Thank you for using Utalan for your bookings.
If for any number of reasons, you’re not satisfied with your booking, we are here to help.
Our refund policies ensure buyers and sellers have consistent access to familiar and secure payment methods, transparent information on how to pay and what to pay for and know what to do if something goes wrong.
You are entitled to cancel your bookings within 3 days without giving any reason for doing so.
The deadline for cancelling a booking is 3 days from the date you booked a creator(influencer) on our platform.
In order to exercise your right of cancellation, you must inform us on your decision by means of clear statement. You can inform us of your decision by:
· Visiting our page on our website: firstname.lastname@example.org
We will confirm with creators on our platform to come to a mutual understand and reimburse you no later than 14 days from the day on which you notified us. We will use the same means of payment as you used for your booking, and you will not incur any fees for such reimbursement.
CONDITIONS FOR REFUND
Please make sure:
· The booking was done in the last 3 days
· You notified us within those days
· Creator cancelled booking in the last day of event
· Creator failed to fulfill their obligations
· Both buyer and creator decided to cancel booking
· Creator suspended from our platform
We reserve the right to refuse a refund that doesn’t meet the above return conditions in our sole discretion. Any other reasons giving that doesn’t meet our policy shall be subject to a fee for compensation to creators and service fees to our platform.
If you have any questions about our refund policies, please contact us on email@example.com
Last Updated: August 15th, 2020
We appreciate your trust in our products and services. In order to provide a marketplace platform for and other products and services through our website (utalan.com), mobile application, and through the services we provide (collectively, the website, application, and services referred to as our “Site”), and continue to make them better, Utalan Inc. dba Utalan collects information from you.
By “personal information”, we mean contact and other information that identifies you as a specific, identifiable individual.
- explains how Utalan collects, stores, uses, transfers, and discloses your information; and
- applies to our Site.
You should read the policy in full, but here are a few key things:
- When you use Utalan, even if you’re just browsing, we receive some information from you, such as the type of device you’re using and your IP address.
- You can choose to share additional information with us, such as your email address, by creating an account.
- If you have questions about this policy, how we collect or process your personal data, or anything else related to our privacy practices, we want to hear from you. You can contact us at any time using the contact details in the contact us section at the end of this policy.
Table of Contents
2. Information We Collect
3. Cookies and Tracking Technologies
4. How We Use Information
5. How We Share Information
6. Children and Parents
7. Your Choices
8. Accessing Personal Information and Retention Period
9. Data Security
10. California Privacy Rights
11. Disclosure to Users Outside the U.S.
12. Contact Us
Information We Collect
(a) Information You Provide
Utalan may collect personal information from you when you:
i. Create an account on the Site: Utalan collects your name and email address and may collect other personal information, such as a telephone number when you register, update, or add information to your account. We require you to create a username and password for your account. Utalan collects personal information relating to any third-party account that you link to your Utalan account (such as your Instagram user name if you link your Instagram account, Facebook user name if you link to your account , SoundCloud username if you link to your account , and Twitter username if you link to your account ). We may store payment information (such as credit or debit card details) but only if you choose to save it to your account. We use this information to maintain your account and communicate with you about the account, such as by verifying your email address or account information or requesting you to respond to a survey to improve the user experience on our Site. We will use your email address to send you promotional email communications from Utalan (and not from any third party) if you have opted in to receive them; to stop receiving them, click on the “unsubscribe” link in the footer of the promotional email.
ii. Make a purchase through the Site: Utalan collects the information that you provide when you are booking talent, including your name and email address, any mobile phone contact number (of you or the recipient) you choose to provide, the name of the recipient, and the details that you provide as part of your request. Utalan processes payment information you provide when you pay for a purchase. When you purchase merchandise, we also collect shipping and delivery information. When booking talent, unless you opt-out, we will make your name, the recipient’s name, and we will keep the purchase history in your account. We use this information to fulfill your request, accept your payment, ship and deliver your orders, deliver email messages, and process information you provide through our Site. We process information of designated recipients that you provide to us to the extent necessary to provide the Utalan Services, either as part of the content or for the transaction itself (for example, we share the transaction information with our Utalan Talent). If you provide a mobile telephone number, we use it to provide SMS messages related to the transaction.
iii. Contact Customer Service through the Site. Utalan collects personal and other information in connection with providing customer service. We use this information to provide you and others with customer service, to assist in resolving issues, and to evaluate and improve our customer service and processes.
(b) Information from Third Parties
We may also obtain information, such as contact details (for example, name and email address), country, IP address, purchase histories, marketing preferences, cookie information, hardware and software information and other technical information about you from vendors, such as analytics companies, and a Third Party Property (which may include a Social Media Platform). We and our vendors may collect information about your visits to and activity on our Site and other websites and services. We may combine that information with other personal information we have collected from or about you. We may use this information to target advertising and content to you and others and to assess the effectiveness of our advertising and activities. We may share certain of this information with our vendors for similar purposes.
Cookies and Tracking Technologies
(a) Cookies and Tracking
When you visit our Site, we may use tracking and other technologies, for example, cookies, local storage, web beacons, embedded scripts, and location data services to collect information about you. Some of these technologies may transfer a unique identifier for your device to a browser, place a cookie on your device, temporarily download code to your device, or use other means to track your access or interactions.
We use these technologies for a number of reasons, including to save your preferences for future visits to our Site, keep you logged in between visits, and to provide you with improved services. The information we collect may include (but is not limited to):
· date and time of your visit to our Site;
· areas you visit within our Site;
· links that you click on within our Site;
· websites or advertisements you visit before or after visiting our Site;
· terms you entered into a search engine that lead you to our Site;
· IP address, mobile device identifier, or other unique identifier and usage information for the device used to access our Site;
· precise location data from your device, if you have opted-in to the collection of that information (you may be able to disable the collection of precise location data through the settings on the device used to access our Site, but your approximate location may remain available through its IP address or other information that we collect);
· device and connection information, such as browser type and version, operating system, and platform; and
· whether an email message we sent was opened and whether a link in the email message was clicked.
To get information about Flash and Adobe’s privacy choices from Adobe, click here. To get information about cookies from All About Cookies.org, click here. If you disable cookies, adjust privacy settings on your device, restrict local storage, or otherwise limit these technologies, you may not be able to use some of our Site features.
(b) “Do Not Track” Requests
Utalan does not currently honor “Do Not Track” signals. For information about “do not track” from The Future of Privacy Forum, click here.
How We Use Information
We use the information that we collect as described above. We may also collect information about you from you and from other sources, and we may combine that information to operate, tailor content, personalize, adjust, and improve our Site.
We may also use your information:
· to contact you about administrative matters, such as the applicable Terms of Service, or other policies;
· to better understand your personal preferences to enable us to provide you with improved services;
· to compile aggregate data about Site traffic and interaction;
· to tailor the content and advertising we display to you or others, on our Site or elsewhere, and to analyze trends and statistics;
· to create advertising models through lookalike modelling or other research methodologies;
· for internal business purposes, such as improving our Site, products, and services and to comply with legal requirements and our business practices, such as our recordkeeping, backup, and document retention policies; and
We may convert personal information into information that no longer identifies you and is therefore not personal information; for example, by converting your email address into an alphanumeric code that does not identify you directly (“Hashed Information”). We and our service providers may use Hashed Information to track your activity on our Site and elsewhere, to target advertising, and for other marketing purposes. We may also collect other information that is not personal information, such as demographic information (i.e., age and gender) and information regarding use of a Site.
How We Share Information
We share non-personal information, such as aggregated statistics and de-identified information, with third parties in our discretion. Utalan also shares personal information as provided below in more detail.
Certain vendors may provide goods and services to Utalan and we may share information with them in connection with their goods and services. Vendors may use your information to execute, deliver, or improve the goods and services that they provide. We do not share personal information with any vendor to use for its own direct marketing or any other purposes without your consent.
(c) Law Enforcement
To the extent permitted by law, we will disclose your personal information pursuant to a law, regulation, court order, or other legal request or process, such as disclosure to law enforcement or other government officials or agencies in connection with any investigation, for example of fraud, intellectual property infringement, or any other activity that is or may be illegal or may expose Utalan, you, or another to legal liability.
This disclosure may include legal requests from a jurisdiction outside of the United States when we have a good faith belief that the response is required by law, regulation, court order, or other legal request or process in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally-recognized standards.
(d) Legal Rights
We will disclose your personal information when necessary to exercise, establish, or defend our legal rights. For example, we may review your account information in order to investigate allegations of hacking or a breach of any of the Terms of Service. We will disclose your personal information to our legal and other advisors, consultants, and law enforcement or other government entities.
(e) Protecting Others
We will disclose your personal information to third parties when we believe the disclosure is necessary to protect rights, property, or safety of another. For example, we disclose personal information relating to a Site account if we in good faith believe that a Site account is being used in ways that are harmful to another or contrary to the applicable Terms of Service.
(f) Sale of Our Business or Assets
In evaluating or engaging in a sale of assets, merger, acquisition, reorganization, bankruptcy, or other transaction, we may disclose, transfer, or assign your personal information and communications without your further consent.
Children and Parents
Our Site is intended for a general audience. We do not knowingly collect personal information from children (those under the relevant age threshold in the applicable jurisdiction) without the consent of a parent or legal guardian; if we learn that we have done so, we will promptly remove the information. If you are a parent or legal guardian who believes that we have collected or used their child’s personal information, please contact us using the contact details in the Contact Us section at the end of this policy.
(a) Your Choices About Personal Information You Provide to Utalan
i. If you do not want to provide Utalan with personal information that we request from you, you can choose not to provide it. Please note that if you choose not to provide us with personal information, we may not always be able to provide you with the relevant Utalan product or service that you request. For example, without providing an email address, you will not be able to create a Site account.
ii. To stop receiving promotional email communications from Utalan, click on the “unsubscribe” link in the footer of the promotional email. Please note that we may still contact you occasionally about the status of your account.
(b) Your Choices About Personal Information Provided to Us by Third Parties
Opting out through these mechanisms does not block all online advertising; you will continue to receive generic advertisements.
Accessing Personal Information and Retention Period
(a) Accessing Your Account
If for any reason you wish to access, view, correct, or update personal information collected about you, simply access your Site account through utalan.com or the mobile application and edit your personal information. If you want to deactivate your account, please email firstname.lastname@example.org Talent Users may also deactivate their account via their account settings or by texting their Utalan talent rep.
If for any reason you are concerned with the way we are using your personal information, would like to correct the personal information that you have provided to us, or would like to request that we remove such personal information, you can send your request to us using the contact details in the Contact Us section at the end of this policy.
(b) Retention Period
Utalan takes commercially reasonable security measures to protect the information submitted to us. However, no method of transmission over the Internet, or method of electronic storage, is 100% secure and you use our Site and transmit information to us at your own risk. If you have any questions about security on our Site, contact us using the contact details in the Contact Us section at the end of this policy.
California Privacy Rights
(a) Your California Privacy Rights
We do not share our customers’ personal information with unaffiliated third parties for their own direct marketing purposes without your express consent. For inquiries regarding our disclosure policy, please send us an email at email@example.com or write us at: Utalan Customer Service, 315 N Midler ave, Syracuse, NY 13206.
(b) California Residents Under the Age of 18 Only.
If you have created an account on our Site, you may request that we remove content or information that you have publicly posted by sending an email message to firstname.lastname@example.org includes: your mailing address and a detailed description of the content or information. At our option, we may either remove your personal information (and not other content) or remove all of the content and information, subject to legal requirements and exceptions.
(b) Performance of the Services
We process your information for the performance of our Site, to provide or support our products and services, or for any other reason you request or enable. This includes, for example, using your information to:
· administer your Site account;
· conduct and administer any sweepstakes, contest, or promotion you have entered;
· support purchases you make, including, but not limited to, processing payments and orders;
· support Site functionality;
· provide customer service.
If you are a Talent User of our Site, we also process your information to assist you in offering your service as well as receiving payments from the third-party payment provider, as specified in the Talent Terms of Service.
We process your information based on your consent. This processing includes, for example, providing you with:
· newsletters, direct e-mails and surveys about our Site; and
· certain other marketing features.
Where we rely on your consent in order to process your personal information, you have the right to withdraw your consent to further use of your personal information at any time.
(d) Legitimate Interest
We process your information when we have a legitimate interest to do so. This includes, for example, processing your information to:
· provide you with requested customer service or technical support;
· debug and improve our current and future Site;
· provide you with certain content, personalize your Site experience with us and contact you in accordance with your applicable marketing preferences; and
· establish, exercise, or defend legal claims or in connection with any court or jurisdiction.
(e) Legal Obligation
We process your information for compliance with any legal obligation to which we are subject.
(f) Your Rights to Your Information
In addition to your rights to view, correct, and update your information, you also have right to access or remove your personal information, you can also make a request here.
In certain circumstances, you can request that we transfer personal information that you have provided to us. You can send your request to us at email@example.com
(g) Your Right to Object
You may object to the processing of your personal information based on a legitimate interest on grounds relating to your particular situation. You may, in particular, control the extent to which we market to you and you have the right to request that we stop sending you marketing messages at any time. To do so, or email us at firstname.lastname@example.org
(h) Exercising Your Rights and Complaints
For each of the rights described above, you can also send your request to us using the contact details in the Contact Us section at the end of this policy.
Your right to file complaints with a data protection supervisory authority in the country where you live or work or where you consider a breach has occurred remains unaffected.
(i) International Transfers
Your information will be collected, processed and stored directly on or transferred to servers in the U.S. In addition, it may be transferred to other countries where Utalan or our vendors maintain facilities or business operations, which may include countries outside the EEA. Where we are required by law to implement appropriate safeguards to protect your personal information, we use European Commission-approved contract clauses to do so. If you have questions, please contact us using the contact details in the Contact Us section at the end of this policy.
Disclosure to Users Outside the U.S.
If you are a visitor to our Site from outside the U.S., the personal information you provide will be collected, processed and stored directly on, or transferred to, servers in the United States or other countries where Utalan or vendors maintain facilities or business operations.
If you do not agree to the collection, processing, storage and transfer of your information, please do not provide your information to us and stop using our Site.
Terms And Condition
TERMS OF SERVICE
This Site is offered and available to users who are 12 years of age or older. If you are under 12 you may not use this Site or Utalan services. By using this Site, you represent and warrant that you are of legal age to form a binding contract and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Site.
Subject to the conditions set forth herein, Utalan 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. Utalan will provide reasonable advance notice of any amendment that includes a Substantial Change, by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. If the Substantial Change includes an increase to Fees charged by Utalan, Utalan will provide at least 30 days’ advance notice of the change but may not provide any advance notice for changes resulting in a reduction in fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).
IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR AGENCY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR AGENCY.
REGISTRATION AND ACCEPTANCE
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.
Utalan reserves the right to decline a registration to join Utalan or to add an Account of any type (i.e., as a buyer or creator), for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.
To register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, to be shown to the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
There are a number of different Account types. Once you register for one Account type, you can add the other Account types under the same username and password. For example, if you already have a Creator’s (Freelancer Account), you can add a new profile as a separate account type in settings without re-registering. You agree not to have or register for more than one Account without express written permission from us. We reserve the right to revoke the privileges of the Account or access to or use of the Site or Site Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.
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 Member or Agency Member, you represent and warrant that: (a) the User is authorized to act on your behalf; and (b) you are fully responsible and liable for the User’s acts and omissions, including for obligations and liabilities relating to making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site and Site Services. Upon closure of an Account, Utalan may close any or all related Accounts.
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 Utalan. You authorize Utalan, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes, but is not limited to, providing official government or legal documents. During verification some Account features may be temporarily limited. When a verification is successfully completed, Account features will be restored.
PURPOSE OF UTALAN
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, Utalan provides the Site Services to Users, including hosting and maintaining the Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those Service Contracts. When a User enters a Service Contract, the User uses the Site to invoice and pay any amounts owed under the Service Contract.
RELATIONSHIP WITH UTALAN
Utalan makes the Site and Site Services available to enable Freelancers and Clients to find and transact directly with each other. Utalan does not introduce Freelancers to Clients, find Projects for Freelancers, or find Freelancers for Clients. Through the Site and Site Services, Freelancers may be notified of Clients that may be seeking the services they offer, and Clients may be notified of Freelancers that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Project, Client or Freelancer on their own. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users and Utalan is not a party to that Service Contract.
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 Utalan, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Utalan will not have any liability or obligations, including under or related to Service Contracts and/or Freelancer Services for any acts or omissions by you or other Users; (iii) Utalan 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 Utalan does not set or have any control over Freelancer’s pricing, work hours, work schedules, or work location, nor is Utalan involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Freelancer for a Project; (v) Freelancer will be paid at such times and amounts as agreed with a Client in a given Service Contract, and Utalan does not, in any way, provide or guarantee Freelancer a regular salary or any minimum, regular payment; (vi) Utalan does not provide Freelancers with training or any equipment, labor, tools, or materials related to any Service Contract; (vii) Utalan does not provide the premises at which Freelancers will perform the work. Freelancers are free to use subcontractors or employees to perform Freelancer Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Freelancer’s subcontractor(s) or employee(s); If a Freelancer uses subcontractors or employees, Freelancer further agrees and acknowledges that this Section applies to Utalan’s relationship, if any, with Freelancer’s subcontractors and employees as well and Freelancer is solely responsible for Freelancer’s subcontractors and employees.
If you are an Agency or Agency Member, you expressly acknowledge, agree, and understand that: (1) the Agency is solely responsible for paying its Agency Members for work performed on behalf of the Agency and that such payments will not be made through the Site; (2) Utalan is not a party to any agreement between the Agency and its Agency Members and does not have any liability or obligations under or related to any such agreement, even if the Agency or Agency Member defaults; (3) neither Agencies nor Agency Members are employees or agents of Utalan; (4) Utalan does not, in any way, supervise, direct, or control the Agency or Agency Members; (5) Utalan does not set Agencies’ or Agency Members’ contract terms amongst themselves or with Clients (including determining whether the contract will be hourly or fixed price), fees, pricing, work hours, work schedules, or location of work; (6) Utalan does not provide Agencies or Agency Members with training or any equipment, labor, tools, or materials needed for any Service Contract; (7) Utalan does not provide the premises at which the Agency or Agency Members will perform the work; and (8) Utalan makes no representations as to the reliability, capability, or qualifications of any Agency or Agency Member or the ability or willingness of any Agency to make payments to or fulfill any other obligations to Agency Members, and Utalan disclaims any and all liability relating thereto.
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 Utalan, and that Utalan 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 Utalan; (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 Utalan is required by applicable law to withhold any amount of the Freelancer Fees and for notifying Utalan of any such requirement and indemnifying Utalan for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Utalan, Freelancer agrees to promptly cooperate with Utalan 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 Utalan.
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 Utalan 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 Utalan and any User or a partnership or joint venture between Utalan and any User.
With respect to any Service Contract, Clients and Freelancers may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Utalan’s rights and obligations under the Terms of Service, including this Agreement and the applicable Escrow Instructions. in addition to or instead of other such agreements. Only to the extent that they have not entered into another agreement or terms with respect to a Service Contract, the parties to a Service Contract agree that the Optional Service Contract Terms apply to their Service Contract.
The Optional Service Contract Terms are provided as a sample only and may not be appropriate for all jurisdictions or all contracts. Users are responsible for complying with any local requirements, including applicable laws, rules, and regulations. Utalan does not assume any responsibility for any consequence of using the Optional Service Contract Terms. The Optional Service Contract Terms are not intended to and do not (a) constitute legal advice, (b) create an attorney-client relationship, or (c) constitute advertising or a solicitation of any type. Each situation is highly fact-specific and requirements vary by situation and jurisdiction and therefore any party should seek legal advice from a licensed attorney in the relevant jurisdictions. Utalanexpressly disclaims any and all liability with respect to actions or omissions based on the Optional Service Contract Terms.
Utalan Escrow provides escrow services to Users to deliver, hold, and/or receive payment for a Project, and to pay fees to Utalan (“Escrow Services”). Utalan Escrow is a New York corporation The Escrow Services are intended for business use, and you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes.
Utalan Escrow will use and release funds deposited in an Escrow Account only in accordance with this Agreement and the applicable Escrow Instructions. You acknowledge and agree that talan Escrow acts merely as an Internet escrow agent. Utalan Escrow has fully delivered the Escrow Services to you if Utalan Escrow provides the Escrow Services described in this Agreement and the applicable Escrow Instructions. Utalan Escrow is only obligated to perform those duties expressly described in this Agreement and any applicable Escrow Instructions. If you authorize or instruct Utalan Escrow to release or make a payment of funds from an Escrow Account associated with you, Utalan Escrow may release or pay those funds as instructed in reliance on your authorization, this Agreement, and the applicable Escrow Instructions or as required by applicable law.
Fixed-Price Projects. If Users choose fixed-price compensation, then the Users agree that they will be bound by, and Utalan Escrow
Hourly Projects, Bonus Payments, or Expense Payments. If Users choose hourly compensation, and/or if the Client makes bonus or expense payments, then the Users agree that they will be bound by, and Utalan Escrow
Utalan Escrow will use and release funds deposited in an Escrow Account only in accordance with this Agreement and the applicable Escrow Instructions. Depending on your needs and the applicable Escrow Instructions, Utalan Escrow will establish and maintain one of three different types of Escrow Accounts:
(a) Client Escrow Account. After entering into a Service Contract, the first time a Client makes a payment for a Project, Utalan Escrow will establish and maintain a “Client Escrow Account” to hold funds for the Client to use to make payments for Projects, to receive refunds in connection with Projects, and to make payments to Utalan.
(b) Freelancer Escrow Account. After entering into a Service Contract, the first time a Freelancer uses the Site to receive payment for a Project, Utalan Escrow will establish and maintain a “Freelancer Escrow Account” for Freelancer to receive payments for Projects, withdraw payments, make payments to Utalan and issue refunds to Clients.
(c) Fixed-Price Escrow Account. When you enter into a Fixed-Price Contract, Utalan Escrow will establish and maintain a “Fixed-Price Escrow Account” to receive, hold, and release payments pursuant to the Fixed-Price Escrow Instructions for the Project that is the subject of that Fixed-Price Contract.
FEES FOR FREELANCERS
Service Fees. Freelancers will pay Utalan a service fee for the use of the Site Services for using the Site Services, including the communication, invoicing, reporting, dispute resolution and payment services, including facilitating arbitration services as described in the applicable Escrow Instructions (the “Service Fees”). The Service Fees (to use the Site Services) are paid solely by Freelancer. When a Client pays a Freelancer for a Project or when funds related to a Project are otherwise released to a Freelancer as required by the applicable Escrow Instructions , Utalan Escrow will credit the Freelancer Escrow Account for the full amount paid or released by the Client, and then subtract and disburse to Utalan the Service Fee. Freelancer hereby irrevocably authorizes and instructs Utalan Escrow to deduct the Service Fee from the Freelancer Escrow Account and pay Utalan on Freelancer’s behalf. In the event the Freelancer chooses to withdraw funds in a currency other than U.S. dollars, there may also be a foreign currency conversion charge imposed by Utalan Escrow or an affiliate and the rate may differ from rates that are in effect on the date of the payment and you may be able to obtain a better rate from your bank or financial institution.
Disbursement Fees. Freelancers will pay Urtalan a disbursement fee for remitting payments to their preferred payment method (“Disbursement Fee”). The Disbursement Fee is paid to Utalan in consideration of costs incurred and administration of disbursements via the disbursement method requested by Freelancer and varies by disbursement method. In addition to fees charged by Utalan, your disbursement method may also charge activation, maintenance, or other account fees.
DISPUTES AMONG USERS
For disputes arising between Clients and Freelancers, you agree to abide by the dispute process that is explained in the Escrow Instructions that apply to your particular Service Contract. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that Utalan will not and is not obligated to provide any dispute assistance beyond what is provided in the Escrow Instructions.
If Freelancer or Client intends to obtain an order from any arbitrator or any court that might direct Utalan, Utalan Escrow, or our Affiliates to take or refrain from taking any action with respect to an Escrow Account, that party will (a) give us at least five business days’ prior notice of the hearing; (b) include in any such order a provision that, as a precondition to obligation affecting Utalan or Utalan Escrow, we be paid in full for any amounts to which we would otherwise be entitled; and (c) be paid for the reasonable value of the services to be rendered pursuant to such order.
Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in the Optional Service Contract Terms. If and to the extent that the Users do not articulate any different agreement with regard to confidentiality, then they agree that this Section (Confidential Information) applies.
To the extent a User provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
You agree that you will not receive interest or other earnings on the funds held in your Escrow Account, Utalan Escrow, or our Affiliates may charge or deduct fees, may receive a reduction in fees or expenses charged, and may receive other compensation in connection with the services they provide.
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
By providing Payment Method information through the Site and authorizing payments with the Payment Method, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to make payments using the Payment Method(s); (c) if Client is an employee or agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on Utalan; and (d) such actions do not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law.
When Client authorizes a payment using a Payment Method via the Site, Client represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
Utalan is not liable to any User if Utalan does not complete a transaction as a result of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. Utalan will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement and any applicable Escrow Instructions.
MAKING PAYMENTS THROUGH UTALAN
You acknowledge and agree that a substantial portion of the compensation Utalan receives for making the Site available to you is collected through the Service and that in exchange a substantial value to you is the relationships you make with other Users when you identify or are identified by another person through the Site or Site Services. Utalan only receives the Service Fee when a Client and a Freelancer pay and receive payment through the Site. you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that person or arising out of your relationship with that person and not to circumvent the Payment Methods offered on the Site unless you pay a fee to take the relationship off of the Site (the “Conversion Fee”). For the avoidance of doubt, if you, or the business you represent, did not identify and were not identified by another person through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention Period does not apply. If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the business or its successor when acting in that capacity with respect to the other User.
You agree to notify Utalan immediately if a person suggests to you making or receiving payments other than through the Site in violation of this Section or if you receive unsolicited contact outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Utalan.
You acknowledge and agree that a violation of any provision in this Section is a material breach of the Terms of Service. Your Account may be permanently suspended and charged the Conversion Fee (defined above) if you violate this Section. If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site and therefore choose to cease using the Site, you may pay the Conversion Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
RECORDS OF COMPLIANCE
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 Utalan upon request. Nothing in this subsection requires or will be construed as requiring Utalan to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Service Contract. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on Utalan’s part to store, backup, retain, or grant access to any information or data for any period.
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. UTALAN MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, USER CONTENT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UTALAN 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. (AGREEMENT TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST UTALAN WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
LIMITATION OF LIABILITY
Utalan 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 Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- 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 Site; 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 UTALAN, 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 UTALAN, 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 UTALAN WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR FREELANCER DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Unless both you and Utalan 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 email@example.com. In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. Utalan is not a party to any Service Contract between Users. Consequently, User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Project entered into between Users. If you attempt to terminate this Agreement while having one or more open Projects, you agree (a) you hereby instruct Utalam to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Projects have closed on the Site; (c) Utalan will continue to perform those Site Services necessary to complete any open Project or related transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to Utalan for any Site Services or such other amounts owed under the Terms of Service and to any Freelancers for any Freelancer Services.
Without limiting Utalan’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke or limit access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Utalan or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without Upwork’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF UTALAN DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, UTALAN HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT UTALAN 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.
If a dispute arises between you and Utalan or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided. You, Utalan, 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 Utalan (including without limitation any claimed employment with Utalan or one of our Affiliates or successors), the termination of your relationship with Utalan, or the Site Services (each, a “Claim”) (sometimes referred to as the “Arbitration Provision”). Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Site, Site Services, the Terms of Service, any Service Contract, escrow payments or agreements, any payments or monies you claim are due to you from Utalan 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 Utalan 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.
CHOICE OF LAW
INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and Utalan agree to first notify each other of the Claim. You agree to notify Utalan of the Claim at by email to firstname.lastname@example.org, and Utalan agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Utalan 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 Utalan, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Utalan 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.
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Utalan 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 Utalan 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 Utalan because of the authorship of any provision of the Terms of Service.