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Terms and conditions

PLEASE READ THE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.

These Terms and Conditions (this “Agreement”) is a contract between you (“you” or “User”) and Freelancer Protocol Limited (“Protocol,” “we,” or “us”). You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our website located at www.freelancerprotocol.co.uk (the “Site”).

This Agreement incorporates by reference the Service Terms contained in Schedule 1 (the “Service Terms”) to this Agreement and the Form of Service Contract contained in Schedule 2 (the “Form of Service Contract”) to this Agreement. These agreements are together called the “Terms of Service”.

Subject to the conditions set forth herein, Protocol 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, including but not limited to a revised version that incorporates by reference further agreements. Protocol will provide reasonable advance notice of any amendment that includes a Substantial Change (as defined below), by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).

1 Accounts

1.1 REGISTRATION AND ACCEPTANCE

By 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. Protocol reserves the right to decline a registration to join Protocol or to add grant a User an Account type as a Client or Freelancer, for any lawful reason as it sees fit.

If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company.

1.2 ACCOUNT ELIGIBILITY

Protocol 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) have or are an employee or agent of and authorized to act for an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site and Site Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of Freelance Services; and (d) a legal entity or an individual 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) who can form legally binding contracts.

1.3 ACCOUNT PROFILE

To register for an Account to join the Site, you must complete a User profile (“Profile”). 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.

1.4.1 CLIENT ACCOUNT

You can register for an Account as a Client (a “Client Account”).

1.4.2 FREELANCER ACCOUNT

You can register for an Account as a Freelancer (a “Freelancer Account”).

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 Protocol to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use either or (b) the use would violate the Terms of Service.

2. PURPOSE OF PROTOCOL

Section 2 discusses what Protocol 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, Protocol provides the Site Services to Users, including hosting and maintaining the Site and facilitating the formation of 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 PROTOCOL

Protocol merely makes the Site and Site Services available to enable Freelancers and Clients to find and transact directly with each other. 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 Protocol is not a party to that Service Contract.

You acknowledge, agree, and understand that Protocol 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, or (e) paying for Service Contracts or 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. Protocol 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 vet or otherwise perform background checks on Freelancers or Clients. You acknowledge, agree, and understand that Protocol 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. Protocol makes no representations about and does not guarantee, and you agree not to hold Protocol 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, statements or posts made by Users; or the ability or willingness of a Client or Freelancer to actually complete a transaction.

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 Clients and through Protocol, and that Protocol 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 Protocol; (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 Protocol is required by applicable law to withhold any amount of the Freelancer Fees and for notifying Protocol of any such requirement and indemnifying Protocol for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Protocol, Freelancer agrees to promptly cooperate with Protocol 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 Protocol.

3 SERVICE CONTRACTS

If 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 Protocol 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 Protocol and any Freelancer or a partnership or joint venture between Protocol and any User.

With respect to any Service Contract, Clients and Freelancers may enter into any written agreements that they deem appropriate provided that any such agreements do not conflict with, narrow, or expand Protocol’s rights and obligations under the Terms of Service. The parties to a Service Contract agree to incorporate the Service Terms contained in Schedule 2 to this Agreement.

4 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 Protocol and a User.

5 DEMO

Freelancer shall, in good faith, produce a video of the Work Product created through the performance of the Freelancer Services specified in a Service Contract between Users (the “Demo”). Freelancer shall send such Demo to Client on the date specified in the Service Contract (the “Demo Date”).

Freelancer agrees and acknowledges that the Demo shall be a true and accurate reflection of the Work Product. Freelancer further agrees and acknowledges that any mistruth, misrepresentation or material inaccuracy in any Demo pursuant to any Service Contract between Users on Protocol shall constitute grounds for Protocol, in its sole discretion, to permanently close the Freelancer Account.{“ “}

5.1 DEMO REVIEW

Client agrees to review any Demo sent to Client by Freelancer pursuant to any Service Contract between Users in good faith and with reference to the Project Description specified in such Service Contract (the “Demo Review”). Client agrees and acknowledges that in relation to any Demo, it is obliged to complete the Demo Review within three days of and including the Demo Date.

5.2 DEMO ACCEPTANCE EVENT

If Client, in good faith, is satisfied with the Demo following any Demo Review and indicates as such through the messaging service on Protocol’s Site, a “Demo Acceptance Event” occurs.

5.3 DEMO REJECTION EVENT

If Client, in good faith, is unsatisfied with the Demo following any Demo Review and indicates as such through the messaging service on Protocol’s Site, a “Demo Rejection Event” occurs.

6 PAYMENT TERMS

You acknowledge and agree that any payments due under a Service Contract will be paid by Users through Protocol. Client shall remunerate Freelancer for Freelancer Services by the sum specified in a Service Contract agreed between Users through Protocol (the “Total Payment”).

6.1 Total Payment

On any Demo Acceptance Event, the Total Payment becomes payable by Client to Freelancer. Client shall pay to Freelancer the Total Payment within 14 days of, and including, the Demo Acceptance Event.

6.2 Part Payment

On any Demo Rejection Event, 33% of the Total Payment (the “Part Payment”) becomes payable by Client to Freelancer. Client shall pay to Freelancer the Total Payment within 14 days of, and including the Demo Rejection Event.

7. Disputes

If a dispute arises between you and Protocol, you and the Protocol agree to first attempt to resolve any dispute or claim that arises out of this Agreement, the other Terms of Service, your relationship with Protocol, the termination of your relationship with Protocol through mediation.

You and Protocol agree to share the costs of the mediation. Each party agrees to cooperate with the mediator and to try to reach a mutually satisfactory compromise. If the dispute is not resolved in 30 days after one party notifies the other in writing of its desire for mediation, either party may take the matter to court.

8. NON-CIRCUMVENTION

8.1 PAYMENT THROUGH THE PROTOCOL

Users acknowledge and agree to use the Site as their exclusive method for requesting, making and receiving all payments for a Project that is subject to a Service Contract. Users further agree to notify Protocol if a User suggests to you making or receiving payments outside of the Site in violation of this Section 7.1.

8.2 COMMUNICATION AND FILE TRANSFER THROUGH THE PROTOCOL

Users acknowledge and agree to use the Site as their exclusive method for all communications and transmission of files that relate to a Project, including the transfer to a Client by a Freelancer of a Demo and Work Product.

9 TERMINATION

Unless both you and Protocol 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. Protocol 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.

10 GENERAL

Section 10 discusses additional terms of the agreement between you and Protocol, 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.

10.1 ENTIRE AGREEMENT

This Agreement, together with the Service Contract Terms and any other Terms of Service that the Protocol may, from time to time, incorporate by reference into this Agreement, sets forth the entire agreement and understanding between you and Protocol 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.

10.2 MODIFICATIONS

No modification or amendment to the Terms of Service will be binding upon Protocol unless in a written instrument signed by a duly authorised representative of Protocol or posted on the Site by Protocol. 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.

10.3 SEVERABILITY

If and to the extent any provision of this Agreement or the other Terms of Service is held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement and the other Terms of Service.

10.4 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 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.

Schedule 1 - Service Terms

Users who enter into a Service Contract on the Site with another User are bound by these Service Terms in whole. The Protocol is not a party to any Service Contract between Users that incorporates these Service Terms. These Service Terms, together with the User Agreement, the Milestone Agreement and any further agreements that Protocol may, from time to time, incorporate by reference into the Terms and Conditions form the Terms of Service.

By agreeing to these Service Terms, Users do not limit their ability to negotiate and determine the specific terms of the Project, except as expressly stated otherwise in these Service Terms.

1. PARTIES

Client and Freelancer identified on the Site in relation to the Project are the parties to the Service Contract. The address of each party is the address entered under the tax information on the Site. Protocol is not a party to the Service Contract.

2. SERVICES

Client 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 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

If 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. A User that agreed to perform services under a Service Contract remains responsible for the quality of the services.

4. DEMO

The Freelancer agrees, in good faith, to accurately report and reflect the Freelancer Services by way of the Demo described in Section 5 of the Terms and Conditions. The Freelancer agrees and acknowledges that failing to accurately report and reflect such Freelancer Services in any Demo may result in the termination of the Freelancer’s Account, in accordance with [7.5] of the Terms and Conditions.

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 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 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 MATERIALS

Client 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 PROPERTY

Upon 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 TECHNOLOGY

Upon 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 RIGHTS

If 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 ASSISTANCE

Freelancer 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.

7 RETURN OF PROPERTY

Upon the expiry or termination of this Agreement, Freelancer shall return to the Clinet any property, documentation, records, or confidential information, which is the property of the Client.

8 Waiver

The waiver by either of the Parties of a breach, default, delay or omission of any of the provisions of this Service Contract