Terms of Service
PLEASE READ THIS USER AGREEMENT AND ALL OTHER AGREEMENTS AND POLICIES REFERENCED HEREIN COLLECTIVELY DEFINED BELOW AS THE “TERMS OF SERVICE” CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
Registering on this site serves to verify that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company. Your privacy is important to TheHive and your information will be handled in accordance with our Privacy Policies, which are part of the Terms of Service, and applicable law.
1.2 ACCOUNT ELIGIBILITY
TheHive offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you: (a) are an employee or agent of and authorized to act for and bind an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site and Site Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of Freelancer Services; and (d) are either a legal entity or an individual who is 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) in each case who can form legally binding contracts.
1.3 ACCOUNT PROFILE
To register for an Account to join the Site, you must complete a User profile (“Profile”), 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.
1.4 ACCOUNT TYPES
As described in this Section, there are two different Account types. 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.
1.4.1 CLIENT ACCOUNT
You can register for an Account or add an Account type to use the Site and Site Services as a Client (a “Client Account”).
1.4.2 FREELANCER/AGENCY ACCOUNT
Freelancer: You can register for an Account or add an Account type to use the Site and Site Services as a Freelancer (a “Freelancer Account”).
1.5 ACCOUNT PERMISSIONS
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, including as a Team 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, TheHive may close any or all related Accounts.
1.6 IDENTITY AND LOCATION VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on TheHive. You authorize TheHive, 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.
1.7 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person who is not authorized to use your Account. You authorize TheHive to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use both or (b) the use would violate the Terms of Service.
Section 2 discusses what TheHive does and does not do when providing the Site and Site Services and some of your responsibilities when using the Site to find or enter into a Service Contract with a Freelancer or Client, as detailed below.
The Site is a marketspace where Organizations (Clients) and Freelancers (Agencies) can identify each other and advertise, submit Requests for Bids on projects, Requests for Estimates, bid on and sell Freelancer Services online. Subject to the Terms of Service, TheHive 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.
2.1 RELATIONSHIP WITH TheHive
TheHive merely makes the Site and Site Services available to enable Freelancers and Clients to find and transact directly with each other. TheHive 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 TheHive is not a party to that Service Contract.
You acknowledge, agree, and understand that TheHive is not a party to the relationship or any dealings between Client and Freelancer. Without limitation, Users are solely responsible for: (a) ensuring the accuracy and legality of any User Content; (b) determining the suitability of other Users for a Service Contract (such as any interviews, vetting, background checks, or similar actions); (c) negotiating, agreeing to, and executing any terms or conditions of Service Contracts; (d) performing Freelancer Services; or (e) paying for Freelancer Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Contract with another User and for verifying any information about another User. TheHive does not make any representations about or guarantee the truth or accuracy of any Freelancer’s or Client’s listings or other User Content on the Site; does not verify any feedback or information provided by Users about Freelancers or Clients; and does not vet or otherwise perform background checks on Freelancers or Clients. You acknowledge, agree, and understand that TheHive does not, in any way, supervise, direct, control, or evaluate Freelancers or their work and is not responsible for any Project, Project terms or Work Product. TheHive makes no representations about and does not guarantee, and you agree not to hold TheHive responsible for, the quality, safety, or legality of Freelancer Services; the qualifications, background, or identities of Users; the ability of Freelancers to deliver Freelancer Services; the ability of Clients to pay for Freelancer Services; User Content and statements or posts made by Users; or the ability or willingness of a Client or Freelancer to actually complete a transaction.
You also acknowledge, agree, and understand that Freelancers are solely responsible for determining, and have the sole right to determine, which Projects to accept; the time, place, manner, and means of providing any Freelancer Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of TheHive, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) TheHive 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) TheHive 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 TheHive does not set or have any control over Freelancer’s pricing, work hours, work schedules, or work location, nor is TheHive 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 TheHive does not, in any way, provide or guarantee Freelancer a regular salary or any minimum, regular payment; (vi) TheHive does not provide Freelancers with training or any equipment, labor, tools, or materials related to any Service Contract; (vii) TheHive 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); and (viii) TheHive does not provide shipping services for any physical Work Product. If a Freelancer uses subcontractors or employees, Freelancer further agrees and acknowledges that this Section applies to TheHive’s relationship, if any, with Freelancer’s subcontractors and employees as well and Freelancer is solely responsible for Freelancer’s subcontractors and employees.
Without limiting the foregoing paragraph, 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) TheHive 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 TheHive; (4) TheHive does not, in any way, supervise, direct, or control the Agency or Agency Members; (5) TheHive 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) TheHive does not provide Agencies or Agency Members with training or any equipment, labor, tools, or materials needed for any Service Contract; (7) TheHive does not provide the premises at which the Agency or Agency Members will perform the work; and (8) TheHive 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 TheHive disclaims any and all liability relating thereto.
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels they choose, provided, if applicable, Users comply with the Opt Out provisions described in Section 7. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
2.2 TAXES AND BENEFITS
Freelancer acknowledges and agrees that Freelancer is solely responsible (a) for all tax liability associated with payments received from Freelancer’s Clients and through TheHive, and that TheHive 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 TheHive; (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 Jamaica, for determining if TheHive is required by applicable law to withhold any amount of the Freelancer Fees and for notifying TheHive of any such requirement and indemnifying TheHive for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of TheHive, Freelancer agrees to promptly cooperate with TheHive 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 TheHive.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request TheHive to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that Freelancers or Clients voluntarily submit to TheHive and does not constitute and will not be construed as an introduction, endorsement, or recommendation by TheHive; TheHive provides such information solely for the convenience of Users.
You acknowledge and agree that User feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that TheHive post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Job Success Rating, wherever referenced, and other User Content highlighted by TheHive on the Site or otherwise (“Comprehensive Profile”), if any, may include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that TheHive will make Comprehensive Profile available to other Users, including composite or compiled feedback. TheHive provides its feedback system as a means through which Users can share their opinions of other Users publicly, and TheHive does not monitor, influence, contribute to or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any other Comprehensive Profile relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Comprehensive Profile to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
TheHive does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content. TheHive is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, TheHive reserves the right (but is under no obligation) to remove posted feedback or information that, in TheHive’s sole judgment, violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of TheHive. You acknowledge and agree that you will notify TheHive of any error or inaccurate statement in your feedback results, including the Comprehensive Profile, and that if you do not do so, TheHive may rely on the accuracy of such information.
Section 3 discusses the relationship you may decide to enter into with another User, including Service Contracts between Users, as detailed below.
3.1 SERVICE CONTRACTS
If a Client and Freelancer decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Freelancer. Client and Freelancer have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that TheHive 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 TheHive and any User or a partnership or joint venture between TheHive 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 TheHive’s rights and obligations under the Terms of Service, including this Agreement and the applicable Escrow Instructions.
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. TheHive 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.
3.2 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 TheHive 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 TheHive, Ingenuity 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 TheHive or Ingenuity 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.
3.3 CONFIDENTIAL INFORMATION
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 3.3 (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.
Section 4 discusses what you agree to concerning whether a Freelancer is an employee or independent contractor and when you agree to use TheHive Payroll, as detailed below.
4.1 WORKER CLASSIFICATION
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between TheHive and a User.
Client is solely responsible for and has complete discretion with regard to selection of any Freelancer for any Project. Client is solely responsible for and assumes all liability for determining whether Freelancers should be engaged as independent contractors or employees of Client and engaging them accordingly. Client warrants its decisions regarding classification are correct and its manner of engaging Freelancers complies with applicable laws, regulations, and rules. TheHive will have no input into, or involvement in, worker classification as between Client and Freelancer and Users agree that TheHive has no involvement in and will have no liability arising from or relating to the classification of a Freelancer generally or with regard to a particular Project.
4.2 TheHive PAYROLL SERVICES
Enterprise Level Clients which agree to enroll in TheHive Payroll Service and agree to receive services from a Freelancer(s) under TheHive’s or its affiliate’s terms and conditions, would give rise to an ‘employment relationship’. When the Enterprise Level Client enrolls in TheHive Payroll, Client will engage TheHive’s third-party staff augmentation vendor (“Ingenuity Technologies”), which is a partner of TheHive. Customizable packages can be provided to the Enterprise Client via the Staff Augmentation partner through a request made via the Site. The Ingenuity Technologies, TheHive Staff Augmentation Partner will hire Freelancer at the request of Client and Freelancer according to the terms described on the Site and otherwise agreed to by the Ingenuity Technologies, TheHive Staff Augmentation Partner and Client and/or Freelancer, and subject to the TheHive Payroll Agreement. For all purposes with TheHive Payroll, the employer of Freelancer will be the Ingenuity Technologies, TheHive Staff Augmentation Partner and not TheHive under any circumstances.
Freelancer, acknowledges, understands, and agrees that TheHive will have no control over, or involvement in determining or influencing, the terms and conditions of any employment relationship that may arise between Freelancer and Ingenuity Technologies, TheHive Staff Augmentation Partner or Client, including the selection of an employee, pay rate, work hours, employment dates and working conditions. Freelancer will not have any contract on the Site or contact with TheHive regarding such employment terms. Where Freelancer and Client have enrolled in TheHive Payroll Service the Site is provided for, and Users agree to use the Site for, the sole purpose of enabling Freelancers to communicate with Ingenuity Technologies Ltd. – TheHive Staff Augmentation Partner and with the Client.
Section 5 describes what fees you agree to pay to TheHive in exchange for TheHive providing the Site and Site Services to you and what feesTheHive may collect, as detailed below.
5.1 FEES FOR FREELANCERS
Service Fees. Freelancers will pay TheHive a service fee for the use of the Site Services as set forth in TheHive Fee and ACH Authorization Agreement, for using the Site Services, including the communication, invoicing, reporting, dispute resolution and payment 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 (See Section 6.1), Ingenuity Escrow will credit the Freelancer Escrow Account for the full amount paid or released by the Client, and then subtract and disburse to TheHive the Service Fee. Freelancer hereby irrevocably authorizes and instructs Ingenuity Escrow to deduct the Service Fee from the Freelancer Escrow Account and pay TheHive on Freelancer’s behalf. In the event the Freelancer chooses to withdraw funds in a currency other than United States Dollars (USD), there may also be a foreign currency conversion charge imposed by Ingenuity 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.
Membership Fees and Connects. Freelancers may subscribe to different levels of participation and privileges on the Site to access additional features and Site Service, by payment of subscription membership fees and by purchasing packages as described in and subject to the terms of the Freelancer Membership Agreement.
Disbursement Fees. Freelancers will pay TheHive a disbursement fee for remitting payments to their preferred payment method (“Disbursement Fee”). The Disbursement Fee is paid to TheHive in consideration of costs incurred and administration of disbursements via the disbursement method requested by Freelancer and varies by disbursement method. The Disbursement Fee for each disbursement method is listed under Fees and Schedules on the Site and is revised from time to time.
In addition to fees charged by TheHive, your disbursement method may also charge activation, maintenance, or other account fees.
5.2 CLIENT FEES
Clients pay TheHive a fee for payment processing and administration related to the Freelancer Fees they pay to Freelancers they engage through the Site, as described in TheHive Fee and ACH Authorization Agreement.
Clients may also choose to pay for a premium membership plan to access additional features and Site Services, as described in the TheHive.co Fee and ACH Authorization Agreement.
Clients do not pay fees if they use the Site solely for Direct Contracts.
5.3 VAT AND OTHER TAXES
TheHive may be required by applicable law to collect taxes or levies including, without limitation, withholding income tax or VAT (while some countries may refer to VAT using other terms, e.g. GCT, we’ll just refer to VAT, GCT and any local sales taxes collectively as “VAT”) in the jurisdiction of the Freelancer (the “Taxes“). In such instances, any amounts TheHive is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to TheHive under the Terms of Service.
5.4 NO FEE FOR INTRODUCING OR FOR FINDING PROJECTS
TheHive does not introduce Clients to Freelancers and does not help Freelancers secure Projects. TheHive merely makes the Site and Site Services available to enable Freelancers to do so themselves and may from time to time highlight Projects that may be of interest. Therefore, TheHive does not charge a fee when a Freelancer finds a suitable Client or finds a Project. In addition, TheHive does not charge any fee or dues for posting public feedback and composite or compiled feedback, including Comprehensive Profile.
Section 6 discusses your agreement to pay Freelancer Service Fees on Service Contracts, and describes how TheHive’s /Ingenuity Technologies Limited’s Escrow Services work, what happens if a Client doesn’t pay, and related topics, as detailed below.
6.1 ESCROW SERVICES
Ingenuity Escrow provides escrow services to Users to deliver, hold, and/or receive payment for a Project, and to pay fees to TheHive / Ingenuity Technologies (“Escrow Services”). Ingenuity Escrow is a Jamaican 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.
6.1.1 ESCROW INSTRUCTIONS
Ingenuity 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 Ingenuity Escrow acts merely as an Internet escrow agent. Ingenuity Escrow has fully delivered the Escrow Services to you if Ingenuity Escrow provides the Escrow Services described in this Agreement and the applicable Escrow Instructions. Ingenuity Escrow is only obligated to perform those duties expressly described in this Agreement and any applicable Escrow Instructions. If you authorize or instruct Ingenuity Escrow to release or make a payment of funds from an Escrow Account associated with you, Ingenuity 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 Ingenuity Escrow will follow, the Fixed-Price Escrow Instruction which states that in order to finalize the engagement with a freelancer or agent on the Hive, prior to commencement of agreement execution, you must ensure that the agreed upon value of the project is placed in the escrow account.
TheHive Payroll Engagements. If Users use TheHive Payroll (Section 4) for a particular Project, then the Staffing Employee is paid directly by the Ingenuity Technologies, TheHive Staff Augmentation Partner. A Client will be invoiced offline by the Ingenuity Technologies, TheHive Staff Augmentation Partner, and the applicable Escrow Instructions will apply.
6.1.2 ESCROW ACCOUNTS
Ingenuity 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, Ingenuity 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, Ingenuity 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 TheHive.
(b) Freelancer Escrow Account. After entering into a Service Contract, the first time a Freelancer uses the Site to receive payment for a Project, Ingenuity Escrow will establish and maintain a “Freelancer Escrow Account” for Freelancer to receive payments for Projects, withdraw payments, make payments to TheHive and issue refunds to Clients.
(c) Ingenuity Fixed-Price Escrow Account. When you enter into a Fixed-Price Contract, Ingenuity 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.
(d) Direct Contract Escrow Account. When you enter into a Direct Contract, Ingenuity Escrow will establish and maintain a “Direct Contract Escrow Account” to receive, hold, and release payments pursuant to the Direct Contract Escrow Instructions for the Project that is the subject of that Direct Contract.
You hereby authorize and instruct Ingenuity Escrow to act as the escrow agent in connection with the Escrow Accounts and the payment, holding, and receipt of funds for each Project and other specified purposes in accordance with the Terms of Service and the applicable Escrow Instructions. Client and Freelancer may access current information regarding the status of an Escrow Account on the Site.
6.1.3 TITLE TO FUNDS
TheHive, Ingenuity Escrow and our Affiliates are not banks. Ingenuity Escrow deposits and maintains all Escrow Account funds in an escrow trust account at a bank approved to receive, hold, and deliver escrow funds under applicable laws and regulations. The escrow trust account is separate from the operating accounts of TheHive and each of our Affiliates. Ingenuity Escrow will not voluntarily make funds deposited in the escrow trust account available to its creditors, or the creditors of its Affiliates, in the event of a bankruptcy, or for any other purpose. As provided in Jamaica Bankruptcy Code, Ingenuity Escrow holds only legal title to, and not any equitable interest in, the escrow trust account and any funds deposited therein.
6.1.4 NO INTEREST
You agree that you will not receive interest or other earnings on the funds held in your Escrow Account. TheHive, Ingenuity 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 as mentioned in Section 5 and TheHive Fee and ACH Authorization Agreement.
6.1.5 ESCROW AGENT DUTIES
We undertake to perform only such duties as are expressly set forth in this Agreement, the applicable Escrow Instructions, and the other Terms of Service, and no other duties will be implied. We have no liability under, and no duty to inquire as to, the provisions of any agreement, other than the Terms of Service, including this Agreement and the applicable Escrow Instructions. We will be under no duty to inquire about or investigate any agreement or communication between Client and Freelancer, even if posted to the Site. We have the right to rely upon, and will not be liable for acting or refraining from acting upon, any written notice, instruction, or request furnished to us by Client or Freelancer in accordance with this Agreement or the applicable Escrow Instructions, if we reasonably believe that such notice, instruction, or request is genuine and that it is signed or presented by the proper party or parties. We have no duty to inquire about or investigate the validity, accuracy, or content of any such notice, instruction, or request. We have no duty to solicit any payments or releases that may be due to or from any Escrow Account. We may execute any of our powers and perform any of our duties under this Agreement and the applicable Escrow Instructions directly or through agents or attorneys (and will be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants, and other skilled persons to be selected and retained by us. To the extent permitted by applicable law, we will not be liable for anything done, suffered, or omitted in good faith by us in accordance with the advice or opinion of any such counsel, accountants, or other skilled persons. If we are uncertain as to our duties or rights hereunder or receive instructions, claims, or demands from any party hereto that, in our opinion, conflict with any of the provisions of this Agreement or the applicable Escrow Instructions, we will be entitled to refrain from taking any action, and our sole obligation will be to keep safely all property held in the Escrow Account until we are directed otherwise in writing by Client and Freelancer or by a final order or judgment of an arbitrator or court of competent jurisdiction.
6.1.6 ESCROW AGENT RIGHT
We have the right, in our sole discretion, but not the obligation, to institute arbitration or, if no arbitration provision applies, other legal proceedings, including depositing funds (less any transaction/ administration/disbursement fees owed to TheHive) held in the Escrow Account with a court of competent jurisdiction, and to resolve any dispute between Client and Freelancer related to the Escrow Account. Any provision of this Agreement and the applicable Escrow Instructions to the contrary notwithstanding and regardless whether we are identified as a party in interest in any dispute, arbitration, or other legal proceeding, nothing herein will be construed to limit our legal and equitable rights, including, but not limited to, depositing funds held in the Escrow Account with a court of competent jurisdiction. Any corporation or association into which Ingenuity Escrow may be merged or converted or with which Ingenuity Escrow may be consolidated, or any corporation or association to which all or substantially all the escrow business of Ingenuity Escrow may be transferred will succeed to all the rights and obligations of Ingenuity Escrow as escrow holder and escrow agent under this Agreement and the applicable Escrow Instructions without further act to the extent permitted by applicable law.
6.2 CLIENT PAYMENTS ON SERVICE CONTRACTS
Fixed-Price Contracts. Client becomes obligated to pay applicable amounts into the Ingenuity Escrow Account immediately upon sending a Fixed-Price Contract offer (for the full amount or for the first milestone, if milestones are used) or upon activating any additional milestone. When Client authorizes the payment of the Freelancer Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs TheHive or its Affiliates, Ingenuity Escrow or Ingenuity Ltd., to charge Client’s Payment Method for the Freelancer Fees.
Client acknowledges and agrees that for Fixed-Price Contracts, failure by Client to decline or dispute a request for payment is an authorization and instruction to release payment, as described more fully in the applicable Escrow Instructions.
6.3 DISBURSEMENTS TO FREELANCERS ON SERVICE CONTRACTS
Under the relevant Escrow Instructions, Ingenuity Escrow disburses funds that are available in the applicable Freelancer Escrow Account and payable to a Freelancer upon Freelancer’s request. A Freelancer can request disbursement of available funds any time on a one-time basis or by setting up an automatic disbursement schedule. If Freelancer does not request a disbursement, TheHive will automatically disburse available funds no more than 90 days after the Freelancer Fees are released to the Freelancer Escrow Account, unless the amount in the Escrow Account is less than the Minimum Threshold. For purposes of the Terms of Service, a “Minimum Threshold” is either (a) $100 for Freelancers within the Caribbean, or (b) $1,000 for Freelancers outside the Caribbean. When the funds in the Freelancer Escrow Account are below the Minimum Threshold, the automatic disbursement schedule is paused and the available and payable funds are released on the earlier of: (i) Freelancer’s request; (ii) on the first scheduled automatic disbursement occurring after the amount exceeds the Minimum Threshold; or (iii) 180 days after the funds are available in the Freelancer Escrow Account.
Fixed-Price Contracts. Freelancer Fees become available to Freelancers following the expiration of the five-day security period after the funds are released as provided in the applicable Escrow Instructions. The security period begins after Client accepts and approves work submitted by Freelancer.
Notwithstanding any other provision of the Terms of Service or the Escrow Instructions, Ingenuity Escrow, in its sole discretion and except as prohibited by applicable law, may refuse to process, may hold the disbursement of the Freelancer Fees or any other amounts and offset amounts owed to us, or take such other actions with respect to the Escrow Account as we deem appropriate in our sole discretion if: (a) we require additional information, such as Freelancer’s tax information, government-issued identification or other proof of identity, address, or date of birth; (b) we have reason to believe the Freelancer Fees may be subject to dispute or chargeback; (c) we suspect a User has committed or attempted to commit fraud or other illicit acts on or through the Site; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service; or (e) we deem it necessary in connection with any investigation or required by applicable law. If, after investigation, we determine that the hold on the disbursement of the Freelancer Fees is no longer necessary, Ingenuity Escrow will release such hold as soon as practicable.
In addition, notwithstanding any other provision of the Terms of Service or the Escrow Instructions and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or Project; (ii) discover erroneous or duplicate transactions; or (iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Client if you are a Freelancer, despite our provision of the Site Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by instructing Ingenuity Escrow to (and Ingenuity Escrow will have the right to) charge the applicable Escrow Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Site and Site Services and close your Account.
If Client is in “default”, meaning the Client fails to pay the Freelancer Fees or any other amounts when due under the Terms of Service/Service Agreement, or a written agreement for payment terms incorporating the Terms of Service/Service Agreement (signed by an authorized representative of TheHive/Ingenuity Technologies), TheHive will be entitled to the remedies described in this Section 6.4 in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, Client will be deemed to be in default on the earliest occurrence of any of the following: (a) Client fails to pay the Freelancer Fees when due; (b) Client fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days after accrual of the charge, an account current after a credit or debit card is declined or expires; (c) Client fails to pay an invoice issued to the Client by TheHive within the time period agreed or, if no period is agreed, within 30 days; (d) Client initiates a chargeback with a bank or other financial institution resulting in a charge made by TheHive for Freelancer Fees or such other amount due being reversed to the Client; or (e) Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s account.
If Client is in default, we may, without notice, temporarily or permanently close Client’s Account and revoke Client’s access to the Site and Site Services, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Freelancer Services from other Users through the Site. However, Client will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on the Client’s Account as a result of the default. Without limiting other available remedies, Client must pay TheHive upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
At our discretion and to the extent permitted by applicable law, TheHive or its Affiliates, Ingenuity Escrow or Ingenuity Technologies Ltd., may, without notice, charge all or a portion of any amount that is owed on any Account to TheHive or as Freelancer Fees or otherwise to any Payment Method on file on the Client’s Account; set off amounts due against other amounts received from Client or held by for Client by TheHive, Ingenuity Escrow or another Affiliate; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
TheHive does not guarantee that Client is able to pay or will pay Freelancer Fees and TheHive is not liable for Freelancer Fees if Client is in default. Freelancer may use the dispute process as described in the applicable Escrow Instructions in order to recover funds from Client in the event of a default or may pursue such other remedies against Client as Freelancer chooses. If TheHive recovers funds from a Client in default pursuant to this Section 6.4, TheHive will disburse any portion attributable to Freelancer Fees to the applicable Freelancer to the extent not already paid by Client.
6.5 NO RETURN OF FUNDS AND NO CHARGEBACKS
Client acknowledges and agrees that TheHive or its Affiliates, Ingenuity Escrow or Ingenuity Technologies Ltd., will charge or debit Client’s designated Payment Method for the Freelancer Fees incurred as described in the applicable Escrow Instructions and the Fee and ACH Authorization Agreement and that once TheHive or its Affiliates, Ingenuity Escrow or Ingenuity Ltd., charges or debits the Client’s designated Payment Method for the Freelancer Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provides a dispute resolution process as a way for the Client resolve to disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Freelancer Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that TheHive or its Affiliates, Ingenuity Escrow or Ingenuity Technologies Ltd., may dispute or appeal the chargeback and institute collection action against Client and take such other action it deems appropriate.
6.6 PAYMENT METHODS
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 TheHive; 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.
TheHive is not liable to any User if TheHive 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. TheHive 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.
6.7 PAYMENT CURRENCY- US DOLLARS
The Site and the Site Services operate using US Dollars.
Section 7 discusses your agreement to make and receive payments only through TheHive/ Ingenuity Technologies Limited for two years from the date you first identify or meet your Client or Freelancer on the Site, unless you pay a Conversion Fee; violating this Section 7 is a serious breach and your Account may be permanently suspended for violations, as detailed below.
7.1 MAKING PAYMENTS THROUGH TheHive
You acknowledge and agree that a substantial portion of the compensation TheHive receives for making the Site available to you is collected through the Service Fee described in Section 5.1 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 (the “TheHive Relationship”). TheHive only receives the Service Transaction Fee when a Client and a Freelancer pay and receive payment through the Site. Therefore, except as set out in Section 7.2, for 24 months from the start of an TheHive Relationship (the “Non-Circumvention Period”), 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.
By way of illustration and not in limitation of the foregoing, you agree not to:
You further agree you will not initiate unsolicited communications with any User outside of the Site, including, without limitation, using any information found on the Site such as name, company name, or other information on the Site, to solicit, contact, or attempt to solicit or contact or to or find the contact information of any other User.
You agree to notify TheHive immediately if a person suggests to you making or receiving payments other than through the Site in violation of this Section 7 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 TheHive at: email@example.com
You acknowledge and agree that a violation of any provision in this Section 7.1 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 7.1. 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, such as minimum rates supported on 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.
Section 8 discusses your agreement to make and keep all required records, as detailed below.
Users will each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) provide copies of such records to TheHive upon request. Nothing in this subsection requires or will be construed as requiring TheHive 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 TheHive’s part to store, backup, retain, or grant access to any information or data for any period.
Section 9 discusses your agreement and understanding that the Site and Site Services may not always be available or work perfectly, as detailed below.
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. TheHive 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, TheHive DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 13 (AGREEMENT TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST TheHive WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
Section 10 discusses your agreement that TheHive usually will not have to pay you damages relating to your use of the Site and Site Services and, if it is, at most it will be required to pay you USD$1, as detailed below.
TheHive 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:
ADDITIONALLY, IN NO EVENT WILL TheHive, 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 TheHive, 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) $1; OR (B) ANY FEES RETAINED BY TheHive 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.
Section 11 discusses your agreement not to hold us responsible for any dispute you may have with another User, as detailed below.
In addition to the recognition that TheHive is not a party to any contract between Users, you hereby release TheHive, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Freelancer Services provided to Client by a Freelancer and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Escrow Instructions.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF Jamaica CIVIL CODE (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS DIRECTLY OR IMPLIES INDIRECTLY THAT-: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
This release will not apply to a claim that TheHive failed to meet our obligations under the Terms of Service.
Section 12 discusses your agreement to pay for any costs or losses we have as a result of a claim brought against us related to your use of the Site or Site Services or your illegal or harmful conduct, as detailed below.
You will indemnify, defend, and hold harmless TheHive, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Site and the Site Services by you or your agents, including any payment obligations or default (described in Section 6.4 (Non-Payment)) incurred through use of the Site Services; (b) any Work Product or User Content developed, provided, or otherwise related to your use of the Site Services; (c) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Freelancer as an independent contractor; the classification of TheHive as an employer or joint employer of Freelancer; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (d) failure to comply with the Terms of Service by you or your agents; (e) failure to comply with applicable law by you or your agents; (f) negligence, willful misconduct, or fraud by you or your agents; and (g) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 12, your agents include any person who has apparent authority to access or use your account demonstrated by using your username and password.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
Section 13 discusses your and TheHive’s agreement about when and how long this Agreement will last, when and how either you or TheHive can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
Unless both you and TheHive 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/Services Agreement as well, except as otherwise provided herein. You may provide written notice to firstname.lastname@example.org. 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. TheHive 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 to (a) you hereby instruct TheHive to close any open contracts; (b) that 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) that TheHive will continue to perform those Site Services necessary to complete any open Project or related transaction between you and another User; and (d) that 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 TheHive for any Site Services or such other amounts owed under the Terms of Service and to any Freelancers for any Freelancer Services.
Without limiting TheHive’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 TheHive 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 re-register under a new Account without TheHive’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 TheHive DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, TheHive 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 TheHive 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.
13.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Site and any closure of your Account may involve deletion of any content stored in your Account for which TheHive will have no liability whatsoever. TheHive, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or TheHive 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.
Section 14 discusses your agreement with TheHive and our agreement with you about how we will resolve any disputes, including that we will both first try to resolve any dispute informally and, if you are in the Jamaican jurisdiction, that we both agree to use arbitration instead of going to court or using a jury if we can’t resolve the dispute informally, as detailed below.
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and TheHive or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 14.4.4 below, you, TheHive, 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 TheHive (including without limitation any claimed employment with TheHive or one of our Affiliates or successors), the termination of your relationship with TheHive, or the Site Services (each, a “Claim”) in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”).
Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the 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 TheHive or our Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, expense reimbursement, overtime, breaks and rest periods, termination, discrimination, retaliation or harassment and claims arising out of or relating to your relationship with TheHive or the termination of that relationship.
14.2 CHOICE OF LAW
14.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and TheHive agree to first notify each other of the Claim. You agree to notify TheHive of the Claim by emailing email@example.com, and TheHive agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and TheHive 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 TheHive, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and TheHive 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.
14.3.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with TheHive ends. Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to this Agreement, the Terms of Service/Service Agreement and any TheHive Payroll Agreement. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. Either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
14.3.2. CLASS AND COLLECTIVE WAIVER
Both you and TheHive agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). However, TheHive may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
14.3.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
You may opt out of the Arbitration Provision contained in this Section 14 by notifying TheHive in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to TheHive at
firstname.lastname@example.org that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement indicating that you wish to opt out of the Arbitration Provision. Alternatively, you may send this written notification to email@example.com. Opting out of this Arbitration Provision will not affect any other terms of this Agreement.
If you do not opt out as provided in this Section 14.4.4, continuing your relationship with TheHive constitutes mutual acceptance of the terms of this Arbitration Provision by you and TheHive. You have the right to consult with the counsel of your choice concerning this Agreement and the Arbitration Provision.
14.3.5. Enforcement of this Arbitration Provision.
This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, above, is deemed to be unenforceable, you and TheHive agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
Section 15 discusses additional terms of the agreement between you and TheHive, including that the Terms of Service contain our full agreement, how the agreement will be interpreted and applied, and your agreement not to access the Site from certain locations, as detailed below.
15.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and TheHive 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 TheHive 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 TheHive because of the authorship of any provision of the Terms of Service.
15.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon TheHive unless they are agreed in a written instrument signed by a duly authorized representative of TheHive or posted on the Site by TheHive. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without TheHive’s prior written consent in the form of a written instrument signed by a duly authorized representative of TheHive. TheHive may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
15.4 SEVERABILITY; INTERPRETATION
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
15.5 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.
15.6 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in Jamaica.
15.7 ACCESS OF THE SITE OUTSIDE THE CARIBBEAN
TheHive makes no representations that the Site is appropriate or available for use outside of the Caribbean. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, Caricom and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations. You also warrant that you are not prohibited from receiving Caribbean origin products, including services or software.
In order to access or use the Site or Site Services, you must and hereby represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to Caribbean. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the Jamaica Denied Persons or Entity List, the Jamaica Blocked Persons Lists, or any Jamaica List whereby you are otherwise ineligible to receive items subject to Jamaican export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.
15.8 CONSENT TO USE ELECTRONIC RECORDS
Section 16 gives you some definitions of capitalized terms that appear in the Terms of Service but other capitalized terms are defined above, which you can tell because the term is put in quotation marks and bold font.
Capitalized terms not defined below or above have the meanings described in the Site’s Terms of Service.
“Client” means any authorized User utilizing the Site or Site Services, including Direct Contract Services, to seek and/or obtain Freelancer Services, including from another User.
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Freelancer or Client; (b) was lawfully received by User without restriction from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Escrow Account” means Client Escrow Account, Freelancer Escrow Account, or Fixed-Price Escrow Account.
“Escrow Instructions” means the Fixed-Price Escrow Instructions or the Payment Agreement with Escrow Instructions.
“Fixed-Price Contract” means a Service Contract for which a Client is charged a fixed fee agreed between a Client and a Freelancer, prior to the commencement of a Service Contract, for the completion of all Freelancer Services contracted by Client for such Service Contract.
“Freelancer” means any authorized User utilizing the Site or Site Services, including Direct Contract Services, to advertise or provide Freelancer Services to Clients, including Freelancer Accounts that are Agency Accounts or, if applicable, Agency Members. A Freelancer is a customer of TheHive with respect to use of the Site and Site Services.
“Freelancer Fees” means: (a) for an Hourly Contract, the amount reflected in the Hourly Invoice (the number of hours invoiced by Freelancer, multiplied by the hourly rate charged by Freelancer); (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Freelancer; and (c) any bonuses or other payments made by a Client to a Freelancer.
“Freelancer Services” means all services performed for or delivered to Clients by Freelancers.
The term “including” as used herein means “including without limitation”.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, in each case, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to TheHive, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as TheHive may accept from time to time in our sole discretion.
“Project” means an engagement for Freelancer Services that a Freelancer provides to a Client under a Service Contract on the Site.
“Staffing Employee” means a Freelancer enrolled in TheHive Payroll, accepted for employment by the Ingenuity Technologies, TheHive Staff Augmentation Partner, and assigned by the Ingenuity Technologies, TheHive Staff Augmentation Partner to provide Freelancer Services to one or more Client(s).
“Service Contract” means, as applicable, (a) the contractual provisions between a Client and a Freelancer governing the Freelancer Services to be performed by a Freelancer for Client for a Project; (b) a Direct Contract as defined in the TheHive Direct Contract Terms; or (c) if you use TheHive Payroll, the contractual provisions between Freelancer and the Ingenuity Technologies, TheHive Staff Augmentation Partner for the provision of services to Client, if any.
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“User Content” means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other content or information that you or any Site Visitor or User post to any part of the Site or provide to TheHive, including such content or information that is posted as a result of questions.
“Work Product” means any tangible or intangible results or deliverables that Freelancer agrees to create for, or actually delivers to, Client as a result of performing the Freelancer Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.