within 30 days of the date of the last payment from Company to Freelancer and requests non-binding dispute assistance for any dispute among them (a “Dispute”), Workingclub will attempt to assist Company and Freelancer by reviewing the Dispute and proposing a mutual, non-binding resolution. Workingclub will only review the 30 days of work performed prior to the date a User requests Dispute Assistance.
If Freelancer or Company intends to obtain an order from any arbitrator or any court that might direct Workingclub to take or refrain from taking any action with respect to an 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 Workingclub, 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.
• The Workingclub Disputes team will notify Company and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation.
• If both Company 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 Platform that pertains to the Dispute. After review, the Disputes team will propose a mutual, non- binding resolution based on the results of the review.
• The proposed resolution is non-binding; Company and Freelancer can choose whether or not to agree to it. If Company and Freelancer agree in writing to the proposed resolution, Company and Freelancer agree that Workingclub is authorized and irrevocably instructed to immediately release funds in accordance with the proposed resolution.
• If Company or Freelancer rejects Workingclub’s proposed, non-binding resolution then Company and/or Freelancer must pursue the Dispute independently.
• Workingclub reserves the right to review the Freelancer’s work for 30 days prior to the date of the request for Dispute Assistance and in its sole discretion, to make adjustments to invoices, and to direct Workingclub to make appropriate releases to Company if it finds work that clearly does not relate Hourly Contract requirements or Company instructions in the Work Diaries or violations of the Terms of Service during its review of the work.
3.3 CONFIDENTIAL INFORMATION AND OWNERSHIP Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in any Engagement Terms. If and to the extent that the Users do not articulate any different Engagement agreement, then they agree that this Section 3.3 (Confidentiality) applies.
3.3.1 Confidentiality 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.
3.3.2 Return If and when Confidential Information is no longer needed for the performance of the Freelancer Services for a Services Contract or at Company’s or Freelancer’s written request (which may be made at any time at Company’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.
3.3.3 Ownership of Work Product Upon Freelancer’s receipt of full payment from Company, 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 Company, and Company will be deemed to be the author thereof. If Company has any Intellectual Property Rights to the Work Product that are not owned by Company upon Freelancers’s receipt of payment from Company, Freelancer hereby automatically irrevocably assigns to Company 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 Company’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.
3.3.4 LICENSE TO BACKGROUND TECHNOLOGY Upon Freelancer’s receipt of full payment from Company for delivery of Work Product, Freelancer hereby automatically grants to Company 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.
3.3.5 LICENSE TO OR WAIVER OF OTHER RIGHTS If Freelancer has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Company by Freelancer, Freelancer hereby automatically, upon Freelancer’s receipt of full payment from Company, unconditionally and irrevocably grants to Company 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 Company, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Company or related to Company’s customers, with respect to such rights, and will, at Company’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.
3.3.6 ASSISTANCE Freelancer will assist Company in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Engagement, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Company is unable, after reasonable effort, to secure Freelancer’s signature on any document needed in connection with the foregoing, Freelancer hereby designates and appoints Company 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.
3.3.7 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 Company 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 Company.
3.3.8 BACKGROUND TECHNOLOGY Freelancer 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 Company, 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 Company any software code for which the use or distribution of the code will create (or purport to create) obligations for Company to grant any rights or immunities under Company intellectual property to a third-party, including without limitation any obligation that the Work Product or Company 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.
3.3.9 COMPANY MATERIALS Company grants Freelancer a limited, non-exclusive, revocable (at any time, at Company’s sole discretion) right to use the Company Materials as necessary solely for the performance of the Freelancer Services under the applicable Engagement. Company reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Company Materials. Upon completion or termination of the Engagement, or upon Company’s written request, Freelancer will immediately return all Company Materials to Company and further agrees to destroy all copies of Company Materials and Deliverables (except for Background Technology as permitted by the Engagement) 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 Company, Freelancer agrees to provide written certification to Company that Freelancer has returned or destroyed all Company Materials and Work Product as provided in this subsection.
3.4 THIRD-PARTY BENEFICIARIES It is the intent of the Parties to this Agreement that Users who have entered into Engagements or disclosed or received Confidential Information to another User are third-party beneficiaries of this Agreement with respect to this Section 3 only.
4. WORKER CLASSIFICATION Section 4 discusses what you agree to concerning whether a Freelancer is an employee or independent contractor and when you agree to pay Workingclub an opt-out fee, as detailed below.
4.1 WORKER CLASSIFICATION Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Workingclub and a User. Company is solely responsible for and has complete discretion with regard to selection of any Freelancer for any Project. Company is solely responsible, warrants its decisions regarding classification are correct, and assumes all liability, for determining whether Freelancers should be engaged as independent contractors or employees of Company and engaging them accordingly; Workingclub will have no input into, or involvement in, worker classification as between Company and Freelancer and Users agree that Workingclub 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.
It will be assumed that if a Company pays a Freelancer through our Platform that they have been classified as an independent contractor. In a scenario where a Freelancer is deemed to be an employee or if it will receive services from a Freelancer under terms and conditions that would give rise to an employment engagement, Company agrees to pay opt-out fee (outlined in section 6).
Freelancer, acknowledges, understands, and agrees that Workingclub 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 and/or Company, including the selection of an employee, pay rate, work hours, employment dates, and working conditions. Freelancer will not have any contract on the Workingclub Platform or contact with Workingclub regarding such employment terms
5. Workingclub FEES Section 5 describes what fees you agree to pay to Workingclub in exchange for Workingclub providing the Platform to you and what taxes Workingclub may collect, as detailed below.
5.1 SERVICE FEES Companies pay Workingclub a Service Fee depending on their account type for the use of the Platform. Workingclub may also charge service fees to Freelancers for using the Platform’s communication, invoicing, reporting, dispute resolution, and payment services, including facilitating arbitration services. Workingclub will deduct a certain percentage from the total payout when remitting payment for a project posted on the platform.
Workingclub and Stripe function as a Third Party Payment Processors in accordance with Section 2091, section 6050W (c) (3) of Housing and Economic Recovery Act of 2008.
5.2 MEMBERSHIP FEES Companies may pay Workingclub a membership fee if they subscribe for a paid membership which will subscribe Companies to different levels of participation and privileges on the Platform, by payment of subscription fees.
5.3 VAT AND OTHER TAXES Workingclub 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 Workingclub is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Workingclub under the Terms of Service.
5.4 NON-PAYMENT If Company is in “default”, meaning the Company 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 Workingclub), Workingclub 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, Company will be deemed to be in default on the earliest occurrence of any of the following: (a) Company fails to pay the Freelancer Fees when due, (b) Company fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days, an account current after a credit or debit card is declined or expires, (c) Company fails to pay an invoice issued to the Company by Workingclub within the time period agreed or, if none, within 30 days, (d) Company initiates a chargeback with a bank or other financial institution resulting in a charge made by Workingclub for Freelancer Fees or such other amount due being reversed to the Company, or (e) Company takes other actions or fails to take any action that results in a negative or past-due balance on the Company’s account.
If Company is in default, Workingclub may, without notice, temporarily or permanently close Company’s Account and revoke Company’s access to the Platform, including Company’s authority to use the Platform to process any additional payments, enter into Engagements, or obtain any additional Freelancer Services from other Users through the Platform. However, Company will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on the Company’s Account as a result of the default. Without limiting other available remedies, Company must pay Workingclub 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.
Workingclub, at our discretion and to the extent permitted by applicable law, may set off amounts due against other amounts received from Company or held by Workingclub for Company, 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.
5.5 NO RETURN OF FUNDS Company acknowledges and agrees that Workingclub will charge Company’s designated Payment Method for the Freelancer Fees when the Company remits payment, and that once Workingclub charges or debits the Company’s designated Payment Method for the Freelancer Fees plus Service Fee, the charge or debit is non-refundable, except as otherwise required by applicable law. Company also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Company resolve disputes. To the extent permitted by applicable law, Company 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 Company initiates a chargeback in violation of this Agreement, Company agrees that Workingclub may dispute or appeal the chargeback and institute collection action against Company and take such other action it deems appropriate.
5.6 PAYMENT METHODS In order to use certain Platform Services, Company must provide account information for at least one valid Payment Method.
Payment Methods will be charged by Workingclub via Stripe in most countries.
By providing Payment Method information through the Platform and authorizing payments with the Payment Method, Company represents, warrants, and covenants that: (a) Company is legally authorized to provide such information; (b) Company is legally authorized to make payments using the Payment Method(s); (c) if Company is an employee or agent of a company or person that owns the Payment Method, that Company is authorized by the company or person to use the Payment Method to make payments on Workingclub; and (d) such actions do not violate the terms and conditions applicable to Company’s use of such Payment Method(s) or applicable law. When Company authorizes a payment using a Payment Method via the Platform, Company 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 Company’s Payment Method(s), Company is solely responsible for paying such amounts by other means.
Because the use of any Payment Method may be limited by applicable law or by written agreement with your financial institution, Workingclub is not liable to any User if Workingclub does not complete a transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. Workingclub will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement.
5.7 U.S. DOLLARS AND FOREIGN CURRENCY CONVERSION The Platform and the Platform 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 Platform may display foreign currency conversion rates that Workingclub currently makes 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 Platform. 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 Platform. A list of supported foreign currencies is available on the Platform. If foreign currency conversion is required to make a payment in U.S. Dollars and either Workingclub 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 Platform, Workingclub or one of our Affiliates will charge, debit, or credit the Users Payment Method in U.S. Dollars and the Users Payment Method provider will convert the payment at a foreign currency conversion rate selected by the Users Payment Method provider. The Users Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved. The Users authorization of a payment using a foreign currency conversion rate displayed on the Platform is at the Users sole risk. Workingclub are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. Workingclub is not responsible for currency fluctuations that occur when receiving or sending payments to and from the Account.
6. NON-CIRCUMVENTION Section 6 discusses your agreement to make and receive payments only through Workingclub for two years from the date you first meet your Company or Freelancer on the Platform, unless you pay an Opt-Out Fee, as detailed below.
6.1 MAKING PAYMENTS THROUGH WORKINGCLUB You acknowledge and agree that a substantial portion of the compensation Workingclub receives for making the Platform available to you is collected through the Service Fee described in Section 5.1. Workingclub only receives this Service Fee when a Company and a Freelancer pay and receive payment through the Platform. Therefore, for 24 months from the time you identify or are identified by any party through the Platform (the “Non-Circumvention Period”), you agree to use the Platform as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “Workingclub Relationship”). For the avoidance of doubt, if you, or the business you represent, did not identify and were not identified by another party through the Platform, such as if you and another User worked together before meeting on the Platform, then the Non- Circumvention Period does not apply. If you use the Platform 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 when acting in that capacity with respect to the other User.
Except if you pay the Opt-Out Fee (see Section 6.2), you agree not to circumvent the Payment Methods offered by the Platform. By way of illustration and not in limitation of the foregoing, you agree not to:
• Submit proposals or solicit parties identified through the Platform to contract, hire, work with, or pay outside the Platform.
• Accept proposals or solicit parties identified through the Platform to contract, invoice, or receive payment outside the Platform.
• Invoice or report on the Platform or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
• Refer a User you identified on the Platform to a third-party who is not a User of the Platform for purposes of making or receiving payments off the Platform.
You agree to notify Workingclub immediately if a person suggests to you making or receiving payments outside of the Platform in violation of this Section 6.1. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Workingclub by sending an email message to: Support@Workingclub
If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Platform, such as minimum rates supported on the Platform, and therefore choose to cease using the Platform, you may pay the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Platform.
6.2 OPTING OUT You may opt-out of the obligation in Section 6.1 with respect to each Workingclub Relationship only if the Company or prospective Company or Freelancer pays Workingclub an opt-out fee for each such relationship (the “Opt-Out Fee”).
The Opt-Out Fee is computed as follows (a) interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, on the amount calculated in (b), from the date Company first makes payment to the subject Freelancer until the date the Opt-Out Fee is paid; and (b) the greater of: (i) $500; or (ii) 10% of the anticipated annualized salary or wages for one year if the Company offers Freelancer employment directly; or (iii) all Service Fees that would be earned by Workingclub from the Workingclub Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Freelancer from Company during the most recent normalized 8-week period, or during such shorter period as data is available to Workingclub;
(iv) provided, however, that if the amount in (ii) and (iii) cannot be ascertained due to uncertainty or lack of sufficient information, then Workingclub and you agree that fee shall be $5000; if only one of (ii) or (iii) can be ascertained, then Workingclub and you agree that amount shall be used if it is greater than $500. To pay the Opt-Out Fee, you must request instructions by sending an email message to Adam@Workingclub
If Workingclub determines, in its sole discretion, that you have violated Section 7, Workingclub to the maximum extent permitted by law (x) charge your Payment Method the Opt-Out Fee (including interest) if permitted by law or send you an invoice for the Opt-Out Fee (including interest), which you agree to pay within 30 days, (y) close your Account and revoke your authorization to use the Platform, and/or (z) charge you for all losses and costs (including any and all time of Workingclub’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
7. RECORDS OF COMPLIANCE Section 7 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 Workingclub upon request. Nothing in this subsection requires or will be construed as requiring Workingclub to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, oran engagement. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Platform will not be construed as creating any responsibility on Workingclub’s part to store, backup, retain, or grant access to any information or data for any period.
8. WARRANTY DISCLAIMER Section 8 discusses your agreement and understanding that the Platform may not always be available or work perfectly, as detailed below.
YOU AGREE NOT TO RELY ON THE PLATFORM, THE PLATFORM SERVICES, ANY INFORMATION ON THE PLATFORM OR THE CONTINUATION OF THE PLATFORM. THE PLATFORM AND THE PLATFORM SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. Workingclub MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE PLATFORM, THE PLATFORM SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Workingclub DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 14 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST Workingclub WITH RESPECT TO ANY DEFECTS, NON- CONFORMANCES, OR DISSATISFACTION.
9. LIMITATION OF LIABILITY Section 9 discusses your agreement that Workingclub usually will not have to pay you damages relating to your use of the Platform and, if it is, at most it will be required to pay you $2,500, as detailed below.
Workingclub 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:
• your use of or your inability to use our Platform;
• delays or disruptions in our Platform;
• viruses or other malicious software obtained by accessing, or linking to, our Platform;
• glitches, bugs, errors, or inaccuracies of any kind in our Platform;
• damage to your hardware device from the use of the Platform;
• the content, actions, or inactions of third parties’ use of the Platform;
• a suspension or other action taken with respect to your Account;
• your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information , or metrics found on, used on, or made available through the Platform; and
• your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL Workingclub, 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 Workingclub, 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 Workingclub WITH RESPECT TO ENGAGEMENTS ON WHICH USER WAS INVOLVED AS COMPANY OR PANGEAN DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF
THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
10. RELEASE Section 10 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 Workingclub is not a party to any contract between Users, you hereby release Workingclub, 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 Company by a Freelancer and requests for refunds based upon disputes.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
This release will not apply to a claim that Workingclub failed to meet our obligations under the Terms of Service.
11. INDEMNIFICATION Section 11 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 Platform or your illegal or harmful conduct, as detailed below.
You will indemnify, defend, and hold harmless Workingclub, 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 Platform and the Platform Services by you or your agents, including any payment obligations or default (described in Section 6.4 (Non-Payment)) incurred through use of the Platform Services; (b) any Engagement entered into by you or your agents, including, but not limited to, the classification of a Freelancer as an independent contractor; the classification of Workingclub 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; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 12, your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password.
“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.
12. AGREEMENT TERM AND TERMINATION Section 12 discusses your and Workingclub’s agreement about when and how long this Agreement will last, when and how either you or Workingclub can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
12.1 TERMINATION Unless both you and Workingclub 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 Adam@Workingclub. In the event you properly terminate this Agreement, your right to use the Platform is automatically revoked, and your Account will be closed. Workingclub is not a party to any Engagement 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 Engagement 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 Workingclub 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 Platform; (c) Workingclub will continue to perform those Platform 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 Engagements, whichever is later, to Workingclub for any Platform Services or such other amounts owed under the Terms of Service and to any Freelancers for any Freelancer Services.
Without limiting Workingclub’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the Platform, deny your registration, or permanently revoke your access to the Platform and refuse to provide any or all Platform 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 Workingclub or our Affiliates; may be contrary to the interests of the Platform or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Platform under the same Account or a different Account or reregister under a new Account without Workingclub’s prior written consent. If you attempt to use the Platform under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Platform depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Engagements with you. You therefore agree as follows: IF Workingclub DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, Workingclub HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO ENGAGEMENTS 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 Workingclub 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.
12.2 ACCOUNT DATA ON CLOSURE Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Platform and that that any closure of your Account may involve deletion of any content stored in your Account for which Workingclub will have no liability whatsoever. Workingclub, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
12.3 SURVIVAL After 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 Workingclub from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
13. DISPUTES BETWEEN YOU AND Workingclub Section 13 discusses your agreement with Workingclub 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.
13.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE If a dispute arises between you and Workingclub or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 13.4.4 below, you, Workingclub, 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 Workingclub (including without limitation any claimed employment with Workingclub or one of our Affiliates or successors), the termination of your relationship with Workingclub, or the Platform 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 Terms of Service, any Engagement, payments or agreements, any payments or monies you claim are due to you from Workingclub 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 Workingclub 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.
13.2 CHOICE OF LAW
13.3 INFORMAL DISPUTE RESOLUTION Before serving a demand for arbitration of a Claim, you and Workingclub agree to first notify each other of the Claim. You agree to notify Workingclub of the Claim at Attn: Workingclub, 225 Dyer St. Providence, RI 02903 or by email to Support@Workingclub, and Workingclub agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Workingclub 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 Workingclub, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Workingclub 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.
13.4 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, Workingclub, 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.
13.4.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with Workingclub ends. Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to the Terms of Service. 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 Workingclub 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 Workingclub 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 Workingclub 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 Workingclub 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 13.4.4, 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. Workingclub 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.
13.4.2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement, 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 subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and Workingclub agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
13.4.3. 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 Workingclub 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 Workingclub 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, Workingclub 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.
13.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION You may opt out of the Arbitration Provision contained in this Section 14 by notifying Workingclub in writing within 30 days of the date you first registered for the Platform. To opt out, you must send a written notification to Workingclub at Attn: Legal, Workingclub 225 Dyer St, Providence, RI 02903 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 adam@Workingclub. 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 Workingclub constitutes mutual acceptance of the terms of this Arbitration Provision by you and Workingclub. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.
13.4.5. 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 Workingclub agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
14. GENERAL Section 14 discusses additional terms of the agreement between you and Workingclub, 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 Platform from certain locations, as detailed below.
14.1 ENTIRE AGREEMENT This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Workingclub 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 Workingclub 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 Workingclub because of the authorship of any provision of the Terms of Service.
14.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon Workingclub unless in a written instrument signed by a duly authorized representative of Workingclub or posted on the Platform by Workingclub. 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.
14.3 ASSIGNABILITY User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Workingclub’s prior written consent in the form of a written instrument signed by a duly authorized representative of Workingclub. Workingclub 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.
14.4 SEVERABILITY If 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.
14.5 FORCE MAJEURE The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements, and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
14.6 PREVAILING LANGUAGE AND LOCATION The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Platform is controlled and operated from our facilities in the United States.
14.7 ACCESS OF THE PLATFORM OUTSIDE THE UNITED STATES Workingclub makes no representations that the Platform is appropriate or available for use outside of the United States. Those who access or use the Platform 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 Platform, 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 Platform 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 Platform and your license to use the Platform will be immediately revoked.
15. DEFINITIONS Section 15 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.
“Background Technology” means all Inventions developed by Freelancer other than in the course of providing Freelancer Services to Company under the Engagement and all Inventions that Freelancer incorporates into Work Product.
“Company Materials” means requests, intellectual property, and any other information or materials that Company provides to Freelancer for Freelancer to perform Freelancer Services.
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that is known to the public or that: (a) is generally known by third parties as a result of no act or omission of Freelancer or Company; (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.
“Fixed-Price Contract” meansan engagement for which Company is charged a fixed fee agreed between a Company and a Freelancer, prior to the commencement ofan engagement, for the completion of all Freelancer Services contracted by Company for such Engagement.
“Freelancer Services” means all services performed for or delivered to Companys by Freelancers.
“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 Company and a Freelancer; and (c) any bonuses or other payments made by a Company to a Freelancer.
“Hourly Contract” meansan engagement for which Company 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 Company.
The term “including” as used herein means including without limitation.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to Workingclub, a bank account linked to your Account, a Stripe account, a debit card, or such other method of payment as Workingclub may accept from time to time in our sole discretion.
“Project” means an engagement for Freelancer Services that a Freelancer provides to a Company underan engagement on the Platform.
“Engagement” means, as applicable, (a) the contractual provisions between a Company and a Freelancer governing the Freelancer Services to be performed by a Freelancer for Company for a Project; or
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Work Product” means any tangible or intangible results or deliverables that Freelancer agrees to create for, or actually delivers to, Company 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.