TERMS OF SERVICE AGREEMENT
Effective Date: 1st January 2018
This User Agreement (this “Agreement”) explains the terms under which you are allowed to use the constructionfreelancing.com website and any web or mobile services or applications (collectively, the “Site”) offered by Construction Freelancing, PTY LTD. (“ConstructionFreelancing”) and our subsidiaries. This Agreement is a part of and incorporates by reference all the Terms of Service linked from Legal, including all Site information referenced or linked therein (the “Terms of Service”). Your use of the Site after the effective date will signify that you have read, understand, accept, and agree to be bound and are bound by this Agreement for yourself and on behalf of any Member for whom you use the Site, and you represent that you have the authority to do so. To the extent permitted by applicable law, we may modify this Agreement with prospective effect without prior notice to you, and any revisions to this Agreement will take effect when posted on the Site, unless a later date is otherwise stated in the revised Agreement. Please check the Site often for updates. Capitalized terms not defined in this Agreement (including section 20 below titled “Definitions”) are defined in the other Terms of Service or have the meanings given such terms on the Site.
Please read this agreement carefully to ensure that you understand each provision. This agreement contains a mandatory individual binding arbitration provision that requires the use of arbitration on an individual basis to resolve disputes, rather than a jury trial or class action. You have the right to opt out of the arbitration provision as described in section 16 below.
The Site is a venue where our Members use both our marketplace and our platform for online services. Clients and Service Providers become Members when they open Construction Freelancing Accounts pursuant to this agreement. As Members, they use the Site directory and freelancer services board functions to advertise, locate, introduce themselves to each other, screen and select each other, negotiate Engagement terms, and enter into Contracts between each other. Once two Members enter into a Contract, they use the Site to collaborate, communicate about, and invoice and pay for the Engagement.
2. Relationship between Client and Service Provider
Client and Service Provider acknowledge and agree that when Service Provider accepts an Engagement awarded by Client, Client and Service Provider will be deemed to have entered into a “Contract” comprising the following agreements:
(1) those Relationship Agreements applicable to the Engagement as described in the next subsection titled “Relationship Agreements”;
(2) the remaining Terms of Service (other than the Relationship Agreements);
(3) the Engagement terms awarded and accepted on the Site, to the extent not inconsistent with the Mandatory Terms (defined below); and
(4) any other contractual provisions accepted by both Client and Service Provider and uploaded to the Site, to the extent not inconsistent with the Mandatory Terms.
The following four parts of the Terms of Service are called “Relationship Agreements”:
(1) Client and Service Provider – Service Agreement;
(2) Fixed Price Construction Freelancing Instructions;
(3) Hourly and Miscellaneous Payment Agreement with Construction Freelancing Instructions; and
(4) Payroll Services Agreement.
Different Relationship Agreements apply to a Contract, depending on which type of relationship and compensation Client and Service Provider choose, as follows:
Independent Contractor Relationships
If a Client and a Service Provider enter into an independent contractor relationship, then the Service Provider and Client Agreement applies. In addition, Client and Service Provider in an independent contractor relationship must choose either fixed price or hourly compensation, and that choice determines the agreement that governs their payment mechanism as follows:
● Fixed Price Engagements. If Client and Service Provider enter into an independent contractor relationship and choose fixed price compensation, then Client and Service Provider agree that they will be bound bythe Fixed Price Construction Freelancing Instructions.
● Hourly Engagements and/or Miscellaneous Payments. If Client and Service Provider enter into an independent contractor relationship and choose hourly compensation, and/or, if the Client makes miscellaneous payments to the Service Provider, then Client and Service Provider agree that they will be bound by the Hourly and Miscellaneous Payment Agreement with Construction Freelancing Instructions.
A Contract may modify only certain provisions of the Terms of Service as follows:
● Service Provider and Client Agreement. A Contract may modify this Agreement to the extent any Client and Service Provider agree to contrary Engagement terms or contractual provisions and record their agreement on the Site in accordance with the Terms of Service.
● Refund and Cancellation Policy; Dispute Resolution Policies. A Contract may modify the Refund and Cancellation Policy and the Dispute Resolution Policies referenced therein to the extent a Client and Service Provider agree to contrary Engagement terms or other contractual provisions and record their agreement on the Site in accordance with the Terms of Service.
Except as expressly permitted in the foregoing provisions of this subsection titled “MandatoryTerms,” all other provisions of the Terms of Service may not be modified and are called “Mandatory Terms.” Any purported modification to the Mandatory Terms will be null and void.
Order of Precedence
If there are any conflicts in the various terms of the Contract, those conflicts will be resolved in the order of precedence stated in:
● the Service Provider and Client Agreement for an independent contractor relationship; or
● the Payroll Services Agreement for an employment relationship.
3. Relationship with Construction Freelancing
Construction FreelancingNot a Party to Engagements
Construction Freelancing is not a party to the dealings between Client and Service Provider, including posts, proposals, screening selection contracting, provision of freelancer services, and payment for an Engagement. Construction Freelancing does not introduce Service Providers to Clients or help Service Providers find Engagements. Construction Freelancing merely makes the Site Services available to enable Service Providers to identify and determine the suitability of Clients for themselves and to enable Clients to identify and determine the suitability of Service Providers for themselves. Construction Freelancing may sort Engagement proposals to enable Clients to more easily navigate and choose which Service Providers to contact. Construction Freelancing does not direct, has no control over, makes no representations, and does not guarantee the quality, safety, or legality of services provided by the Service Providers; the truth or accuracy of Engagement listings; the qualifications, background, or identities of Members; the ability of Service Providers to deliver services; the ability of Clients to pay for these services; or that a Client or Service Provider can or will complete a transaction.
Construction Freelancing is not required to and may not verify any information given to us by Service Providers or Clients, nor does Construction Freelancing perform background checks on Service Providers or Clients.
You hereby acknowledge and agree that construction freelancing may provide information about a service provider or client, such as a strength or risk score, geographical location, or verification of identity or credentials. However, such information is based solely on data that service provider or client submits to construction freelancing, and construction freelancing provides such information solely for the convenience of members and is not an introduction, endorsement, or recommendation by construction freelancing.
Third-Party Beneficiary of Contract
Client and Service Provider appoint Construction Freelancing as a third-party beneficiary of their Contract for purposes of enforcing any obligations owed to, and any benefits conferred on, Construction Freelancing by the Contract. Client and Service Provider further agree that Construction Freelancing has the right to take such actions with respect to their Accounts, including, without limitation, suspension, closure, or legal actions, as Construction Freelancing, in our sole discretion, deems necessary to enforce our rights as a third-party beneficiary under the Contract.
No Agency, Partnership, or Joint Venture
This Agreement and any registration for or use of the Site will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between you and Construction Freelancing, except and solely to the extent expressly stated in the Terms of Service.
Records of Compliance
Client and Service Provider will each
● create and maintain records to document satisfaction of their respective obligations under this Agreement and any Contract, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and
● provide copies of such records to Construction Freelancing upon request. Nothing in this subsection will be construed as requiring Construction Freelancing to supervise or monitor freelancer services or a Member’s compliance with this Agreement, the other Terms of Service, or a Contract.
As per our schedule of Fees and Charges
You acknowledge and agree that a substantial portion of the compensation Construction Freelancing receives for making the Site available to you is the Service Fee described in the subsection titled “Service Fee” in section 4 above. You further acknowledge and agree that Construction Freelancing only collects this Service Fee when a Client and a Service Provider pay and receive payment through the Site. Therefore, in consideration for our making the Site available to you, for 24 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you must use the Site as your exclusive method to request, make, and receive all payments for any services directly or indirectly provided to or received from that party or arising out of your relationship with that party (the “ConstructionFreelancing Relationship”). You may opt-out of this obligation only if Client, prospective Client, or Service Provider pays Construction Freelancing an “Opt-Out Fee” computed to be the greater of the following amounts:
● AUD$2500; or
● 15% of the cost to the Client or prospective Client of the services to be provided in the Construction Freelancing Relationship during the Non-Circumvention Period, as estimated in good faith by the Client or prospective Client; or
● all Service Fees that would be earned by Construction Freelancing from the Construction Freelancing Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Service Provider from Client during the most recent normalized 8-week period or during such shorter period as data is available to Construction Freelancing;
and, in any case, plus interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, calculated from the date Client or prospective Client first makes payment to the subject Service Provider until the date the Opt-Out Fee is paid.
To pay the Opt-Out Fee, you must request instructions by sending an email message to email@example.com.
In addition, you agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:
● Submit proposals or solicit parties identified through the Site to contact, engage, or pay outside the Site.
● Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
● Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Client (or prospective Client) and Service Provider.
You agree to notify Construction Freelancing immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention policy, please submit a report to Construction Freelancing by sending an email message to firstname.lastname@example.org which report will be kept confidential to the extent practicable.
6. Site License
Subject to and conditioned on your compliance with this Agreement, the other Terms of Service, and the other Site Policies, Construction Freelancing grants you a limited license to access and, if you are a Member, to use the Site for the purpose of ordering and receiving the Site Services available and authorized from the Site. You must not access or use the Site or Site Services for any reasons that are in competition with Construction Freelancing. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site in any way for any public or commercial purpose without prior written consent of Construction Freelancing or the rights holder. You must not use any content of the Site on any other website or in a networked computer environment for any purpose except your own viewing. You must not frame or link to the Site except as permitted in writing by Construction Freelancing. You must not attempt to reverse engineer or attempt to interfere with the operation of any part of the Site unless expressly permitted by applicable law. The Site and any portion of the Site may not be reproduced, duplicated, copied, sold, resold, or otherwise exploited for any commercial purpose that is not expressly permitted by Construction Freelancing. Construction Freelancing and our licensors retain all of their respective right, title, and interest in and to all patent rights, inventions, copyrights, knowhow, and trade secrets relating to the Site. Construction Freelancing’s logos and name are trademarks of Construction Freelancing and are subject to our Trademark Use Guidelines. All other product names, company names, marks, logos, and symbols on the Site may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in this Agreement confers any license under any of Construction Freelancing’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
7. User Content License
When you post User Content on the Site, you represent and warrant that you have the right, power, and authority to post that content and grant the licenses specified below. You further represent and warrant that by posting such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that Construction Freelancing may exercise the rights to your User Content granted under this Agreement without any liability or obligation for any payment.
You retain all your ownership rights in any User Content you post on Construction Freelancing. You also grant to Construction Freelancing and our successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Site and Construction Freelancing’s (and our successors’ and Affiliates’) business, including, without limitation, for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User a non-exclusive license to access your User Content through the Site, and to use, reproduce, distribute, display, and perform such User Content, only to the extent permitted through the normal functionality of the Site and subject to all applicable confidentiality and other provisions of the Terms of Service.
Notwithstanding the foregoing paragraph, Construction Freelancing will only use or disclose User Content you post to any Project room or other non-public area of the Site to the extent necessary to provide Site Services to you.
The above licenses granted by you will terminate within a commercially reasonable time after you remove or delete your User Content from the Site, except that you grant Construction Freelancing and our successors and Affiliates the irrevocable and perpetual license to retain and use, but not publicly display, distribute, or perform, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
You may submit comments or ideas about the Site, including, without limitation, about how to improve the Site or our products (collectively, “Ideas”). By submitting any Ideas, you agree that your disclosure is gratuitous, unsolicited, and without restriction and will not place Construction Freelancing under any fiduciary or other obligation, that the Ideas do not contain the confidential or proprietary information of third parties, and that we are free to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission of any Idea, Construction Freelancing does not waive any rights to use similar or related ideas known or developed by Construction Freelancing or obtained from sources other than you.
8. Unauthorized Access and Use; Site Interference; Malicious Software
The Site contains robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual content available on the Site for any purpose or in any manner other than streaming.
You agree that you will not:
● take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
● copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of Construction Freelancing and the appropriate third party, as applicable;
● interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site;
● bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
● transmit spam, chain letters, or other unsolicited communications;
● attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Site;
● collect or harvest any personally identifiable information, including account names, from the Site;
● access any content on the Site through any technology or means other than those provided or authorized by the Site; or
● directly or indirectly, advertise or promote another website, product, or service or to solicit other Users for other websites, products, or services.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of, or to allow you or any other person to access, or damage or corrupt data, storage media, programs, equipment or communications or otherwise interfere with operations of or on, the Site or any other software, firmware, hardware, computer system, or network of Construction Freelancing or any third party. Further information regarding other prohibited conduct can be found in the Site Usage Policy.
9. Third-Party Content
Directory of Service Providers
The Site contains a directory of Service Providers. The directory is populated with information from third-party sources, from Service Providers themselves, and from other Members. Construction Freelancing provides this directory as a convenience and does not confirm or verify the information contained in it.
The Site makes available various services provided by third parties to verify a Member’s credentials, provide testing services, and provide information. Any information or content expressed or made available by these third parties or any other Members is that of the respective author(s) or distributor(s) and not of Construction Freelancing. Construction Freelancing neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than authorized Construction Freelancing employees acting in their official capacities.
Links and Applications
The Site may contain links to Third-Party Sites. The Site may also contain applications that allow you to access Third-Party Sites via the Site. Such Third-Party Sites are owned and operated by the third parties and/or their licensors. Your access and use of Third-Party Sites, including online communication services such as chat, email, and calls, will be governed by the terms and policies of the applicable Third-Party Sites. You acknowledge and agree that Construction Freelancing is not responsible or liable for:
● the availability or accuracy of Third-Party Sites; or
● the content, advertising, or products on or available from Third-Party Sites.
You are responsible for deciding if you want to access a Third-Party Site by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked Third-Party Site or application. You use the links and these services at your own risk and agree that your use of an application via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
10. Certain Disclaimers, Limitations, and Exclusions
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 Construction Freelancing’s part to store, backup, retain, or grant access to any information or data for any period.
We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, and disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information, or information about the entity that you represent, at your own risk.
Construction Freelancing is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with this Agreement, including, but not limited to:
● your use of or your inability to use the Site or Site Services;
● delays or disruptions in the Site or Site Services;
● viruses or other malicious software obtained by accessing, or linking to, the Site or Site Services;
● glitches, bugs, errors, or inaccuracies of any kind in the 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 Engagement postings, Service Provider profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; or
● 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.
11. Warranty Disclaimer
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,” “as available,” and without any warranties or conditions (express or implied, including the implied warranties of merchantability, accuracy, fitness for a particular purpose, title, and non-infringement, arising by statute or otherwise in law or from a course of dealing or usage or trade). we disclaim all and make no representations or warranties, of any kind, either express or implied, as to the quality, identity, or reliability of any third-party, the freelancer services, or the accuracy of the postings made on the site by any third-party.
Some states and jurisdictions do not allow for all the foregoing limitations on implied warranties, so to that extent, if any, some or all of the above limitations may not apply to you.
12. Limitation of Liability
In the event of a dispute between you and construction freelancing and/or an affiliate, neither you nor construction freelancing, our affiliates, our licensors, or our third-party service providers will be liable for any special, indirect, consequential, incidental, or punitive damages, including, but not limited to, loss of profits, loss of business opportunities, or loss of goodwill, even if advised of the possibility of such damages. if liability is found, the liability of construction freelancing, our affiliates, our licensors, or our third-party service providers to any user for any claim arising out of or in connection with this agreement will not exceed the greater of:
● AUD$2,500; or
● Any fees retained by construction freelancing with respect to contracts of which user was a party as a client or service provider during the twelve-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 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 their essential purpose.
Some states and jurisdictions do not allow for all the foregoing exclusions and limitations of incidental and consequential damages, so to that extent, if any, some or all of these limitations and exclusions may not apply to you.
In addition to the recognition that Construction Freelancing is not a party to any contract between Client and Service Provider, you hereby release Construction Freelancing, our Affiliates, and our respective officers, directors, employees, attorneys, agents, subsidiaries, joint ventures, and our and their respective successors and assigns from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another Member, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the provision, functions, and quality of the freelancer services provided to Client by a Service Provider and requests for refunds based upon Disputes. Procedures regarding the handling of certain Disputes between Members are discussed below in section 16.
If you are a California, USA resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
This release will not apply to a claim that Construction Freelancing failed to meet our obligations under this Agreement and the other Terms of Service.
You agree to defend, hold harmless, and indemnify Construction Freelancing, our Affiliates, our and their respective officers, directors, employees, attorneys, agents, joint ventures, and our and their respective successors and assigns (each party an “Indemnified Party”) from and against any and all losses, costs, expenses, damages, and other liabilities (including reasonable attorneys’ fees and costs) incurred by an Indemnified Party arising from or related to any cause of action, claim, suit, proceeding, demand, or action brought by a third-party against an Indemnified Party in connection with your use of the Site Services, including:
● any payment obligations incurred through use of the Site Services;
● any allegation of any infringement, misappropriation, or other violation of any Intellectual Property Rights by you or your agents, including by any Work Product provided by you or your agents;
● your: (i) use of the Site; (ii) decision to supply credit or other information via the Site, including financial information; (iii) decision to submit postings and accept offers from other Members; (iv) breach of any provision of this Agreement or the other Terms of Service; (v) dispute of or failure to pay any invoice or make any other payment; (vi) obligations to a Service Provider, including payment obligations;
● (d) any breach of contract or other claims made by Members with which you conducted business through the Site;
● any liability arising from the tax treatment of payments made or receive through the Site Services or any portion thereof;
● anything which the Indemnified Party may do or refrain from doing in connection with this Agreement and the Terms of Service, including, but not limited to, all costs incurred in conjunction with any interpleader which Construction Freelancingmay enter into regarding an Escrow Account; or
● monies deposited under the Account Agreement or for any interest upon any such monies.
The foregoing indemnity will include, without limitation, such cause of action, claim, suit, proceeding, demand, or action arising out of the negligence of any Indemnified Party; provided that the foregoing indemnification will not extend to the gross negligence or willful misconduct of an Indemnified Party.
15. Agreement Term; Termination and Suspension
This Agreement will become effective upon your first visit to the Site and will remain in effect for the duration of your use of the Site. Unless both you and Construction Freelancing agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice, except as otherwise provided below. If you are using Construction Freelancing Payroll Services, you must legally terminate your relationship with Client or Service Provider, as applicable, before terminating this Agreement.
In the event you or we properly terminate this Agreement, your right to use the Site is automatically revoked, and we will close your Account; however, upon our election,
● if you have any open Engagements when you terminate this Agreement you will continue to be bound by this Agreement until all such Engagements have closed on the Site;
● Construction Freelancing will continue to perform those Construction Freelancing Services necessary to complete any open Engagement or related transaction between you and another Member; and
● you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Engagements, whichever is later, to Construction Freelancing for any Site Services and to any Service Providers for any services rendered.
Without limiting any other provisions of this Agreement, the termination of this Agreement for any reason will not release you, any Member with whom you have entered into a Contract, or Construction Freelancing from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
Upon any termination of a Team Account, Construction Freelancing may close any or all related Accounts.
Without limiting Construction Freelancing’s other remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if:
● you breach the letter or spirit of any terms and conditions of this Agreement or other Terms of Service;
● we suspect or become aware that you have provided false or misleading information to us; or
● we believe, in our sole discretion, that your actions may cause legal liability for you, our Members, or Construction Freelancing or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity.
Once your Account is suspended or closed, you must not continue to use the Site under the same Account or a different Account or re-register under a new Account without Construction Freelancing’s prior written consent.
Without limiting Construction Freelancing’s other remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed Construction Freelancing or our Affiliates under this Agreement, you must pay Construction Freelancing for all fees owed to Construction Freelancing and our Affiliates and reimburse Construction Freelancing for all losses and costs (including any and all time incurred by employees of Construction Freelancing or our Affiliates) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
Except as otherwise required by applicable law, we will notify you if we suspend or close your Account, unless we believe, in our sole judgment, that giving notice may cause damage. You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of Users’ Account status to all Members, including both yourself and other Members who have entered into Contracts with you.
You therefore agree as follows: If construction freelancing decides to suspend or close your account, construction freelancing has the right, but not the obligation, to (1) notify other members that have entered into member contracts with you to inform them of your suspended or closed account status, and (2) provide those members with a summary of the reasons for your account suspension or closure.
When your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable, Construction Freelancing will retain this information along with all your previous posts and proposals for a period of one year from the date of closure to give you ample time to institute an appeal of our decision through the process described in the subsection titled “Disputes with Construction Freelancing” in section 16 below. If you appeal our decision through that process within one year, Construction Freelancing will retain your information until such dispute is resolved. If you fail to appeal our decision within one year, Construction Freelancing may delete your information, including data, messages, files, and other material you keep on the Site.
The following will all survive termination of this Agreement for any reason:
● those terms of this Agreement that by their nature are intended to survive this Agreement; and
● the Account Agreement, the applicable Construction Freelancing Instructions, the Payroll Services Agreement, the Refund and Cancellation Policy, and the applicable Dispute Resolution Policies.
16. Cancellations, Refunds, and Disputes; Mandatory Binding Arbitration.
You may ask for a refund at any time for any funds that you have paid into your Account except if the amount to refund relates to a Milestone Payment or relates to fees or charges payable to us.
If the amount the User has asked to refund relates to: (1) a Milestone Payment, the Dispute Resolution Process may be followed; or (2) our fees and charges, the process set out in the Clause “Disputes with Us” must be followed.
If we agree to the refund, the funds will be received by the User via the same payment method(s) that the User used to make the original payment to us.
We may refund funds to Users irrespective of whether a User has requested funds be refunded if: (1) we are required by law or consider that we are required by law to do so; (2) we determine that refunding funds to the User will avoid any dispute or an increase in our costs; (3) we refund funds to the User in accordance with any refund policy specified by us from time to time; (4) we find out that the original payment made by the User is fraudulent; (5) the User made a duplicate payment in error; or (6) we consider, in our sole opinion, that it is likely that the refund of funds is necessary to avoid a credit card chargeback.
You can request a refund by emailing us at email@example.com. Once you have made a milestone payment, you expressly agree to use the dispute resolution process in this agreement, expressly agree to be bound by its ruling and expressly agree not to initiate any chargeback request with your card issuer.
If you initiate any chargeback request or other “Request for Information” or similar process, you expressly agree and consent to us to share any and all information in relation to your agreement of these terms and conditions, in order to defeat any such chargeback request.
If you have already initiated a chargeback request with your credit card issuer, you must not request a refund of funds by contacting us and must not seek double recovery.
If we reasonably determine, having considered all the relevant circumstances, that you have made an excessive or unreasonable number of requests to refund funds back to you or chargebacks, we may suspend, limit or close your Account.
Disputes with Construction Freelancing
If a dispute arises between you and Construction Freelancing or any of our Affiliates, our goal is to resolve the dispute quickly and cost effectively. Accordingly, you, Construction Freelancing, and our Affiliates agree that we will resolve any claim or controversy at law or in equity that arises between you and Construction Freelancing or our Affiliates out of or relating to this Agreement or the Construction Freelancing Services (a “Claim”) in accordance with this section titled “Disputes with Construction Freelancing.”
Law and Forum for Disputes
This Agreement and any Claim, including, without limitation, any dispute relating to a Contract, will be governed by and construed in accordance with the laws of the State of Western Australia, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG); provided, however, that any Claims made by any Service Provider located within Australia will be governed by the law of the state in which such Service Provider resides or is legally organized.
You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration”
Informal Dispute Resolution
Before serving a demand for arbitration of a Claim, or otherwise seeking injunctive or other equitable relief in a court of law as expressly permitted in this Agreement, you agree to first notify Construction Freelancing of the Claim at Attn: Legal, 13 Broadway BVD, Piara Waters, WA, 6112 (the “Notice”) and seek informal resolution of the Claim. The Notice must include your name, pertinent account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Construction Freelancing will have 60 days from the date of our receipt of the Notice to informally resolve the Claim, which, if successful, will avoid the need for further action.
Mandatory Binding Arbitration (Does Not Apply to Service Providers Located Outside Australia and its territories)
This Mandatory Binding Arbitration provision (“ArbitrationProvision”) applies to all Visitors and Members, except Service Providers located outside Australia and its territories.
In the unlikely event that Construction Freelancing is unable to resolve a Claim within 60 days of our receipt of the Notice, you, Construction Freelancing, and our Affiliates agree to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. Such arbitration will be initiated through an established alternative dispute resolution (ADR) provider, which is to be selected by you from a panel of ADR providers that Construction Freelancing will provide to you. The ADR provider and the parties must comply with the following rules:
● the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration;
● the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and
● any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
All claims you bring against Construction Freelancing must be resolved in accordance with the terms of this Agreement. All claims filed or brought contrary to this Agreement shall be considered improperly filed and a breach of this Agreement. Should you file a claim contrary to the terms of this Agreement, Construction Freelancing may recover its legal fees and costs (including in-house lawyers and paralegals), provided that Construction Freelancing has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
You agree that you will not pursue any claims arising under this Terms of Service Agreement on a class or other representative basis and will not seek to coordinate or consolidate any arbitration or action hereunder with any other proceeding.
If any proceeding by or against you is commenced under any provision of any bankruptcy or insolvency law, Construction Freelancing will be entitled to recover all reasonable costs or expenses (including reasonable legal fees and expenses) incurred in connection with the enforcement of this Agreement.
Construction Freelancing’s 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.
As some jurisdictions do not allow some of the exclusions or limitations as established above, some of these exclusions or limitations may not apply to Members. In that event, the liability will be limited as far as legally possible under the applicable legislation.We may plead this Terms of Service Agreement in bar to any claim, action, proceeding or suit brought by Members, against us for any matter arising out of any transaction or otherwise in respect of this Terms of Service.
Members and Construction Freelancing agree that both Members and Construction Freelancing will only be permitted to bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless otherwise agreed by both parties, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. In addition, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favour of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect other Members of the site.
Enforcement of this Arbitration Provision
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
Right to Opt Out of Arbitration
You may opt out of this Arbitration Provision by notifying Construction Freelancing in writing within 30 days of the date you first register for the Site. To opt out, you must send a written notification to firstname.lastname@example.org that includes
● your Account username,
● your name,
● your address,
● your telephone number,
● your email address, and
● a clear statement indicating that you do not wish to resolve Claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of this Arbitration Provision.
17. Notices and Communications
Communications from Construction Freelancing to you
By visiting the Site, you are deemed to have executed this Agreement electronically, effective on the date you visit the Site. Visiting the Site constitutes your acknowledgement that you are able to electronically receive, download, and print this Agreement. Unless you otherwise indicate in writing to Customer Support, Construction Freelancing and our Affiliates will communicate with you by email or by posting communications on the Site. You will be considered to have received a communication when Construction Freelancing sends it to the email address you have provided to Construction Freelancing on the Site or when Construction Freelancing posts such communication on the Site. You must keep your email address updated on the Site, and you must regularly check the Site for postings. Without limiting Construction Freelancing’s other rights under this Agreement, if you fail to respond to an email message from Construction Freelancing regarding a violation, dispute, or complaint within two (2) Business Days, Construction Freelancing has the right to suspend or close, in our sole discretion, your Account.
Communications from you to Construction Freelancing
All notices to Construction Freelancing or Affiliates intended to have a legal effect must be in writing and delivered in writing via email to email@example.com.
All such notices are deemed effective upon documented receipt by Construction Freelancing. Construction Freelancing does not accept service of any legal process by email or mail; all such service should occur by hand delivery to Construction Freelancing or its registered agent for service of process.
Construction Freelancing, PTY LTD. is the provider of the electronic commercial service on the Site. Members are notified, via the Site, in advance regarding any applicable service charges. Upon your request, you may have this Terms of Service Agreement sent to you by email. Please contact Construction Freelancing to resolve a complaint regarding any aspect of service relating to the Site by writing to the attention of Customer Support at the above address or contact us through Customer Support.
19. Miscellaneous Terms and Conditions
You are responsible for compliance with applicable foreign, federal, state, and local laws, keeping in mind that access to the contents of the Site may not be permitted under the laws of certain countries. Construction Freelancing will not be considered to have modified or waived any of our rights or remedies under this Agreement unless the modification or waiver is in writing and signed by an authorized representative of Construction Freelancing. No delay or omission by Construction Freelancing in exercising our rights or remedies will impair our rights or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy.
You will not transfer, assign, or delegate your rights or obligations (including your Account) under this Agreement to anyone without the prior express written consent of Construction Freelancing, and any attempt to do so will be null and void. Construction Freelancing may assign this Agreement in our sole discretion. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
If an arbitrator or court of competent jurisdiction deems any provision of this Agreement invalid, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement (except as noted in section 16 above), which will remain in full force and effect.
The Site is controlled and operated from our facilities in Australia. Construction Freelancing makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, Australian federal, state, and local laws and regulations. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving Australian origin products, including services or software. You may not use or access the Site if you are
● a resident of, or legally organized under the laws of, a country or geographic area embargoed by Australia;
● subject to Australian economic sanctions that prohibit your use of or access to the Site; or
● a foreign person or entity blocked or denied by the Australian government.
Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in Australia.
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law, or any other similar conditions beyond the reasonable control of such party. The time for performance of such party will be extended by the period of such delay but in no event longer than 60 days.
The English language version of this Agreement will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The section headings in this Agreement are included for ease of reference only and have no binding effect. Even though Construction Freelancing drafted this Agreement, you represent that you had ample time to review and decide whether to agree to the terms of this Agreement. If an ambiguity or question of intent or interpretation of this Agreement arises, no presumption or burden of proof will arise favoring or disfavoring you or Construction Freelancing because of the authorship of any provision of this Agreement. This Agreement, together with the other Terms of Service agreements and the Site Policies, comprise the entire agreement between you and Construction Freelancing with respect to the use of the Site and supersede all prior agreements between you and us, written or oral, regarding the subject matter contained herein and therein as well as any conflicting or inconsistent terms in any website(s) that link to or are linked from the Site.
This Agreement may be displayed in both PDF and HTML versions. In the event of any inconsistency between such versions, the PDF version will govern.
As used in this Agreement and the other Terms of Service, the following terms have the meanings given below, unless otherwise defined or required in context:
“Account” means the Construction Freelancing account you open when you register to become a Member and use the Site Services, including all Team Accounts added to that Account.
“Account Agreement” means the Account agreement that governs your Account, Escrow Accounts, and related Site Services, including the Escrow Services, and is part of and incorporates by reference all terms, conditions, rules, policies, and guidelines on the Site, including the Construction Freelancing Instructions and other Terms of Service.
“Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Construction Freelancing.
“Business Day” means a day on which the headquarters office of Construction Freelancing is open for normal business.
“Client” means a Member that investigates and purchases freelancer services or identifies a Service Provider through the Site.
“Construction Freelancing,” “we,” and “us” means Construction Freelancing, PTY, LTD., a Western Australian corporation, except where otherwise specifically stated.
“Construction Freelancing Payroll Services” means the services described in the Payroll Services Agreement.
“Construction Freelancing Services” means the creation, hosting, maintenance, and provision of the Site and all services delivered by Construction Freelancing that are accessible through the Site. The term Construction Freelancing Services does not include freelancer services or Third-Party Services.
● the Relationship Agreements applicable to the Engagement;
● the remaining Terms of Service (other than the Relationship Agreements);
● the Engagement terms, as awarded and accepted on the Site, to the extent not inconsistent with the Mandatory Terms; and
● any other contractual provisions between Client and Service Provider and uploaded to the Site, to the extent not inconsistent with the Mandatory Terms.
“Deliverable” means any Work Product (as defined in the Service Provider and Client Agreement) identified as a deliverable in the Contract.
“Dispute,” if capitalized, means any dispute between Members where one or the other has the right to submit a Dispute Notice Form via the Site pursuant to the Refund and Cancellation Policy or an applicable Dispute Resolution Policy. The use of the un-capitalized term “dispute” anywhere on the Site refers to any dispute, whether between Members or with Construction Freelancing, including those where no Member has filed a Dispute Notice Form via the Site.
“Dispute Notice” or “Dispute Notice Form” means the electronic form that the Site provides in a Project room, that any Member may complete to identify a Dispute and begin Dispute resolution for an Engagement via the Site.
“Dispute Resolution Policy(ies)” for an independent contractor Engagement means either the Hourly Dispute Resolution Policy or the Fixed Price Dispute Resolution Policy, whichever is applicable.
“Fixed Price Engagement” means an Engagement where Client has offered or agreed to pay Service Provider a fixed price for freelancer services and/or Deliverables.
“Hourly Engagement” means an Engagement where Client has offered or agreed to pay Service Provider at a specified hourly rate for the freelancer services.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
“may” means a party has the right to take an action.
“Mandatory Terms” means all provisions of the Terms of Service other than
● the Service Provider and Client Agreement; and
● the Refund and Cancellation Policy and the Dispute Resolution Policies.
“Member” means a person or legal entity that registers for an Account.
“Payment Method” means a valid credit card issued by a bank acceptable to Construction Freelancing, a bank account linked to your Account, a PayPal account, or such other method of payment asConstruction Freelancing may accept from time to time in their sole discretion.
“Payroll Employee” means a Service Provider accepted for employment by a payroll services company selected by Construction Freelancing and assigned by that company via the Site to provide freelancer services to one or more Client(s).
“Project room” means the place on the Site where a Client and Service Provider communicate about an Engagement.
“Relationship Agreements” means the
● Service Provider and Client Agreement;
● Fixed Price Construction Freelancing Instructions;
● Hourly and Miscellaneous Payment Agreement withConstruction FreelancingInstructions; and
● Payroll Services Agreement.
“Release Condition” means a condition for release of funds from an Escrow Account pursuant to the Construction Freelancing Instructions.
“Secure Areas” means portions of the Site that are encrypted using the Hypertext Transfer Protocol Secure (also known as “HTTPS”) or any other encryption mechanism.
“Service Fee” means a fee that Construction Freelancing earns for creating, hosting, maintaining, and providing the Site and Site Services. Construction Freelancing does not introduce Service Providers to Clients or help Service Providers to find Engagements, and therefore earns no fee when a Service Providers identifies a suitable Client or finds an Engagement.
“Service Provider” means a Member that advertises and provides services or identifies a Client through the Site. The term “Service Provider” includes, without limitation, a Member that becomes a Payroll Employee.
“Service Provider Services” means all services provided or delivered to Clients by Service Providers.
“Services Agreement” means the default Service Provider and Client Agreement that may be modified by Client and Service Provider as described in this agreement. A Services Agreement may include specifications, price, milestones, deliverables, hours, payment terms, warranties, and other contractual obligations.
“Site” means the domain and all subdomains of Constructionfreelancing.com and any mobile or web services or applications owned, controlled, or offered by Construction Freelancing.
“Site Policies” means the Terms of Service and all obligations, requirements, and guidelines contained in or linked from the Site.
“Site Services” means all services that are accessible through the Site whether provided by Construction Freelancingan Affiliate or a third party, other than a Service Provider. Site Services includes the Third-Party Services, but excludes freelancer services.
“Team Account” means an account established by a Member adding Users to the Member’s Account to act on behalf of and perform roles assigned by the Member.
“Team Account Administrator” means a Team Member with account administrator privileges for a Team Account.
“Team Member” means any User added to a Team Account.
“Terms of Service” means this Agreement and all the other Site information agreements and policies referenced or linked on the site.
“Third-Party Services” means all services that are accessible through the Site but delivered by third parties, not Construction Freelancing or our Affiliates. The term Third-Party Services does not include Construction Freelancing Services or freelancer services.
“Third-Party Sites” means all websites, Third-Party Services, and resources linked to the Site.
● a person who is a Member, using the Site on his or her own behalf, for his or her business purposes, and not for personal, household, or consumer use, or
● a person who is authorized to use the Site on behalf of a Member that is a company or organization for business purposes, and not for personal, household, or consumer use.
“User Content” means any data, information, content, text, video, music, or other information that you post to any part of the Site.
“Visitor” means a person who only visits the Site and is not a Member or User.
“you” means a Visitor or Member accessing the Site or using the Site Services on his or her own behalf; and, if the Site Services are used on behalf of a Member, “you” also includes the Member for which the Site Services are used.
21. Contacting Us
If you wish to report a violation of the Terms of Service, have any questions, or need assistance, please contact Customer Support at firstname.lastname@example.org