Version 1.1. Last changed 11/06/2018
THIS AGREEMENT sets out the terms and conditions in relation to your Membership with Us on Our Website, the services We will provide and the terms on which you may place profiles with Us.
These Terms are effective as of November 2017.
This Agreement must be read in conjunction with:
1 Definitions and interpretation
1.1 In this Agreement, unless the context requires otherwise:
1.2 This Agreement is to be interpreted in accordance with the following:
1.2.1 each gender includes the others and the singular includes the plural and vice versa;
1.2.2 references to clauses or schedules are to clauses or schedules of this Agreement;
1.2.3 references to this Agreement include its schedule and appendices and any Orders;
1.2.3 'including' means including without limitation and general words are not limited by example;
1.2.4 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.5 clause headings do not affect the interpretation of this Agreement;
1.2.6 a reference to a statute or a statutory provision is a reference to it as in force as at the date of this Agreement or amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of either party under this Agreement;
1.2.7 a reference to a statute or a statutory provision includes all subordinate legislation made from time to time under that statute or statutory provision;
1.2.8 references to time will mean London (United Kingdom) time, unless otherwise stated;
1.2.9 'in writing' means communication by letter or fax or email and written will be interpreted accordingly;
1.2.10 references to books, records or other information include paper, electronically or magnetically stored data, film, microfilm, and information in any other form; and
1.2.11 reference to any English action, remedy, method of judicial proceeding, court, legal document, legal concept, legal status, legal doctrine or thing will in respect of any jurisdiction other than England be deemed to include what most nearly approximates in that jurisdiction to the English equivalent;
1.2.12 references to a Party or Parties means the Us and the Freelancer.
2 Supply of Services
2.1 This Agreement commences on the Commencement Date for a Term and until it is terminated in accordance with clause 10.
2,2 The procedure for applying for Membership and Our Services is set out in clause 3.
2.3 During the Term and at the expiry of the Term We hereby grant the Freelancer a non-exclusive, non-transferable license to use the Website solely for the purpose of accessing and using the Service in accordance with the terms of the Agreement and for no other purpose whatsoever.
3.1 Upon completion of a membership request form, we reserve the right to ask you to provide us with verification information regarding your business
3.2 The submission of a membership request form will constitute an offer by you to use the Services on the terms of this Agreement.
3.3 We may accept or reject a membership request at our discretion. A membership request will not be accepted, and no binding obligation to supply any Services will arise, until the earlier of:
3.3.1 Our receiving from you all information that we request to verify your business status, qualifications, membership to professional organisations and any other informant that we require, and thereafter
3.4 Rejection by us of a membership request, including any communication that may accompany such rejection, will not constitute a counter-offer capable of acceptance by you.
4 Delivery of Services
4.1 Once a membership request has been accepted, the Freelancer will usually be able to place Advertisements within 24 hours but time is not of the essence.
4.2 If the Freelancer breaches any of the terms of this agreement We may at a sole discretion:
4.2.1 terminate this Agreement;
4.2.2 Refuse to accept any subsequent membership requests from the ex-Member (whether as a Freelancer or a Member Buyer);
4.2.3 recover from the Freelancer all losses, damages, costs and expenses incurred by Us arising from the Freelancer's default.
4.3 We will not be liable for any delay in or failure of delivery to the extent caused by:
4.3.1 the Freelancer’s failure to: (i) provide us necessary information to provide our Services, (ii) provide Us with adequate instructions for supply or otherwise relating to the Services; or
4.3.2 an event of Force Majeure.
5.1 The Services delivered by Us will be supplied with reasonable skill and care.
5.2 We will not be liable for any failure of the Services to comply with clause 5.1:
5.2.1 where such failure arises by reason of the Freelancer's wilful damage or negligence;
5.2.2 to the extent caused by the Member' Seller’s failure to comply with the Our reasonable instructions as to: (i) use or benefit from the Services, or (ii) good practice in relation to use or benefit from the Services;
5.2.3 to the extent caused by the Us following any specific requirement of the Freelancer in relation to the Services;
5.2.4 to the extend caused by Our changing our host server.
5.3 We will comply with all UK applicable laws, standards and good industry practice in the supply and delivery of the Services.
5.4 The Freelancer warrants that it/he/she will;
5.4.1 Ensure that, both in relation to the Services Contract and generally, it complies with all statutory requirements relating to the provision of goods and/or services in the country in which the Services Contract is performed, and if performed in the United Kingdom specifically pursuant to English Law including (but not limited to) the Consumer Rights Act 2015, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and any other information which it is obliged to give consumers under UK law and that all goods and services provided will comply with a Customer’s legal rights as required by the laws of the United Kingdom or the country in which the Services Contract is completed.
5.4.2 Ensure that Member Buyers are fully aware of the Freelancer’s own terms and conditions, opening times, pricing of the services to be supplied, complaints procedure etc.
5.4.3 Ensure that it complies with all national Codes of Practice including Codes of Conduct laid down by the British Code of Advertising Practice and other advertising codes or legislation that apply in the country in which the services are to be provided.
5.4.4 Read the terms and conditions from time to time that apply to the Member Buyer’s use of the Website so that it remains fully aware of what terms the Member Buyers are entering when using the Website, and our Policies.
5.4.5 to notify Us promptly of any unauthorised use of the Freelancer’s account details or the Website;
5.4.6 Make it clear in any advertising or listing material that the advertisement has been placed by the Freelancer acting in the course of a profession, trade or business;
5.4.7 to be solely responsible for providing and maintaining all computer equipment and software necessary for the Freelancer to access the Service
5.4.8 to be solely responsible for any data, information or advertising material submitted by the Member on our Website or to Us in connection with the Service;
5.4.9 The Freelancer shall, at its own cost, be responsible for obtaining (or obtaining relief from any requirements for) all regulatory approvals which it is required to obtain.
5.4.10 To ensure that all information that the Freelancer puts in the Website or makes available via the Website for Member Buyers is true and accurate and that if further confirms that: i) the publication of the advertisement will not breach any contract, infringe the copyright, trademark or other right of any third party and is not libelous of any person; ii) all licences and consents from third parties necessary for the publication of the advertisement have been obtained and paid for, including consent from living persons identified in copy or pictures (photographic or otherwise); iii) the advertisement does not unlawfully discriminate on grounds of age, sex, race or religion; iv) the advertisement is not promoting illegal goods and/or services; v) in respect of a financial advertisement (including insurance), the contents have been approved by, or the advertiser is, an authorised person within the meaning of the Financial Services and Markets Act 2000 as may be amended or replaced, or the advertisement is otherwise permitted under that Act; vi) in respect of credit or hire advertisements, the contents comply with the Consumer Credit (Advertisements)(Amendment) Regulations 2007, as may be amended or replaced; vii) a Freelancer using a third party service provider shall be solely responsible for ensuring the accuracy of copy and the timeliness of its delivery and that no advertisement will be placed by the Freelancer in regards to adult services and pornography, that is offensive in any way, illegal or immoral.
5.4.11 That the Freelancer will, if requested by the Member Buyer , follow the Dispute Resolution Service (https://jobs.collab365.community/payment_provider_terms) offered by Our Payment Provider , that it will be bound fully by the terms of the DRS, and that it will accept the decision of Our Payment Provider as binding and will provide compensation and or rectification in full compliance of the outcome or report issued by Our Payment Provider.
5.4.12 Comply with all income and other tax and VAT legislation in force within the country in which the Freelancer resides and/or the Services Contract is performed.
5.4.13 Inform us immediately of any change in the Freelancer’s trading status, memberships or of any factor that it is reasonable to assume would affect its Membership.
5.4.14 Agree to the Member Buyer using our feedback portal to leave feedback in regard to the services provided by the Freelancer. We will not review any information posted by Member Buyers on the Website. If a Freelancer believes that information given is incorrect or in breach of these terms the Freelancer must inform Us immediately, and we will aim to remove it (if at our total discretion We believe it should be removed) within a reasonable period of time.
5.4.15 Set out all fees and charges for the services to be provided in United States Dollars. The Freelancer understands and accepts that we have no control over the exchange rates that will be applicable at both the time the fees are charges are set out on the website, or at the time payment is due for a Successfully Completed Transaction.
6.1 The Freelancer will pay the Fees that are applicable (and may be subject to change) as can be found at https://jobs.collab365.community/levels/ . It is the Freelancer’s responsibility to check the Fees at all times as changes in fee rates will not be communicated individually to Members.
6.2 We reserve the right to change the Membership Fee from time to time and the higher rate will be applicable upon all Successfully Completed Transactions.
6.3 Where a Member Buyer invokes the DRS and is successful, the Freelancer will still be liable to pay the Fee at the level it would have been payable on a Successfully Completed Transaction had the Services Contract not been in dispute.
6.4 The Fees are inclusive of VAT where appropriate. A VAT invoice can be provided on request by emailing firstname.lastname@example.org
7 Payment and Payment Service
7.1 In order to receive any payments, the Member Buyer will be required to create an account with Our Payment Provider. This can be done via the MicroJobs website. Our Payment Provider terms: https://jobs.collab365.community/payment_provider_terms
7.2 All payments made by Buyer Members will be done via to Our Payment Provider.
7.3 Freelancers must not accept direct payments from Member Buyers.
7.4 When a Member Buyer makes a payment, we will notify the Freelancer that the Services Contract is live.
7.5 Once the Services Contract has been completed, the Freelancer will Mark the Job as complete via the website and once the Member Buyer confirms completion the payoment will be released from Escrow and to the Freelancers account (less our Fees and any fees levied by Our Payment Provider).
7.6 The Freelancer accepts that we have no control over any transaction charges or the exchange rate set by either Our Payment Provider or your banking facility to which payments are made by Our Payment Provider.
7.7 All payments will be withheld if the Member Buyer invokes the Dispute Resolution Service until an agreed outcome is reached or arbitration finding is confirmed.
8 Limitation of liability
8.1 Neither party to this Agreement limits or excludes its liability for:
8.1.1 death or personal injury caused by negligence; or
8.1.2 fraud or fraudulent misrepresentation; or
8.2 Without prejudice to clause 8.1 Our total aggregate liability under or in connection with this Agreement, whether arising in tort (including negligence), contract or in any other manner will not exceed the total fees paid by the Member in the preceding 3 months.
8.3 Without prejudice to clause 8.1, the Freelancer’s total aggregate liability under or in connection with this Agreement, will not be limited.
8.4 Without prejudice to clause 8.1 We will not be liable to the Member for any:
8.4.1 loss of profits or revenues; or
8.4.2 loss of, or damage to, data or information systems; or
8.4.3 loss of contract or business opportunities; or
8.4.4 loss of anticipated savings; or
8.4.5 loss of goodwill; or
8.4.6 any indirect, special or consequential loss or damage.
9.1 The Freelancer will indemnify Us and hold Us harmless from and against any losses, damages, liability, costs and expenses (including professional fees) incurred by it as a result of any action, demand or claim:
9.1.1 that the Freelancer is in breach of any applicable laws as a result of any act or omission of the Freelancer;
9.1.2 made against Us by a third party (including a Member Buyer) arising from any defect in the services provided by the Freelancer or by the Freelancer’s breach of this Agreement;
9.1.3 is in breach of the Advertising Code of Conduct or any other advertising codes of conduct;
9.2 In the event that either party receives notice of any Claim that affects the other party to this Agreement, it will:
9.2.1 notify the other in writing as soon as reasonably practicable;
9.2.2 not make any admission of liability or agree any settlement or compromise of the Claim without the prior written consent of each other (such consent not to be unreasonably withheld or delayed);
9.2.3 take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the Claim; and
9.2.4 provide each other with all reasonable assistance in relation to the Claim (at the Freelancer's expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Freelancer
10.1 During the Term this Agreement may be terminated:
10.1.1 By Us where there is a breach of this Agreement by Our giving not less than 2 Business Days’ notice in writing to the Freelancer where there is material breach of this Agreement and such breach is not remediable or, if capable of remedy, is not remedied within 1 Business Days of receiving written notice to do so; or
10.1.2 by the Freelancer giving 90 days’ notice to terminate its Membership. The Freelancer will still be liable for all Fees that result in a successfully completed transaction if the Services Contract was requested or commenced prior to termination but completes after termination.
10.2 The following clauses of this Agreement will survive termination, howsoever caused:
11 Confidential information
11.1 Each party undertakes that it will keep any information that is confidential in nature concerning the other party, the terms of this Agreement and the information relating to any Customer.
11.2 A party may:
11.2.1 disclose any Confidential Information to any of its employees, officers, representatives or advisers (Representatives) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that such party must ensure that each of its Representative to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause 11 as if it were a party;
11.2.2 disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including, without limitation, any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
11.2.3 use Confidential Information only to perform any obligations under this Agreement.
11.3 Each Party recognises that any breach or threatened breach of this clause 11 may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the Parties agree that the non-defaulting Party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
12 Dispute resolution
12.1 The Parties will attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with this Agreement within 14 Business Days of either party notifying the other of the dispute.
12.2 Nothing in this dispute resolution procedure will prevent the parties from seeking from any court of competent jurisdiction an interim order restraining the other Party from doing any act or compelling the other Party to do any act.
12.3 If the dispute cannot be resolve then We may consider but are not bound to use an Alternative Dispute Resolution Service.
12.4 The obligations of the parties under this Agreement will not cease, or be suspended or delayed by the reference of a dispute to mediation (or arbitration) and each party, its subcontractors and their Representatives will comply fully with the requirements of this Agreement at all times.
12.5 For any disputes arising between the Member Buyer and the Freelancer, if implemented by the Member Buyer, the Member Buyer will be bound by Our Payment Provider DRS.
13 Force Majeure
13.1 A Party will not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
13.1.1 promptly notifies the other of the Force Majeure event and its expected duration; and
13.1.2 uses reasonable endeavours to minimise the effects of that event.
13.2 If, due to Force Majeure, a party:
13.2.1 is or will be unable to perform a material obligation; or
13.2.2 is delayed in or prevented from performing its obligations for a continuous period exceeding 30 calendar days then the other party may terminate the Agreement on immediate written notice.
13.3 For the duration of a Force Majeure event affecting a party to this Agreement, the obligations of the other Party will be suspended for the corresponding period of time.
14 Restrictions during and after the Term
14.1 For the purpose of this clause 14 the following definitions shall apply:
14.2 In order to protect our confidential information and business and customer connections which the Freelancer has access as a result of its Membership with us, the Freelancer covenants with us that the Freelancer will not without prior written consent from us:
14.2.1 During the term or for a period of 1 years after Termination:
14.2.2 At any time after Termination, represent themselves as connected with us in any capacity, other than as a former Freelancer, or use any registered names or trading names associated with us and the Website.
14.2.3 The Freelancer agrees to pay liquidated damages in the amount of £10,000.00 or the estimated loss to us in trade, whichever figure being higher, for any violation of the covenant contained in clause 14.2 of this Agreement.
15.1 Compliance with law
Each party will comply and will (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under this Agreement, its representatives will comply with all applicable laws and regulations, provided that neither party will be liable for any breach to the extent that such breach is directly caused or contributed to by any act or default of the other party or that party's Representatives.
The Member must pay all sums that it owes Us under this Agreement free and clear without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
15.3 No partnership or agency
The parties are independent of each other and are not partners, principal and agent and, save as expressly stated otherwise, this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither of the parties will have, nor will represent that it has, any authority to make any commitments on the other Party's behalf.
No variation of this Agreement will be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed (as the case may be) by, or on behalf of, each party.
If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement will not be affected.
15.6.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement will operate as a waiver of that right, power or remedy, nor will it preclude or restrict any future exercise of that or any other right, power or remedy.
15.6.2 No single or partial exercise of any right, power or remedy provided by law or under this Agreement will prevent any future exercise of it or the exercise of any other right, power or remedy.
15.6.3 A waiver of any term, provision, condition or breach of this Agreement will only be effective if given in writing and signed by the waiving Party, and then only in the instance and for the purpose for which it is given.
15.7.1 Any notice given by a Party under this Agreement will:
15.7.2 Notices may be given and are deemed received 24 hours from delivery if sent to the correct email address and no notice of delivery failure is received.
15.7.3 All references to time are to the local time at the place of deemed receipt.
15.7.4 This clause does not apply to notice given in legal proceedings, arbitration or other dispute resolution proceedings.
15.8 Conflict within an agreement
If there is a conflict between the terms of this Agreement and the terms of any other documents referred to in this Agreement, the terms of this Agreement will prevail.
15.9.1. Subject to clause 15.9.2, neither party may assign, transfer, or deal in any other manner with any or all of its rights under this Agreement (each an assignment) without the prior written consent of the other party.
15.9.2 We may sub-contract in any manner any or all of its obligations under this Agreement.
15.9.3 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
15.10 Rights of third parties
No person other than a Party to this Agreement will have any right to enforce any of its provisions.
16 Entire agreement
16.1 The Parties agree that this Agreement (and the DRS Terms and Policies referred to herein) constitute the entire agreement between them and supersede all previous agreements, understandings and arrangements between them, whether in writing or oral, in respect of its subject matter.
17.2 Each Party acknowledges that it has not entered into this Agreement or any documents entered into pursuant to it in reliance on, and will have no remedies in respect of, any representation or warranty that is not expressly set out or referred to in this Agreement or any documents entered into pursuant to it, except in the case of fraudulent misrepresentation.
17 Governing law and jurisdiction
17.1 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) will be governed by, and construed in accordance with, the laws of England and Wales.
17.2 The Parties irrevocably agree that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).