Contracts
- Terms of Service
- User Agreement
- Terms of Use
- Direct Contracts Terms
- Any Hire Terms
- Escrow Instructions
- Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions
- Fixed Price Service Contract Escrow Instructions
- Fixed Price Direct Contract Escrow Instructions
- Hourly Direct Contract Escrow Instructions
- Any Hire Escrow Instructions
- Upwork Escrow Inc.
- Fee and ACH Authorization Agreement
- Freelancer Membership Agreement
- Optional Service Contract Terms
- Mark Use Guidelines
- Upwork's Virtual Patent Marking
- Proprietary Rights Infringement Reporting Procedures
- Privacy Policy
- Global Data Processing Agreement
- Privacy Center
- Cookie Policy
- API Terms of Use
- 'Upwork Team' Software License Agreement
- Upwork Payroll Agreement
- Upwork Digital Accessibility Statement
- Nondiscrimination Statement
- Master Subscription Agreement (Enterprise Standard)
- Master Subscription Agreement (WPP)
- Master Subscription Agreement (Compliance)
- Independent Contractor Agreement
- Independent Contractor Agreement Premium
- Upwork Talent Scout User Agreement
- Upwork Talent Scout User Agreement
- WEWORK CLIENT ADDENDUM FOR UPWORK ENTERPRISE SERVICES
- Starter Project Program Terms of Use for Clients and Freelancers
- Team Builder Terms for Clients
- Work Together Talent Grants Terms and Conditions
- Jumpstarter Projects Program Terms of Use
- Upwork Terms for Task Mate Beta
- Electronic Delivery Consent of Internal Revenue Service (“IRS”) Tax Information Returns
Terms of Service
Version 7.0
Effective February 2, 2023
DownloadTable of Contents
The Upwork Terms of Service is comprised of the following agreements:
- User Agreement
- Terms of Use
- Direct Contract Terms
- Any Hire Terms
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Freelancer Membership Policy
- Optional Service Contract Terms
- Upwork Mark Use Guidelines
- Upwork's Virtual Patent Marking
- Proprietary Rights Infringement Reporting Procedures
- Privacy Policy
- Global Data Processing Agreement
- Cookie Policy
- API Terms of Use
- 'Upwork Team' Software License Agreement
- Upwork Payroll Agreement
- Nondiscrimination Statement
User Agreement
Version 6.3
Effective July 7, 2022
DownloadTable of Contents
This is important: This User Agreement (“Agreement”) contains important information about your legal rights, remedies, and obligations, and is a legally binding agreement between you (“you” or “User”) and Upwork Global Inc. (“Upwork,” “we”, or “us”), Upwork Escrow Inc. (“Upwork Escrow”), and to the extent expressly stated, Elance Limited (“Elance Ltd.”), governing your use of Upwork’s Site and Site Services (collectively, “Services”).You understand that by using the Upwork Site or Site Services (which generally means using in any way our work marketplace Upwork.com or our applications), and by clicking accept when prompted on the Site, you agree to be bound by all agreements which constitute Upwork’s Terms of Service, and you agree that the “Terms of Service” means every agreement linked herein and includes the Fee and ACH Authorization Agreement, Privacy Policy, Terms of Use, applicable Escrow Instructions and this User Agreement, including Section 14 which contains an arbitration agreement and class action waiver that applies to claims brought against Upwork in the United States. You have an opportunity to opt out of arbitration as provided in Section 14. This Agreement also incorporates, for any User using the Upwork Direct Contract Service, Upwork Direct Contract Terms and Direct Contract Escrow Instructions, and for any User using the Any Hire Services, the Any Hire Terms and the Any Hire Escrow Instructions. You should read all of our terms carefully because you are promising not to break any agreements in the Terms of Service.
If you want to use our work marketplace or any of our services (which we refer to altogether as Services), whether just by looking around or by registering an account, you must first read and agree to this Agreement (including the dispute resolution and arbitration provisions in Section 14). If you don’t understand this Agreement or you don’t agree to all of its terms and conditions, you may not use our Services. If you do not understand or agree to this Agreement, do not click to accept this Agreement, “Sign Up”, “Create My Account”, or similar, and do not visit Upwork.com, use our mobile applications, or otherwise use our Services. If you are using our Services on behalf of a business or legal entity, you may only do so if you have authority to agree to the Terms of Service on behalf of that business or legal entity.
To make these terms a little easier to understand, we capitalize certain terms and capitalizing them means they have a special meaning. Section 16 provides the definitions of some capitalized terms and others are defined throughout the Terms of Service (look for quotation marks and bold font).
Table of Contents
1.1 Registration
1.3 Account Profile
1.4 Account Types
5. Upwork Fees
5.2 Client Fees
6.1 Escrow Services
6.4 Non-Payment
6.6 Payment Methods
7.3 Opting Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice of Law
15. General
15.1 Entire Agreement
15.3 Assignability
15.5 Force Majeure
16. Definitions
When you see this
symbol, look for a simple summary for each section. We wrote these to help you get a quick overview , but you'll need to read the sections completely to get all the details.
symbol, look for a simple summary for each section. We wrote these to help you get a quick overview , but you'll need to read the sections completely to get all the details.1. UPWORK ACCOUNTS
How you can register for an Upwork account and the different types of accounts that you can have.1.1 REGISTRATION
You must register for an account to have full access to our Services, and your registration is subject to our approval.
You must register for an account with us (“Account”) to access and use certain portions of our Services. Registered users of our Services are “Users”, and unregistered users are “Site Visitors”.
Your Account registration is subject to approval by Upwork. We reserve the right to decline a registration either to join Upwork or to add an Account of any type, for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.
1.2 ACCOUNT ELIGIBILITY
You promise to use our Services for business purposes only. You also promise that you are eligible to enter into this Agreement, including because you are 18 years or older.Upwork offers the Services for your business purposes only and not for personal or consumer use. By registering for an Account or by using our Services, you represent that you: (a) are doing business under your own name as a self-employed individual/sole proprietor or are an employee or agent of an independent business (such as a corporation, limited liability company, or other entity); (b) will use our 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 any offering or provision of Freelancer Services; and (d) are either a legal entity or an individual who is at least 18 years old (or the age of majority in your country if the age of majority is over 18), and that you can form legally binding contracts.
1.3 ACCOUNT PROFILE
You must provide accurate personal information when you sign up and you must update your account if your personal information changes. We can suspend or terminate your account if the information you give us is false, outdated, or incomplete.To register for an Account to use our Services, 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 accurate and complete information on your Profile—and on all registration and other forms you access while using our Services or provide to us—and you agree to keep that information current. You agree not to provide any false or misleading information about your identity or location, your business, the beneficial owner(s) of your business, your skills, or the services your business provides, and you agree to correct any information that is or becomes false or misleading. We reserve the right to suspend or terminate the Account, or access to our Services, of anyone who provides false, inaccurate, or incomplete information in creating, marketing, or maintaining a Profile or an Account.
1.4 ACCOUNT TYPES
We offer three types of accounts (“Account Types”): Client, Freelancer, and Agency (which is a special kind of Freelancer account). Once you register for an Account, you can add Account Types without re-registering. You promise to register for only one Account that requires a unique log in. This Account will house all of your Account Types. Never share your Account password with anyone; you can give permissions to other Users to act under your Account Types as Team Members or Agency Members if needed.We offer several different Account Types. Once you register for your Account (only one per User), you can add other Account Types under the same username and password. For example, if you already have a Freelancer Account Type (defined below), you can add a Client Account Type (defined below) to your Account without re-registering. You agree not to register for or maintain more than one Account and Profile without express written permission from us.
If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company. More than one person can create an Account as an employee or agent on behalf of the same company.
1.4.1 CLIENT ACCOUNT
You can register for an Account or add an Account Type to use the Services as a Client (a “Client Account”). Client Account Types have a feature that allows the account owner to give permissions to other Users (“Team Members”) to act on behalf of the Client Account. Each Team Member must have their own Account to be added as a Team Member on the Client Account.
1.3.2 FREELANCER, AGENCY, AND AGENCY MEMBER ACCOUNT
Freelancer: You can register for an Account or add an Account Type to use the Services as a Freelancer (a “Freelancer Account”).
Agency and Agency Member: A specific type of Freelancer Account you can add is an “Agency Account”, which is referred to as an “Agency”. Agency Account Types have a feature that allows the Agency owner to give permissions to other Users (“Agency Member”) to act on behalf of the Agency. Each Agency Member must have their own Account to be added as an Agency Member on the Agency Account.
You acknowledge and agree that the Agency Account owner is solely responsible, and assumes all liability, for: (a) the classification of your Agency Members as employees or independent contractors; and (b) paying your Agency Members in accordance with applicable law or contract for work performed on behalf of the Agency for Projects. You further acknowledge and agree that (i) the Agency may determine the Profile visibility and pricing/rate information of any of its Agency Members; and (ii) Agency Members’ Profiles may display work history that includes work done under the Agency Account, including after the Agency Member is no longer an Agency Member.
1.5 ACCOUNT PERMISSIONS
You are responsible for all activity on your Account.You may provide other Users permissions to act on your Account only as described in Section 1.3 and you agree not to request or allow another person to create an Account for you, your use, or your benefit, except that authorized employees or agents 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 that: (a) the User is authorized to act on your behalf; and (b) you are fully responsible and liable for what the User does and does not do, including with respect to making payments and entering into Service Contracts and the Terms of Service. If any User granted permissions under your Account violates the Terms of Service, it may affect your ability to use our Services. When an Account is closed, Upwork may close any related Accounts as well.
1.6 IDENTITY AND LOCATION VERIFICATION
You will allow us to verify your identity, location, and business affiliations from time to time.When you register for an Account and periodically 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 Upwork. You authorize Upwork, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your business, 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 providing official government or legal documents, and cooperating with other reasonable requests we make to verify your identity. During verification some Account features may be temporarily limited but will be restored if verification is successfully completed.
1.7 USERNAMES AND PASSWORDS
You will keep your username and password secret and will not share them, and you will not use anyone else’s username and password.Each person who uses our Services must register for their own Account with a username and password. You are responsible for safeguarding and maintaining the confidentiality of your username and password, and agree not to share your username or password with anyone. You are responsible for safeguarding your username and password and for any use of our Services with your username and password. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password. You further agree not to use the Account or log in with the username and password of another User. See Section 1.5 Account Permissions for information on allowing another registered User to act on your behalf in your Account.
2. PURPOSE OF UPWORK
What we do and do not do when providing our Services and some of your responsibilities when using our Services.The Upwork Site is a work marketplace where Clients and Freelancers can identify each other and advertise, buy, and sell Freelancer Services online. Subject to the Terms of Service, Upwork provides the Services to Users, including hosting and maintaining the Upwork Site, facilitating the formation of Service Contracts and Direct Contracts, and assisting Users in resolving disputes which may arise in connection with those contracts. When a User enters a Service Contract, the User agrees to use the Services exclusively to invoice, receive, and pay any amounts owed under the Service Contract.
2.1 RELATIONSHIP WITH UPWORK
We offer a work marketplace: an online platform for Users to find and connect with each other. We are not involved directly in your negotiations or the delivery of Freelancer Services and are not a party to any agreements you may make with other Users. You are solely responsible for your content published to Upwork and for your agreements with other Users, including vetting each other and performance under the agreements.Upwork offers a platform that enables Users to find one another, enter into service relationships and agreements, receive and provide Freelancer Services, and make and receive payments through escrow. Upwork neither performs nor employs individuals to perform Freelancer Services. You acknowledge and agree that Upwork does not supervise, direct, control, or monitor Users in the performance of any contractual obligations they may have under a Service Contract or Direct Contract and agree that: (a) Upwork is not responsible for ensuring the accuracy or legality of any User Content, for which Users are solely responsible; (b) Upwork is not responsible for the offering, performance, or procurement of Freelancer Services, (c) Upwork does not make any representations about or guarantee any particular User’s offered services, and (d) nothing will create an employment, agency, or joint venture relationship between Upwork and any User offering services. While Upwork may provide certain badges on Freelancer or Client profiles, such badges are not guarantees, including of quality or ability or willingness of the badged Freelancer or Client to complete a Service Contract.
You further acknowledge and agree that Users, and not Upwork, are solely responsible for (a) evaluating and determining the suitability of any Project, Client, or Freelancer; (b) assessing whether to enter into a Service Contract or Direct Contract with another User and for verifying any information about another User, including Composite Information; (c) deciding whether to enter into a Service Contract or Direct Contract on Upwork as well as the contract terms, and (d) negotiating, agreeing to, and executing any terms or conditions of the contracts and for performing and monitoring performance under them. All Service and Direct Contracts between Users are directly between the Users and Upwork is not a party to those contracts.
If you are an Agency or Agency Member, you expressly acknowledge and agree that, in addition to the provisions above, the Agency is solely responsible for paying its Agency Members for work performed on behalf of the Agency.
Nothing in this Agreement is intended to or does prohibit or discourage 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
Freelancers are responsible for paying their own taxes, obtaining their own insurance, and ensuring they comply with applicable laws and regulations.Freelancer acknowledges and agrees that Freelancer is solely responsible for: (a) all tax liability associated with payments received from Freelancer’s Clients and through Upwork, and that Upwork will not withhold any taxes from payments to Freelancer unless required to under applicable law; (b) obtaining any liability, health, workers’ compensation, disability, unemployment, or other insurance needed or required by law, and that Freelancer is not covered by or eligible for any insurance from Upwork; (c) determining and fulfilling Freelancer’s obligations under applicable laws and regulations with respect to invoicing and reporting, collecting, or remitting any applicable taxes or charges; and (d) if outside of the United States, determining if Upwork is required by applicable law to withhold any amount of the Freelancer Fees and notifying Upwork of any such requirement and indemnifying Upwork for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Upwork, Freelancer agrees to promptly cooperate with Upwork 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 Upwork.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
Users publish and ask Upwork to publish information and feedback on the Site. We are not responsible for that content, and your publication or use of it is at your own risk.You acknowledge and agree that Users publish and request Upwork to publish on their behalf information on the Site such as feedback, composite feedback, or geographical location. Such information is based on data that Freelancers or Clients voluntarily submit to Upwork and does not constitute an introduction, endorsement, or recommendation by Upwork. You agree that Upwork is not responsible for verifying such information and provides it solely for the convenience of Users, but providing false or misleading information violates this Agreement and may result in revocation of your access to use the Site Services.
You acknowledge and agree that User feedback benefits the marketplace and its Users, and you specifically request and agree that Upwork may make available to other Users individual and composite feedback about Users, including you. You acknowledge and agree that any feedback results for you, including your Job Success Score and other User Content highlighted by Upwork on the Site or otherwise (“Composite Information”), may include User comments, User ratings, indicators of User satisfaction, and other feedback left by other Users. Upwork is not responsible for monitoring, influencing, contributing to or censoring these opinions. You agree to notify Upwork of any error or inaccurate statement in your feedback results, including the Composite Information, and you agree that Upwork may rely on the accuracy of such information if you do not. Upwork provides its feedback system as a means for Users to share their working experiences with and opinions of other Users publicly, and you acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
By using the Services, you may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive or otherwise harmful. Upwork generally does not review or monitor User Content. You agree that we are not responsible for User Content. We cannot always prevent the misuse of our Services, and you agree that we are not responsible for any such misuse. Upwork reserves the right (but is under no obligation) to remove posted feedback or information that Upwork determines 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 Upwork.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND FREELANCER
This section discusses the relationships you may decide to enter into with another User, including contracts to buy or sell Freelancer Services with another User.3.1 SERVICE CONTRACTS AND DIRECT CONTRACTS
Users, not Upwork, are responsible for deciding whether to enter into agreements with other Users and for determining what the terms of those agreements will be. As provided in Section 2.1 above, if a Client and a Freelancer decide to enter into a Service Contract, the contract is a contractual relationship directly between the Client and the Freelancer; Upwork is not responsible for and is not a party to any Service Contract and under no circumstances will any such contract create an employment or any service relationship between Upwork and any User.
With respect to any Service Contract, Clients and Freelancers may enter into any agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.), provided that those agreements do not conflict with, narrow, or expand Upwork’s rights and obligations under the Terms of Service, including this Agreement and the applicable Escrow Instructions.
The parties to a Service Contract can, if the parties prefer, agree to the Optional Service Contract Terms in whole or in part, in addition to or instead of other such agreements. The parties to a Service Contract expressly agree that the Optional Service Contract Terms will and do apply to their contract to the extent that they have not agreed to other terms or agreements that conflict with the Optional Service Contract Terms. Users are solely responsible for deciding whether to use the Optional Service Contract Terms, and Upwork does not assume any responsibility for any consequence of using the Optional Service Contract Terms, which are provided as a sample only and may not be appropriate for all jurisdictions or all contracts. 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. You should seek legal advice from a licensed attorney for your particular needs.
3.2 DISPUTES AMONG USERS
You agree to try to resolve your disputes with other Users by following the dispute resolution process in the Escrow Instructions that apply to your contract.For disputes arising between Clients and Freelancers, you agree to abide by the dispute resolution process that is explained in the Escrow Instructions that apply to your particular Service Contract or Direct Contract. If that process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that Upwork will not and is not obligated to provide any further dispute resolution assistance.
If Freelancer or Client seeks an order from an arbitrator or court that might direct Upwork, Upwork 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 (5) business days’ prior notice of the hearing on the order; (b) include in any such order a provision that, as a precondition to any obligation affecting Upwork or Upwork Escrow, we be paid in full for any amounts to which we would otherwise be entitled; and (c) include in any such order a provision that, as a precondition to any obligation affecting Upwork or Upwork Escrow, Upwork be paid for the reasonable value of the services the order obligates us to undertake.
3.3 CONFIDENTIAL INFORMATION
Users can agree to their own confidentiality terms. If they do not, these terms apply. Users agree to keep other Users’ confidential information a secret.Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in the Optional Service Contract Terms. If Users do not agree to their own confidentiality terms, this Section 3.3 (Confidential Information) applies.
To the extent a User provides Confidential Information to another User, the recipient will take reasonable steps to keep that information confidential. 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 of it contained in or on its premises, systems, or any other equipment otherwise under its control. Users specifically agree that this Section 3.3 applies to information exchanged for purposes relating to evaluating whether to enter into a Service Contract, even if such contract is never agreed to.
4. WORKER CLASSIFICATION AND UPWORK PAYROLL
Users determine whether a Freelancer is an employee or independent contractor and agree to use Upwork Payroll for employment relationships.4.1 WORKER CLASSIFICATION
Clients, not Upwork, are responsible for deciding whether to engage Freelancers as employees or independent contractors.Client is solely responsible for and assumes all liability for determining whether Freelancers should be engaged as independent contractors or employees 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. Upwork is not responsible for worker classification as between Client and Freelancer, and nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Upwork and a User..
4.2 UPWORK PAYROLL SERVICES
If Clients engage Freelancers as employees, Clients agree to enroll in Upwork Payroll.Client agrees to enroll in Upwork Payroll if it will receive services from a Freelancer under terms and conditions that would give rise to an employment relationship (unless Client elects instead to pay the Conversion Fee (see Section 7)). When the Client enrolls in Upwork Payroll, Client will engage Upwork’s third-party staffing vendor (the “Staffing Provider”) through the Site. The Staffing Provider will hire Freelancer at the request of Client and Freelancer according to the terms described on the Site and otherwise agreed to by the Staffing Provider, Client and/or Freelancer, and subject to the Upwork Payroll Agreement. The employer of Freelancer will be the Staffing Provider and not Upwork.
Freelancer acknowledges and agrees that Upwork will have no control over and is not responsible for the terms and conditions of any employment relationship that may arise between Freelancer and Staffing Provider or Client, including the selection process, pay rate, work hours, employment dates, or working conditions.
5. UPWORK FEES
Users agree to pay Upwork certain fees in exchange for Upwork providing the Services and agree that Upwork may collect certain taxes.5.1 FEES FOR FREELANCERS
Service Fees. Freelancers agree to pay Upwork a service fee for the use of the Services (including marketing, invoicing, reporting, payment, and dispute resolution services), as set forth in the Fee and ACH Authorization Agreement and the Direct Contract Terms (the “Service Fees”). Freelancer is responsible for paying all Service Fees. 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), Upwork Escrow will credit the Freelancer Escrow Account for the full amount paid or released by the Client, and then subtract and disburse to Upwork the Service Fee. Freelancer hereby irrevocably authorizes and instructs Upwork Escrow to deduct the Service Fee from the Freelancer Escrow Account and pay Upwork on Freelancer’s behalf. If Freelancer chooses to withdraw funds in a currency other than U.S. dollars, Upwork Escrow (or an affiliate) will impose a foreign currency conversion charge, and the rate may differ from rates that are in effect on the date of the payment. 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 Services, by payment of subscription membership fees and by purchasing “Connects” as described in the Freelancer Membership Agreement.
Disbursement Fees. Freelancers will pay Upwork a disbursement fee for remitting payments to their preferred payment method. This fee is paid to Upwork in consideration of administrative costs and costs incurred via the disbursement method, and may vary by disbursement method. The fee for each disbursement method is listed on the Site here and is subject to change.
5.2 CLIENT FEES
Clients pay Upwork a Marketplace Fee for accessing the Services, and for administration and facilitation of payments related to the Freelancer Fees they pay to Freelancers they engage through the Site, as described in the Fee and ACH Authorization Agreement.
Clients may also choose to pay for access to additional features and Services, as described in the Fee and ACH Authorization Agreement.
5.3 VAT AND OTHER TAXES
Upwork Fees are exclusive of taxes. Upwork does not collect taxes it is not required to collect, but Upwork may be required by applicable law to collect certain taxes or levies, including income tax or VAT (which some jurisdictions refer to as GST or local sales taxes). These collection requirements and rates may change based on changes to the law in your area. Any amounts Upwork is required to collect or withhold for the payment of any such taxes shall be collected in addition to the fees owed to Upwork under the Terms of Service.
5.4 NO FEE FOR INTRODUCING OR FOR FINDING PROJECTS
Upwork does not introduce Clients to Freelancers. Upwork offers a platform that enables Freelancers to introduce themselves and may from time to time highlight Projects or Freelancers that may be of interest. Therefore, Upwork does not charge a fee when a Freelancer finds a suitable Client or finds a Project. In addition, Upwork does not charge any fee or dues for posting or viewing feedback, including Composite Information.
6. PAYMENT TERMS AND ESCROW SERVICES
This section describes how Upwork’s Escrow Services work and discusses your agreement to pay Freelancer Service Fees on Service Contracts and Direct Contracts, what happens if a Client doesn’t pay, and related topics.6.1 ESCROW SERVICES
Upwork Escrow provides escrow services to Users to deliver, hold, and receive payment for a Project, and to pay fees to Upwork (“Escrow Services”). Upwork Escrow is a Delaware corporation and a licensed Internet escrow agent that holds California Department of Financial Protection and Innovation License No. 963 5086. 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
We follow what is in the applicable Escrow Instructions when we give the money held by us in escrow to the Freelancer or back to the Client for a Service Contract. Upwork 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 Upwork Escrow acts merely as an Internet escrow agent. Upwork Escrow has fully delivered the Escrow Services to you if Upwork Escrow provides the Escrow Services described in this Agreement and the applicable Escrow Instructions. Upwork Escrow is only obligated to perform those duties expressly described in this Agreement and any applicable Escrow Instructions. Upwork will release funds from any Escrow Account 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 Upwork Escrow will follow, the Fixed-Price Escrow Instructions.
Hourly Projects, Bonus Payments, or Expense Payments. If Users choose hourly compensation or if the Client makes bonus or expense payments, then the Users agree that they will be bound by, and Upwork Escrow will follow, the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
Direct Contracts. If Users enter into a Direct Contract, then the Users agree that they will be bound by, and Upwork Escrow will follow, the Direct Contract Escrow Instructions applicable to the contract (Fixed Price or Hourly).
Any Hire Contracts. If Users enter into an Any Hire Contract, then the Users agree that they will be bound by, and Upwork Escrow will follow, the Any Hire Escrow Instructions.
Upwork Payroll Engagements. If Users use Upwork Payroll (see Section 4) for a particular Project, then the Staffing Employee is paid directly by the Staffing Provider. A Client will be invoiced through the Site by the Staffing Provider, and the applicable Escrow Instructions will apply. However, the Client will not be able to dispute hours reported by the Staffing Employee and there is no dispute waiting period for the disbursement of funds to the Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will create and maintain an account to hold funds for you—called an Escrow Account—based on your needs. You authorize Upwork Escrow to be your escrow agent, which means to hold your funds and to follow your instructions on the funds held in your Escrow Account.Upwork Escrow will use and release funds deposited in an Escrow Account only in accordance with this Agreement, the applicable Escrow Instructions, and applicable law. Depending on your needs and the applicable Escrow Instructions, Upwork Escrow will establish and maintain one of two different types of Escrow Accounts:
(A) Client Escrow Account. After entering into a Service Contract (hourly or fixed price) or Direct Contract, the first time a Client makes a payment for a Project, Upwork 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 Upwork.
(B) Freelancer Escrow Account. After entering into a Service Contract (hourly or fixed price) or Direct Contract, the first time a Freelancer uses the Site to receive payment for a Project, Upwork Escrow will establish and maintain a “Freelancer Escrow Account” for Freelancer to receive payments for Projects, withdraw payments, make payments to Upwork and issue refunds to Clients.
You hereby authorize and instruct Upwork Escrow to act as 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 FREELANCER APPOINTMENT OF UPWORK ESCROW AND SUBSIDIARIES AS AGENT
Freelancers authorize Upwork Escrow to act for them to collect and hold payments from Clients.If you are a Freelancer and you request payment related to an Hourly Contract or the release of funds from a Fixed-Price Escrow Account, you hereby appoint Upwork Escrow as your agent to obtain funds on your behalf and credit them to your Freelancer Escrow Account as you agree in the applicable Escrow Instructions. Because Upwork Escrow is Freelancer’s agent, Freelancer must, and hereby does, fully discharge and credit Freelancer’s Client for all payments and releases of funds that Upwork Escrow receives on Freelancer’s behalf from or on behalf of such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow, and our Affiliates are not banks. We will safeguard your money and not voluntarily make your money available to our creditors.Upwork, Upwork Escrow, and our Affiliates are not banks. Upwork Escrow deposits and maintains all Escrow Account funds in an escrow trust account at a bank insured by the Federal Deposit Insurance Corporation and approved to receive, hold, and deliver escrow funds under applicable laws and regulations. The escrow trust account is separate from the operating accounts of Upwork and each of our Affiliates. Upwork 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 United States Bankruptcy Code, Section 541(d), Upwork Escrow holds only legal title to, and not any equitable interest in, the escrow trust account and any funds deposited in it. This Agreement is supplementary to the Service Contract and to any other agreement between Client and Freelancer concerning the Project, as provided in Title 11 of the United States Code, Section 365(n).
6.1.5 NO INTEREST
You will not earn any interest on the money we hold in your Escrow Account and you understand that we charge fees for our services, as explained in Section 5.You agree that you will not receive interest or other earnings on the funds held in your Escrow Account. Upwork, Upwork 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 we provide as provided in Section 5 and the Fee and ACH Authorization Agreement.
6.1.6 ESCROW AGENT DUTIES
We only agree to do what is described in this Agreement, the applicable Escrow Instructions, and the rest of the Terms of Service.We only agree to perform 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 relying on, 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. If we are uncertain as to our duties or rights under this Agreement or receive instructions, claims, or demands from any party to this Agreement 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.
6.1.7 ESCROW AGENT RIGHT
We may choose to start a dispute process if there is a disagreement between a Client and a Freelancer related to an Escrow Account.We have the right to institute arbitration or other legal proceedings if applicable, including depositing funds held in the Escrow Account with a court of competent jurisdiction, in order to resolve any dispute between Client and Freelancer related to the Escrow Account. Except as expressly provided, nothing in this Agreement 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 Upwork Escrow may be merged or converted or with which Upwork Escrow may be consolidated, or any corporation or association to which all or substantially all the escrow business of Upwork Escrow may be transferred will succeed to all the rights and obligations of Upwork Escrow as escrow holder and escrow agent under this Agreement and the applicable Escrow Instructions to the extent permitted by applicable law.
6.2 CLIENT PAYMENTS ON SERVICE CONTRACTS
This section describes when and how Client payments are made on their contracts with Freelancers.Hourly Contracts. Freelancer will invoice Client for Freelancer Fees on a weekly basis through Upwork, and Client will pay invoices consistent with the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions or Hourly Direct Contract Escrow Instructions, depending on whether the contract is a Service Contract or a Direct Contract, respectively. When Client approves an Hourly Invoice for an Hourly Contract, Client automatically and irrevocably authorizes and instructs Upwork or its affiliates Upwork Escrow or Elance Ltd. to charge Client’s Payment Method for the Freelancer Fees.
Fixed-Price Contracts. Client becomes obligated to pay applicable amounts into the 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 under the Fixed Price Service Contract Escrow Instructions or the Fixed Price Direct Contract Escrow Instructions, Client automatically and irrevocably authorizes and instructs Upwork or its affiliates Upwork Escrow or Elance Ltd. to charge Client’s Payment Method for the Freelancer Fees.
Client acknowledges and agrees that for both Hourly Contracts and Fixed-Price Contracts, failure by Client to decline or dispute an Hourly Invoice or 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 OR DIRECT CONTRACTS
This section describes when Freelancers receive their funds that we were holding for the Freelancers in escrow.Upwork Escrow disburses funds that are available in the applicable Freelancer Escrow Account and payable to a Freelancer as described in the relevant Escrow Instructions. A Freelancer can request disbursement of available funds any time on a one-time basis or by setting up an automatic disbursement schedule. Otherwise, except as provided in the following paragraph, Upwork will automatically disburse available funds no more than ninety (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 United States, or (b) $1,000 for Freelancers outside the United States. Except as provided in the following paragraph, 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.
If a Freelancer that is located outside of the United States is not able to withdraw funds due to economic sanctions applicable to Upwork or our payment partners, or due to Upwork's payment partners' refusal to service certain geographic areas, Upwork will suspend automatic disbursement as provided in the prior paragraph and will safeguard such funds in an Escrow Account, or in another suitable account, as determined in Upwork's sole discretion, until the earlier of (a) the Freelancer is able to and does in fact withdraw the funds, or (b) Upwork is required by law to escheat the funds to an appropriate legal authority, after which the Freelancer can seek to recover the funds from such authority.
Hourly Contracts. Freelancer Fees become available to Freelancers no later than following the expiration of the five-day security period and dispute period.
Fixed-Price Contracts. Freelancer Fees become available to Freelancers no later than following the expiration of the five-day security period. The security period begins after Client accepts work submitted by Freelancer and approves payment.
Except as expressly provided in the Terms of Service or the Escrow Instructions and as prohibited by applicable law, Upwork Escrow 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 or is using the Site unlawfully; (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, required by applicable law, or necessary due to circumstances outside of our control after a commercially reasonable effort has been made by us due to such circumstances. If, after investigation, we determine that the hold on the disbursement of the Freelancer Fees is no longer necessary, Upwork Escrow will release the hold as soon as practicable.
In addition, except as expressly provided in 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 your Client despite our provision of the Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by instructing Upwork Escrow (and Upwork Escrow will have the right) to charge your account(s), offset any amounts determined to be owing, deduct amounts from future payments or withdrawals, charge your Payment Method, or use other lawful means to obtain reimbursement from you. 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 Services and close your Account.
6.4 NON-PAYMENT OR DEFAULT
This section describes the actions Upwork can take if a Client does not pay fees on time. Upwork is not responsible for a Client’s non-payment of fees.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, or a written agreement for payment terms incorporating the Terms of Service (signed by an authorized representative of Upwork), Upwork 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 Upwork 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 Upwork 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 Services, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts or Direct 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 Upwork 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, Upwork, Upwork Escrow, Elance Ltd. or its other Affiliates may, without notice, charge all or a portion of any amount that is owed 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 Upwork, Upwork 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.
Upwork does not guarantee that Client is able to pay or will pay Freelancer Fees, and Upwork is not liable for and may reverse Freelancer Fees if Client is in default or initiates a chargeback of funds with their financial institution. 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 Upwork recovers funds from a Client who initiated a chargeback or who is in default pursuant to this Section 6.4, Upwork will disburse any portion attributable to Freelancer Fees to the applicable Freelancer to the extent not already paid by Client or credited by Upwork through any Payment Protection program.
6.5 NO RETURN OF FUNDS AND NO CHARGEBACKS
Clients agree that, once Upwork charges their Payment Methods, the charge cannot be refunded except on a condition agreed in the Escrow Instructions. Clients agree not to initiate any chargebacks from their credit card companies, banks, or the like.Client acknowledges and agrees that Upwork or its affiliates Upwork Escrow or Elance Ltd. may 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. Once Upwork or its affiliates Upwork Escrow or Elance Ltd. charges or debits the Client’s designated Payment Method for the Freelancer Fees, the charge or debit is non-refundable, except as provided in the applicable Escrow Instructions or as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client to resolve 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 this obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that Upwork or its affiliates Upwork Escrow or Elance Ltd. may dispute or appeal the chargeback, institute collection action against Client, close Client’s account, and take such other action it deems appropriate.
6.6 PAYMENT METHODS
Clients agree to designate a Payment Method and authorize us to charge that Payment Method.In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes Upwork, Upwork Escrow, and Elance Ltd., as applicable, to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment consistent with our Privacy Policy, and to charge Client’s credit card (or any other Payment Method) for the Freelancer Fees and any other amounts owed under the Terms of Service. To the extent permitted by applicable law and subject to our Privacy Policy, you acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage your Payment Method information.
By providing Payment Method information through the Site or by authorizing payments with the Payment Method, Client represents 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 Upwork; 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 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.
Upwork is not liable to any User if Upwork 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. Upwork 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 U.S. DOLLARS AND FOREIGN CURRENCY CONVERSION
If your Payment Method uses a currency other than U.S. Dollars, we may show you foreign currency conversion rates for us to change your currency into U.S. Dollars. The rates we show you may be different than the rates that apply to us and may not be the best rate available to youThe Services operate in U.S. Dollars. If a User’s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make or receive payments in U.S. Dollars, the Site will display foreign currency conversion rates that Upwork, Upwork Escrow, Elance Ltd., or our other Affiliates currently make available to convert supported foreign currencies to U.S. Dollars. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Each User, at its sole discretion and risk, may authorize the charge, debit, or credit of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Site. A list of supported foreign currencies is available on the Site. If foreign currency conversion is required to make a payment in U.S. Dollars and Upwork, its affiliates Upwork Escrow or Elance Ltd., as applicable, does not support the foreign currency or the User does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Site, Upwork Escrow or one of our Affiliates will charge, debit, or credit the User’s Payment Method in U.S. Dollars and the User’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by the User’s Payment Method provider. The User’s Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved. The User’s authorization of a payment using a foreign currency conversion rate displayed on the Site is at the User’s sole risk. Upwork, Upwork Escrow, Elance Ltd., and our other Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars or for currency fluctuations that occur when receiving or sending payments to and from the Escrow Account.
7. NON-CIRCUMVENTION
You agree to communicate through the Site and make and receive payments only through the Site for two years from the date you first identify or meet your Client or Freelancer on the Site, unless you pay a Conversion Fee. Violations of this Section constitute a serious breach and may result in permanent suspension of your Account.7.1 MAKING PAYMENTS THROUGH UPWORK
You agree to exclusively use Upwork to make payments for work that arises out of a relationship you made through Upwork for two years from the date you first established the relationship.You acknowledge and agree that a substantial portion of the compensation Upwork 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 identified through the Services (the “Upwork Relationship”). Upwork only receives the Service 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 Upwork 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 from that relationship 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”). 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. 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. By way of example only, you agree that during the Non-Circumvention period you will not:
- Offer or solicit or accept any offer or solicitation from parties identified through the Site to contract, hire, invoice, pay, or receive payment in any manner other than through the Site.
- Invoice or report on the Site or in a Conversion Fee request an invoice or payment amount lower than that actually agreed, made, or received between Users.
- Refer a User you identified on the Site to a third party who is not a User of the Site for purposes of making or receiving payments other than through the Site.
You agree to notify Upwork immediately if a person suggests 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 Upwork here.
You acknowledge and agree that a violation of this Section 7.1 is a material breach of the Terms of Service, and may result in your Account being permanently suspended and charged the Conversion Fee (defined above). This Section still applies if you choose to cease using the Site, and you must pay the Conversion Fee for each other User you wish to continue working with after you cease using the Site.
7.2 COMMUNICATING THROUGH THE SITE; NOT SHARING CONTACT DETAILS
Prior to entering into a Service Contract, you agree to communicate with other Users exclusively through Upwork.The provisions of this Section 7.2 apply to any interaction between Users where the Client has a Basic, Plus, or Marketplace Account, and do not apply to any interaction between Users where the Client is an Enterprise Client. For purposes of the Terms of Service, “Enterprise Client” means a Client, including an Enterprise client or an Upwork Business Client, that has the following “Enterprise” badge displayed on its job post or search tile:
For Users subject to this Section 7.2, Users agree to use the communication services available on the Site to communicate with other Users prior to entering into a Service Contract. You agree that prior to entering into a Service Contract, you (a) will use Upwork as the sole manner to communicate with other Users; (b) will not provide your Means of Direct Contact (defined below) to any other User or another person that you identified or were identified by through the Site; (c) will not use Means of Direct Contact of another user to attempt to or to communicate with, solicit, contact, or find the contact information of a User outside of Upwork; (d) will not ask for, provide, or attempt to identify through public means the contact information of another User; and (e) will not include any Means of Direct Contact or means by which your contact information could be discovered in any profile, proposal, job posting, invitation, or pre-hire communication through the Site’s communications services (including in each case in any attached file), except as otherwise provided on the Site.
For purposes of the Terms of Service, “Means of Direct Contact” means any information that would allow another person to contact you directly, including, without limitation, phone number, email address, physical address, a link to a contact form or form requesting contact information, any link to an applicant management system or means to submit a proposal or application outside of the Site, or any information that would enable a user to contact you on social media or other website or platform or application that includes a communications tool, such as Skype, Slack, Wechat, or Facebook. Information is a Means of Direct Contact if it would enable another user to identify any of the information above through other sources, such as going to a website that included an email address or identifying you through social media.
You acknowledge and agree that a violation of this Section 7.2 is a material breach of the Terms of Service and your Account may be permanently suspended for such violations.
7.3 OPTING OUT
You may opt out of the non-circumvention agreement if you pay a fee.You may opt out of the obligations in Section 7.1 with respect to each Upwork Relationship only if the Client or Freelancer pays Upwork a Conversion Fee which is a minimum of $1,000 USD and up to $50,000 USD for each Upwork Relationship, unless Client and Freelancer have had an Upwork Relationship for at least two (2) years.
The Conversion Fee may be calculated differently for Upwork Relationships when the Client is an Enterprise Client if the Enterprise Client contract with Upwork provides for different terms.
To learn more about the Conversion Fee or how to pay it visit our Help Center here.
You understand and agree that if Upwork determines that you have violated Section 7, it may (a) charge your Payment Method the Conversion Fee (including interest) if permitted by law or send you an invoice for the Conversion Fee (including interest), which you agree to pay within 30 days, (b) close your Account and revoke your authorization to use the Services, and (c) charge you for all losses and costs (including any and all time of Upwork’s internal workforce) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
You agree that the Conversion Fee is 13.5% of the estimated earnings over a twelve (12) month period, which is calculated by taking the Hourly Rate (defined below) and multiplying it by 2,080. “Hourly Rate” means (a) the highest hourly rate charged by the Freelancer on any Service Contract with the Client, if any; or (b) if there is no hourly rate on a Service contract, the hourly rate in the Freelancer’s profile when the conversion is requested. The Conversion Fee includes all applicable taxes and is not subject to the Marketplace Fee. If Client and Freelancer have had an Upwork Relationship for at least two (2) years, the Conversion Fee is a nominal $1 USD for administrative purposes. The Conversion Fee is not refundable. Upwork will apply a discount on the Conversion Fee that is equal to the total amount of Marketplace Fees that Client has paid to Upwork in the preceding twelve (12) months on each marketplace Service Contract between the Client and the Freelancer. In no event shall the Conversion Fee be discounted below the minimum of $1,000 USD.
8. RECORDS OF COMPLIANCE
You agree to make and keep all required records.You are solely responsible for creation, storage, and backup of your business records. You agree that Upwork has no obligation to store, maintain or provide you a copy of any content or information that you provide, except to the extent required by applicable law.
9. WARRANTY DISCLAIMER
We are not responsible for the quality, safety, or reliability of our Services.Upwork and its affiliates make no representation or warranty about the services, including that the services will be uninterrupted or error-free, and provide the Services (including content and information) on an “as is” and “as available” basis. To the maximum extent permitted by applicable law, Upwork and its affiliates disclaim any implied or statutory warranty, including any implied warranty of title, accuracy of data, non-infringement, merchantability or fitness for a particular purpose.
10. LIMITATION OF LIABILITY
Any liability we may have to you is limited.Upwork 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: (i) your use of or your inability to use our Site or Site Services; (ii) delays or disruptions in our Site or Site Services; (iii) viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services; (iv) glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services; (v) damage to your hardware device from the use of the Site or Site Services; (vi) the content, actions, or inactions of third parties’ use of the Site or Site Services; (vii) a suspension or other action taken with respect to your Account; (viii) your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and (ix) your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Additionally, in no event will Upwork, 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 Upwork, our affiliates, our licensors, and our third-party service providers to any User for any claim arising out of or in connection with this Agreement or the other Terms of Service will not exceed the lesser of: (a) $2,500 or (b) any fees retained by Upwork 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 Upwork has been 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.
11. RELEASE
You agree not to hold us responsible for any dispute you may have with another User.In recognition of the fact that Upwork is not a party to any contract between Users, you hereby release Upwork, Upwork Escrow, our other 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 California Civil Code § 1542 (and any analogous law in any other applicable jurisdiction) which says: “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 Upwork failed to meet our obligations under the Terms of Service.
12. INDEMNIFICATION
If you do something using our Services that gets us sued or fined, you agree to cover our costs or losses as described below.You will indemnify, defend, and hold harmless Upwork, Upwork Escrow, our other 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) your or your agents’ use of the Services, including any payment obligations or default (described in Section 6.4 (Non-Payment or Default)) incurred through use of the Services; (b) any Work Product or User Content related to your use of the 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, any employment-related claims; (d) your or your agents’ failure to comply with the Terms of Service; (e) you or your agents’ failure to comply with applicable law; (f) negligence, willful misconduct, or fraud by you or your agents; and (g) you or your agents’ violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights. 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 attorneys’ fees) 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.
13. AGREEMENT TERM AND TERMINATION
This section discusses when and how long this Agreement will last, when and how either you or Upwork can end this Agreement, and what happens if either of us ends the Agreement.13.1 TERMINATION
You and Upwork both have the right to end this Agreement, but certain rights and obligations will survive after this Agreement ends.Unless both you and Upwork expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided in this Agreement. You may provide written notice to legalnotices@upwork.com. In the event you properly terminate this Agreement, your right to use the Services is automatically revoked, and your Account will be closed.
You agree that Upwork is not a party to any Service Contract between Users. Consequently, you understand and acknowledge that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Project entered into between Users. If you attempt to terminate this Agreement while having one or more open Projects, you agree (a) you hereby instruct Upwork will close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Projects have closed on the Site and your access to the Site has been terminated; (c) Upwork will continue to perform those Services necessary to complete any open transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to Upwork for any Services or such other amounts owed under the Terms of Service and to any Freelancers for any Freelancer Services.
Without limiting Upwork’s other rights or remedies, we may revoke or limit access to the Services, deny your registration, or revoke your access to the Site and refuse to provide any or all Services to you if: (i) you breach any terms and conditions of this Agreement or any portion of the Terms of Service; (ii) we have reasonable reason to believe that you have provided false or misleading information to us; (iii) we conclude that your actions may cause legal liability for you or others; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity; or (iv) we are required to by law, legal process, or law enforcement. 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 for a new Account without Upwork’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of Users’ Account status to all Users, including you and other Users who have entered into Service Contracts with you. You therefore agree that: if Upwork decides to temporarily or permanently close your account, Upwork has the right (but no obligation) where allowed by law to: (y) notify other users that have entered into Service Contracts with you of your closed account status, and (z) provide those users with a summary of the reasons for your account closure. You agree that Upwork will have no liability arising from or relating to any notice that it may or may not 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, you will no longer have access to information or material you kept on the Site and any content stored in your Account may be deleted, for which Upwork expressly disclaims liability. Upwork may retain some or all of your Account information as permitted or required by law and the Privacy Policy.
13.3 SURVIVAL
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 related to arbitration, audits, intellectual property, non-circumvention, indemnification, fees, reimbursements, and limitations of liability each contemplate performance or observance after this Agreement terminates. The termination of this Agreement for any reason will not release you or Upwork from any obligations incurred prior to termination of this Agreement or other parts of the Terms of Service or that may accrue related to any act or omission prior to such termination.
14. DISPUTES BETWEEN YOU AND UPWORK
Section 14 discusses your agreement with Upwork and our agreement with you about how we will resolve any disputes between us, including that we will both first try to resolve any dispute informally and, if you are in the United States, that we both agree to use arbitration instead of going to court or using a jury if we can’t resolve the dispute informally.Please read the following paragraphs carefully because they require you and us to agree to resolve most all disputes between you and us through binding individual arbitration.
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and Upwork 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, Upwork, and our Affiliates agree to resolve any and all claims, disputes, or controversies that arise out of or relate to this Agreement, the other Terms of Service, your relationship with Upwork (including without limitation any claimed employment with Upwork or one of our Affiliates or successors), the termination of your relationship with Upwork, or the Services (each a “Claim” and collectively, “Claims”) through binding arbitration on an individual basis in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”).
Claims that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203), Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (Public Law 117-90), or by generally applicable law are excluded from the coverage of this Arbitration Provision.
By agreeing to arbitrate disputes under this Agreement, THE PARTIES ARE EXPRESSLY GIVING UP ANY AND ALL RIGHTS TO A JURY TRIAL OR COURT TRIAL BEFORE A JUDGE. The parties instead elect to have Claims resolved by arbitration. The arbitrator’s decision shall be final and binding on the parties, subject to review on the grounds set forth in the Federal Arbitration Act (“FAA”)).
14.2 CHOICE OF LAW
This Agreement, the Site Terms of Use, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions; provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resided at the time the dispute arose.
However, notwithstanding the foregoing sentence, this Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.).
14.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and Upwork agree to first notify each other of the Claim. You agree to notify Upwork of the Claim by email to legalnotices@upwork.com, and Upwork agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Upwork 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 Upwork, as applicable, may evaluate the Claim and attempt to informally resolve it. Both you and Upwork will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim and avoid the need for further action.
14.4 BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)
This Arbitration Provision applies to all Users located in or who reside in the United States and its territories.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Upwork, and our Affiliates agree to resolve the Claim by final and binding individual arbitration before an arbitrator from JAMS, instead of a court or jury. JAMS may be contacted at www.jamsadr.com.
14.4.1 SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
This Arbitration Provision applies to any Claim (defined above) the parties may have, whether based on past, prevent, or future events, and includes all claims and disputes that arose between the parties before the effective date of this Agreement, and survives after your relationship with Upwork ends. For the avoidance of doubt, 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 and the Upwork 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. If for any reason JAMS will not administer the 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.
Except as otherwise provided in this Agreement, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a User that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the User is located. Claims by Freelancers that allege employment or worker classification disputes will be conducted in the state and within 25 miles of where Freelancer is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures,” “JAMS Employment Arbitration Rules,” or “JAMS Consumer Arbitration Minimum Standards.” Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
You and Upwork will follow the applicable JAMS rules with respect to filing or initial appearance and arbitration fees. The arbitrator shall follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between Upwork and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth in Section 14.4.4 below. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section 14 unless all parties to that arbitration consent in writing to that amendment.
This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance, or unemployment insurance benefits.
Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Upwork will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
14.4.2 INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. The arbitrator shall have exclusive jurisdiction to decide all disputes arising out of or relating to the arbitrability of a Claim or the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, breach, or validity of the Arbitration Provision or any portion of the Arbitration Provision, except as expressly provided below. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that, except as provided by the Class and Collective Waiver section below, the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement, or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable, except as set forth in Section 14.4.3 below.
14.4.3 CLASS AND COLLECTIVE WAIVER
Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects your ability to participate in class or collective actions. Both you and Upwork 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”). Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, validity, or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If there is a final judicial determination that all or part of the Class Action Waiver is unenforceable or that an arbitration can proceed on a class basis, then the arbitration provision herein shall be considered null and void in its entirety and the class or collective action to that extent must be litigated in a civil court of competent jurisdiction. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. You and Upwork agree that you will not be retaliated against as a result of your filing or participating in a class or collective action in any forum. However, Upwork 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.
14.4.4 RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
You may opt out of the Arbitration Provision contained in this Section 14 by notifying Upwork in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to Upwork at Attn: Legal, 655 Montgomery ST STE 490, DPT 17022, San Francisco, CA 94111-2676 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 legalnotices@upwork.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 Upwork constitutes mutual acceptance of the terms of this Arbitration Provision by you and Upwork. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.
14.4.5 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.
15. GENERAL
Additional terms of the agreement between you and Upwork, 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.15.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, is the only agreement between you and us regarding the Services and supersedes all prior agreements for the Services and supersedes any prior agreements between us for actions occurring after the effective date of this Agreement. The only exception to this is a Enterprise Agreement or similar agreement for premium services executed by a duly authorized representative of Upwork (“Premium Agreement”), in which cases these Terms of Service are superseded to the extent stated in such Premium Agreement but otherwise survive; written email or letter communications or verbal agreements cannot constitute a Premium Agreement.
15.2 MODIFICATIONS; WAIVER
We may modify these terms and will provide you reasonable advance notice of substantial changes. Subject to the conditions set forth herein, Upwork may amend this Agreement and any of the other agreements that comprise the Terms of Service at any time by posting a revised version on the Site. Upwork will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site and providing notice on the Site or by email. If the Substantial Change includes an increase to Fees charged by Upwork, Upwork will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees, any temporary or promotional Fee change, or changes that do not constitute a Substantial Change. Any revisions to the Terms of Service will take effect on the noted effective date. No modification or amendment to the Terms of Service will be binding upon Upwork unless they are agreed in a written instrument signed by a duly authorized representative of Upwork or posted on the Site by Upwork. Email will not constitute a written instrument as contemplated by this Section 15.2.
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.
15.3 ASSIGNABILITY
You may not transfer any rights you have under our Terms of Service unless we give you approvalThese Terms of Service and any rights or obligations hereunder may not be transferred or assigned by you unless you follow the provisions in this Section.
In order to assign the Terms of Service or your Account to a successor after an acquisition of your company or substantially all of your assets, a merger, or another change in majority ownership of your company, you must provide written notice to Upwork Attn: Legal, 655 Montgomery ST STE 490, DPT 17022, San Francisco, CA 94111-2676 or via email to legalnotices@upwork.com that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, (f) a statement indicating the manner in which your company was acquired, (g) the name and contact information of the acquiror, and (h) the effective date of such change in ownership. If Upwork does not object via email within 5 business days of sending of an email or 7 business days of the mailing of a written notice, then the assignment is permissible, provided in both cases that such notice is properly addressed. The foregoing does not apply to Enterprise Clients.
No other assignments are valid without Upwork’s prior written consent, which can be requested via email or letter at the above addresses. Any other attempted transfer or assignment will be null and void.
15.4 SEVERABILITY; INTERPRETATION
If any provision of this Agreement is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Agreement will continue in full force and effect. 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 one jurisdiction will not in any way affect the legality, validity, or enforceability of that or any other provision in any other jurisdiction.
15.5 FORCE MAJEURE
When certain circumstances beyond your or our control arise, we both will be temporarily relieved from performing our obligations under this Agreement.The parties to this Agreement will not be responsible for any delay or failure to perform any obligation under this Agreement for a reasonable period due to labor disturbances, accidents, fires, floods, pandemics, telecommunications or Internet failures, strikes, wars, riots, rebellions, terrorism, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar event beyond the parties’ reasonable control.
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 the United States.
15.7 ACCESS OF THE SITE OUTSIDE THE UNITED STATES
Upwork makes no representations that the Site or Services are appropriate or available for use outside of the United States. 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 laws and regulations, both in the United States and abroad, including export and import regulations (e.g., the Export Administration Regulations maintained by the U.S. Department of Commerce and the sanctions programs maintained by the U.S. Department of the Treasury Office of Foreign Assets Control). You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.
In order to access or use the Services, you must and hereby represent that neither you, any company you represent, nor any beneficial owner of you or your company are: (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 U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. 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 Services and your license to use the Services will be immediately revoked.
15.8 CONSENT TO USE ELECTRONIC RECORDS
Upwork and its Affiliates may need to provide you with certain communications, notices, agreements, statements or disclosures in writing regarding our Services. You consent to receive these records electronically from Upwork and its Affiliates rather than in paper form.
16. DEFINITIONS
Below we define capitalized terms that appear in this Agreement or other parts of the Terms of Service. 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 Terms of Use or elsewhere in the Terms of Service.
“Client” means any authorized User of the Site or Site Services, including Direct Contract Services, to seek 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, or provided in connection with a 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.
“Direct Contract” means a contract entered into on Upwork between a Freelancer on Upwork and a client of the Freelancer’s who does not and has never had an Upwork Account (or an account with Upwork predecessors, oDesk or Elance). Please see our Direct Contracts Terms for more details.
“Escrow Account” means Client Escrow Account, Freelancer Escrow Account, or Fixed-Price Escrow Account.
“Escrow Instructions” means the Escrow Instructions agreement that is relevant to the Service Contract or Direct Contract.
“Fixed-Price Contract” means a Service Contract for which 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 of the Site or Site Services, including Direct Contract Services or Any Hire Services, that utilizes the Site to advertise, provide, or receive payment for the provision of Freelancer Services to Clients, including Agency Member Accounts and Freelancer Accounts that are part of Agency Accounts.
“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.
“Hourly Contract” means a Service Contract for which Client is charged based on the hourly rate charged by Freelancer.
“Hourly Invoice” means the report of hours invoiced for a stated period by a Freelancer for Freelancer Services performed for a Client.
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 Upwork, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Upwork 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 Upwork Payroll, accepted for employment by a Staffing Provider, and assigned by the Staffing Provider 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 Upwork Direct Contract Terms; (c) an Any Hire Contract as defined in the Upwork Any Hire Terms; or (d) if you use Upwork Payroll, the contractual provisions between Freelancer and the Staffing Provider for the provision of services to Client, if any.
“Substantial Change” means a change to the terms of the Terms of Service that materially reduces your rights or increases your responsibilities.
“Upwork App” means the online platform accessed using Upwork’s downloaded application or other software that enables time tracking and invoicing, chat, and screenshot sharing with other Users.
“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 Upwork, 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.
Terms of Use
Version 4.7
Effective April 7, 2022
DownloadTable of Contents
This document explain the rules that keep our marketplace running.
We call these rules our Terms of Use. They apply to upwork.com and all the websites and apps we own or run. (And by we, we mean Upwork and our affiliates, which we may also refer to as us.)
These terms explain how we expect you to behave when you’re using Upwork – whether you’re a registered user or unregistered site visitor on our site.
Please read these rules carefully: by using our site, you’re agreeing to follow them.
Contents
When you see this 
symbol, look for a simple summary for each section. We wrote these to help you get a quick overview , but you'll need to read the sections completely to get all the details.
symbol, look for a simple summary for each section. We wrote these to help you get a quick overview , but you'll need to read the sections completely to get all the details.1. About licenses and third party content
Here we’ve included the conditions for using our site, which we do our best to keep running smoothly (1.1). That means we have the right to stop people from using our site and services if needed (1.2). You can’t use our intellectual property (1.3), but you can post your own content to Upwork. You’re responsible for this content (1.4), and equally, we’re not responsible for content you come across from other users (1.5). If you think someone is using something you’ve copyrighted, just let us know (1.6).
1.1 We let you use our site and services
Technically, we’re giving you a ‘limited license’ to the site. Here’s what that means.
We’re happy for you to access our website and services (known as the services). You’re free to have this access (or limited license) as long as you follow these terms of use and all of our other Terms of Service as they apply to you.
We’ll do our best to make sure our services are safe and working as they should, but we can’t guarantee you’ll have access continuously. In fact, we might even stop providing certain features or the services completely, and don’t have to give notice if we do.
1.2 We can stop letting you use our services
We can take away your right to use our services at any time.
If you violate our Terms of Use or other parts of our Terms of Service, we can take away your access to Upwork. Officially, this is called terminating your license, and if it happens, we’ll tell you and you must stop using our services immediately.
1.3 We keep the rights to our intellectual property
Using our services doesn’t mean you can use any of our trademarks or other intellectual property, like copyrights and patents. We keep all of our rights to our intellectual property, even though we let you use our services.
Our logos and names are our trademarks and registered in certain jurisdictions. Any other product or company names, logos or similar marks and symbols you see on Upwork may be trademarked by our partners or other users like you.
1.4 You can use Upwork to share your content with the world
1.4.1 You’re responsible for what you post
You’re responsible for how you use our site and anything you post on it. If someone makes a claim against us because of anything you put on the site, you agree to compensate us for our legal fees and expenses (the lawyers call this, ‘indemnification’).
When you post content on (or through) our site or give us content for posting, you agree that you’re completely responsible for that content and we’re not. You also agree to only post or give us content that:
- you have the right to post
- is legal
- doesn’t violate anyone’s rights, including intellectual property rights.
You acknowledge and agree that whoever posts content is responsible for any harm caused to anyone by that content – not Upwork – and that you’ll compensate and defend us, our partners, employees and representatives against any costs or legal or government action we have because of your content.
1.4.2 Other people have some rights to what you post
By posting content on the site, you give other people some rights to that content.
Whenever you post content on our site, you give us and our affiliates a permanent right (called an ‘irrevocable and non-exclusive worldwide license’) to use, edit and share that content – across the world and without paying royalties. If your name, voice and image appear in content you post, we also might use those on the site or in our day-to-day business. For example, if you’re a freelancer, we might share your profile with clients we think could be a good match.
You also give each user and site visitor the right to access and use your content through the site. They also have the right to use, copy and share your content – as long as they do it through the site, and follow both our Terms of Service and the law.
We might show ads near your content and information, without compensating you. Depending on choices you make in your profile, we might also include your name or photo when promoting one of our features.
1.4.3 We’re open to your ideas
We’d love to hear your thoughts on improving Upwork. Here’s what happens when you share them.
You can send us comments and suggestions about our services and ways to improve them. If you do, you’re agreeing your ideas are free and unsolicited, and you don’t expect or ask anything in return, unless we’ve specifically asked you for your ideas and offered something in return (we like to keep our word).
You agree we’re free to use, change and share the idea as we like, without being obligated to to give you anything for it. And if you do send us an idea, you also agree that this doesn’t affect our right to use similar or related ideas – including those we already have or get from others.
1.5 Third parties post on Upwork, too
Anyone else who uses our site is responsible for what they post or link on Upwork.
We’re not responsible for the accuracy or reliability of any content shared by other people on our site, unless they’re officially working for us when they share or post the content. Any content represents the views of the person sharing it, not Upwork.
Our site might also contain links or other access to third-party websites and applications. These sites and applications are owned and run by other parties, not Upwork. If we use a link or application that goes to a third-party website, it doesn’t mean that we endorse it and you agree that you use it without our endorsement.
1.6 You can make a copyright complaint
If you think content on our site infringes your rights, you can ask to have it removed.
We’re committed to following U.S. copyright and related laws and need site visitors and users to follow them as well. That means you can’t use our site to store or share anything that infringes anyone’s intellectual property rights, including their rights under U.S. copyright law.
If you own copyrighted work and think your rights under U.S. copyright law have been infringed by anything on our site, the Digital Millennium Copyright Act means you can ask us to take it down. Here’s how to report it.
2. What you’re allowed to do on Upwork
You can only use our services for work and to learn from the information we share.Our site and services were made to be used for business, not for personal or consumer use. We run our marketplace to help users find each other, build working relationships, and make and receive payments for that work.
You can also use some of our services to get information we think might be interesting and useful for our site visitors and users – like our Upwork blog. While we do our best to make sure that this information is timely and accurate, there might sometimes be mistakes. We don’t make any guarantees about information posted on our site, so never use it as tax or legal advice. And you should always double-check the information for yourself.
3. What you’re not allowed to do on Upwork
Certain uses of the site are not allowed. Here we go into much more depth about those things, including:- posting unacceptable content (3.1)
- acting in a misleading or fraudulent way (3.2)
- treating others unfairly (3.3)
- abusing our feedback system (3.4)
- other uses that aren’t allowed (3.5)
In short, you’re not allowed to use our services to do (or encourage others to do) anything that is illegal, fraudulent or harmful. If you don’t see something on one of the lists below, you shouldn’t assume it’s allowed. When in doubt, contact us to check.
3.1 Posting unacceptable content
You can’t offer, share, support or try to find anything that:
- is illegal or defamatory
- is violent, discriminatory or harassing, either generally or towards a specific person or group (or encourages others to be), including anyone who is part of a legally protected group
- is sexually explicit or related to sex work or escort services
- is in any way related to child exploitation
- would infringe on any intellectual property rights, including copyrights
- would violate our Terms of Service, another website’s terms of service, or any similar contract
- would go against professional or academic standards or policies – including improperly submitting someone else’s work as your own, or by ghost-writing essays, tests, or certifications
- involves purchasing or requesting a fake review or is connected in any way to making or sharing misleading content (like ‘deep fakes’ or ‘fake news’) which is intended to deceive others.
3.2 Acting in a misleading or fraudulent way
On Upwork, you can’t do anything that’s dishonest or meant to fool others.
You can’t misrepresent yourself, your experience, skills or professional qualifications, or that of others. This includes:
- lying about your experience, skills or professional qualifications
- passing off any part of someone else’s profile or identity as your own
- using a profile picture that isn’t you, misrepresents your identity or is someone else
- impersonating or falsely attributing statements to any person or entity, including an Upwork representative or forum leader
- falsely claiming or implying you’re connected to a person or organization (including Upwork) – for example, you can’t say you work for a particular company when you don’t, and agencies can’t use a freelancer’s profile if they’ve stopped working together.
Similarly, you must always be honest about who’s doing the work. That means you can’t:
- allow someone else to use your account, which misleads other users or
- falsely claim one freelancer will do a job when another will actually do it – including submitting a proposal on behalf of a freelancer who can’t or won’t do the work.
We’re particularly invested in avoiding fraud and misrepresentations when it comes to payments. This means:
Freelancers can’t fraudulently charge a client in any way, including by:
- falsifying the hours, keystrokes or clicks recorded in the Upwork app
- reporting or billing time you haven’t actually worked
- reporting time worked by someone else and claiming you did the work
- demanding bribes or other payments without the intention of or without actually providing services in exchange for the payment.
Clients can’t engage in fraud related to payments, including by:
- posting jobs with payment terms that are objectively unreasonable or disproportionate to the scope of services requested
- demanding services without the intention of or without actually providing payment in exchange for the services.
3.3 Treating others unfairly
Everyone should be treated fairly and legally on Upwork.
You can’t use Upwork to:
- express an unlawful preference in a job post or proposal
- unlawfully discriminate against someone
- incite or encourage violence
- post personal identifying information or other sensitive, private data about another person
- spam other users with proposals or invites. This includes posting the same job several times at once and contacting people you connected with on Upwork outside of Upwork without their permission
- make or demand bribes or payments for anything other than the work
- ask for or demand free work – you can’t ask freelancers to submit work for little or no payment as part of a proposal bid or competition
- request a fee in order to submit a proposal
- request or provide services that primarily concern making purchases on behalf of another, including the purchase of cryptocurrency or NFTs.
3.4 Abusing our feedback system
You must use our feedback system honestly and fairly.
That means you can’t:
- withhold payment or work until you’ve been given positive feedback
- swap payment (or anything of value) for feedback, including with third parties
- coerce another user by threatening negative feedback
- use the system to share unrelated views (like about politics or religion)
- offer or accept fake services to improve your feedback or rating score, which is called feedback building
3.5 Other uses that aren’t allowed
Upwork relies on technology and trust – here’s how we maintain those things.
- You can’t copy, share or give away your account. You can’t have multiple accounts and you can’t sell, trade or give your account to anyone else without our permission.
- You can’t go around us. In particular, you can’t talk to another user or ask for or share a way to get in touch - a means of direct contact - outside of Upwork before you’ve agreed to a service contract. This means you can’t add your contact details to a job post, your profile, communications or other content. (There are exceptions to this for Enterprise clients.)
- You can’t promote other organizations – including advertising any other websites, products or services. You also can’t use our site to recruit freelancers or clients to join another agency, website or company, unless you pay us a fee to do so. For more information, take a look at Section 7 of our User Agreement.
- You can’t interfere with our technology or tamper with our site or services. That means you can’t:
- bypass any security features we’ve put in place to restrict how you use the site – you’re not allowed to try and get around restrictions on copying content
- interfere with or compromise our systems, server security, or transmissions
- use a robot, spider, scraper, or similar mechanisms on our site without written permission
- copy, distribute, or otherwise use any information you found on Upwork, if whether directly or through third parties (like search engines), without our consent (no scraping allowed)
- collect or use identifiable information, including account names)
- overwhelm the site with an unreasonable or large amount of information
- introduce any malware or any other code or viruses that could harm us, our customers, or our services
- access our services through any technology other than our interface
- frame or link to the services without our written permission
- use our services to build a similar service, identify or poach our users or publish any performance or benchmark analysis relating to the site
- reverse engineer, decipher, modify, or take source code from our site that is not open source without our written permission.
4. Enforcing our terms of use
If you break any of these rules, we can suspend your account and stop you from using Upwork (3.1). If you see someone else breaking these rules, please let us know (3.2).4.1 We enforce these rules
We have the right to look into any potential violations of these terms of use, and might decide to pause, change or take away any content on our site when we do.
We can’t guarantee that we’ll take action against every potential violation, but just because we don’t take action against one breach doesn’t waive our right to take action against any future breaches, whether they’re related to the first breach or not.
If we do suspect rule-breaking, we can stop you using our site at any time. If we disable or close your account, you won’t be able to use any of our services, but these things will stay in place:
- our rights to use and share your feedback
- our users’ and visitors' rights to share your content (1.4.2)
- your agreement to all the rules laid out in section 3 on this page.
4.2 Tell us if you see someone breaking these rules
What to do if you become aware of a violation of our Terms of Use.
If you believe anyone is breaking any of our terms of use, please let our customer service team know or report it wherever you see this flag: [flag icon]
If we follow up on the breach, you agree to help with our investigation and take reasonable steps to help us fix the problem.
5. Definitions
Here, we explain some of the terms we’ve used in our Terms of Use. Any other terms in italics should be defined when they’re mentioned, in the User Agreement or Terms of Service.An affiliate is anyone or anything that in any way manages, is managed by, or shares management with us.
A client is someone using our site to find freelancer services from another user.
A deep fake is a video or image that has been changed to replace one person with another in a deliberately misleading way, without asking the person whose face has been used.
A freelancer is an individual or agency using our site to offer their services to clients.
Freelancer services refer to the work freelancers do on Upwork.
A means of direct contact is information that would let someone get in touch with you directly (or find the information to do that) so you can bypass our site. For example, phone numbers, email and physical addresses, social media accounts, and personal websites with contact information are means of direct contact.
Site services are all services, applications and products – apart from freelancer services – that people can access through Upwork.
Content is what users post to Upwork themselves, like comments, profiles, feedback, images, or other information. It includes anything posted as a response to questions asked by other users or Upwork.
Direct Contracts Terms
Version 3.3
Effective April 27, 2021
DownloadTable of Contents
These Upwork Direct Contracts Terms (“Direct Contracts Terms”) define the terms and conditions under which Upwork offers and you agree to use Upwork’s Direct Contracts service, as described in these terms (“Direct Contracts Services”), and are part of and incorporate by reference the Upwork User Agreement and other Terms of Service. The Direct Contracts Terms are in addition to and, except where explicitly stated, do not supersede, replace, or limit other similar terms in the Terms of Service. Capitalized terms not defined herein are defined in the User Agreement or elsewhere in the Terms of Service.
IN ORDER TO USE UPWORK’S DIRECT CONTRACTS SERVICE YOU AGREE TO BE BOUND BY THE DIRECT CONTRACT TERMS AND THE ARBITRATION AND CLASS ACTION WAIVER IN THE USER AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, INCLUDING THE ARBITRATION AND CLASS ACTION WAIVER, YOU MAY NOT ACCESS OR USE ANY DIRECT CONTRACTS SERVICES.
1. HOW IT WORKS
With the Direct Contracts Service, a Freelancer can create and send fixed-price or hourly contract proposals to any eligible Client, or invite any eligible Client to create a fixed-price or hourly contract proposal. If either Client or Freelancer creates the contract proposal and the other party accepts the proposal through the Direct Contracts service, the Client and Freelancer will enter directly into a contract (the “Direct Contract”).
1.1 Fixed Price Direct Contracts
As described in the Fixed Price Direct Contract Escrow Instructions, once the Direct Contract has been accepted, the Client will place the Direct Contract project funds in escrow ("Direct Contract Funds”). When the work or a milestone is completed, the Freelancer will request that the Client release the Direct Contract Funds or portion of Direct Contract Funds for the milestone from escrow. If the Client approves the work, Upwork Escrow will release the Direct Contract Funds. Once the Direct Contract Funds are released from Escrow, the Direct Contract will end.
1.2 Hourly Direct Contracts
As described in the Hourly Direct Contract Escrow Instructions, once the Direct Contract has been accepted, the Client will fund a deposit equivalent to the hourly rate multiplied by the weekly hourly limit agreed to between Freelancer and Client (“Direct Contract Deposit”). Freelancer and Client agree and authorize Upwork to hold the Direct Contract Deposit in escrow through the term of the Hourly Direct Contract. Client agrees to separately fund payments to Freelancer on a weekly basis based on Freelancer’s submission of weekly invoices (“Direct Contract Weekly Funds”). If Client approves the submitted hours, Upwork Escrow will release the Direct Contract Weekly Funds to Freelancer.
2. ELIGIBILITY
Any Freelancer that is eligible to use the Site is eligible to use the Direct Contract Services, subject to the limitations on Client eligibility in this Section 2. A Client is eligible to create or accept a Direct Contract only if the Client does not and has not ever had an Account on Upwork (or its predecessor oDesk). Clients do not need to register for an Account to accept a Direct Contract.
3. FEES
3.1 Freelancer Fees
Solely with respect to fees charged on Direct Contracts, these Direct Contract Terms explicitly supersede and replace Section 2 (Fees Charged to Freelancers), Section 3 (Client Membership Fees), and Section 4 (Payment Processing Fees Charged to Client) in the Fee and ACH Authorization Agreement. The Fee and ACH Authorization Agreement otherwise remains in full force and effect, including, without limitation, on any Service Contract if a Freelancer or Client, who uses Direct Contracts, has a Service Contract (as defined in the User Agreement).
For any Direct Contract, the following fees apply: Freelancer pays a 3.4% payment processing and administration fee (“Direct Contract Payment Fee”). Freelancer authorizes and instructs Upwork to automatically charge and deduct the Direct Contract Payment Fee from the Direct Contract Funds or Direct Contract Hourly Funds.
3.2 Client Fees
Clients are generally charged a payment processing and administration fee on each payment made on a Direct Contract at the rate clearly displayed on the Site before entering into a Direct Contract ("Payment Fee"). If no fee is stated at the time of entering into a Direct Contract, then no Payment Fee will be charged. Clients also agree to Section 5 (Authorization for ACH Debits and Credits) of the Fee and ACH Authorization Agreement with respect to the payment or placement in escrow of any Payment Fee, Direct Contract Funds, or Direct Contract Weekly Funds.
4. ESCROW SERVICES
Freelancer and Client acknowledge and agree the Fixed Price Direct Contract Escrow Instructions apply to Fixed Price Direct Contracts. Freelancer and Client further acknowledge and agree that the Hourly Direct Contract Escrow Instructions apply to Hourly Direct Contracts.
5. ROLE OF UPWORK AND USER RESPONSIBILITIES
You understand and agree that Upwork is not a party to any Direct Contract, is not involved in or responsible for any work performed by Freelancers, is not involved in or responsible for any payment made under a Direct Contract, and has no control over any Freelancer or Client. Upwork does not have any power or authority to, and does not, determine any eligibility standards for any Direct Contract, select or contract any Freelancer to provide services to a Client, determine or control any term or condition of the Direct Contract or Project, or cause any Freelancer or Client to accept any Direct Contract or perform any Freelancer Services. Upwork Escrow provides escrow services, but does not guarantee that Freelancer will be paid.
6. OTHER TERMS
Together with the Upwork User Agreement and other Terms of Service, these Direct Contract Terms represent the entire agreement with Upwork and supersede all prior agreements and understandings with respect to the matters covered. You agree that you did not accept the Direct Contract Terms based on any representations, whether written or oral, other than those contained herein. No modification of or amendment to the Direct Contract Terms, nor any waiver of any rights, will be effective unless in writing signed by you and Upwork. Notwithstanding the foregoing, to the extent permitted by applicable law, Upwork may amend the Direct Contract Terms with prior notice at any time. The posting of the amended Direct Contract Terms on Upwork’s Site will constitute notice. Your continued use of the Direct Contract Services after the effective date of a revised version of the Direct Contract Terms or notice to you of updated Direct Contract Terms constitutes your acceptance of its terms and agreement to be bound by its terms. In the event of a conflict between these Direct Contract Terms and the applicable escrow instructions, the applicable escrow instructions shall govern; in the event of a conflict between these Direct Contract Terms and any other agreement in the Terms of Service, these Direct Contract Terms shall govern.
Any Hire Terms
Version 1.4
Effective September 20, 2022
DownloadSummary of changes
Added Any Hire Fees for engagements through International and Domestic Payroll
Table of Contents
This Upwork Any Hire Terms (“Any Hire Terms”) defines the agreement between you (the “Client” or the “Freelancer”, as applicable) and Upwork Global Inc. (“Upwork”) regarding Any Hire services offered through the Site at www.upwork.com/anyhire as described in these Any Hire Terms (“Any Hire Services”), and are part of and incorporate by reference the Upwork User Agreement and other Terms of Service (collectively, the “Agreement”). The Any Hire Terms is in addition to and, except where explicitly stated, does not supersede, replace, or limit other similar terms in the Terms of Service. Capitalized terms not defined herein are defined in the User Agreement or elsewhere in the Terms of Service.
In order to use Any Hire Services, you agree to be bound by the Any Hire contract terms and the Dispute Process and Arbitration and Class Action Waiver in the User Agreement. If you do not accept these terms, including the arbitration and class action waiver, you may not use or access any Any Hire Services.
1. ESCROW SERVICES
Client and Freelancer acknowledge and agree that the Any Hire Contract Escrow Instructions apply to any engagements via the Any Hire Services (each such engagement, an “Any Hire Contract”). Upwork Escrow provides escrow services, but does not guarantee that Freelancer will be paid except and only to the extent that all of the following are true: (a) Upwork has received funds from Client on behalf of the Freelancer, (b) Client has directed such funds to be released to Freelancer, and (c) any hold or security period has passed. Upwork otherwise does not guarantee that Client is able to or will pay Freelancer. Client and Freelancer acknowledge that these escrow services are intended for business use, and agree to use these escrow services only for business purposes and not for consumer, personal, family, or household purposes.
2. ROLE OF UPWORK
Client and Freelancer understand and agree that Upwork is not involved in or responsible for any work performed by Freelancer(s), is not involved in or responsible for any payment made under a Any Hire Contract except as provided in Section 1 (Escrow Services), and has no control over any Freelancer or Client. Upwork does not guarantee that Client or Freelancer will perform on the Any Hire Contract. Upwork does not have any power or authority to, and does not, determine any eligibility standards for any Any Hire Contract, select or contract any Freelancer to provide services to Client, determine or control any term or condition of the Any Hire Contract or Project, or cause any Freelancer to accept any Any Hire Contract or perform any Freelancer Services. The Parties agree that Client will select the freelancer, that the scope of work will be set exclusively by agreement between Client and Freelancer, and that Client and Freelancer will take up any issues with the work and/or its scope between each other.
3. ANY HIRE COMPLIANCE SERVICES
3.1 WORKER CLASSIFICATION
Upwork will determine the appropriate worker classification (e.g., independent contractor or employee) for each Engagement based on the information that Client and Freelancer provide about the applicable Any Hire Contract. Determining the proper classification for a Freelancer depends on many factors, including information in Client’s control. Client and Freelancer agree to provide Upwork with all information requested that is related to the Any Hire Contract and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
3.2 FREELANCER ENGAGEMENT
If Client accepts Upwork’s worker classification, Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor for up to a six-month term, with Upwork Talent Group Inc. acting as agent of record for Client for such purpose, or (ii) cause the Freelancer to be hired as an employee through Upwork Payroll Services (as defined in the Upwork Payroll Agreement). Upwork may delegate the engagement of Freelancers (and other obligations regarding Freelancers under this Agreement) to one or more third parties. Upwork and Staffing Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified under Upwork’s classification services and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Staffing Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions consistent with this Agreement.
At the end of any six-month independent contractor agreement term, Client may seek to re-enage the Freelancer via Any Hire, and the engagement and worker classification process will begin again.
3.3 OPTION TO REJECT CLASSIFICATION SERVICES
A Client may choose to decline the worker classification services described in Section 3.1. If Client does not accept Upwork’s worker classification, the Client may engage the Freelancer as the Client so chooses, but Upwork shall not be responsible for the classification of the worker or the engagement of the worker. Client shall have sole responsibility of engaging the Freelancer (including preparing any independent contractor agreement or using the Optional Service Contract Terms). In addition, if Client declines the worker classification services and still engages the Freelancer, Section 8.2 shall not apply; Client shall have no right to indemnity or any other remedy against Upwork, except as provided in the User Agreement Section 10, Section 11, and Section 12, all three of which shall be deemed to control any conflict with these Upwork Any Hire Terms.
3.4 LEGAL COMPLIANCE
Upwork, Staffing Provider, or any third party acting to engage a Freelancer, as applicable, shall comply with applicable laws and regulations governing the engagement and payment of Freelancers; except that Upwork or Employment Provider shall not be liable for any non-compliance associated with any information provided by Client.
3.5 OWNERSHIP OF FREELANCER WORK PRODUCT
Ownership of all Freelancer Work Product will be governed by the independent contractor agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Client. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Any Hire Contract accrue to the benefit of Upwork, Upwork hereby assigns such rights to Client.
4. CLIENT RESPONSIBILITIES
4.1 ANY HIRE CONTRACTS
Client further agrees to immediately inform Upwork of any complaint or request made by Freelancer concerning any employment-related matter, such as a request for a leave of absence or disability accommodation or a complaint about harassment or discrimination. Client further acknowledges and agrees that Client will not dispute and is responsible for payment for all hours worked on an engagement that uses Upwork Payroll Services.
4.2 UPWORK PAYROLL AGREEMENTS
Client will inform Upwork 72 hours in advance, if possible, or as soon as possible thereafter, of the termination of any Any Hire Contract that uses Upwork Payroll Services. For hourly work performed by Freelancers classified as employees, (i) Client will be deemed to have automatically approved all hours worked at the time Client is invoiced for the work, including overtime and (ii) Client authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Staffing Provider as employees, Client agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees it is responsible to pay that overtime wages.
4.3 NONDISCRIMINATION; COMPLIANCE WITH LAWS
Client to comply with, and to require any person who may interact with Freelancer on behalf of Client to comply with, Upwork’s Nondiscrimination Statement, and with all applicable laws in connection with the engagement of Freelancers, including without limitation, as applicable, worker safety laws, nondiscrimination laws, accommodation and leave laws, and privacy laws.
4.4 FREELANCER ELIGIBILITY LIMITATIONS
Any Hire Contracts may only be offered to Freelancers that do not have a pre-existing relationship with Upwork (e.g., a previously established Freelancer Account). If a Freelancer has a pre-existing relationship with Upwork, the Freelancer can be engaged through one of our other offerings, subject to the fees and other terms and conditions of such offerings.
4.5 CLIENT ACKNOWLEDGEMENTS
Other than as stated in these Any Hire Terms, Client expressly acknowledges, agrees, and understands that: (i) except for the agent of record services, Upwork is not a party to the dealings between Client and Freelancer, including the substantive terms of posts, the selection of a Freelancer, the decision to contract with a Freelancer, and the performance or receipt of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork does not set Freelancer’s work hours, work schedules, or location of work; (vi) Upwork will not provide Freelancer with training or any equipment, tools, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; (viii) if there is a dispute between Client and Freelancer, that dispute is solely between Client and the Freelancer and Upwork will not be responsible or liable with respect to such dispute; (ix) neither Upwork nor its Affiliates is an employer of or joint employer or integrated or single enterprise with any Freelancer or Client; and (x) unless otherwise agreed as part of the relevant Any Hire Contract, independent contractor Freelancer(s) may hire employees or engage contractors or subcontractors (at his or her sole expense) to assist with providing the Freelancer Services. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Site; the ability of Freelancers to deliver the Freelancer Services; or that Client or Freelancer can or will actually complete a transaction.
5. FREELANCER ACKNOWLEDGEMENTS
Other than as stated in these Any Hire Terms, Freelancer expressly acknowledges, agrees, and understands that: (i) except for the agent of record services, Upwork is not a party to the dealings between Client and Freelancer, including the substantive terms of posts, the selection of a Freelancer, the decision to contract with a Freelancer, and the performance or receipt of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork does not set Freelancer’s work hours, work schedules, or location of work; (vi) Upwork will not provide Freelancer with training or any equipment, tools, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; (viii) if there is a dispute between Client and Freelancer, that dispute is solely between Client and the Freelancer and Upwork will not be responsible or liable with respect to such dispute; (ix) neither Upwork nor its Affiliates is an employer of or joint employer or integrated or single enterprise with any Freelancer or Client; and (x) unless otherwise agreed as part of the relevant Any Hire Contract, independent contractor Freelancer(s) may hire employees or engage contractors or subcontractors (at his or her sole expense) to assist with providing the Freelancer Services. Upwork makes no representations about and does not guarantee the truth or accuracy of Client’s listings on the Site; the ability of Clients to pay for the Freelancer Services; or that Client or Freelancer can or will actually complete a transaction.
6. FEES
6.1 CLIENT FEES
Client agrees to pay a flat fee per Any Hire Contract (“Any Hire Fee”) per two-week billing period (“Billing Period”) or any portion of a Billing Period as follows:
Freelancer engaged as an independent contractor: $49USD per month, billed each two-week billing period at $22.62USD
Freelancer engaged through Upwork Payroll (International): $49USD per month, billed each two-week billing period at $22.62USD
Freelancer engaged through Upwork Payroll (Domestic): $199USD per month, billed each two-week period at $91.60USD
Client also acknowledges and agrees that Client is responsible for applicable taxes and any Staffing Provider costs or applicable Payroll Services Fees (to be communicated at the start of the Any Hire Contract), as well as any payment processing fee. Information on Upwork’s Payroll offering and applicable fees can be found in the Upwork Payroll Agreement. All fees are invoiced on the Monday after the end of the Billing Period. Client acknowledges and understands that payment is due in full the day the invoice is sent. Client agrees and authorizes Upwork to charge Client’s Payment Method the full amount invoiced during a Billing Period on the same day the invoice is issued.
6.2 FREELANCER FEES
Freelancers engaged on an Any Hire Contract are not charged Freelancer Service Fees (see Sections 2.1, 2.2, and 2.3 of the Fee and ACH Agreement) for such Any Hire Contract. However, Freelancers will pay any other applicable fees (see Section 2.4 of the Fee and ACH Agreement). If such Freelancer enters into a Service Contract other than an Any Hire Contract, such Service Contract will be subject to Service Fees as applicable.
7. CLIENT AND FREELANCER AUTHORIZATION
Client and Freelancer represent and warrant that it has the authority to agree to these Any Hire Terms on behalf of themselves and the business entity they represent. Any actions performed by Upwork personnel on the Site at Client’s direction, express or implied, will be considered to be actions by and at the direction of Client.
8. INDEMNIFICATION FOR CLIENT
8.1 INTERACTION WITH OTHER TERMS OF SERVICE
These Any Hire Terms controls for any express conflicts between the User Agreement or the Upwork Payroll Agreement and these Any Hire Terms concerning indemnification obligations and limitation of liability of Upwork or Client with respect to Any Hire Services only, except as provided in Section 3.3.
8.2 INDEMNIFICATION BY UPWORK
Upwork will indemnify, defend, and hold harmless Client and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims, up to a maximum of $50,000USD per Freelancer engaged under an Any Hire Contract, to the extent caused by: (i) Upwork’s misclassification of a Freelancer under the Fair Labor Standards Act, the Internal Revenue Code, state wage and hour law or any other law; (ii) the failure of Upwork or Employment Provider to make, when due, a payment to a Freelancer related to these Any Hire Terms; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
8.3 INDEMNIFICATION BY CLIENT
Client will indemnify, defend and hold harmless Upwork and its Affiliates and their directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with Client’s or any director, officer, agent, employee of Client, or any other person with apparent or actual authority to act on behalf of Client: (i) in excess of $50,000USD per Freelancer engaged under an Any Hire Contract; (ii) violation of any law or regulation, including laws related to illegal discrimination or harassment; (iii) misuse or unauthorized use of the Site; (iv) content posted by or on behalf of Client or at Client’s direction; (v) failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Client or which Client failed to update or was caused by Client; (vi) direction, participation or involvement with the Freelancer or Freelancer Services; or (vii) breach of Client’s obligations in Section 5 (Client Responsibilities).
8.4 INDEMNIFICATION REQUIREMENTS
The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under these Any Hire Terms; and (ii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of an indemnified Claim.
9. NO INDEMNIFICATION FOR FREELANCER
For the avoidance of doubt, Freelancer shall have no right to indemnity or any other remedy against Upwork, except as provided in the User Agreement Section 10, Section 11, and Section 12, all three of which shall be deemed to control any conflict with these Upwork Any Hire Terms.
10. LIMITATION OF LIABILITY
THIS SECTION 10 (LIMITATION OF LIABILITY) ONLY APPLIES TO AN ANY HIRE CONTRACT AND IS NOT CUMULATIVE TO ANY OTHER LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS OR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR (I) AMOUNTS DUE UPWORK FROM CLIENT UNDER THIS AGREEMENT, AND (II) AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO INDEMNIFICATION OBLIGATIONS HEREIN. EXCEPT AS PROVIDED IN SECTION 8 WITH RESPECT TO CLIENTS, IN NO EVENT WILL UPWORK BE LIABLE FOR AN AMOUNT GREATER THAN $50,000. CLIENT ACKNOWLEDGES THAT THE AMOUNTS PAYABLE UNDER THIS AGREEMENT ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. OTHER TERMS
This Agreement, including these Any Hire Terms along with the Upwork User Agreement and other Terms of Service, represents the entire agreement with Upwork and supersedes all prior agreements and understandings with respect to Any Hire Services. To the extent of an express conflict between these Any Hire Terms and the other Terms of Service, these Any Hire Terms shall govern any matters involving Any Hire Services. Provisions of the User Agreement and other Terms of Service that do not expressly conflict with any provision of the Any Hire Terms or are being applied to any products or services other than the Any Hire Services apply in full force and effect. Without voiding or affecting the applicability of any other provision of the User Agreement to the Any Hire Terms, Client specifically reiterates its agreement to comply with the DISPUTE PROCESS AND ARBITRATION AND CLASS ACTION WAIVER contained in Upwork’s User Agreement, and agrees that this provision applies with full force and effect to the Any Hire Terms.
You agree that you did not accept the Any Hire Terms based on any representations, whether written or oral, other than those contained in these Any Hire Terms along with the Upwork User Agreement and other Terms of Service. No modification of or amendment to the Any Hire Terms, nor any waiver of any rights, will be effective unless in writing signed by you and Upwork.
Escrow Instructions
Version 3.5
Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions
Version 3.4
Effective October 7, 2022
DownloadTable of Contents
If Client and Freelancer enter into an Hourly Contract, if Client makes a bonus or expense payment to Freelancer, or if you use Upwork Payroll, this Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions (“Agreement”) applies.
To the extent permitted by applicable law, we may modify this Agreement, and the Escrow Instructions it contains, without prior notice to you, and any revisions to the Agreement will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.
This Agreement hereby incorporates by reference the Terms of Service. Capitalized terms not defined in this Agreement are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. The Escrow Instructions in this Agreement do not apply to Fixed-Price Escrow Accounts, except that they govern the making and receiving of bonus, expense and other miscellaneous payments for Fixed-Price Contracts.
Escrow services are provided by Upwork Escrow Inc. (“Upwork Escrow”) pursuant to Internet Escrow Agent license no. 9635086, issued by the California Department of Financial Protection and Innovation.
1. DIGITAL SIGNATURE
By clicking to accept an Hourly Contract or make a bonus payment, Client and Freelancer are deemed to have executed this Agreement electronically, effective on the date Freelancer clicks to accept an Hourly Contract, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as amended from time to time (the "E-Sign Act"). Doing so constitutes an acknowledgement that Client and Freelancer agree to conduct the transaction electronically, and are able to electronically receive, download, and print this Agreement and the Escrow Instructions it contains.
2. MAKING OR RECEIVING AN HOURLY PAYMENT
2.1 WEEKLY HOURLY INVOICES
For Hourly Contracts, the weekly billing cycle starts Monday at 00:00 midnight UTC and ends Sunday at 23:59 UTC. Invoices for hours recorded on Upwork in the Work Diary are generated each Monday following the week in which the hours were billed (the "Hourly Invoice Deadline"). Freelancer irrevocably authorizes and instructs Upwork, as its agent, to (i) create an invoice on behalf of Freelancer for payment due based upon the hours that the freelancer recorded in the Work Diary before the Hourly Invoice Deadline (such invoice, the "Hourly Invoice"); and (ii) submit the Hourly Invoice on behalf of Freelancer to Freelancer's Client for payment. For the avoidance of doubt, the “Work Diary” is the section Upwork where hours can be recorded on an Hourly Contract.
By recording time in the Work Diary and allowing an Hourly Invoice to be created based on the time recorded, Freelancer represents and warrants that (y) Freelancer has completed the applicable Freelancer Services fully and satisfactorily; and (z) the hours Freelancer reports are true, accurate, and complete.
2.2 HOURLY INVOICE REVIEW
Client must review and approve or dispute the Hourly Invoice by 11:59 PM UTC of the Friday following submission of the Hourly Invoice. Payments will be held in escrow during the Dispute Period (defined below), providing four additional days to review and dispute the invoice before funds are released. During the Dispute Period, Client may initiate a Dispute as to some or all of the time invoiced on the Hourly Invoice.
On the Friday of the week following submission of the Hourly Invoice, Client will be deemed to have approved all undisputed amounts on the Hourly Invoice, and irrevocably instructed Upwork’s Affiliate, Upwork Escrow, to release escrow funds as described in this Agreement.
Notwithstanding the foregoing, all hours recorded and submitted by Payroll Employee on the Upwork website will be deemed approved by Client automatically, and Client authorizes and irrevocably instructs Upwork Escrow to release payments for those hours to be paid to the Staffing Provider by Client's account each Monday following the week in which the hours were worked. Client may not reject time or file a Dispute for Payroll Employee time worked.
3. MAKING OR RECEIVING A BONUS OR EXPENSE PAYMENT
Client may also make a bonus, tip, expense, or other miscellaneous payment to Freelancer using the Site. To make such a payment to a Freelancer, Client must follow the instructions and links on the Site and provide the information requested. If Client clicks to pay such a payment to Freelancer, Client irrevocably instructs Upwork Escrow to and Upwork Escrow will release escrow funds as described in this Agreement.
4. INSTRUCTIONS TO PAY IRREVOCABLE
Client’s instruction to Upwork Escrow and its wholly owned subsidiaries to pay a Freelancer is irrevocable. Such instruction is Client’s authorization to transfer funds to Freelancer from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected, and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Freelancer, Upwork Escrow will transfer funds to the Freelancer and that Upwork, Upwork Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Agreement, Client agrees that once Upwork Escrow or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.
5. RELEASE AND DELIVERY OF AMOUNTS IN ESCROW
In addition, Upwork Escrow is authorized to and will release applicable portions of the Client Escrow Account (each portion, a “Release”) to the Freelancer Escrow Account, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. The amount of the Release will be delivered to the Freelancer Escrow Account, in accordance with Freelancer’s and Client’s instructions, as applicable, these Escrow Instructions, and the other Terms of Service.
5.1 RELEASE CONDITIONS
As used in these Escrow Instructions, “Release Condition” means any of the following:
- Client and Freelancer have submitted joint written instructions for a Release.
- Client has approved all or a portion of the Freelancer's Hourly Invoice. This Release Condition will only apply to amounts invoiced by the Freelancer that Client has approved. Client’s failure to dispute an Hourly Invoice, or a portion of an Hourly Invoice, within the Dispute Period pursuant to this Agreement, or as otherwise provided in the Escrow Instructions, constitutes approval by the Client for purposes of this Release Condition.
- Freelancer is a Payroll Employee and has submitted an Hourly Invoice under a Services Contract that involves the use of Upwork Payroll.
- Upwork reviews Client's dispute of amounts invoiced on Freelancer's Hourly Invoice for an Hourly Contract with Work Diaries pursuant to this Agreement and determines that the time is related to the Hourly Contract requirements or Client's instructions.
- Client initiates a Dispute with respect to Freelancer's Hourly Invoice for an Hourly Contract without Work Diaries pursuant to this Agreement and Client and Freelancer resolve the dispute without the assistance of Upwork.
- Issuance of a final order of a court or arbitrator of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.
- We believe, in our sole discretion, that fraud, an illegal act, or a violation of Upwork's Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer hereby irrevocably authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.
6. PAYMENT PROTECTION
Upwork provides limited payment protection to Users as detailed in this Section 6 ("Hourly Payment Protection").
6.1 FOR FREELANCERS
In the rare event that a Freelancer’s Client does not make payment for legitimate services performed by a Freelancer, Upwork will provide Hourly Payment Protection to the Freelancer as detailed in this Section 6.1 as a membership benefit to foster fairness, reward loyalty, and encourage the Freelancer to continue to use the Site Services for their business needs. Hourly Payment Protection will be offered to a Freelancer only if all of the following criteria are met in Upwork's sole discretion:
- Both Client and Freelancer must have agreed to use Work Diaries upon acceptance of the Hourly Contract, as part of the terms.
- Client must have an Account in good standing and a valid and verified Payment Method at the start of the Hourly Contract, and must agree to automatically pay for hours billed by Freelancer through Work Diaries.
- Freelancer's Account must be in good standing at the time of the payment at issue, including, for example, completion of the identity verification process, tax information, and any other similar requests or requirements.
- Freelancer must have used Work Diaries enabled to document any and all hours covered by the Hourly Payment Protection for Freelancers.
- Prior to any Hourly Invoice being submitted, Freelancer must have annotated the screenshots documented in Work Diaries sufficient to demonstrate the work relates to the Hourly Contract.
- The screenshots documented by Work Diaries must be clearly related to the applicable Hourly Contract requirements or Client instructions.
- The number of hours billed in the Work Diaries must be within the hours authorized in the Hourly Contract for the week.
- Within five days after notification of rejected or unpaid time, Freelancer must submit a Dispute specifically identifying the documented work not otherwise paid for by their Client through the Escrow Services.
Upwork will investigate and determine in its sole discretion whether the above terms and conditions are met.
Hourly Payment Protection does not apply to: (a) hours invoiced for work not agreed to or authorized by Client; (b) bonus payments; (c) refunds; (d) manual time; (e) time added after Client has disputed a billing and before the resolution of that dispute; (6) Fixed-Price Contracts; (f) hours reported by Payroll Employees; (g) any payments on Hourly Contracts where the Hourly Contract or the services provided thereunder are prohibited by the Terms of Service; (h) hours billed by Freelancers whom Upwork believes, in its sole discretion, to be aware of or complicit in another User’s violation of this Agreement or the other Terms of Service; or (i) Freelancers whom Upwork believes, in its sole discretion, to be involved in actual fraudulent activities or abuse of this Payment Protection.
The maximum rate per hour protected by Upwork to Freelancer under the Hourly Payment Protection for Freelancers is the lesser of: (i) the rate provided in the Hourly Contract terms; (ii) the usual hourly rate billed by Freelancer on the Site across all Clients; and (iii) the going rate for the same skills on the Site in Freelancer's area (such determination to be made in Upwork's sole discretion). The maximum amount of coverage under the Hourly Payment Protection for Freelancers for the life of a relationship between the same Client and Freelancer is $2,500 or 50 hours logged in Work Diary at Freelancer's average hourly rate billed to Client, based on whichever is less.
6.2. FOR CLIENTS
Freelancer authorizes and instructs Upwork to adjust the Hourly Invoice to remove invoiced hours that are not (a) clearly related to either the Hourly Contract terms or work agreed to by the Client, and (b) within the hours authorized in the Hourly Contract for the week, subject to and conditioned on the following terms:
- Both Client and Freelancer must agree to use Work Diaries as part of the Hourly Contract terms.
- Client must have an Account in good standing and a valid and verified default Payment Method, and Client must agree to automatically pay for hours billed by Freelancer in the Hourly Invoices. Within the Hourly Invoice Review Period, Client must submit a Dispute specifically identifying the time billed that is not clearly related to either the Hourly Contract requirements or Client instructions in the Work Diaries.
Upwork will investigate and determine in its sole discretion whether the above terms and conditions are met.
Hourly Protection for Clients only protects Client from the obligation to pay for Freelancer’s work if the documented hours worked are not clearly related to the Hourly Contract requirements or Client instructions in the Work Diaries. If Client has requested that the Freelancer use functionality of the Site or third-party software that hides, blurs, or distorts images in the Work Diary, the screenshots will be deemed to be “clearly related” to the Hourly Contract requirements for purposes of the Client's eligibility for Hourly Payment Protection. Hourly Payment Protection for Clients does not create any warranties, express or implied, beyond those expressly stated in the User Agreement.
Hourly Protection for Clients does not apply to: (1) Fixed-Price Contracts; (2) Hourly Contracts using Upwork Payroll; or (3) hours billed by Freelancers who are aware of or complicit in another User's violation of this Agreement or the Terms of Service.
7. DISPUTES BETWEEN CLIENT AND FREELANCER
7.1 DISPUTES INITIATED VIA THE PLATFORM
For Hourly Contracts, Client may dispute Freelancer’s hours invoiced on the Hourly Invoice for the prior week (Sunday 12:00 a.m. midnight UTC to Sunday 11:59 p.m. UTC) during the five days following the close of the weekly invoice period (Monday 12:00 a.m. midnight UTC to Friday 11:59 p.m. UTC) (the “Dispute Period“). It is Client’s responsibility to review the Hourly Invoice of every Hourly Contract on a weekly basis and to file any disputes during the Dispute Period. Once the Dispute Period expires, Client will be deemed to have accepted the Freelancer Services and Freelancer Fees and can no longer dispute them. Disputes handled by Upwork can only address the hours billed, not the quality of the Freelancer Services or the Work Product provided under Hourly Contracts. If Client disputes Freelancer’s hours invoiced in the Hourly Invoice under an Hourly Contract during the Dispute Period, Client and Freelancer are encouraged to resolve the dispute between themselves. If Client and Freelancer fail to come to a resolution, Upwork will promptly investigate the Hourly Invoice and determine, in our sole discretion, whether an adjustment is appropriate consistent with Client’s and Freelancer’s instructions in these Escrow Instructions. Upwork's determination of such dispute shall be final.
If Client’s payment is unsuccessful, Upwork will review the Weekly Invoice to determine if it qualifies for Hourly Payment Protection. If Upwork, in its sole discretion, determines that the Weekly Invoice qualifies for Hourly Payment Protection, it will make payment to the Freelancer to cover the Hourly Invoice on behalf of the Client. In the event that Upwork makes payment on behalf of the Client, Freelancer hereby irrevocably assigns any right, title or interest in any payment from Client to Upwork for the amount paid by Upwork.
Client may choose to approve Freelancer’s Weekly Invoice prior to the end of the Dispute Period thereby releasing payment for the Weekly Invoice. If Client releases payment to Freelancer prior to the end of the Dispute Period, Client certifies that it approves the Weekly Invoice, accepts the work, and waives any further right to dispute the work or Weekly Invoice through Upwork's Dispute Assistance (defined below).
You acknowledge and agree that Upwork Escrow or its Affiliates may, at its sole discretion, withhold or delay payment in the event of dispute between a Client and a Freelancer. You further acknowledge and agree that Upwork and Affiliates are not and will not be a party to any dispute between a Client and Freelancer over an Hourly Invoice or Hourly Contract.
Clients may not dispute hours worked with respect to any worker engaged as an employee through Upwork Payroll. The Dispute Period does not apply and payments are released immediately upon completion of the Hourly Invoice for the prior week for Hourly Contracts where the Client has one or more Service Contracts using Upwork Payroll.
7.2 UPWORK DISPUTE ASSISTANCE
Non-binding dispute assistance (“Dispute Assistance”) is available within 30 days of the date of the last release of funds from Client to Freelancer. If Client or Freelancer contacts Upwork via support ticket within 30 days of the date of the last payment from Client to Freelancer and requests non-binding dispute assistance for any dispute among them (a “Dispute”), Upwork will attempt to assist Client and Freelancer by reviewing the Dispute and proposing a mutual, non-binding resolution. Upwork will only review the 30 days of work performed prior to the date a User requests Dispute Assistance.
- The Upwork Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation.
- If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
- The proposed resolution is non-binding; Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the proposed resolution.
- If Client or Freelancer rejects Upwork’s proposed, non-binding resolution then Client and/or Freelancer must pursue the Dispute independently.
- Upwork reserves the right to review the Freelancer’s work for 30 days prior to the date of the request for Dispute Assistance for compliance with Hourly Payment Protection requirements, and in its sole discretion, to make adjustments to invoices, and to direct Upwork Escrow to make appropriate releases to Client if it finds work that clearly does not relate Hourly Contract requirements or Client instructions in the Work Diaries or violations of the Terms of Service during its review of the work.
Dispute Assistance does not apply to Freelancer Services using Upwork Payroll.
8. REFUNDS AND CANCELLATIONS
Client and Freelancer are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in escrow, Freelancer may issue a refund via the Upwork platform up to the full amount paid on the Hourly Contract.
9. SERVICE FEES FOR ESCROW FUNDS RELEASED FOLLOWING DISPUTE ASSISTANCE
All Escrow funds released under Section 7.2 of these Escrow Instructions are subject to the normal Service Fees associated with Escrow Accounts, as detailed in the User Agreement and these Escrow Instructions.
10. NOTICES
All notices to a User required by these Escrow Instructions will be made via email sent by Upwork to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Upwork, for checking their registered email address and for responding to notices sent by Upwork to the User’s registered email address.
11. COOPERATION WITH THE DISPUTE ASSISTANCE PROGRAM
All claims, disputes or other disagreements between you and another User that are covered by the Dispute Assistance program must be resolved in accordance with the terms in the Dispute Assistance program. All claims filed or brought contrary to the Dispute Assistance program will be considered improperly filed, unless otherwise required by law, and Upwork will have the right to take any other action, including suspension or termination of your User Account, as defined in Section 1.4 of the User Agreement, which may impact your ability to withdraw funds, and any other legal action as Upwork deems appropriate in its sole discretion.
12. ABUSE
Upwork, in its sole discretion, reserves the right to suspend or terminate your User Account, as defined in Section 1.4 of the User Agreement, immediately upon giving notice to you if Upwork believes you may be abusing the Dispute Assistance program or as otherwise permitted by the Terms of Service, which may impact your ability to withdraw funds. However, any disputes for any contracts that existed prior to termination will be subject to the Terms of Service.
13. NO RESPONSIBILITY FOR SERVICES OR PAYMENTS
Upwork and Affiliates merely provide a platform for Internet payment services. Upwork and Affiliates do not have any responsibility or control over the Freelancer Services that Client purchases. Nothing in this Agreement deems or will be interpreted to deem Upwork or any Affiliate as Client’s or Freelancer’s agent with respect to any Freelancer Services, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. For example, Upwork does not guarantee the performance, functionality, quality, or timeliness of Freelancer Services or that a Client can or will make payments.
Fixed Price Service Contract Escrow Instructions
Version 4.0
Effective December 16, 2022
DownloadTable of Contents
This updated agreement will be effective on January 15, 2023. The prior version of this Agreement is posted immediately below, and will remain in effect until January 15, 2023.
If a Client and a Freelancer (defined below) enter into a Fixed-Price Contract on the Upwork site, these Fixed Price Service Contract Escrow Instructions (“Escrow Instructions”) apply. These Escrow Instructions govern Fixed-Price Escrow Accounts. If you have a Fixed-Price Contract and wish to make or receive a miscellaneous or bonus payment, those activities are governed by the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions. Fixed Price Direct Contracts are not governed by these Escrow Instructions and are instead governed by these Fixed Price Direct Contract Escrow Instructions.
To the extent permitted by applicable law, we may modify these Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Site unless otherwise stated. The version of these Escrow Instructions in effect on the date any Fixed-Price Contract is entered into apply to that contract. Please check the Site often for updates.
These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement or elsewhere in the Terms of Service, or have the meanings given such terms on the Site. For purposes of these Escrow Instructions, the term “Freelancer” means a User with a Freelancer and/or Agency account.
Escrow services are provided by Upwork Escrow Inc. (“Upwork Escrow”) pursuant to Internet Escrow Agent license no. 9635086, issued by the California Department of Financial Protection and Innovation.
1. DIGITAL SIGNATURE AND COMMUNICATIONS
By clicking to fund Escrow (a “Funding Approval”) or to accept a Fixed-Price Contract, Client and Freelancer are deemed to have executed these Escrow Instructions electronically, effective on the date Freelancer clicks to accept the engagement, pursuant to California Civil Code Section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as may be amended from time to time (the "E-Sign Act"). Doing so constitutes an acknowledgement that Client and Freelancer agree to conduct the transaction electronically, and are able to electronically receive, download, and print these Escrow Instructions. All references to the Escrow in these Escrow Instructions will include the initial Funding Approval and any additional Funding Approval for a Fixed-Price Contract.
Client and Freelancer agree that any written communications required herein may be provided electronically, including by email or support ticket, if applicable. Any communication sent to Upwork via U.S. mail or similar service will be deemed timely if received by Upwork by the applicable deadline.
2. ACCEPTANCE OF ESCROW INSTRUCTIONS
Once a Client and Freelancer have agreed to a Service Contract, and the Client and Freelancer have selected “Agree” on the send offer, accept offer, or pages relating to the Service Contract to accept the Terms of Service (including these Escrow Instructions), these Escrow Instructions constitute a binding agreement between Client, Freelancer, and Upwork Escrow (collectively, the “Parties”). Client and Freelancer must execute (by digital signature or by a method mutually agreed upon by both parties), and Upwork Escrow must agree to, any supplemental instruction or addition, deletion or alteration thereto in writing (collectively the “Supplemental Escrow Instruction”). Upwork Escrow reserves the right to reject any Supplemental Escrow Instruction.
3. DEPOSIT OF FUNDS INTO ESCROW
By sending a contract offer to Freelancer or accepting a contract offer from Freelancer, Client agrees to deposit funds for the amount of the first Milestone (as defined on the Site), or, if there are no Milestones, the full amount of the Service Contract. Additional Milestones may be funded on the same contract by Client by selecting the button to add an additional Milestone or to activate the next Milestone on the Site. Funds deposited by Client remain in the Client Escrow Account until they are released to the Freelancer Escrow Account or released to Client Escrow Account. Upwork Escrow will release funds held in escrow pursuant to Section 4 of these Escrow Instructions (Release and Delivery of Amounts in Escrow).
4. RELEASE AND DELIVERY OF AMOUNTS IN ESCROW
Client and Freelancer irrevocably authorize and instruct Upwork Escrow to release applicable portions of the Fixed-Price Escrow Account (each portion, a “Release”) to the Freelancer Escrow Account or Client Escrow Account, as applicable, based on the instructions described in this Section 4 (each such instruction, a “Release Condition”), or as otherwise required by applicable law or expressly permitted by the Terms of Service. The amount of each Release will be delivered to the applicable Escrow Account in accordance with Freelancer’s or Client’s instructions, these Escrow Instructions, and the other Terms of Service. All funds released pursuant to these Escrow Instructions are subject to applicable fees as described in the Fee and ACH Authorization Agreement.
4.1 RELEASE OF FUNDS TO FREELANCER
Freelancer and Client authorize and instruct Upwork Escrow to immediately release funds to the Freelancer Escrow Account on the occurrence of any of the following Release Conditions, such authorization and instruction to be irrevocable except as expressly provided in these Escrow Instructions:
- Client affirmatively selects the option to release funds for a Milestone or Service Contract to Freelancer.
- Client does not take any action for 14 calendar days from the date of Freelancer’s Release request, in which case Freelancer and Client agree that Upwork Escrow is authorized and instructed to immediately release to Freelancer the amount associated with the applicable Milestone in connection with such Release request.
- Client and Freelancer have jointly submitted Supplemental Escrow Instructions in writing and signed by both Client and Freelancer to Upwork Escrow at legalnotices@upwork.com requesting a Release to Freelancer Escrow Account, and Upwork Escrow has agreed to the Supplemental Escrow Instructions.
- Client has declined Arbitration or failed to make its Arbitration Payment (defined below) pursuant to the Dispute Assistance Program, and Freelancer has agreed to Arbitration and submitted its Arbitration Payment.
- Client has failed timely to respond to a Notice of Dispute (defined below) or otherwise failed to comply with the Dispute Assistance Program, as required by the Escrow Disputes Team.
- Submittal of a final award of an arbitrator appointed pursuant to the Dispute Assistance Program in favor of Freelancer or to the extent the award is in favor of Freelancer.
- Issuance of an order by a court, arbitrator, or other judicial body of apparent competent jurisdiction in favor of Freelancer, in whole or in part, to the extent required by the order.
- A condition to release funds to Freelancer described elsewhere in these Escrow Instructions applies.
4.2 RELEASE OF FUNDS TO CLIENT
Freelancer and Client authorize and instruct Upwork Escrow to immediately release funds to the Client Escrow Account on the occurrence of any of the following Release Conditions, such authorization and instruction to be irrevocable except as expressly provided in these Escrow Instructions:
- Freelancer cancels the Service Contract or accepts Client’s request to cancel the Service Contract (as described in Section 4.4), and funds for a Milestone or the Service Contract are held in Escrow.
- Client and Freelancer have jointly submitted Supplemental Escrow Instructions in writing and signed by both Client and Freelancer to Upwork Escrow at legalnotices@upwork.com requesting a Release to the Client Escrow Account, and Upwork Escrow has agreed to the Supplemental Escrow Instructions.
- Client and Freelancer agree to close the Service Contract without release of funds to the Freelancer Escrow Account.
- Freelancer has declined Arbitration or failed to make its Arbitration Payment pursuant to the Dispute Assistance Program.
- Freelancer has failed to timely respond to a request for a refund submitted through the platform, Notice of Dispute, or otherwise failed to comply with the Dispute Assistance Program, as required by the Escrow Disputes Team.
- Submittal of a final award of an arbitrator appointed pursuant to the Dispute Assistance Program in favor of Client or to the extent the award is in favor of Client.
- Issuance of an order of a court, arbitrator, or other judicial body of apparent competent jurisdiction in favor of Client, in whole or in part, to the extent required by the order.
- A condition to release funds to Client described elsewhere in these Escrow Instructions applies.
- For Service Contracts entered through Project Catalog, Client has failed to respond to a request for project requirements within 48 hours, at which point any funds in escrow will be released to Client and the contract will be closed.
4.3 DORMANT ENGAGEMENTS
To be fair to Clients and Freelancers, Upwork has a procedure for Fixed-Price Contracts that appear to be Dormant Engagements (as defined below). For purposes of determining dormant status, “activity” means a change to the Service Contract, including Milestone updates or requests, Fixed-Price Escrow Funding, Fixed-Price Escrow Release, Fixed-Price Escrow Refunds, Funding requests, Release requests, requests to close the Fixed-Price Contract, or actions under the Dispute Assistance Program.
A “Dormant Engagement” is a Fixed-Price Contract that has a Fixed-Price Escrow Account with a balance but has had no activity for 90 consecutive calendar days after the last Milestone date contained in the Service Contract terms (“Dormant Date”). Dormant Engagements are subject to the following rules:
- Upwork will notify Client when the Fixed-Price Contract becomes Dormant.
- If the Client does not take any action within 7 calendar days after the Dormant Date and notification, Upwork will notify Freelancer that the Fixed-Price Contract is Dormant (“Freelancer Notice of Dormant Engagement”).
- If Freelancer submits a Release request within 7 calendar days after the Freelancer Notice of Dormant Engagement and Client does not take any action for 14 calendar days from the date of the Release request, Freelancer and Client authorize and irrevocably instruct Upwork Escrow to immediately release to Freelancer the amount related to the Milestone with the Release request.
- If neither Freelancer nor Client take any action for 7 calendar days after the Freelancer Notice of Dormant Engagement, Freelancer and Client authorize and irrevocably instruct Upwork Escrow to immediately release escrow funds to the Client Escrow Account.
4.4 REFUNDS AND CANCELLATIONS
Client and Freelancer are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in Escrow, Client and Freelancer have the ability to cancel the Service Contract by clicking to close the Service Contract. If funds are held in Escrow, refunds and cancellations must be initiated by Client or Freelancer by following the steps in this Section.
4.4.1 REFUNDS AND CANCELLATIONS BY FREELANCER
If Freelancer wants to cancel a Service Contract with funds held in Escrow, Freelancer must select “End Contract” on the Upwork platform. When Freelancer ends the Service Contract on the Upwork platform, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to the Client Escrow Account all funds held in Escrow on the Service Contract at that time.
Freelancer may issue a refund to Client up to the amount paid on a Service Contract in the past 180 days by selecting “Give a Refund” on the Upwork platform. Freelancer may not issue a refund in an amount greater than the combined amount of funds held in Freelancer Escrow Account, funds for transactions pending to be placed in the Freelancer Escrow Account, and funds for submitted Milestones. By selecting the option to give a refund, Freelancer agrees that Upwork Escrow is authorized and irrevocably instructed to immediately release to the Client Escrow Account all Escrow funds currently held in the Freelancer Escrow Account and such funds as may be placed into the Freelancer Escrow Account once the funds are available, until the entire refund is provided to Client.
4.4.2 CANCELLATIONS BY CLIENT
If Client wants to cancel a Service Contract with funds held in Escrow, Client must select “End Contract” on the Upwork platform. Freelancer must select the option to either approve or dispute Client’s cancellation within 7 calendar days. If Freelancer approves the cancellation, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to the Client Escrow Account all funds held in Escrow on the Service Contract at that time. If Freelancer is using the Site on a mobile device and does not have the ability to select the option to approve or dispute the cancellation on the mobile website or application, Freelancer must dispute Client’s cancellation via support ticket within 7 calendar days. If Freelancer takes no action within 7 calendar days from the date notification of the cancellation is sent to Freelancer by Upwork, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to the Client Escrow Account all funds held in Escrow on the Service Contract at that time. If Freelancer disputes the cancellation, Freelancer and Client will be offered Upwork Dispute Assistance (as described in Section 6).
4.5 VIOLATION OF UPWORK TERMS OF SERVICE OR LAW
Freelancer and Client acknowledge and agree that if, in Upwork Escrow’s sole discretion, Upwork Escrow believes that fraud, illegal activity, or a violation of the Terms of Service has been committed or is being committed or attempted, then Client and Freelancer irrevocably authorize and instruct Upwork Escrow to take such actions as deemed appropriate, in Upwork Escrow’s sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation, to return the funds associated with such acts to their source of payment, as further described in Section 6.3 of the User Agreement. This Section 4.5 allows Upwork Escrow—as permitted by law but otherwise in its sole discretion—to return funds to Client’s Payment Method, continue to hold funds in Escrow, release funds to the Freelancer Escrow Account, or to turn funds over to third parties such as law enforcement.
5. INSTRUCTIONS IRREVOCABLE
Client and Freelancer are deemed to and hereby agree that the instruction to Upwork Escrow and its wholly owned subsidiaries to release funds is irrevocable, except as explicitly provided in these Escrow Instructions. Without limiting the foregoing, Client’s instruction to Upwork Escrow and its wholly owned subsidiaries to release payment to Freelancer is irrevocable. Such instruction is Client’s authorization to transfer funds to the Freelancer Escrow Account from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected, and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to release payment to the Freelancer Escrow Account, Upwork Escrow will transfer funds to the Freelancer Escrow Account and that Upwork, Upwork Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of the services described in these Escrow Instructions and the Terms of Service, Client agrees that once Upwork Escrow or its subsidiaries or Affiliates have charged Client’s Payment Method, the charge is non-refundable. Client and Freelancer further agree that the only manner in which an instruction to Upwork Escrow is revocable is if Client and Freelancer have jointly submitted Supplemental Escrow Instructions in writing and signed by both Client and Freelancer to Upwork Escrow at legalnotices@upwork.com requesting that Upwork Escrow take specific action with respect to the funds in its possession, and Upwork Escrow has agreed to the Supplemental Escrow Instructions.
6. DISPUTE ASSISTANCE PROGRAM
If Client and Freelancer fail to come to a mutual resolution by way of the Refund and Cancellation process as stated in Section 4.4, Upwork provides the dispute assistance program administered by Upwork and described in this Section 6 (the “Dispute Assistance Program”) as a mechanism to resolve the dispute. If the funds in dispute are held in Escrow, the Dispute Assistance Program will proceed as described in Section 6.1. If the funds in dispute have been released, the Dispute Assistance Program will proceed as described in Section 6.2. The Dispute Assistance Program is not available for disputes filed or initiated past the Dispute Assistance deadlines, as set forth in Sections 6.1 and 6.2, as applicable. The Dispute Assistance Program is offered as a form of non-binding assistance to facilitate communication and potential resolution of disputes between clients and freelancers. The Dispute Assistance Program as administered by Upwork in this Section 6 does not evaluate the quality or functionality of work and cannot render binding judgment or determination as to the parties’ respective rights to the disputed funds. Fixed-Price Contracts with Enterprise Clients or Upwork Business Clients (defined in the Fee and ACH Authorization Agreement) are not subject to Sections 6 and 7, regarding Upwork’s Dispute Assistance Program and Arbitration, respectively.
6.1 DISPUTE OF FUNDS IN ESCROW
This Section applies to disputes filed by Clients or Freelancers over funds that are held in Escrow as of the date the dispute is filed (“Escrow Dispute”). The scope of the Escrow Dispute may cover the entirety of the Fixed-Price Contract and all Milestones previously funded, approved, and released. In the event of an Escrow Dispute, funds in Escrow will remain in Escrow while the Dispute Assistance Program or Arbitration, as applicable, is being administered. The Dispute Assistance Program for an Escrow Dispute will be administered as set forth below:
- Escrow Dispute Assistance Deadline: Escrow Disputes must be initiated before the funds in Escrow have been released in order to be eligible for the Dispute Assistance Program under this Section. Disputes over funds that have been released from Escrow may be eligible for the Dispute Assistance Program, as described more fully below in Section 6.2.
- Filing A Dispute
- Freelancers & Agencies: Freelancers and Agencies may initiate an Escrow Dispute when a Client ends the project with an escrow balance or a Client fails to release a Milestone payment, despite any purported delivery of work. More information on how to file a dispute on active or ended contracts can be found here.
- Clients: Clients may initiate an Escrow Dispute by requesting an Escrow refund on the platform or by releasing a partial milestone payment. If the Freelancer or Agency disputes the Escrow refund or offers a partial Escrow refund that is subsequently rejected by the Client, the case will be referred to the Dispute Assistance Program. More information on how to file a dispute on active or ended contracts can be found here.
- Notice of Escrow Dispute: Once a dispute has been filed, the Escrow dispute team that administers the Disputes Assistance Program (“Escrow Disputes Team”) will notify Client and Freelancer in writing of the Escrow dispute via ticket and request information and supporting documentation from the parties (“Notice of Escrow Dispute”).
- Lack of Participation: Client and Freelancer must respond to the Notice of Escrow Dispute within 5 calendar days. If one party does not timely respond to the Notice of Escrow Dispute, Client and Freelancer agree that the lack of timely response acts as an irrevocable authorization and instruction to Upwork Escrow to release the funds in Escrow from the non-responding party to the responding party.
- Non-Binding Assistance: After both Client and Freelancer respond to the Notice of Escrow Dispute, the Escrow Disputes Team will review the documentation submitted and any information available on the Site that pertains to the dispute. The Escrow Disputes Team will facilitate communication between the parties and help assess whether mutual resolution is possible. The Escrow Disputes Team does not evaluate the quality or functionality of work and cannot render binding judgment or determination as to the parties’ respective rights to the disputed funds.
- Resolution of Escrow Dispute: If the Escrow Disputes Team is able to facilitate a resolution between Client and Freelancer, and if Client and Freelancer agree in writing to the resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the agreed-upon resolution. This will result in a closure of the Escrow dispute ticket.
- No Resolution: If no resolution of the Escrow dispute has been reached within 21 calendar days of the Notice of Escrow Dispute, or if the Escrow Disputes Team determines in its sole discretion that no resolution between the parties is possible through the Dispute Assistance Program, the Escrow Disputes Team will issue a “Notice of Non-Resolution” and the Escrow dispute will be referred to Arbitration, as set forth in Section 7 below.
6.2 DISPUTE OF FUNDS RELEASED
This Section applies to disputes filed by Clients or Freelancers over funds that have been released from Escrow as of the date the dispute is filed (“Dispute Mediation”). The scope of the Dispute Mediation may cover any portion of or the entirety of the Fixed Price Contract and any Milestone previously funded, approved, and released. The Dispute Assistance Program for Dispute Mediation will be administered as set forth below:
- Dispute Mediation Deadline: Dispute Mediation must be initiated within 30 calendar days of the date that funds in Escrow have been released to the Freelancer in order to be eligible for the Dispute Assistance Program under this Section 6.2. Any dispute over funds that have been released from Escrow more than 30 days prior to the date the dispute is filed is no longer eligible for submission to the Dispute Assistance Program.
- Initiating Dispute Mediation:
- Requesting a Refund: Clients may initiate Dispute Mediation for disputes over funds that have been released from Escrow by requesting a refund on the platform. If the Freelancer rejects the request for a refund, grants a partial refund that is subsequently rejected by the Client, or takes no action, the dispute will be referred to the Dispute Assistance Program. More information on how to file a dispute on active or ended contracts can be found here.
- Contacting Support: In addition to the above method, any User may contact Upwork Support for assistance initiating Dispute Mediation.
- Notice of Dispute Mediation: Once a dispute has been initiated, the Upwork Dispute Mediation team (“Dispute Mediation Team”) will notify Client and Freelancer of the Dispute Mediation in writing and request information and supporting documentation from the parties (“Notice of Dispute Mediation”). Client and Freelancer must respond to the Notice of Dispute Mediation within 5 calendar days. Failure to respond to the Notice of Dispute Mediation within 5 calendar days will result in the suspension of the non-participating party’s User account, as defined in Section 1.4 of the User Agreement, which may impact the non-participating party’s ability to withdraw funds.
- Non-Binding Assistance: Once both Client and Freelancer respond to the Notice of Dispute Mediation, the Dispute Mediation Team will review the documentation submitted and any information available on the Site that pertains to the dispute. The Dispute Mediation Team will facilitate communication between the parties and help assess whether mutual resolution is possible. The Dispute Mediation Team does not evaluate the quality or functionality of work and cannot render binding judgment or determination as to the parties’ respective rights to the disputed funds.
- Resolution of Dispute Mediation: If the Dispute Mediation Team is able to facilitate a resolution between Client and Freelancer, and if Client and Freelancer agree in writing to the resolution, the Dispute Mediation Team will send the applicable party instructions on transferring payment, if any, to an Escrow Account. By agreeing in writing to the resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the agreed-upon resolution. This will result in the closure of the Dispute Mediation ticket.
- No Resolution: If no resolution of the dispute has been reached within 21 calendar days of the Notice of Dispute Mediation, or if the Dispute Mediation Team determines in its sole discretion that no resolution between the parties is possible through the Dispute Assistance Program, the Dispute Mediation Team will issue a “Notice of Non-Resolution,” and the dispute will be referred to Arbitration, as set forth in Section 7 below.
7. ARBITRATION
After a “Notice of Non-Resolution” is issued from the Upwork Dispute Assistance Program, Freelancer and Client each has the right to demand Arbitration of a Fixed-Price Contract if the Fixed-Price Escrow associated with the Fixed-Price Contract has been funded at least once. The demand for Arbitration must be communicated to the Escrow Disputes Team or Dispute Mediation Team, as applicable, within 7 calendar days of the date of the Notice of Non-Resolution. In any Arbitration, each of you and the other User is a “Dispute Party,” and collectively you are the “Dispute Parties.”
Any Arbitration under this Section 7 will be conducted by a neutral third-party Arbitration service (the "Arbitration Service Provider"), Ejudicate, Inc. d/b/a BRIEF, unless Upwork chooses another Arbitration service. The Arbitration rules and fees are set out in Appendix A to these Escrow Instructions.
7.1 ARBITRATION INITIATION PROCEDURE
- Notice of Arbitration Demand: Client and Freelancer have 7 calendar days after receiving the Notice of Non-Resolution to notify Upwork via a dispute ticket of their intent to initiate Arbitration. The Upwork Dispute Team will then provide a “Notice of Arbitration Demand” to both Client and Freelancer and provide the Dispute Parties with information on how to submit Client’s or Freelancer’s applicable portion of the costs of Arbitration (the “Arbitration Payment”). To proceed with Arbitration, Client and Freelancer must each make the Arbitration Payment within 5 calendar days of the Notice of Arbitration Demand.
- Upwork Escrow Disputes:
- Rejection of Arbitration or non-participation by both parties: If both Dispute Parties decline to take the matter to Arbitration or do not make the Arbitration Payment within 5 calendar days of the Notice of Arbitration Demand, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release the funds in Escrow, if any, to the Client’s primary payment method on file. This will close the Escrow Dispute ticket. To the extent the parties wish to take legal action to enforce their contractual rights, Upwork may provide contact information on file for Client or Freelancer, consistent with Upwork’s Privacy Policy.
- Rejection of Arbitration or non-participation by one party: If one party elects to take the matter to Arbitration and has submitted the Arbitration Payment (“Participating Party”), and the other party rejects Arbitration, fails to submit the Arbitration Payment or does not respond within 5 calendar days of the Notice of Arbitration Demand (“Non-Participating Party”), Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release the funds in Escrow, if any, to the Participating Party. This will close the Escrow Dispute ticket. To the extent the parties wish to take legal action to enforce their contractual rights, Upwork may provide contact information on file for Client or Freelancer, consistent with Upwork’s Privacy Policy.
- Upwork Dispute Mediation
- Rejection of Arbitration or non-participation by both parties: If both Dispute Parties decline to take the matter to Arbitration or do not respond to Upwork’s Notice of Arbitration Demand within 5 calendar days, the Dispute Mediation ticket will be closed. To the extent the parties wish to take legal action to enforce their contractual rights, Upwork may provide contact information on file of Client or Freelancer, consistent with Upwork’s Privacy Policy.
- Rejection of Arbitration or non-participation by one party: If one party elects to take the matter to Arbitration and has submitted the Arbitration Payment, and the other party rejects Arbitration, fails to submit the Arbitration Payment or does not respond within 5 calendar days of the Notice of Arbitration Demand, Upwork will suspend the Non-Participating Party’s User account, as defined in Section 1.4 of the User Agreement, which may impact the Non-Participating Party’s ability to withdraw funds.
- Arbitration Instructions: If both parties timely submit the Arbitration Payment, Upwork will instruct the parties on the process for initiating the Arbitration with the Arbitration Service Provider. After the parties have initiated the Arbitration, Upwork will provide the Arbitration Service Provider with relevant documentation, including information collected in the Escrow Dispute or Dispute Mediation process and contents of the Contract Room. The scope of Arbitration may cover the entirety of the Fixed-Price Contract and all Milestones previously funded, approved, and released.
7.2 AUTHORIZATION TO COLLECT ARBITRATION FEES
When you electronically authorize payment of the invoice for the Arbitration Payment as emailed to you by Upwork, you irrevocably authorize and instruct (i) Upwork Escrow or its Affiliates, as your agent, to charge your Payment Method for the amount of the payment for credit to your Escrow Account; and (ii) Upwork Escrow, as escrow agent, to immediately release that amount from your Escrow Account and pay it to Upwork. If Upwork Escrow or its Affiliates cannot collect sufficient funds to fulfill the Escrow release instructions for any reason, Upwork Escrow has no obligation with respect to making the payment to Upwork on your behalf, and you will be considered as not having paid the Arbitration Payment as required by this Section 7.2.
7.3 LIMITATIONS PERIOD FOR ARBITRATIONS
If both Client and Freelancer fail to demand Arbitration within 7 calendar days of the Notice of Non-Resolution, fail to timely submit the Arbitration Payments, or fail to respond to the Notice of Arbitration Demand within 5 calendar days, then the dispute is no longer eligible for Arbitration under this process, and Client and Freelancer will be deemed to have irrevocably authorized and instructed Upwork Escrow to, and Upwork Escrow will, release all funds in the Fixed-Price Escrow Account to the Client’s Escrow Account.
7.4 ARBITRATION AWARD
Client and Freelancer agree that the arbitrator of the Arbitration Service Provider is authorized to decide the Escrow Dispute or Dispute Mediation within its sole discretion. You agree that the arbitrator’s award is final and binding, that it may be entered in and enforced by any court of competent jurisdiction, and that if the arbitrator delivers notice of any award to Upwork, then Upwork and Upwork Escrow have the right to treat such notice as conclusive and act in reliance thereon.
8. SERVICE FEES FOR ESCROW FUNDS RELEASED FOLLOWING DISPUTE ASSISTANCE
All Escrow funds released under the Dispute Assistance Program are subject to the normal Service Fees associated with Escrow Accounts, as detailed in the User Agreement and these Escrow Instructions.
9. NOTICES
All notices to a User required by these Escrow Instructions will be made via email sent by Upwork to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Upwork, for checking their registered email address and for responding to notices sent by Upwork to the User’s registered email address.
10. COOPERATION WITH THE DISPUTE ASSISTANCE PROGRAM
All claims, disputes or other disagreements between you and another User that are covered by the Dispute Assistance Program must be resolved in accordance with the terms in the Dispute Assistance Program. All claims filed or brought contrary to the Dispute Assistance Program will be considered improperly filed, unless otherwise required by law, and Upwork will have the right to take any other action, including suspension or termination of your User Account, as defined in Section 1.4 of the User Agreement, which may impact your ability to withdraw funds, and any other legal action as Upwork deems appropriate in its sole discretion.
11. ABUSE
Upwork, in its sole discretion, reserves the right to suspend or terminate your User Account, as defined in Section 1.4 of the User Agreement, immediately upon giving notice to you if Upwork believes you may be abusing the Dispute Assistance Program or as otherwise permitted by the Terms of Service, which may impact your ability to withdraw funds. However, any disputes for any Fixed-Price Contracts that existed prior to termination will be subject to the Terms of Service.
12. NO RESPONSIBILITY FOR SERVICES OR PAYMENTS
Upwork and Affiliates merely provide a platform for Internet payment services. Upwork and Affiliates do not have any responsibility or control over the Freelancer Services that Client purchases. Nothing in this Agreement deems or will be interpreted to deem Upwork or any Affiliate as Client’s or Freelancer’s agent with respect to any Freelancer Services, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. For example, Upwork does not guarantee the performance, functionality, quality, or timeliness of Freelancer Services or that a Client can or will make payments.
APPENDIX A
RULES AND FEES FOR ARBITRATIONS CONDUCTED BY THE ARBITRATION SERVICE PROVIDER, BRIEF
This Appendix A summarizes certain pertinent contractual terms that BRIEF has agreed to in providing arbitration services to Clients and Freelancers who choose BRIEF as their arbitrator under the Fixed-Price Escrow Instructions. BRIEF is solely a third-party arbitration service provider. Upwork and its Affiliates have no direct or indirect affiliate, partnership, joint venture, ownership or control relationship with or interest in BRIEF, and therefore Upwork and its Affiliates assume no responsibility or liability for the services of BRIEF.
ARBITRATOR SELECTION
All Arbitrations by Brief are conducted by a single arbitrator. The arbitrator is selected by Brief based on jurisdiction of the matter, skillset, experience, impartiality and neutrality, amongst other factors. The arbitrator is required to render a ruling fairly, independently, impartially and without any conflict of interest. The arbitrator will provide a ruling over the matter, but cannot provide independent legal advice to any party.
RULES OF THE PROCEEDINGS
- The amount at issue in any claims or counterclaims relating to a Fixed-Price Contract will be limited to the sum still held in Escrow and the sum previously released from Escrow for the Fixed-Price Contract.
- The language of the Arbitration will be English.
- All proceedings will be “on documents,” unless the parties opt for and fund payment for the additional cost of a live hearing (see fees below). The evidence admissible will consist solely and exclusively of documents and communications between the parties and related to the contract, and testimony if a live hearing is conducted. The arbitrator's award will be based on the supporting, relevant, admissible documents and statements. Once arbitration is initiated, the failure of one party or the other to respond to an arbitrator request or otherwise continue to participate in the Arbitration will not prevent the arbitrator from making an award.
- Each party is given an opportunity to submit, in writing or through digital representations, the party’s testimony and supporting evidence through the BRIEF process and platform. Each party is also given an opportunity to rebut the other party’s testimony or supporting evidence. All testimony submitted to BRIEF is submitted under penalty of perjury. Failure to respond to a claim will lead to a waiver of any defenses and may result in an entry of default.
- All properly submitted testimony and evidence will be reviewed by the arbitrator after the parties complete their submissions.
- The Arbitration generally will conclude within 30 calendar days from the date of submission to the Arbitration Service Provider, with reasonable extensions provided only as necessary.
- All awards will be final and non-appealable, and will be enforceable by any court of competent jurisdiction.
COMMUNICATIONS, DOCUMENTS, AND TESTIMONY
- All communications between the parties and the arbitrator shall occur over the BRIEF platform. The arbitrator will not engage in ex-parte communications; rather, communications by either party to the arbitrator will be shared with all parties.
- Any and all submissions of testimony must be submitted through the BRIEF platform, which can support the following document types: .png, .jpg, .jpeg, .pdf.
- The parties do not engage in direct discovery, including interrogatories, requests for admissions or production, or depositions. At the arbitrator’s sole discretion, the arbitrator may permit or require the submission of additional written statements from the parties (“Additional Arguments”). The arbitrator is not required to permit Additional Arguments. If the arbitrator permits Additional Arguments, the arbitrator will establish the schedule and rules for the submission of such Additional Arguments, including any limits on the length of such Additional Arguments.
THE AWARD
BRIEF will provide Upwork and the parties with a written award promptly upon the conclusion of the Arbitration, and in no event later than 14 calendar days after conclusion of the Arbitration. At the arbitrator’s sole discretion, the arbitrator may provide written reasons for the Award to the parties. The arbitrator may also issue orders to protect the confidentiality of proprietary information. Once rendered, an arbitrator’s award is final, and cannot be appealed. The award will only be modified or edited after it is issued if such change is due to the arbitrator’s error or otherwise at the arbitrator’s discretion.
FEES
The fee for Arbitrations by BRIEF is $675 for claims with less than $20,000 in dispute. An additional fee is assessed for claims that exceed $20,000, which will be calculated as a percentage of the claim amount. The Client and Freelancer may also choose to pay a $450 fee to have a live hearing with the arbitrator as part of the Arbitration; this additional service and cost is completely optional.
All fees will be collected at the start of the arbitration. For all claims, Client and Freelancer will each be responsible for paying $337.50. They will also share the cost of the live hearing if they choose that option. Upwork will cover the additional initial costs of each arbitration.
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The below version of the Instructions are in effect until January 15, 2023.
*Upwork is committed to helping users experiencing hardships as a result of COVID-19. To that end, Upwork may extend or accommodate requests for extension of deadlines imposed by Section 6 of these Fixed-Price Escrow Instructions and related to disputes subject to the Dispute Assistance Program.*
If a Client and a Freelancer (defined below) enter into a Fixed-Price Contract on the Upwork site, these Fixed Price Service Contract Escrow Instructions (“Escrow Instructions”) apply. These Escrow Instructions govern Fixed-Price Escrow Accounts. If you have a Fixed-Price Contract and wish to make or receive a miscellaneous or bonus payment, those activities are governed by the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions. Fixed Price Direct Contracts are not governed by these Escrow Instructions and are instead governed by these Fixed Price Direct Contract Escrow Instructions.
To the extent permitted by applicable law, we may modify these Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Site unless otherwise stated. The version of these Escrow Instructions in effect on the date any Fixed-Price Contract is entered into apply to that contract. Please check the Site often for updates.
These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement or elsewhere in the Terms of Service, or have the meanings given such terms on the Site. For purposes of these Escrow Instructions, the term “Freelancer” means a User with a Freelancer and/or Agency account.
Escrow services are provided by Upwork Escrow Inc. (“Upwork Escrow”) pursuant to Internet Escrow Agent license no. 9635086, issued by the California Department of Financial Protection and Innovation.
1. DIGITAL SIGNATURE AND COMMUNICATIONS
By clicking to fund Escrow (a “Funding Approval”) or to accept a Fixed-Price Contract, Client and Freelancer are deemed to have executed these Escrow Instructions electronically, effective on the date Freelancer clicks to accept the engagement, pursuant to California Civil Code Section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as may be amended from time to time (the "E-Sign Act"). Doing so constitutes an acknowledgement that Client and Freelancer agree to conduct the transaction electronically, and are able to electronically receive, download, and print these Escrow Instructions. All references to the Escrow in these Escrow Instructions will include the initial Funding Approval and any additional Funding Approval for a Fixed-Price Contract.
Client and Freelancer agree that any written communications required herein may be provided electronically, including by email or support ticket, if applicable. Any communication sent to Upwork via U.S. mail or similar service will be deemed timely if received by Upwork by the applicable deadline.
2. ACCEPTANCE OF ESCROW INSTRUCTIONS
Once a Client and Freelancer have agreed to a Service Contract, and the Client and Freelancer have selected “Agree” on the send offer, accept offer, or pages relating to the Service Contract to accept the Terms of Service (including these Escrow Instructions), these Escrow Instructions constitute a binding agreement between Client, Freelancer, and Upwork Escrow (collectively, the “Parties”). Client and Freelancer must execute (by digital signature or by a method mutually agreed upon by both parties), and Upwork Escrow must agree to, any supplemental instruction or addition, deletion or alteration thereto in writing (collectively the “Supplemental Escrow Instruction”). Upwork Escrow reserves the right to reject any Supplemental Escrow Instruction.
3. DEPOSIT OF FUNDS INTO ESCROW
By sending a contract offer to Freelancer or accepting a contract offer from Freelancer, Client agrees to deposit funds for the amount of the first Milestone (as defined on the Site), or, if there are no Milestones, the full amount of the Service Contract. Additional Milestones may be funded on the same contract by Client by selecting the button to add an additional Milestone or to activate the next Milestone on the Site. Funds deposited by Client remain in the Client Escrow Account until they are released to the Freelancer Escrow Account or released to Client Escrow Account. Upwork Escrow will release funds held in escrow pursuant to Section 4 of these Escrow Instructions (Release and Delivery of Amounts in Escrow).
4. RELEASE AND DELIVERY OF AMOUNTS IN ESCROW
Client and Freelancer irrevocably authorize and instruct Upwork Escrow to release applicable portions of the Fixed-Price Escrow Account (each portion, a “Release”) to the Freelancer Escrow Account or Client Escrow Account, as applicable, based on the instructions described in this Section 4 (each such instruction, a “Release Condition”), or as otherwise required by applicable law or expressly permitted by the Terms of Service. The amount of each Release will be delivered to the applicable Escrow Account in accordance with Freelancer’s or Client’s instructions, these Escrow Instructions, and the other Terms of Service. All funds released pursuant to these Escrow Instructions are subject to applicable fees as described in the Fee and ACH Authorization Agreement.
4.1 RELEASE OF FUNDS TO FREELANCER
Freelancer and Client authorize and instruct Upwork Escrow to immediately release funds to the Freelancer Escrow Account on the occurrence of any of the following Release Conditions, such authorization and instruction to be irrevocable except as expressly provided in these Escrow Instructions:
- Client affirmatively selects the option to release funds for a Milestone or Service Contract to Freelancer.
- Client does not take any action for 14 calendar days from the date of Freelancer’s Release request, in which case Freelancer and Client agree that Upwork Escrow is authorized and instructed to immediately release to Freelancer the amount associated with the applicable Milestone in connection with such Release request.
- Client and Freelancer have jointly submitted Supplemental Escrow Instructions in writing and signed by both Client and Freelancer to Upwork Escrow at legalnotices@upwork.com requesting a Release to Freelancer Escrow Account, and Upwork Escrow has agreed to the Supplemental Escrow Instructions.
- Client has declined Arbitration or failed to make its Arbitration Payment (defined below) pursuant to the Dispute Assistance Program, and Freelancer has agreed to Arbitration and submitted its Arbitration Payment.
- Client has failed timely to respond to a Notice of Dispute (defined below) or otherwise failed to comply with the Dispute Assistance Program, as required by the Escrow Disputes Team.
- Submittal of a final award of an arbitrator appointed pursuant to the Dispute Assistance Program in favor of Freelancer or to the extent the award is in favor of Freelancer.
- Issuance of an order by a court, arbitrator, or other judicial body of apparent competent jurisdiction in favor of Freelancer, in whole or in part, to the extent required by the order.
- A condition to release funds to Freelancer described elsewhere in these Escrow Instructions applies.
4.2 RELEASE OF FUNDS TO CLIENT
Freelancer and Client authorize and instruct Upwork Escrow to immediately release funds to the Client Escrow Account on the occurrence of any of the following Release Conditions, such authorization and instruction to be irrevocable except as expressly provided in these Escrow Instructions:
- Freelancer cancels the Service Contract or accepts Client’s request to cancel the Service Contract (as described in Section 4.4), and funds for a Milestone or the Service Contract are held in Escrow.
- Client and Freelancer have jointly submitted Supplemental Escrow Instructions in writing and signed by both Client and Freelancer to Upwork Escrow at legalnotices@upwork.com requesting a Release to the Client Escrow Account, and Upwork Escrow has agreed to the Supplemental Escrow Instructions.
- Client and Freelancer agree to close the Service Contract without release of funds to the Freelancer Escrow Account.
- Freelancer has declined Arbitration or failed to make its Arbitration Payment pursuant to the Dispute Assistance Program.
- Freelancer has failed to timely respond to a request for a refund submitted through the platform, Notice of Dispute, or otherwise failed to comply with the Dispute Assistance Program, as required by the Escrow Disputes Team.
- Submittal of a final award of an arbitrator appointed pursuant to the Dispute Assistance Program in favor of Client or to the extent the award is in favor of Client.
- Issuance of an order of a court, arbitrator, or other judicial body of apparent competent jurisdiction in favor of Client, in whole or in part, to the extent required by the order.
- A condition to release funds to Client described elsewhere in these Escrow Instructions applies.
- For Service Contracts entered through Project Catalog, Client has failed to respond to a request for project requirements within 48 hours, at which point any funds in escrow will be released to Client and the contract will be closed.
4.3 DORMANT ENGAGEMENTS
To be fair to Clients and Freelancers, Upwork has a procedure for Fixed-Price Contracts that appear to be Dormant Engagements (as defined below). For purposes of determining dormant status, “activity” means a change to the Service Contract, including Milestone updates or requests, Fixed-Price Escrow Funding, Fixed-Price Escrow Release, Fixed-Price Escrow Refunds, Funding requests, Release requests, requests to close the Fixed-Price Contract, or actions under the Dispute Assistance Program.
A “Dormant Engagement” is a Fixed-Price Contract that has a Fixed-Price Escrow Account with a balance but has had no activity for 90 consecutive calendar days after the last Milestone date contained in the Service Contract terms (“Dormant Date”). Dormant Engagements are subject to the following rules:
- Upwork will notify Client when the Fixed-Price Contract becomes Dormant.
- If the Client does not take any action within 7 calendar days after the Dormant Date and notification, Upwork will notify Freelancer that the Fixed-Price Contract is Dormant (“Freelancer Notice of Dormant Engagement”).
- If Freelancer submits a Release request within 7 calendar days after the Freelancer Notice of Dormant Engagement and Client does not take any action for 14 calendar days from the date of the Release request, Freelancer and Client authorize and irrevocably instruct Upwork Escrow to immediately release to Freelancer the amount related to the Milestone with the Release request.
- If neither Freelancer nor Client take any action for 7 calendar days after the Freelancer Notice of Dormant Engagement, Freelancer and Client authorize and irrevocably instruct Upwork Escrow to immediately release escrow funds to the Client Escrow Account.
4.4 REFUNDS AND CANCELLATIONS
Client and Freelancer are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in Escrow, Client and Freelancer have the ability to cancel the Service Contract by clicking to close the Service Contract. If funds are held in Escrow, refunds and cancellations must be initiated by Client or Freelancer by following the steps in this Section.
4.4.1 REFUNDS AND CANCELLATIONS BY FREELANCER
If Freelancer wants to cancel a Service Contract with funds held in Escrow, Freelancer must select “End Contract” on the Upwork platform. When Freelancer ends the Service Contract on the Upwork platform, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to the Client Escrow Account all funds held in Escrow on the Service Contract at that time.
Freelancer may issue a refund to Client up to the amount paid on a Service Contract in the past 180 days by selecting “Give a Refund” on the Upwork platform. Freelancer may not issue a refund in an amount greater than the combined amount of funds held in Freelancer Escrow Account, funds for transactions pending to be placed in the Freelancer Escrow Account, and funds for submitted Milestones. By selecting the option to give a refund, Freelancer agrees that Upwork Escrow is authorized and irrevocably instructed to immediately release to the Client Escrow Account all Escrow funds currently held in the Freelancer Escrow Account and such funds as may be placed into the Freelancer Escrow Account once the funds are available, until the entire refund is provided to Client.
4.4.2 CANCELLATIONS BY CLIENT
If Client wants to cancel a Service Contract with funds held in Escrow, Client must select “End Contract” on the Upwork platform. Freelancer must select the option to either approve or dispute Client’s cancellation within 7 calendar days. If Freelancer approves the cancellation, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to the Client Escrow Account all funds held in Escrow on the Service Contract at that time. If Freelancer is using the Site on a mobile device and does not have the ability to select the option to approve or dispute the cancellation on the mobile website or application, Freelancer must dispute Client’s cancellation via support ticket within 7 calendar days. If Freelancer takes no action within 7 calendar days from the date notification of the cancellation is sent to Freelancer by Upwork, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to the Client Escrow Account all funds held in Escrow on the Service Contract at that time. If Freelancer disputes the cancellation, Freelancer and Client will be offered Upwork Dispute Assistance (as described in Section 6).
4.5 VIOLATION OF UPWORK TERMS OF SERVICE OR LAW
Freelancer and Client acknowledge and agree that if, in Upwork Escrow’s sole discretion, Upwork Escrow believes that fraud, illegal activity, or a violation of the Terms of Service has been committed or is being committed or attempted, then Client and Freelancer irrevocably authorize and instruct Upwork Escrow to take such actions as deemed appropriate, in Upwork Escrow’s sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation, to return the funds associated with such acts to their source of payment, as further described in Section 6.3 of the User Agreement. This Section 4.5 allows Upwork Escrow—as permitted by law but otherwise in its sole discretion—to return funds to Client’s Payment Method, continue to hold funds in Escrow, release funds to the Freelancer Escrow Account, or to turn funds over to third parties such as law enforcement.
5. INSTRUCTIONS IRREVOCABLE
Client and Freelancer are deemed to and hereby agree that the instruction to Upwork Escrow and its wholly owned subsidiaries to release funds is irrevocable, except as explicitly provided in these Escrow Instructions. Without limiting the foregoing, Client’s instruction to Upwork Escrow and its wholly owned subsidiaries to release payment to Freelancer is irrevocable. Such instruction is Client’s authorization to transfer funds to the Freelancer Escrow Account from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected, and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to release payment to the Freelancer Escrow Account, Upwork Escrow will transfer funds to the Freelancer Escrow Account and that Upwork, Upwork Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of the services described in these Escrow Instructions and the Terms of Service, Client agrees that once Upwork Escrow or its subsidiaries or Affiliates have charged Client’s Payment Method, the charge is non-refundable. Client and Freelancer further agree that the only manner in which an instruction to Upwork Escrow is revocable is if Client and Freelancer have jointly submitted Supplemental Escrow Instructions in writing and signed by both Client and Freelancer to Upwork Escrow at legalnotices@upwork.com requesting that Upwork Escrow take specific action with respect to the funds in its possession, and Upwork Escrow has agreed to the Supplemental Escrow Instructions.
6. DISPUTE ASSISTANCE PROGRAM
If Client and Freelancer fail to come to a mutual resolution by way of the Refund and Cancellation process as stated in Section 4.4, Upwork provides the dispute assistance program administered by Upwork and described in this Section 6 (the “Dispute Assistance Program”) as a mechanism to resolve the dispute. If the funds in dispute are held in Escrow, the Dispute Assistance Program will proceed as described in Section 6.1. If the funds in dispute have been released, the Dispute Assistance Program will proceed as described in Section 6.2. The Dispute Assistance Program is not available for disputes filed or initiated past the Dispute Assistance deadlines, as set forth in Sections 6.1 and 6.2, as applicable. The Dispute Assistance Program is offered as a form of non-binding assistance to facilitate communication and potential resolution of disputes between clients and freelancers. The Dispute Assistance Program as administered by Upwork in this Section 6 does not evaluate the quality or functionality of work and cannot render binding judgment or determination as to the parties’ respective rights to the disputed funds. Fixed-Price Contracts with Enterprise Clients or Upwork Business Clients (defined in the Fee and ACH Authorization Agreement) are not subject to Sections 6 and 7, regarding Upwork’s Dispute Assistance Program and Arbitration, respectively.
6.1 DISPUTE OF FUNDS IN ESCROW
This Section applies to disputes filed by Clients or Freelancers over funds that are held in Escrow as of the date the dispute is filed (“Escrow Dispute”). The scope of the Escrow Dispute may cover the entirety of the Fixed-Price Contract and all Milestones previously funded, approved, and released. In the event of an Escrow Dispute, funds in Escrow will remain in Escrow while the Dispute Assistance Program or Arbitration, as applicable, is being administered. The Dispute Assistance Program for an Escrow Dispute will be administered as set forth below:
- Escrow Dispute Assistance Deadline: Escrow Disputes must be initiated before the funds in Escrow have been released in order to be eligible for the Dispute Assistance Program under this Section. Disputes over funds that have been released from Escrow may be eligible for the Dispute Assistance Program, as described more fully below in Section 6.2.
- Filing A Dispute
- Freelancers & Agencies: Freelancers and Agencies may initiate an Escrow Dispute when a Client ends the project with an escrow balance or a Client fails to release a Milestone payment, despite any purported delivery of work. More information on how to file a dispute on active or ended contracts can be found here.
- Clients: Clients may initiate an Escrow Dispute by requesting an Escrow refund on the platform or by releasing a partial milestone payment. If the Freelancer or Agency disputes the Escrow refund or offers a partial Escrow refund that is subsequently rejected by the Client, the case will be referred to the Dispute Assistance Program. More information on how to file a dispute on active or ended contracts can be found here.
- Notice of Escrow Dispute: Once a dispute has been filed, the Escrow dispute team that administers the Disputes Assistance Program (“Escrow Disputes Team”) will notify Client and Freelancer in writing of the Escrow dispute via ticket and request information and supporting documentation from the parties (“Notice of Escrow Dispute”).
- Lack of Participation: Client and Freelancer must respond to the Notice of Escrow Dispute within 5 calendar days. If one party does not timely respond to the Notice of Escrow Dispute, Client and Freelancer agree that the lack of timely response acts as an irrevocable authorization and instruction to Upwork Escrow to release the funds in Escrow from the non-responding party to the responding party.
- Non-Binding Assistance: After both Client and Freelancer respond to the Notice of Escrow Dispute, the Escrow Disputes Team will review the documentation submitted and any information available on the Site that pertains to the dispute. The Escrow Disputes Team will facilitate communication between the parties and help assess whether mutual resolution is possible. The Escrow Disputes Team does not evaluate the quality or functionality of work and cannot render binding judgment or determination as to the parties’ respective rights to the disputed funds.
- Resolution of Escrow Dispute: If the Escrow Disputes Team is able to facilitate a resolution between Client and Freelancer, and if Client and Freelancer agree in writing to the resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the agreed-upon resolution. This will result in a closure of the Escrow dispute ticket.
- No Resolution: If no resolution of the Escrow dispute has been reached within 21 calendar days of the Notice of Escrow Dispute, or if the Escrow Disputes Team determines in its sole discretion that no resolution between the parties is possible through the Dispute Assistance Program, the Escrow Disputes Team will issue a “Notice of Non-Resolution” and the Escrow dispute will be referred to Arbitration, as set forth in Section 7 below.
6.2 DISPUTE OF FUNDS RELEASED
This Section applies to disputes filed by Clients or Freelancers over funds that have been released from Escrow as of the date the dispute is filed (“Dispute Mediation”). The scope of the Dispute Mediation may cover any portion of or the entirety of the Fixed Price Contract and any Milestone previously funded, approved, and released. The Dispute Assistance Program for Dispute Mediation will be administered as set forth below:
- Dispute Mediation Deadline: Dispute Mediation must be initiated within 30 calendar days of the date that funds in Escrow have been released to the Freelancer in order to be eligible for the Dispute Assistance Program under this Section 6.2. Any dispute over funds that have been released from Escrow more than 30 days prior to the date the dispute is filed is no longer eligible for submission to the Dispute Assistance Program.
- Initiating Dispute Mediation:
- Requesting a Refund: Clients may initiate Dispute Mediation for disputes over funds that have been released from Escrow by requesting a refund on the platform. If the Freelancer rejects the request for a refund, grants a partial refund that is subsequently rejected by the Client, or takes no action, the dispute will be referred to the Dispute Assistance Program. More information on how to file a dispute on active or ended contracts can be found here.
- Contacting Support: In addition to the above method, any User may contact Upwork Support for assistance initiating Dispute Mediation.
- Notice of Dispute Mediation: Once a dispute has been initiated, the Upwork Dispute Mediation team (“Dispute Mediation Team”) will notify Client and Freelancer of the Dispute Mediation in writing and request information and supporting documentation from the parties (“Notice of Dispute Mediation”). Client and Freelancer must respond to the Notice of Dispute Mediation within 5 calendar days. Failure to respond to the Notice of Dispute Mediation within 5 calendar days will result in the suspension of the non-participating party’s User account, as defined in Section 1.4 of the User Agreement, which may impact the non-participating party’s ability to withdraw funds.
- Non-Binding Assistance: Once both Client and Freelancer respond to the Notice of Dispute Mediation, the Dispute Mediation Team will review the documentation submitted and any information available on the Site that pertains to the dispute. The Dispute Mediation Team will facilitate communication between the parties and help assess whether mutual resolution is possible. The Dispute Mediation Team does not evaluate the quality or functionality of work and cannot render binding judgment or determination as to the parties’ respective rights to the disputed funds.
- Resolution of Dispute Mediation: If the Dispute Mediation Team is able to facilitate a resolution between Client and Freelancer, and if Client and Freelancer agree in writing to the resolution, the Dispute Mediation Team will send the applicable party instructions on transferring payment, if any, to an Escrow Account. By agreeing in writing to the resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the agreed-upon resolution. This will result in the closure of the Dispute Mediation ticket.
- No Resolution: If no resolution of the dispute has been reached within 21 calendar days of the Notice of Dispute Mediation, or if the Dispute Mediation Team determines in its sole discretion that no resolution between the parties is possible through the Dispute Assistance Program, the Dispute Mediation Team will issue a “Notice of Non-Resolution,” and the dispute will be referred to Arbitration, as set forth in Section 7 below.
7. ARBITRATION
After a “Notice of Non-Resolution” is issued from the Upwork Dispute Assistance Program, Freelancer and Client each has the right to demand Arbitration of a Fixed-Price Contract if the Fixed-Price Escrow associated with the Fixed-Price Contract has been funded at least once. The demand for Arbitration must be communicated to the Escrow Disputes Team or Dispute Mediation Team, as applicable, within 7 calendar days of the date of the Notice of Non-Resolution. In any Arbitration, each of you and the other User is a “Dispute Party,” and collectively you are the “Dispute Parties.”
Any Arbitration under this Section 7 will be conducted by a neutral third-party Arbitration service, the American Arbitration Association (the “AAA”), unless Upwork chooses another Arbitration service. The Arbitration rules and fees are set out in Appendix A to these Escrow Instructions.
7.1 ARBITRATION INITIATION PROCEDURE
- Notice of Arbitration Demand: Client and Freelancer have 7 calendar days after receiving the Notice of Non-Resolution to notify Upwork via a dispute ticket of their intent to initiate Arbitration. The Upwork Dispute Team will then provide a “Notice of Arbitration Demand” to both Client and Freelancer and provide the Dispute Parties with information on how to submit Client’s or Freelancer’s applicable portion of the costs of Arbitration (the “Arbitration Payment”). To proceed with Arbitration, Client and Freelancer must each make the Arbitration Payment within 5 calendar days of the Notice of Arbitration Demand.
- Upwork Escrow Disputes:
- Rejection of Arbitration or non-participation by both parties: If both Dispute Parties decline to take the matter to Arbitration or do not make the Arbitration Payment within 5 calendar days of the Notice of Arbitration Demand, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release the funds in Escrow, if any, to the Client’s primary payment method on file. This will close the Escrow Dispute ticket. To the extent the parties wish to take legal action to enforce their contractual rights, Upwork may provide contact information on file for Client or Freelancer, consistent with Upwork’s Privacy Policy.
- Rejection of Arbitration or non-participation by one party: If one party elects to take the matter to Arbitration and has submitted the Arbitration Payment (“Participating Party”), and the other party rejects Arbitration, fails to submit the Arbitration Payment or does not respond within 5 calendar days of the Notice of Arbitration Demand (“Non-Participating Party”), Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release the funds in Escrow, if any, to the Participating Party. This will close the Escrow Dispute ticket. To the extent the parties wish to take legal action to enforce their contractual rights, Upwork may provide contact information on file for Client or Freelancer, consistent with Upwork’s Privacy Policy.
- Upwork Dispute Mediation
- Rejection of Arbitration or non-participation by both parties: If both Dispute Parties decline to take the matter to Arbitration or do not respond to Upwork’s Notice of Arbitration Demand within 5 calendar days, the Dispute Mediation ticket will be closed. To the extent the parties wish to take legal action to enforce their contractual rights, Upwork may provide contact information on file of Client or Freelancer, consistent with Upwork’s Privacy Policy.
- Rejection of Arbitration or non-participation by one party: If one party elects to take the matter to Arbitration and has submitted the Arbitration Payment, and the other party rejects Arbitration, fails to submit the Arbitration Payment or does not respond within 5 calendar days of the Notice of Arbitration Demand, Upwork will suspend the Non-Participating Party’s User account, as defined in Section 1.4 of the User Agreement, which may impact the Non-Participating Party’s ability to withdraw funds.
- Arbitration Instructions: If both parties timely submit the Arbitration Payment, Upwork will instruct the parties on the process for initiating the Arbitration with the Arbitration service provider. After the parties have initiated the Arbitration, Upwork will provide the arbitrator with relevant documentation, including information collected in the Escrow Dispute or Dispute Mediation process and contents of the Contract Room. The scope of Arbitration may cover the entirety of the Fixed-Price Contract and all Milestones previously funded, approved, and released.
7.2 AUTHORIZATION TO COLLECT ARBITRATION FEES
When you electronically authorize payment of the invoice for the Arbitration Payment as emailed to you by Upwork, you irrevocably authorize and instruct (i) Upwork Escrow or its Affiliates, as your agent, to charge your Payment Method for the amount of the payment for credit to your Escrow Account; and (ii) Upwork Escrow, as escrow agent, to immediately release that amount from your Escrow Account and pay it to Upwork. If Upwork Escrow or its Affiliates cannot collect sufficient funds to fulfill the Escrow release instructions for any reason, Upwork Escrow has no obligation with respect to making the payment to Upwork on your behalf, and you will be considered as not having paid the Arbitration Payment as required by this Section 7.2.
7.3 LIMITATIONS PERIOD FOR ARBITRATIONS
If both Client and Freelancer fail to demand Arbitration within 7 calendar days of the Notice of Non-Resolution, fail to timely submit the Arbitration Payments, or fail to respond to the Notice of Arbitration Demand within 5 calendar days, then the dispute is no longer eligible for Arbitration under this process, and Client and Freelancer will be deemed to have irrevocably authorized and instructed Upwork Escrow to, and Upwork Escrow will, release all funds in the Fixed-Price Escrow Account to the Client’s Escrow Account.
7.4 ARBITRATION AWARD
Client and Freelancer agree that the arbitrator is authorized to decide the Escrow Dispute or Dispute Mediation within its discretion. You agree that the arbitrator’s award is final, that it may be entered in and enforced by any court of competent jurisdiction, and that if the arbitrator delivers notice of any award to Upwork, then Upwork and Upwork Escrow have the right to treat such notice as conclusive and act in reliance thereon.
8. SERVICE FEES FOR ESCROW FUNDS RELEASED FOLLOWING DISPUTE ASSISTANCE
All Escrow funds released under the Dispute Assistance Program are subject to the normal Service Fees associated with Escrow Accounts, as detailed in the User Agreement and these Escrow Instructions.
9. NOTICES
All notices to a User required by these Escrow Instructions will be made via email sent by Upwork to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Upwork, for checking their registered email address and for responding to notices sent by Upwork to the User’s registered email address.
10. COOPERATION WITH THE DISPUTE ASSISTANCE PROGRAM
All claims, disputes or other disagreements between you and another User that are covered by the Dispute Assistance Program must be resolved in accordance with the terms in the Dispute Assistance Program. All claims filed or brought contrary to the Dispute Assistance Program will be considered improperly filed, unless otherwise required by law, and Upwork will have the right to take any other action, including suspension or termination of your User Account, as defined in Section 1.4 of the User Agreement, which may impact your ability to withdraw funds, and any other legal action as Upwork deems appropriate in its sole discretion.
11. ABUSE
Upwork, in its sole discretion, reserves the right to suspend or terminate your User Account, as defined in Section 1.4 of the User Agreement, immediately upon giving notice to you if Upwork believes you may be abusing the Dispute Assistance Program or as otherwise permitted by the Terms of Service, which may impact your ability to withdraw funds. However, any disputes for any Fixed-Price Contracts that existed prior to termination will be subject to the Terms of Service.
12. NO RESPONSIBILITY FOR SERVICES OR PAYMENTS
Upwork and Affiliates merely provide a platform for Internet payment services. Upwork and Affiliates do not have any responsibility or control over the Freelancer Services that Client purchases. Nothing in this Agreement deems or will be interpreted to deem Upwork or any Affiliate as Client’s or Freelancer’s agent with respect to any Freelancer Services, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. For example, Upwork does not guarantee the performance, functionality, quality, or timeliness of Freelancer Services or that a Client can or will make payments.
APPENDIX A
RULES AND FEES FOR ARBITRATIONS CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION
This Appendix A summarizes certain pertinent contractual terms that the American Arbitration Association (the "AAA") has agreed to in providing arbitration services to Clients and Freelancers who choose the AAA as their arbitrator under the Fixed-Price Escrow Instructions. The AAA is solely a third-party arbitration service provider. Upwork and its Affiliates have no direct or indirect affiliate, partnership, joint venture, ownership or control relationship with or interest in the AAA. Upwork and its Affiliates assume no responsibility or liability for the services of the AAA.
Appointment of the Arbitrator
All Arbitrations by the AAA are conducted by a single arbitrator.
The AAA will provide the parties the opportunity to participate in arbitrator selection through a strike-and-rank process of pre-qualified arbitrators.
- Each party will be provided with an identical list of five potential arbitrators and may have up to 3 calendar days to strike two potential arbitrators and rank the remaining in order of preference. If any party does not return the list within 5 calendar days, all persons named therein will be deemed acceptable.
- From among the arbitrators approved on both lists and in accordance with the designated order of mutual preference, the AAA will invite the arbitrator to serve. If for any reason the appointment cannot be made according to this procedure, the AAA will have the power to make the appointment without submission of additional lists.
- Any arbitrator will be impartial and independent, will perform his or her duties with diligence and in good faith, and will be subject to disqualification for any grounds provided by applicable law.
- Neither Upwork nor any party or party representative will communicate ex parte with an arbitrator or candidate for arbitrator concerning the Arbitration. Notwithstanding the above, Upwork and an arbitrator may communicate ex parte solely for the purpose of enabling the arbitrator to access and use the Site, and the Contract Room, and the information contained therein, associated with the Fixed-Price Contract in dispute.
RULES OF THE PROCEEDINGS
- The amount at issue in any claims or counterclaims relating to a Fixed-Price Contract will be limited to the sum still held in Escrow and the sum previously released from Escrow for the Fixed-Price Contract.
- The Arbitration Plaintiff may submit a statement of the case (“Initial Statement”), not to exceed 1,500 words, within 3 business days of being notified that the case has been filed with the AAA. The Arbitration Plaintiff will post the Initial Statement to the Contract Room.
- The Arbitration Respondent may submit a response (“Response Statement”), not to exceed 1,500 words, within 3 business days of receiving the Initial Statement. The Arbitration Respondent will post the Response Statement to the Contract Room.
- Either party may elect to use its dispute notice form or dispute response (as applicable) in lieu of creating a separate Initial Statement or Response Statement for the Arbitration. No party may submit new or different claims after the case has been initiated.
- All proceedings will be “on documents” and the evidence admissible will consist solely and exclusively of Contract Room contents at the time the Dispute was submitted to the Upwork dispute resolution process. Any communication taking place outside the Contract Room must have been posted to the Contract Room within 24 hours of the original transmission of that communication in order to be admissible. Once Arbitration is initiated, the arbitrator can make an award based solely on the Contract Room contents and material submitted to initiate the Arbitration. The failure of one party or the other to respond to an arbitrator request or otherwise continue to participate in the Arbitration will not prevent the arbitrator from making an award.
- The language of the Arbitration will be English.
- At the arbitrator’s sole discretion, the arbitrator may permit or require the submission of additional written statements from the parties (“Additional Arguments”). The arbitrator is not required to permit Additional Arguments. If the arbitrator permits Additional Arguments, the arbitrator will establish the schedule and rules for the submission of such Additional Arguments, including any limits on the length of such Additional Arguments.
- The Arbitration will conclude within 30 calendar days from the date of submission to the AAA, and the arbitrator may grant an extension for good cause not to exceed 14 calendar days.
- Communications by either party to the arbitrator will be shared with all parties.
- All awards will be final, non-appealable and enforceable by any court of competent jurisdiction.
- Neither the AAA nor any arbitrator in a proceeding under these rules and procedures is a necessary or proper party in judicial proceedings relating to the Arbitration. The parties to an Arbitration under these rules and procedures will be deemed to have consented that neither the AAA nor any arbitrator will be liable to any party in any action for damages or injunctive relief for any act or omission in connection with any Arbitration under these rules and procedures.
The Award
The AAA will provide Upwork and the parties with a written award promptly upon the conclusion of the Arbitration, and in no event later than 14 calendar days after conclusion of the Arbitration. At the arbitrator’s sole discretion, the arbitrator may provide, but is not required to provide, written reasons for the Award to the parties.
Fees
The fee for Arbitrations by the AAA is $875, regardless of the amount at issue.
Each of the Dispute Parties and Upwork will share the cost equally ($291 each).
Client and Freelancer will solely bear and pay any other costs each incurs related to the Arbitration.
Fixed Price Direct Contract Escrow Instructions
Version 2.1
Effective July 28, 2021
DownloadTable of Contents
If a Client and a Freelancer enter into a Fixed Price Direct Contract, these Fixed Price Direct Contract Escrow Instructions (“Escrow Instructions”) apply. These Escrow Instructions govern Escrow Accounts for Fixed Price Direct Contracts. Service Contracts are governed by the applicable escrow instructions.
To the extent permitted by applicable law, we may modify these Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.
These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. These Escrow Instructions do not apply to Fixed-Price Contracts or Hourly Contracts.
Escrow services are provided by Upwork Escrow Inc. (“Upwork Escrow”) pursuant to Internet Escrow Agent license no. 9635086, issued by the California Department of Financial Protection and Innovation.
1. DIGITAL SIGNATURE
By clicking to accept a Direct Contract, Client and Freelancer are deemed to have executed these Escrow Instructions electronically, effective on the date Client clicks to accept the Direct Contract, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as may be amended from time to time (the "E-Sign Act"). Doing so constitutes an acknowledgement that Client and Freelancer agree to conduct the transaction electronically, and are able to electronically receive, download, and print these Escrow Instructions.
2. FUNDING ESCROW
By accepting a Direct Contract, Client agrees to deposit funds for the amount of the first milestone (as defined on the Site) or the full amount of the Direct Contract if there is only one milestone. Additional milestones, if any, may be funded on the same contract by the Client by selecting the button to add an additional milestone or to activate the next milestone. Funds deposited by Clients remain in the Client Escrow Account until they are released to the Freelancer Escrow Account or released to the Client. Upwork Escrow will not release funds held in escrow except as described in these Escrow Instructions.
3. RELEASE AND DELIVERY OF AMOUNTS IN ESCROW
Client and Freelancer irrevocably authorize and instruct Upwork Escrow to release applicable portions of the Direct Contract Escrow Account (each portion, a “Release”) to their Freelancer Escrow Account or Client Escrow Account, as applicable, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. If the funds are released to the Client Escrow Account, they will be automatically returned to the Client’s Payment Method that was charged to fund escrow. The amount of the Release will be delivered to the applicable Escrow Account in accordance with Freelancer’s or Client’s instructions, as applicable, these Escrow Instructions, and the other Terms of Service.
3.1 RELEASE CONDITIONS
As used in these Escrow Instructions, “Release Condition” means any of the following:
- Client clicks to release funds to Freelancer.
- Client does not take any action for 14 days from the date of a Freelancer’s Release request, in which case Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Freelancer the amount associated with the applicable milestone in connection with such Release request.
- Freelancer or Client initiates a dispute pursuant to Section 6 before a payment has been released to Freelancer, in which case the funds will be released in accordance with the outcome of the dispute.
- Freelancer cancels the contract before a payment has been released to Freelancer, in which case the funds are to be returned to the Client.
- Client cancels the contract before a payment has been released to Freelancer and Freelancer approves the request or takes no action within 7 days, in which case the funds are to be released to the Client.
- Issuance of the final order of a court or arbitrator of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.
- We believe, in our sole discretion, that fraud, an illegal act, or a violation of Upwork's Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer irrevocably authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.
4. INSTRUCTIONS IRREVOCABLE
On the occurrence of a Release Condition, Client and Freelancer are deemed to and hereby agree that the instruction to Upwork Escrow and its wholly owned subsidiaries to release funds is irrevocable. Without limiting the foregoing, Client’s instruction to Upwork Escrow and its wholly owned subsidiaries to pay a Freelancer is irrevocable. Such instruction is Client’s authorization to transfer funds to Freelancer from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Freelancer, Upwork Escrow will transfer funds to the Freelancer and that Upwork, Upwork Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Agreement, Client agrees that once Upwork Escrow or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.
5. DORMANT ENGAGEMENTS
To be fair to Clients and Freelancers, Upwork has a procedure for Direct Contracts that appear Dormant (as defined below). For purposes of determining Dormant status, “activity” means business term or milestone updates or requests, Direct Contract Escrow Funding, Release requests, or requests to close the Contract.
A "Dormant Engagement" is a Direct Contract that has either not been signed within 7 calendar days of sending or that has a Direct Contract Escrow Account with a balance but has had no activity for 90 consecutive days after the last milestone date contained in the business terms. Dormant Engagements will be closed subject to the following rules:
- Direct Contracts that remain unsigned by at least one party after 7 days will be considered dormant and expire.
- For contracts with no activity for 45 consecutive days after the last milestone, Upwork will notify Freelancer on or around the 45th day that the Direct Contract has become dormant (“Freelancer Notice of Dormant Engagement”).
- If Freelancer submits a Release request after the Freelancer Notice of Dormant Engagement and before the contract is closed, and Client does not take any action for 14 calendar days from the date of the Release request, Freelancer and Client authorize and irrevocably instruct Upwork Escrow to immediately release to Freelancer the amount related to the Milestone with the Release request.
- If neither Freelancer nor Client take any action for 45 calendar days after the Freelancer Notice of Dormant Engagement, Freelancer and Client authorize and irrevocably instruct Upwork Escrow to immediately release escrow funds to the Client and close the contract.
- All funds released to Freelancer under this Section, Dormant Engagements, will be subject to the applicable Fees as described in the Direct Contract Terms.
6. REFUNDS AND CANCELLATIONS
Client and Freelancer are encouraged to come to a mutual agreement if refunds or cancellations are necessary. In the event that Client and Freelancer are unable to come to an agreement on their own, the following process will apply.
DISPUTE ASSISTANCE PROGRAM
If Client and Freelancer fail to come to a mutual resolution by way of the Refund and Cancellation process, Upwork provides the dispute assistance program administered by Upwork and described in this Section 6 (the “Dispute Assistance Program”) as a mechanism to resolve the dispute. If the funds in dispute are held in Escrow, the Dispute Assistance Program will proceed as described in Section 6.1. If the funds in dispute have been released, the Dispute Assistance Program will proceed as described in Section 6.2. The Dispute Assistance Program is not available for disputes filed or initiated past the Dispute Assistance deadlines, as set forth in Sections 6.1 and 6.2, as applicable. The Dispute Assistance Program is offered as a form of non-binding assistance to facilitate communication and potential resolution of disputes between clients and freelancers. The Dispute Assistance Program as administered by Upwork in this Section 6 does not evaluate the quality or functionality of work and cannot render binding judgment or determination as to the parties’ respective rights to the disputed funds.
6.1 DISPUTE OF FUNDS IN ESCROW
This Section applies to disputes filed by Clients or Freelancers over funds that are held in Escrow as of the date the dispute is filed (“Escrow Dispute”). In the event of an Escrow Dispute, funds in Escrow will remain in Escrow while the Dispute Assistance Program is being administered. The Dispute Assistance Program for an Escrow Dispute will be administered as set forth below:
- Escrow Dispute Assistance Deadline: Escrow Disputes must be received before the funds in Escrow have been released in order to be eligible for the Dispute Assistance Program under this Section. Disputes over funds that have been released from Escrow may be eligible for assistance under Section 6.2 below.
- Filing A Dispute
- Freelancers & Agencies: Freelancers and Agencies may initiate an Escrow Dispute within 7 calendar days of when a Client ends a project with an escrow balance or a Client fails to release a Milestone payment, despite any purported delivery of work. More information on how to file a dispute on active or ended contracts can be found here.
- Clients: Clients may initiate an Escrow Dispute by requesting an Escrow refund on the platform. If the Freelancer or Agency disputes the Escrow refund or offers a partial Escrow refund that is subsequently rejected by the Client, the case will be referred to the Dispute Assistance Program. More information on how to file a dispute on active or ended contracts can be found here
- Notice of Escrow Dispute: Once a dispute has been filed, the Escrow dispute team that administers the Disputes Assistance Program (“Escrow Disputes Team”) will notify Client and Freelancer in writing of the Escrow dispute via ticket and request information and supporting documentation from the parties (“Notice of Escrow Dispute”).
- Lack of Participation: Client and Freelancer must respond to the Notice of Escrow Dispute within 5 calendar days. If one party does not timely respond to the Notice of Escrow Dispute, Client and Freelancer authorize and irrevocably instruct Upwork Escrow to release the funds in Escrow to the responding party.
- Non-Binding Assistance: After both Client and Freelancer respond to the Notice of Escrow Dispute, the Escrow Disputes Team will review the documentation submitted and any information available on the Site that pertains to the dispute. The Escrow Disputes Team will facilitate communication between the parties and help assess whether mutual resolution is possible. The Escrow Disputes Team does not evaluate the quality or functionality of work and cannot render binding judgment or determination as to the parties’ respective rights to the disputed funds.
- Resolution of Escrow Dispute: If the Escrow Disputes Team is able to facilitate a resolution between Client and Freelancer, and if Client and Freelancer agree in writing to the resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the agreed-upon resolution. This will result in a closure of the Escrow dispute ticket.
- No Resolution: If no resolution of the Escrow dispute has been reached within 21 calendar days of the Notice of Escrow Dispute, or if the Escrow Disputes Team determines in its sole discretion that no resolution between the parties is possible through the Dispute Assistance Program, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in equal amounts to Client and Freelancer. This will result in a closure of the Escrow dispute ticket.
6.2 DISPUTE OF FUNDS RELEASED
This Section applies to disputes between Clients or Freelancers over funds that have been released from Escrow as of the date the dispute is filed. If there are no funds in escrow, the dispute procedures outlined in Section 6.1 above will not apply. However, Freelancer may issue a refund up to the full amount paid on the Direct Contract at any time, and Upwork may facilitate communication between the Client and Freelancer if Client contacts Upwork to request a refund within 7 calendar days of the release of the funds at issue.
7. NOTICES
All notices to a User required by these Escrow Instructions will be made via email sent by Upwork to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Upwork, for checking their email and for responding to notices sent by Upwork to the User’s registered email address.
8. ABUSE
Upwork, in its sole discretion, reserves the right to suspend or terminate your Account immediately upon giving notice to you if Upwork believes you may be abusing the Dispute Assistance Program or as otherwise permitted by the Terms of Service. However, any Disputes for any Fixed-Price Contracts that existed prior to termination will be subject to the Terms of Service.
9. NO RESPONSIBILITY FOR SERVICES OR PAYMENTS
Upwork and Affiliates merely provide a platform for Internet payment services. Upwork and Affiliates do not have any responsibility or control over the Freelancer Services that Client purchases. Nothing in this Agreement deems or will be interpreted to deem Upwork or any Affiliate as Client’s or Freelancer’s agent with respect to any Freelancer Services, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. For example, Upwork does not guarantee the performance, functionality, quality, or timeliness of Freelancer Services or that a Client can or will make payments.
Hourly Direct Contract Escrow Instructions
Version 1.1
Effective July 28, 2021
DownloadTable of Contents
If Client and Freelancer enter into an Hourly Direct Contract, these Hourly Direct Contract Escrow Instructions apply. These Hourly Direct Contract Escrow Instructions govern Direct Contract Escrow Accounts for Hourly Direct Contracts. All other contracts, including Fixed-Price Direct Contracts and Service Contracts (as defined in the User Agreement), are governed by the applicable escrow instructions.
To the extent permitted by applicable law, we may modify these Hourly Direct Contract Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.
These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. These Hourly Direct Contract Escrow Instructions do not apply to Fixed-Price Direct Contracts or Service Contracts.
Escrow services are provided by Upwork Escrow Inc. (“Upwork Escrow”) pursuant to Internet Escrow Agent license no. 9635086, issued by the California Department of Financial Protection and Innovation.
1. DIGITAL SIGNATURE
By clicking to send an offer for or to accept an Hourly Direct Contract, Client and Freelancer are deemed to have executed this Agreement electronically, effective on the date Client clicks to accept an Hourly Direct Contract, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as amended from time to time (the “E-Sign Act”). Doing so constitutes an acknowledgement that Client and Freelancer agree to conduct the transaction electronically, and are able to electronically receive, download, and print these Hourly Direct Contract Escrow Instructions.
2. FUNDING ESCROW
By accepting an Hourly Direct Contract, Client agrees to deposit funds totaling the Freelancer’s hourly rate as agreed to by the parties multiplied by the weekly hourly limit agreed to by the parties (“Direct Contract Deposit”). Client authorizes Upwork Escrow to hold the Direct Contract Deposit in escrow through the term of the Hourly Direct Contract and further authorizes Upwork Escrow to release funds from the Direct Contract Deposit to the Freelancer in any instance(s) where the Freelancer invoices hours of work and the invoice is neither disputed or funded for payment by Client in accordance with these Hourly Escrow Instructions. In any such instance(s), Client agrees that Upwork Escrow may charge to Client’s Payment Method or Client will otherwise deposit additional funds into the Client Escrow Account to replenish the Direct Contract Deposit. Freelancer and Client agree and authorize Upwork Escrow to hold an amount equal to the Direct Contract Deposit in escrow through the termination of the Direct Contract, at which point the parties agree the Direct Contract Deposit will be released to Client if all payments due under the Hourly Direct Contract have been paid to Freelancer.
In addition to the Direct Contract Deposit, Client agrees to fund through Client Escrow Account payments to Freelancer on a weekly basis for the amount of Freelancer’s applicable weekly invoices (“Direct Contract Weekly Funds”). If Client approves the submitted invoices in accordance with the below provisions, Upwork Escrow will release the Direct Contract Weekly Funds to Freelancer.
2.1 WEEKLY HOURLY INVOICES
For Hourly Direct Contracts, the weekly billing cycle starts Monday at 00:00 midnight UTC and ends Sunday at 23:59 UTC. Invoices for hours recorded by the Freelancer on Upwork within the weekly billing cycle (the "Hourly Invoice Deadline") will be generated each Monday following the week in which the hours were billed (such invoice, the "Hourly Invoice"). Freelancer irrevocably authorizes and instructs Upwork, as its agent, to (i) create an invoice on behalf of Freelancer for payment due based upon the hours that the freelancer recorded before the Hourly Invoice Deadline; and (ii) submit the Hourly Invoice on behalf of Freelancer to Freelancer's Client for payment.
By recording time on Upwork and allowing an Hourly Invoice to be created based on the time recorded, Freelancer represents and warrants that (y) Freelancer has completed the applicable Freelancer Services fully and satisfactorily; and (z) the hours Freelancer reports are true, accurate, and complete.
2.2 HOURLY INVOICE REVIEW
Client must review and approve or dispute the Hourly Invoice by 11:59 PM UTC of the Thursday following the Sunday deadline for submission of the Hourly Invoice. Payments will be held in escrow during the Dispute Period (defined below), providing four days for Client to review and dispute the Hourly Invoice before funds are released. During the Dispute Period, Client may initiate a Dispute as to some or all of the time invoiced on the Hourly Invoice.
On the Friday following the Sunday deadline for submission of the Hourly Invoice, Client will be deemed to have approved all undisputed amounts on the Hourly Invoice, and irrevocably instructed Upwork’s Affiliate, Upwork Escrow, to release escrow funds as described in these Hourly Direct Contract Escrow Instructions.
3. INSTRUCTIONS TO RELEASE FUNDS IRREVOCABLE
Client’s instruction to Upwork Escrow and its wholly owned subsidiaries to release funds to a Freelancer is irrevocable. Such instruction is Client’s authorization to transfer funds to Freelancer from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected, and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Freelancer, Upwork Escrow will release funds to the Freelancer and that Upwork, Upwork Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described herein, Client agrees that once Upwork Escrow has charged Client’s Payment Method, the charge is non-refundable and any funds will only be returned pursuant to a Release Condition (see below).
4. RELEASE AND DELIVERY OF AMOUNTS IN ESCROW
Upwork Escrow is authorized to and will release applicable portions of the Client Escrow Account (each portion, a “Release”) to the Freelancer Escrow Account, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. The amount of the Release will be delivered to the Freelancer Escrow Account, in accordance with Freelancer’s and Client’s instructions (as applicable), these Hourly Direct Contract Escrow Instructions, and the other Terms of Service.
4.1 RELEASE CONDITIONS
As used in these Escrow Instructions, “Release Condition” means any of the following:
- Client and Freelancer have submitted joint written instructions for a Release.
- Client has approved all or a portion of the Freelancer's Hourly Invoice. This Release Condition will only apply to amounts invoiced by the Freelancer that Client has approved. Client’s failure to dispute an Hourly Invoice, or a portion of an Hourly Invoice, within the Dispute Period pursuant to these Hourly Direct Contract Escrow Instructions, constitutes approval by the Client for purposes of this Release Condition.
- Upwork makes a determination with respect to the funds and determines that the time is related to the Hourly Direct Contract requirements or Client’s instruction, if Client initiates a Dispute with respect to Freelancer's Hourly Invoice pursuant to these Hourly Direct Contract Escrow Instructions.
- Pursuant to the agreement of Client and Freelancer, if Client initiates a Dispute with respect to Freelancer's Hourly Invoice pursuant to these Hourly Direct Contract Escrow Instructions and Client and Freelancer resolve the dispute without the assistance of Upwork. In any such instance, Client and Freelancer authorize and agree that Upwork Escrow will release funds in accordance with Client and Freelancer’s agreed resolution.
- Issuance of a final order of a court or arbitrator of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.
- We believe, in our sole discretion, that fraud, an illegal act, or a violation of Upwork's Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer hereby authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.
5. MAKING OR RECEIVING A BONUS OR EXPENSE PAYMENT
Client may also make a bonus, tip, expense, or other miscellaneous payment to Freelancer using the Site. To make such a payment to a Freelancer, Client must follow the instructions and links on the Site and provide the information requested. If Client clicks to pay such a payment to Freelancer, Client irrevocably instructs Upwork Escrow to and Upwork Escrow will release escrow funds to Freelancer.
6. DISPUTES BETWEEN CLIENT AND FREELANCER
For Hourly Direct Contracts, Client may dispute Freelancer’s hours invoiced on the Hourly Invoice for the prior week (Monday 12:00 a.m. midnight UTC to Sunday 11:59 p.m. UTC) during the four days following the close of the weekly invoice period (Monday 12:00 a.m. midnight UTC to Thursday 11:59 p.m. UTC) (the “Dispute Period“). It is Client’s responsibility to review the Hourly Invoice of every Hourly Direct Contract on a weekly basis and to file any disputes during the Dispute Period. Once the Dispute Period expires, Client will be deemed to have accepted the Freelancer Services and Freelancer Fees and can no longer dispute them. Disputes handled by Upwork can only address the hours billed, not the quality of the Freelancer Services or the Work Product provided under Hourly Direct Contracts.
If Client disputes Freelancer’s hours invoiced in the Hourly Invoice under an Hourly Direct Contract during the Dispute Period, Client and Freelancer are encouraged to resolve the dispute between themselves. If Client and Freelancer fail to come to a resolution, Upwork will promptly review the Hourly Invoice and determine, in our sole discretion, whether an adjustment is appropriate consistent with Client’s and Freelancer’s instructions in these Escrow Instructions. Upwork's determination of such dispute shall be final unless Client and Freelancer pursue legal proceedings, in which case funds will be released according to the final order from which appeal is not taken in accordance with Section 5.1 of these Hourly Direct Contract Escrow Instructions.
You acknowledge and agree that Upwork Escrow or its Affiliates may, at its sole discretion, withhold or delay payment in the event of dispute between a Client and a Freelancer. You further acknowledge and agree that Upwork, Upwork Escrow, and other Affiliates are not and will not be a party to any dispute between a Client and Freelancer over an Hourly Invoice or Hourly Direct Contract.
7. REFUNDS AND CANCELLATIONS
Client and Freelancer are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in escrow, Freelancer may issue a refund via the Upwork platform up to the full amount paid on the Hourly Direct Contract.
8. SERVICE FEES FOR ESCROW FUNDS RELEASED FOLLOWING DISPUTES
All Escrow funds released under Section 6 of these Escrow Instructions are subject to the normal Service Fees associated with Escrow Accounts, as detailed in the User Agreement and these Escrow Instructions.
9. NOTICES
All notices to a User required by these Escrow Instructions will be made via email sent by Upwork to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Upwork, for checking their email and for responding to notices sent by Upwork to the User’s registered email address.
10. ABUSE
Upwork, in its sole discretion, reserves the right to suspend or terminate your Account immediately upon giving notice to you if Upwork believes you may be abusing the Dispute Assistance Program or as otherwise permitted by the Terms of Service. However, any Disputes for any Hourly Direct Contracts that existed prior to termination will be subject to the Terms of Service.
11. NO RESPONSIBILITY FOR SERVICES OR PAYMENTS
Upwork and Affiliates merely provide a platform for Internet payment services. Upwork and Affiliates do not have any responsibility or control over the Freelancer Services that Client purchases. Nothing in this Agreement deems or will be interpreted to deem Upwork or any Affiliate as Client’s or Freelancer’s agent with respect to any Freelancer Services, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. For example, Upwork does not guarantee the performance, functionality, quality, or timeliness of Freelancer Services or that a Client can or will make payments.
Any Hire Escrow Instructions
Version 1.1
Effective December 10, 2021
DownloadTable of Contents
If a Client and a Freelancer enter into an Any Hire Contract, whether fixed-price or hourly, these Any Hire Contract Escrow Instructions (“Escrow Instructions”) apply. These Escrow Instructions govern Escrow Accounts for Any Hire Contracts. Service Contracts are governed by the applicable escrow instructions.
To the extent permitted by applicable law, we may modify these Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.
These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. These Escrow Instructions only apply to Any Hire Contracts.
Escrow services are provided by Upwork Escrow Inc. (“Upwork Escrow”) pursuant to Internet Escrow Agent license no. 9635086, issued by the California Department of Financial Protection and Innovation.
1. DIGITAL SIGNATURE
By clicking to accept an Any Hire Contract, whether fixed-price or hourly, Client and Freelancer are deemed to have executed these Escrow Instructions electronically, effective on the date Client clicks to accept the Any Hire Contract, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as may be amended from time to time (the "E-Sign Act"). Doing so constitutes an acknowledgement that Client and Freelancer agree to conduct the transaction electronically, and are able to electronically receive, download, and print these Escrow Instructions.
2. ESCROW
2.1 Any Hire Fixed-Price Contracts
Client agrees to deposit funds to the Any Hire Contract Escrow Account on a biweekly basis the amount of any milestone(s) or the full amount of the Any Hire Contract if there is only one milestone for each active fixed-price Any Hire Contract during the biweekly billing cycle. Any funds deposited by Clients remain in the Any Hire Contract Escrow Account until they are released to the Freelancer Escrow Account or released to the Client. Upwork Escrow will not release funds held in escrow except as described in these Escrow Instructions.
2.2 Any Hire Hourly Contracts and Invoices
Client agrees to fund through the Any Hire Contract Escrow Account payments to Freelancer on a biweekly basis for the amount of Freelancer’s applicable hours logged during the billing period (“Any Hire Hourly Contract Funds”). The biweekly billing cycle starts Monday at 00:00 midnight UTC and ends 13 days later on Sunday at 23:59 UTC. Invoices for hours recorded by the Freelancer on Upwork within the biweekly billing cycle will be generated each other Monday, on the Monday that follows the end of the biweekly billing cycle (such invoice, the "Any Hire Hourly Invoice").
Freelancer is required to submit their hours by 23:59 UTC on the Sunday of each week the Any Hire Hourly Contract is active (the “Any Hire Hourly Invoice Deadline”). Freelancer irrevocably authorizes and instructs Upwork, as its agent, to (i) create an invoice on behalf of Freelancer for payment due based upon the hours that the freelancer recorded before the Any Hire Hourly Invoice Deadline; and (ii) submit the Any Hire Hourly Invoices on behalf of Freelancer to Freelancer's Client on a biweekly basis for payment.
It is the responsibility of Client to review the Any Hire Hourly Invoices. If Client takes no action during the four business days following the close of the biweekly invoice period, Client will be deemed to have accepted the Freelancer Services and all hours invoiced by Freelancer during the biweekly billing period. If Client approves the submitted Any Hire Hourly Invoices or takes no action during the four days following the close of the weekly invoice period, and the Client has deposited sufficient funds to the Any Hire Contract Escrow Account, Upwork Escrow will release the Any Hire Hourly Contract Funds to Freelancer. Upwork Escrow will not release funds held in escrow except as described in these Escrow Instructions.
3. RELEASE AND DELIVERY OF AMOUNTS IN ESCROW
Client and Freelancer irrevocably authorize and instruct Upwork Escrow to release applicable portions of the Any Hire Contract Escrow Account (each portion, a “Release”) to their Freelancer Escrow Account or Client Escrow Account, as applicable, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. If the funds are released to the Client Escrow Account, they will be automatically returned to the Client’s Payment Method that was charged to fund escrow. The amount of the Release will be delivered to the applicable Escrow Account in accordance with Freelancer’s or Client’s instructions, as applicable, these Escrow Instructions, and the other Terms of Service.
3.1 RELEASE CONDITIONS
As used in these Escrow Instructions, “Release Condition” means any of the following:
For fixed-price Any Hire Contracts, Client affirmatively clicks to accept the milestone(s) or fixed-price Any Hire Contract work submitted by Freelancer for approval.
For fixed-price Any Hire Contracts, Client affirmatively clicks to accept the milestone(s) or fixed-price Any Hire Contract work performed, but not yet submitted by Freelancer for approval.
For fixed-price Any Hire Contracts, Client does not take any action for 14 days from the date Freelancer submits the milestone or Fixed-Price Contract work for approval, in which case Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Freelancer the amount associated with the applicable milestone(s) in connection with such Release request.
For fixed-price Any Hire Contracts, Freelancer cancels the contract before a payment has been released to Freelancer, in which case the funds are to be returned to the Client.
For fixed-price Any Hire Contracts, Client cancels the contract before a payment has been released to Freelancer and Freelancer approves the request or takes no action within 7 days, in which case the funds are to be released to the Client.
For hourly Any Hire Contracts, Client has approved all or a portion of the Freelancer's Hourly Invoice, or has taken no action during the four days following the close of the weekly invoice period, which is deemed approval of all hours invoiced for purposes of this Release Condition.
Client and Freelancer have submitted joint written instructions for a Release.
Issuance of the final order of a court or arbitrator of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.
We believe, in our sole discretion, that fraud, an illegal act, or a violation of Upwork's Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer irrevocably authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.
4. INSTRUCTIONS IRREVOCABLE
On the occurrence of a Release Condition, Client and Freelancer are deemed to and hereby agree that the instruction to Upwork Escrow and its wholly owned subsidiaries to release funds is irrevocable. Without limiting the foregoing, Client’s instruction to Upwork Escrow and its wholly owned subsidiaries to pay a Freelancer is irrevocable. Such instruction is Client’s authorization to transfer funds to Freelancer from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Freelancer, Upwork Escrow will transfer funds to the Freelancer and that Upwork, Upwork Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Agreement, Client agrees that once Upwork Escrow or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.
5. MAKING OR RECEIVING A BONUS OR EXPENSE PAYMENT
Client may also make a bonus, tip, expense, or other miscellaneous payment to Freelancer using the Site. To make such a payment to a Freelancer, Client must follow the instructions and links on the Site and provide the information requested. If Client clicks to pay such a payment to Freelancer, Client irrevocably instructs Upwork Escrow to and Upwork Escrow will release escrow funds to Freelancer.
6. REFUNDS AND CANCELLATIONS
Client and Freelancer are encouraged to come to a mutual agreement if refunds or cancellations are necessary. Upwork will hold funds in the Any Hire Contract Escrow Account until a Release Condition, as defined in Section 3.1 is fulfilled. If there are no funds in escrow, Freelancer may issue a refund via the Upwork platform up to the full amount paid on the Any Hire Hourly or Any Hire Fixed-Price Contract.
7. EXCLUSIONS
Upwork’s Dispute Assistance Program and Payment Protection Programs do not apply to Any Hire Contracts. Upwork, Upwork Escrow, and Affiliates do not guarantee that Freelancer will be paid by Client. Upon occurrence of a Release Condition, as defined in Section 3.1, Upwork Escrow can release only the amount of funds that have been deposited by Client to the Any Hire Contract Escrow Account. Upwork, Upwork Escrow, and Affiliates are under no circumstances liable to Freelancer for payment for Client’s failure to deposit funds to the Any Hire Contract Escrow Account to cover payment to Freelancer.
8. NOTICES
All notices to a User required by these Escrow Instructions will be made via email sent by Upwork to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Upwork, for checking their email and for responding to notices sent by Upwork to the User’s registered email address.
9. ABUSE
Upwork, in its sole discretion, reserves the right to suspend or terminate your Account immediately upon giving notice to you if Upwork believes you are in violation of the Terms of Service.
10. APPOINTMENT OF UPWORK ESCROW AS PAYMENTS AGENT OF THE FREELANCER
Each Freelancer hereby appoints Upwork Escrow as its payment collection agent for the limited purpose of receiving, holding, and settling payments from Clients pursuant to this Agreement. Each Freelancer further agrees and understands that a payment received by Upwork Escrow from a Client, on Freelancer’s behalf, shall be considered the same as payment made directly to the Freelancer. Such payment shall be deemed to satisfy the Client’s obligation to pay Freelancer, and the Freelancer will provide its services to the Client in the agreed-upon manner as if the Freelancer had received the payment directly from the Client. Each Freelancer understands that Upwork Escrow’s obligation to pay the Freelancer is subject to, and conditional upon, successful receipt of the associated payments from the Client. Freelancer further agrees that Upwork Escrow is not required to settle such payment to Freelancer in the event that Client initiates a chargeback, ACH return, or otherwise disputes the payment. In the event that Upwork Escrow does not make a payment to Freelancer as required by this Agreement, Freelancer will have recourse against only Upwork Escrow and not against Client. In accepting appointment as the limited payment collection agent of the Freelancer, Upwork Escrow assumes no liability for any acts or omissions of the Freelancer.
Each Client acknowledges and agrees that, notwithstanding the fact that Upwork Escrow is not a party to the agreement between the Client and the Freelancer, Upwork Escrow acts as each Freelancer’s payment collection agent for the limited purpose of accepting payments from the Client on behalf of the Freelancer. Upon a Client’s payment of the funds to Upwork Escrow, the Client’s payment obligation to the Freelancer for the agreed upon amount is extinguished, and Upwork Escrow is responsible for remitting the funds successfully received by Upwork Escrow to the Freelancer in the manner described in this Agreement. In the event that Upwork Escrow does not remit any such amounts, the Freelancer will have recourse only against Upwork Escrow and not the Client directly.
11. NO RESPONSIBILITY FOR SERVICES OR PAYMENTS
Upwork and Affiliates merely provide a platform for Internet payment services. Upwork and Affiliates do not have any responsibility or control over the Freelancer Services that Client purchases, except as explicitly provided in Section 10. Nothing in this Agreement deems or will be interpreted to deem Upwork or any Affiliate as Client’s or Freelancer’s agent with respect to any Freelancer Services, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. For example, Upwork does not guarantee the performance, functionality, quality, or timeliness of Freelancer Services or that a Client can or will make payments.
Upwork Escrow Inc.
Version 2.0
Effective July 28, 2021
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Upwork Escrow Inc. provides escrow services solely to Users of Upwork and Elance. We provide these escrow services solely to deliver, hold, or receive payment for jobs for services engaged through, and to pay fees including service, membership and payment processing and administration fees to, Upwork. These escrow services are intended for business use, and the Users agree to use these escrow services only for business purposes and not for consumer, personal, family, or household purposes.
UPWORK ESCROW INC. DOES NOT PROVIDE ESCROW SERVICES TO THE GENERAL PUBLIC.
This escrow company holds California Department of Financial Protection and Innovation License No. 963 5086.
Fee and ACH Authorization Agreement
Version 8.0
Effective February 6, 2023
DownloadTable of Contents
This Fee and ACH Authorization Agreement (this “Agreement”) is between you and Upwork Global Inc. or Elance Inc. as described below in Section 1 (Parties). This Agreement provides information on the fees Upwork Global Inc. ("Upwork Global") and its Affiliates Elance Limited ("Elance Ltd.") and Upwork Escrow Inc. (“Upwork Escrow”) charge for use of the Site’s communication, invoicing, dispute resolution and payment services, including Payment Protection, and includes eligible Users’ authorization for debits and credits from and to their designated bank accounts via the automated clearing house network (“ACH”). This Agreement is part of the Terms of Service. Capitalized terms not defined in this Agreement are defined in the User Agreement, Site Terms of Use, or elsewhere in the Terms of Service.
By clicking to accept the Terms of Service on the Site or by continuing to use the Site or the Site Services on or after the effective date noted above, you accept and agree to this Agreement. To the extent permitted by applicable law and except as otherwise provided in the Terms of Service, we may modify this Agreement without prior notice to you, and any revisions to this Agreement will take effect when posted on the Site unless otherwise stated. However, we will provide advance notice of any increase in prices or fees affecting current Users. Please check the Site often for updates.
1. PARTIES
You are entering into this Agreement with Upwork (also referred to as “we” and “us”).
If you reside in the United States, you are entering into this Agreement with Upwork Global. If you reside outside the United States, you are entering into this Agreement with Elance Ltd.
2. FEES CHARGED TO FREELANCERS
Pursuant to the User Agreement, we charge Freelancers a Service Fee on the amounts of Freelancer Fees charged by the Freelancer to their Client on a Service Contract. Depending on certain features of the Service Contract, the Service Fees will be charged either as "tiered" or "straight" pricing, as discussed in further detail in this Section 2. Where applicable, Upwork Global, Elance Ltd., or Upwork Escrow may also collect taxes (such as value added tax (“VAT”) in Europe) on Service Fees.
Pursuant to the Freelancer Membership Agreement, we charge Freelancers a Membership Fee. These Membership Fees automatically renew until they are canceled as described on the Site.
Additionally, the use of various Payment Methods offered through the Site and the Site Services may incur added fees or charges. All Payment Methods will be posted on the Site along with any associated fees or charges, which we may update from time to time at our sole discretion. By selecting a Service subject to additional fees or charges, you thereby authorize us to charge to you and to collect from you (consistent with this Agreement, the User Agreement, or elsewhere in the Terms of Service) any fees, charges, or taxes described in this Section 2.
2.1 TIERED PRICING
We will charge you a Service Fee based on the total Freelancer Fees charged by you to your Client (less any refunds or reversals) for the duration of your relationship with your Client (the “Engagement Relationship”). Unless different pricing described in Section 2.2, 2.3, or 2.4 applies, the Service Fee rates decrease as the total Freelancer Fees you have charged to your Client for the Engagement Relationship meet certain thresholds as follows (“Tiered Pricing ”):
TOTAL FREELANCER FEES CHARGED TO CLIENT (per Engagement Relationship) | SERVICE FEE RATES |
$500.00 and below | 20% |
$500.01 to $10,000.00 | 10% |
$10,000.01 and up | 5% |
Below are some examples of Tiered Pricing.
Example 1. Fixed-Price Contract; Repeat Service Contracts
If a Freelancer and a Client who have never entered into a Service Contract together before agree to a $600 Fixed-Price Contract, the Service Fee will be calculated as follows:
FREELANCER FEES | SERVICE FEE RATES | SERVICE FEES |
$500 | 20% | $100 ($500 x 20%) |
$100 | 10% | $10 ($100 x 10%) |
Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $600) | Total Service Fees: $110 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
If the same Freelancer and Client agree to another $600 Fixed-Price Contract, the Service Fee will be calculated as follows:
FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
$600 | 10% | $60 ($600 x 10%) |
Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $1,200) | Total Service Fees: $60 |
If the same Freelancer and Client enter into additional Fixed-Price Contracts for different Service Contracts, the Freelancer Fees for each Service Contract will count toward the total Freelancer Fees collected for purposes of determining the Tiered Pricing that applies to the Service Fees. If the Freelancer charges $10,000 in Freelancer Fees to the Client, then the Service Fee on any additional Freelancer Fees for the Engagement Relationship with the Client will be 5% of the Freelancer Fees. For example, if the Freelancer has charged a total of $15,000 in Freelancer Fees during the Engagement Relationship and the Freelancer and Client enter into a new Fixed-Price Contract for $1,000, the Service Fee would be determined as follows:
FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
$1,000 | 5% | $50 ($1,000 x 5%) |
Total Freelancer Fees: $1,000 (Total Engagement Relationship Fees: $16,000) | Total Service Fees: $50 |
Example 2. Hourly Contract
If a Freelancer and Client enter into an Hourly Contract for $50 per hour, and the Freelancer works 400 hours, the Service Fees will be calculated as follows:
HOURS WORKED | FREELANCER FEES (hours x freelancer rate) | SERVICE FEE RATES | SERVICE FEES |
First 10 hours | $500 | 20% | $100 |
190 (Hour 11 to 200) | $9,500 | 10% | $950 |
200 (Hour 200 to 400) | $10,000 | 5% | $500 |
Total Hours: 400 | Total Freelancer Fees: $20,000 | Total Service Fees: $1,550 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
2.2 FREELANCERS WORKING ON ENTERPRISE CLIENT CONTRACTS
If you are a Freelancer with a Service Contract entered into with an Enterprise Client, the Service Fee rate is 10% of the Freelancer Fees, unless otherwise provided in the Enterprise Client contract. If you are a Freelancer with an active Contract with a Client whose Account is being converted to an Enterprise Client Account, then only on any Service Contract that is active at the time of the conversion, Upwork will honor the lower of (a) the Tiered Service Fee in effect at the time of the conversion, or (b) the Service Fee rate in the Enterprise Client contract for that Account. For purposes of the Terms of Service, “Enterprise Client ” means a Client, including a legacy Enterprise client or an Upwork Business Client, whose profile displays the following “Enterprise” badge:
2.3 ALTERNATE PRICING
For some Service Contracts, as described in this Section 2.3, we do not charge Tiered Pricing, but instead charge an alternate fee (“Alternate Pricing”) which only applies to Service Contracts when any of the following are true:
(a) you entered into the Service Contract before Upwork first started charging Tiered Pricing;
(b) you entered into the Service Contract pursuant to a feature of the Site where we advertised a different Service Fee, such as discounted Service Fees offered in some circumstances for amounts charged on a contract or for a Featured Job Post for Clients;
(c) you have an Any Hire Contract with a Client and you did not have an Upwork Relationship prior to the Any Hire Contract (see Section 7 of the User Agreement) or for an Upwork Payroll engagement; or
(d) the Service Contract is with a Client who is not an Enterprise Client, but who has a legacy arrangement for lower fees that apply to the Service Contract.
As described in this Section 2.3, if Alternate Pricing applies, we will typically charge you a Service Fee of a fixed percent.
For certain Service Contracts, the Alternate Pricing may be a lower flat percentage (such as through a “bring your own” program) or may have a different tiered fee rates (such as for a Featured Job Post), or may not have a Service Fee (such as an Upwork Payroll Contract or certain Any Hire Contracts), in each case as clearly stated on the Site at the time the Service Contract was or is entered into, and any applicable changes to Alternate Pricing or fees will be clearly communicated to the Client, including communications posted to the Site. When there is a different tiered fee rate, the initial rate will be as clearly stated on the Site, and once the Service Fees on the Engagement Relationship exceed $10,000, the Service Fee will be reduced to 5%, unless otherwise clearly communicated to you, including by communications through the Site.
If a flat fee applies, it will be charged as in this example, though the percent may vary. If no other Alternate Pricing is described to you (for example, you entered into a Service Contract prior to the implementation of Tiered Pricing), the Service Fee under Alternate Pricing is a flat 10%.
CONTRACT TYPE | SERVICE FEE | FREELANCER FEES | SERVICE FEES |
Fixed-Price | 10% | $500 | $50 |
Hourly | 10% | $50 per hour | $5 per hour |
Note: Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
2.4 OTHER FEES
Freelancers may choose a membership with an associated membership fee (the “Freelancer Membership Fee”). More details are provided in the Freelancer Membership Agreement. Freelancers may also choose to purchase "Connects" or other features, premium services or options on Upwork, in each case as described on the Site at the time of purchase.
Upwork reserves the right to change the fees of the memberships, features, services, and options offered on the Site, or institute new fees at any time, in each case upon reasonable notice posted in advance on the Site for existing Users.
3. CLIENT MEMBERSHIP PLAN AND RELATED FEES
To access the Site and use the Site Services a Client must have registered for an Account as detailed in Section 1 of the User Agreement. When you sign up for a Client Account, you will be automatically enrolled into Upwork’s marketplace membership (the “Client Marketplace Plan”).The Client Marketplace Plan is free and does not require a monthly membership fee. The Client Marketplace Plan includes access to the Site and related Site Services such as facilitating the formation of Service Contracts, assisting Users in resolving disputes which may arise in connection with those Service Contracts, providing access to communication tools, and administrative services related to reporting and facilitating payments.
In return for providing Clients with access to the Site and related Site Services, Upwork charges Clients a “Marketplace Fee” of up to 5% on each transaction related to a marketplace Service Contract or Project Catalog offering a Client enters into on the Site or with Freelancers on the Site. In the case of Hourly Service Contracts, Upwork will charge the Marketplace Fee based on hours and expenses recorded by a Freelancer as of the Hourly Invoice Deadline (Sunday at 23:59 UTC) each week. For Fixed-Price Contracts, Upwork will charge the Marketplace Fee on the amount and at the time a Client funds a milestone or pays a bonus or expense. All other transactions subject to the Marketplace Fee, such as transactions for bonus or expense payouts, use of Upwork Payroll related to a marketplace Service Contract, or use of any other service on the Site where displayed on the Site, will be assessed the Marketplace Fee at the time of invoice. Eligible Clients who use ACH as their payment method are offered a reduced Marketplace Fee rate of 3%. At its sole discretion, Upwork may offer Clients a different Marketplace Fee rate; any such rate must be explicitly communicated or agreed by an authorized representative of Upwork via email or a written agreement. No refunds of fees already paid will be given; for example, if a funded project is canceled, payments made by a Client are released from the Client Escrow Account for any reason or refunded by a Freelancer, the Marketplace Fee will not be refunded.
The Marketplace Fee detailed above is not assessed on Any Hire, Direct Contract, Enterprise, Talent Scout, Upwork Business engagements, or premium services which are subject to the fees and rate(s) as described in the specific Any Hire, Direct Contract, Enterprise, Talent Scout, or Upwork Business contract with Client or on the Site.
3.1 CHANGES TO CLIENT MARKETPLACE PLAN OR RELATED FEES
Upwork reserves the right to change the Marketplace Fee, change the features and services included in the Client Marketplace Plan, change the fees for certain premium services or options, or institute new fees at any time, in each case upon reasonable notice posted in advance on the Site for existing Users. No refunds of fees already paid will be given. If Upwork exercises its right to cancel a Client's Marketplace Plan, Upwork will not refund the fee already paid unless otherwise required by law.
3.2 TAXES
Where applicable, Upwork Global, Elance Ltd., or Upwork Escrow may also collect taxes (such as value added tax (VAT) where applicable) on membership fees and the cost for premium services or features, as set forth in the User Agreement.
4. AUTHORIZATION FOR ACH DEBITS AND CREDITS AND OTHER TRANSACTIONS
If and to the extent permitted by Upwork in its sole discretion, Users may pay Freelancer Fees, Membership Fees, Marketplace Fees, and other fees owed under the Terms of Service from their designated bank accounts. Subject to Upwork’s eligibility requirements, if you elect to pay Freelancer Fees or any other amounts owed under the Terms of Service via ACH transfers from your designated bank account, you hereby authorize us to electronically debit and, if necessary, electronically credit your designated bank account via ACH for such amounts pursuant to the Terms of Service, and you agree to comply with the ACH rules issued by the National Automated Clearing House (“NACHA”) and all applicable laws, including, but not limited to, the federal Bank Secrecy Act, the U.S.A. Patriot Act, and economic sanctions overseen by the Office of Foreign Assets Control (OFAC). Your authorization for ACH transfers contained in this Section 4 will remain in full force and effect until you notify us that you wish to revoke your authorization by removing your bank account information from you Profile or by contacting Customer Support. You understand that we require at least one (1) business day’s prior notice in order to cancel your authorization for ACH transfers contained in this Section 4.
You must notify us of any change in your designated bank account’s information at least five (5) business days before any such change by updating your bank account information in your Profile or by contacting Customer Support. If we do not receive notice at least five (5) days before any such change, we may attempt, in our sole discretion, to implement such change prior to any ACH debit or credit transfer performed pursuant to your authorization provided in this Section 4. However, we assume no responsibility for our failure to do so.
You may view a history of your Account transactions by logging in to the Site. You are solely responsible for promptly reconciling your Account transaction history with the transaction records for your bank account. You must notify us of any errors or discrepancies in your Account transaction history (each, an “Error”) within 30 days of when the Error could be viewed in your Account transaction history on the Site. If you do not notify us of an Error within 30 days of when the Error could be viewed in your Account transaction history on the Site, you will forfeit the right to contest the Error, except to the extent such forfeiture is prohibited by applicable law or the NACHA rules.
Subject to the foregoing notice requirement: (a) if and to the extent an Error is caused by us, we will correct the Error and (b) if an Error is caused by you, we may, but are under no obligation to, attempt to correct the Error and will offset any costs we incur from any funds returned to your bank account or your Client Escrow Account, as applicable.
Freelancer Membership Agreement
Version 5.2
Effective July 26, 2022
DownloadTable of Contents
This Freelancer Membership Agreement (“Agreement”) is between you and Upwork Global Inc. ("Upwork Global") or Elance Limited ("Elance Ltd.") as described below in Section 1 (Parties). This Agreement is part of and incorporates by reference the User Agreement and the other Terms of Service. You will be provided advance notice of any material change to this Agreement and your continued participation in a membership program after the last modified date will signify your acceptance of this Agreement. Capitalized terms not defined in this Agreement are defined in the Site Terms of Use, User Agreement, or elsewhere in the Terms of Service.
1. PARTIES
You are entering into this Agreement with Upwork (also referred to as “we” and “us”).
If you reside in the United States, you are entering into this Agreement with Upwork Global. If you reside outside the United States, you are entering into this Agreement with Elance Ltd.
2. FREELANCER MEMBERSHIP PROGRAMS
Upwork offers several membership programs for Freelancers and Agencies. For purposes of this Agreement, “Member” or “you” means a Freelancer or Agency participating in a membership program.
Each membership program includes a certain number of “Connects,” which reserve monthly capacity for you to submit proposals for Clients' posted Projects, as described on the Site here. If your membership program does not include Connects or your membership otherwise gives you the right to purchase additional Connects, you may do so for the price advertised on the Site at the time of the purchase, subject to a cap determined by your membership program, if applicable. Connects that you do not use will be rolled over to the next month as described on the Site. The conditions under which unused Connects will rollover into the next month may vary from time to time and will depend on your membership program. For the details on Connects, please visit the Upwork Support page.
Upwork reserves the right to change membership fees, change the monthly number of Connects included in each membership program, change the price for Connects or institute new fees at any time, in each case upon reasonable notice posted in advance on the Site. No refunds of fees already paid will be given. If Upwork exercises its right to cancel a membership, we will not refund the membership fee already paid.
3. TAXES
Where applicable, Upwork Global, Elance Ltd., or Upwork Escrow may also collect Taxes (such as value added tax (VAT) in Europe) on membership fees and the cost for Connects.
4. AUTOMATIC MEMBERSHIP RENEWAL
You must pay your Upwork membership fees and Connects through your Upwork Escrow Account. The membership billing period begins on the date that we receive payment. Upwork membership fees are calculated from the beginning of that billing period. Upwork automatically renews your Upwork monthly membership, and you irrevocably authorize and instruct us to make the required monthly payments to Upwork on your behalf. This authorization will remain in full force and effect until you change your settings in your Profile to change your membership plan, otherwise notify us that you wish to revoke your authorization by contacting Customer Support, or cancel your Account.
5. CHANGES TO MEMBERSHIP PROGRAM
You can change your membership program at any time, including by moving to an unpaid plan, by going to the Site here. If you change your membership program, the new program and new billing period will be based upon the date Upwork receives payment of the new membership fee. If you upgrade a membership, it will result in a new billing date effective upon the date of payment of the additional fees and, if applicable, will result in a credit of the unused portion of the existing category membership fees. If you downgrade a membership, you will not receive a refund or credit for the fees already paid; instead your membership will continue to the end of your current billing period but will not renew. If your Account is suspended at the beginning of your billing period or you do not pay your membership fees, your Account will be automatically downgraded to an unpaid membership plan. If your Account is reinstated, you may change your membership plan as described in this Agreement. Upwork reserves the right to modify its membership programs at any time, upon reasonable notice posted in advance on the Site.
For more information on upgrading, downgrading, or canceling your membership, check the Site or contact Customer Support.
Optional Service Contract Terms
Version 1.3
Effective December 22, 2020
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Users who enter into a Service Contract on the Site with another User are free to agree to these Optional Service Terms in whole or in part, or to agree to different or additional terms for their Service Contract(s). However, if and to the extent that the Users who are party to a Service Contract have not agreed to different terms, then they agree to incorporate these Optional Terms. Users may not, by agreement amongst themselves, alter the rights or responsibilities of Upwork or Upwork Escrow, including any provision of the Escrow Instructions, or agree to any terms that would violate the Terms of Service. Neither Upwork, Upwork Escrow, nor any affiliate of Upwork is a party to any Service Contract by or between Users regardless of whether these Optional Terms are incorporated.
You acknowledge and agree that Users have discretion whether to contract with each other and will negotiate and determine the specific terms of their Service Contracts with each other. The Optional Service Terms is a sample only, which may not be appropriate for all Service Contracts and which may be adjusted and added to as Users deem appropriate. Users choose whether to use the Optional Service Terms in whole or in part.
1. PARTIES
Client and Freelancer identified on the Site under the Service Contract are the parties to the Services Contract. The address of each party is the address entered under the tax information on the Site. Upwork is not a party to the Service Contract.
2. SERVICES
Client and Freelancer agree that the Freelancer is performing services as an independent contractor and that Freelancer is not an employee or agent of Client. Freelancer will perform the Freelancer Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Freelancer Services will be determined and controlled solely by Freelancer, which is engaged by Client as an independent contractor.
The terms concerning the services to be performed under the Service Contract described on the Site form part of the Service Contract. Users agree that, once accepted, the terms of the Service Contract cannot be modified by a User without obtaining the consent of the other before making changes to the Service Contract, including by adding additional or different milestones, by closing a Service Contract, or making other changes to the Service Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Service Contract or accept such changes by continuing to work on the Service Contract.
3. RESPONSIBILITY FOR EMPLOYEES AND SUBCONTRACTORS, INCLUDING AGENCY MEMBERS
If a User subcontracts with or employs third parties to perform Freelancer Services on behalf of the User for any Engagement, the User represents and warrants that it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations. Further, at all times a User that agreed to perform services under a Services Contract remains responsible for the quality of the services and represents and warrants that User has entered into agreements with any such employees and subcontractors on confidentiality and intellectual property at least as strong as those in these Optional Service Terms.
4. CLIENT PAYMENTS AND BILLING
Freelancer agrees to accurately report hourly invoices by billing hours worked under the Account of the User that worked the hours, including, if applicable, Agencies billing their Clients for hourly work done by Agency Members.
5. TERMINATION OF A SERVICE CONTRACT
Under Hourly Contracts, either Client or Freelancer has the right to terminate the Service Contract after providing any agreed-upon notice, or immediately on the end date specified in the Service Contract terms and/or upon completion of the Freelancer Services, in the event of a material breach, or with the consent of the other party. Except as required by law or as otherwise may be agreed to by the Parties, Client remains obligated to pay the Freelancer Fees for any Freelancer Services provided prior to termination of the Hourly Contract.
Under Fixed-Price Contracts, once a Client’s Payment Method has been charged to fund the escrow account for the Engagement, absent a full refund to Client by Freelancer, the Service Contract does not terminate until the Freelancer Services are completed. However, either Client or Freelancer has the right to terminate a Fixed-Price Contract at any time with the consent of the other party or in the event of a material breach. If a Fixed-Price Contract is terminated, Client does not have the right to recover any payments already released to Freelancer from the escrow account for the Engagement.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 THIRD-PARTY RIGHTS
Freelancer represents and warrants that Freelancer will not incorporate or use the materials of any third party including those of any other client or any employer, in performing the Freelancer Services that are not generally available for use by the public or have not been legally transferred to the Client.
6.2 BACKGROUND TECHNOLOGY
Freelancer will disclose in the Engagement terms any Background Technology which Freelancer proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Freelancer discloses no Background Technology, Freelancer warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Freelancer will separately provide, with each delivery of Work Product to Client, a bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Freelancer, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Engagement terms, Freelancer agrees that it will not incorporate into Work Product or otherwise deliver to Client any software code for which the use or distribution of the code will create (or purport to create) obligations for Client to grant any rights or immunities under Client intellectual property to a third-party, including without limitation any obligation that the Work Product or Client software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.
6.3 CLIENT MATERIALS
Client grants Freelancer a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Materials as necessary solely for the performance of the Freelancer Services under the applicable Service Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Service Contract, or upon Client’s written request, Freelancer will immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables (except for Background Technology as permitted by the Service Contract) contained in or on Freelancer’s premises, systems, or any other equipment or location otherwise under Freelancer’s control. Within ten days of such request from Client, Freelancer agrees to provide written certification to Client that Freelancer has returned or destroyed all Client Materials and Work Product as provided in this subsection.
6.4 OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY
Upon Freelancer’s receipt of full payment from Client, the Work Product (except for any Background Technology), including without limitation all Intellectual Property Rights in the Work Product (except for any Background Technology), will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Freelancer has any Intellectual Property Rights to the Work Product that are not owned by Client upon Freelancer’s receipt of payment from Client, Freelancer hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Freelancer retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual Property Rights. Freelancer hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered and paid for.
6.5 LICENSE TO BACKGROUND TECHNOLOGY
Upon Freelancer’s receipt of full payment from Client for delivery of Work Product, Freelancer hereby automatically grants to Client an exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated in Work Product delivered for that payment. If payment is made only for partial delivery of Work Product, the license described herein applies only to the portion of Work Product delivered and paid for.
6.6 LICENSE TO OR WAIVER OF OTHER RIGHTS
If Freelancer has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Client by Freelancer, Freelancer hereby automatically, upon Freelancer’s receipt of full payment from Client, unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Freelancer, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Freelancer has any rights to such Work Product that cannot be assigned or licensed, Freelancer hereby automatically, upon Freelancer’s receipt of payment from Client, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or related to Client’s customers, with respect to such rights, and will, at Client’s request and expense, consent to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
6.7 ASSISTANCE
Freelancer will assist Client in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Contract, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Client is unable, after reasonable effort, to secure Freelancer’s signature on any document needed in connection with the foregoing, Freelancer hereby designates and appoints Client and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Freelancer.
7. CONFIDENTIAL INFORMATION
7.1 CONFIDENTIALITY
To the extent a Client or Freelancer 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, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Freelancer Services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Freelancer); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Freelancer Services.
7.2 RETURN
If and when Confidential Information is no longer needed for the performance of the Freelancer Services for a Services Contract or at Client’s or Freelancer’s written request (which may be made at any time at Client’s or Freelancer’s sole discretion), the party that received Confidential Information, will, at its expense, 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. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party’s written request for such certification.
7.3 PUBLICATION
Without limiting Section 7 (Confidentiality), Client and Freelancer will not publish, or cause to be published, any other party’s Confidential Information or Work Product, except as may be necessary for performance of Freelancer Services for a Services Contract.
7.4 IMMUNITY
A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. Sec. 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
8. DEFINITIONS
The following capitalized terms have the following meanings:
“Background Technology” means all Inventions developed by Freelancer other than in the course of providing Freelancer Services to Client under the Service Contract and all Inventions that Freelancer incorporates into Work Product.
“Client” means any person who entered into a Service Contract to obtain Freelancer Services from a Freelancer.
“Client Deliverables” means requests, intellectual property, and any other information or materials that a Freelancer receives from a Client to perform Freelancer Services.
“Client Materials” means requests, intellectual property, and any other information or materials that Client provides to Freelancer for Freelancer to perform Freelancer Services.
“Confidential Information” means Client Deliverables, Freelancer Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract or to perform or assist in performing Freelancer Services, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that is known to the public or that: (a) is generally known by third parties as a result of no act or omission of Freelancer or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure 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.
“Engagement” means an engagement for Freelancer Services that a Freelancer provides to a Client under a Service Contract on the Site.
“Escrow Instructions” means the Fixed-Price Escrow Instructions or the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
“Fixed-Price Contract” means a Service Contract for which 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 person who entered into a Service Contract to perform Freelancer services for a Client.
“Freelancer Deliverables” means requests, intellectual property, and any other information or materials that a Client receives from a Freelancer for a particular Service Contract.
“Freelancer Fees” means: (a) for an Hourly Contract, an amount equal to the number of hours recorded by Freelancer in any Hourly Invoice, multiplied by the hourly rate set by the 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.
“Freelancer Services” means all services performed for or delivered to Clients by Freelancers.
“Hourly Contract” means a Service Contract for which Client is charged based on the hourly rate set by the Freelancer.
“Hourly Invoice” means the report of hours recorded for a stated period by a Freelancer for the Freelancer Services performed for a Client.
“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.
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.
“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 an Engagement; or (b) if you use Upwork Payroll, the contractual provisions between Freelancer and the Staffing Provider for the provision of services to Client.
“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.
Mark Use Guidelines
Version 2.1
Effective August 18, 2021
DownloadTable of Contents
These Mark Use Guidelines (“Guidelines”) let you know about Upwork’s rights with respect to its marks and when and how you can use them. The Guidelines are a part of and incorporate the Terms of Service. Capitalized terms not defined in these Guidelines are defined in the User Agreement or in the other Terms of Service or have the meanings given such terms on the Site. To the extent permitted by applicable law, Upwork may modify these Guidelines without prior notice to you, and any revisions to these Guidelines will take effect when posted on the Site, unless otherwise stated in the revised Guidelines. Please check the Site often for updates.
1. UPWORK MARKS
The Upwork name and logo are trademarks of Upwork. These Guidelines explain the terms under which you are allowed to use the “Upwork Marks”, which for purposes of these Guidelines and the other Upwork Terms of Service means Upwork’s trademarks, including the following:
Upwork
Up
Work Without Limits
Virtual Talent Bench
Project Catalog
Talent Scout
Upwork Enterprise
Elance
oDesk
Elance-oDesk
Private Talent Cloud
Talent Cloud
Work Differently
The Upwork Marks are among our most valuable assets. In order to preserve and strengthen our identity, these Guidelines provide conditions of use and clear instructions on proper use of the Upwork Marks.
2. USE OF UPWORK LOGO MARKS
The Upwork Marks that are also logos are also referred to in these Guidelines as the “Upwork Logo Marks”. For example, the Upwork Logo Marks include:
You may not use an Upwork Logo Mark unless you have a written license, granted by Upwork, permitting you to use the Upwork Logo Mark. If you have not been granted such a license, then you must not use, copy, modify, distribute, or post the Upwork Logo Mark for any reason. If you have such a license from Upwork Logo Mark to use the Upwork Logo Mark, you must use the Upwork Logo Mark only as licensed and only in accordance with these Guidelines.
3. USE OF OTHER UPWORK MARKS
You may use Upwork Marks other than the Logo Marks descriptively, provided you adhere to these Guidelines, or as otherwise permitted by law.
Descriptive use includes instances where you are referring to Upwork or Upwork services, such as “I registered on Upwork’s website today”, “I attended Upwork’s Work Without Limits Executive Summit”, or “Upwork Enterprise services have saved my company money.”
Keep these principles in mind as well:
- Your use should never mislead anyone to believe Upwork sponsorship, affiliation, or endorsement of your company, products, or services exists when it does not.
- When referring to Upwork, use the Upwork name in a plain text font and format only.
- Upwork always appears as "Upwork," never as "UpWork", “UPWork”, "upwork", or "UPwork".
4. PROHIBITED USE OF UPWORK MARKS
Unless you have written permission from Upwork, you must never use any Upwork Mark:
- On any letterhead, business card, or signature block;
- As part of your business name or a domain name;
- As part of a user ID, including on Upwork or social media;
- In association with any third-party trademark in a manner that might create potential confusion as to the ownership of the Upwork Mark;
- In any manner that suggests or could lead someone to believe you are acting on behalf of or in association with Upwork or that Upwork has endorsed or sponsored your product or services; or
- Outside of your relationship with us, except as permitted by Upwork in writing.
Even if you have permission to use an Upwork Logo Mark, you must never use any Upwork Logo Mark:
- That has been reproduced from an unauthorized artwork;
- That has been modified, including color specifications, position and relative size of the letterings;
- That has been modified to use negative or reverse “drop-out” reproduction;
- Tightly confined in a band or bar; or
- With other seals, logos, or other marks of other entities.
5. USE OF COPYRIGHTED WORKS
You may not use screenshots of or videos of navigation of the Site (as defined in the Site Terms of Use) or other works copyrighted by Upwork without Upwork’s written permission. Rights to screenshots of user profiles, communications, and work product on Upwork may need to be obtained from the User. You may not use such screenshots anywhere for any purpose without written authorization. Upwork cannot grant you permission to use screenshots that include third-party content.
Upwork's Virtual Patent Marking
Version 1.0
Effective August 7, 2020
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Upwork Global Inc.’s products and services, whether accessed at www.upwork.com and/or via an application, are protected in the United States and elsewhere by one or more of the U.S. Patent(s) listed herein and patents pending. Upwork Global Inc. provides this webpage to satisfy the virtual patent marking provisions of various jurisdictions, including to serve as notice under 35 U.S.C. § 287(a), as amended by the America Invents Act.
Upwork Global Inc.’s Upwork marketplace offering, including the Enterprise, Business, Plus, and Basic service offerings, whether accessed at www.upwork.com or via an application, are covered by U.S. Patent Nos.: 6,859,523; 6,938,048; 7,069,242; 7,155,400; 8,073,762; 8,380,709; 8,700,614; 8,706,607; 9,117,178; 9,117,180; 9,529,788; 9,672,491; 9,842,312; 9,940,594; 10,083,422; 10,102,501; 10,121,153; 10,152,695; 10,204,074; 10,223,653; 10,430,763; 10,489,745; 10,635,412; 10,650,332; and other patents pending. Upwork Global Inc.’s Upwork managed service offering is covered by U.S. Patent Nos.: 6,859,523; 6,938,048; 7,069,242; 7,155,400; 8,073,762; 8,380,709; 8,700,614; 8,706,607; 9,117,178; 9,117,180; 9,529,788; 9,672,491; 9,842,312; 9,940,594; 10,083,422; 10,102,501; 10,121,153; 10,152,695; 10,204,074; 10,223,653; 10,430,763; 10,489,745; 10,635,412; 10,650,332; and other patents pending. Upwork Global Inc.’s Upwork Direct Contract service offering is covered by U.S. Patent No. 10,121,153; and other patents pending.
Other products and services not listed here may be protected by one or more patents in the United States and elsewhere.
Proprietary Rights Infringement Reporting Procedures
Version 1.5
Effective December 6, 2021
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Upwork Global Inc. (“Upwork,” “our,” “us,” or “we”) respects the intellectual property rights of others and seeks to offer a platform which contains no content that violates those rights. To promote these objectives, we provide a process for submission of complaints concerning content posted by our users. Our policy and procedures are described and referenced below.
Copyright Infringement Claims
Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), Upwork has procedures for receiving written notification of claimed copyright infringement. Upwork has also designated an agent to receive notices of claimed copyright infringement. If you believe in good faith that your copyright has been infringed, you may submit a written communication that contains all of the following:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- A description of the copyrighted work that you claim has been infringed. Provide a URL or link to where the material is located, if possible.
- A description specifying the location on our website(s) of the material that you claim is infringing, including a URL or link to where the material is located. Provide information reasonably sufficient to enable us to locate it.
- Your email address and your mailing address and/or telephone number.
- A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Upwork’s Legal Department is its designated agent under the DMCA. Please submit your notice to Upwork’s Legal Department by submission of this online form or by email to legalnotices@upwork.com.
In response to a notice, Upwork may remove or disable access to the allegedly infringing material, and take such other actions Upwork deems appropriate in its sole discretion. Please bear in mind that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that material is infringing. If we remove or disable access, we will attempt to contact the poster of the allegedly infringing material so that the poster may provide a counter notification (the “Counter-Notice”) as described below.
If you believe that a notice of copyright infringement has been improperly submitted against you, you may submit a Counter-Notice, pursuant to Sections 512(g)(2) and (g)(3) of the DMCA. You may provide a written communication that contains all of the following:
- Your physical or electronic signature.
- Identification of the material removed or to which access has been disabled, including the specific URL or link.
- A statement under penalty of perjury that you have a good-faith belief that removal or disablement of the material was a mistake or that the material was misidentified.
- Your full name, your email address, your mailing address, and a statement that you consent to the jurisdiction of the Federal District court (i) in the judicial district where your address is located if the address is in the United States, or (ii) located in the Northern District of California (Santa Clara County), if your address is located outside the United States, and that you will accept service of process from the complainant submitting the notice or his/her authorized agent.
Please submit your Counter-Notice to Upwork’s Copyright Agent by submission of this online form or by email to legalnotices@upwork.com.
Trademark and Other Intellectual Property Right Infringement Notices
For claims of trademark infringement or other claims of intellectual property infringement, you must similarly provide us with clear information about the location of the allegedly infringing work, including the URL or link where the work is located; complete information about your trademark or other intellectual property rights, including identifying the trademarked word(s) or symbol(s), trademark registration number(s), and a direct link to the trademark record(s), if available; and your contact information (name, physical address, email address and telephone number). Please also indicate your relationship to the trademark holder, including whether you are the trademark holder or whether you are an authorized representative for the holder.
Please submit your notice to Upwork’s Legal Department by submission of this online form or by email to legalnotices@upwork.com.
Privacy Policy
Version 7.0
Effective February 2, 2023
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This Privacy Policy explains how and why Upwork collects, uses, and shares personal information when you interact with or use our Site or Service. It also includes any information Upwork collects offline in connection with the Service, which we may combine with information from the Site and Service. By reading this Privacy Policy, you will understand your privacy rights and choices.
When we say “Upwork”, we mean Upwork Global Inc., and any of its affiliates, including Upwork Payments, Inc. When we say “Site”, we mean www.upwork.com, and when we say “Service”, we mean the Site plus any websites, features, applications, widgets, or online services owned or controlled by Upwork and that post a link to this Privacy Policy.
Accessibility: This Privacy Policy uses industry-standard technologies and was developed in connection with the World Wide Web Consortium's Web Content Accessibility Guidelines, version 2.1. If you wish to print this policy, please do so from your web browser or by saving the page as a PDF.
TABLE OF CONTENTS
- INFORMATION COLLECTION
- USE OF INFORMATION
- DATA RETENTION
- INFORMATION SHARING AND DISCLOSURE
- YOUR CHOICES AND RIGHTS
- SECURITY
- CROSS-BORDER DATA TRANSFERS
- LINKS TO OTHER SITES
- CHANGES TO THIS POLICY
- CONTACT US
- DATA PROCESSING AGREEMENT
1. INFORMATION COLLECTION
Users of the Service may be Clients, Freelancers, or Agencies, or Site Visitors (as each is defined in the User Agreement).
a. Information You Provide to Us
When you use the Service, you may provide us with information about you. This may include your name and contact information, financial information to make or receive payment for services obtained through the Upwork platform, or information to help us fill out tax forms. When you use the Service, we may also collect information related to your use of the Service and aggregate this with information about other users. This helps us improve our Services for you. You may also provide us with information about your contacts or friends if, for example, you’d like to add those contacts to a message room. Agencies may also provide us with information about Freelancers associated with the Agency.
Depending upon our relationship with you, we may collect the following categories and types of personal information from and about you:
| Categories of Personal Information We Collect | Types of Personal Information Collected | Categories of Sources of Personal Information | Business Purpose for Collection of Personal Information |
| Identifiers | Name, Email Address, Phone Number, Date of Birth, Social Media Account Information, Profile Data, IP Address | Directly from You or Your use of the Service; Cookies and Other Tracking Technologies; Third Parties (such as affiliates, agents, service providers and other users) | Providing and Improving the Service, Identification, Communications, Marketing/Advertising, Security, Legal, Compliance and Regulatory Obligations. |
| Sensitive Personal Information | Social Security Number, Driver’s License, State Identification or Passport Number | Directly from You | Verify your identity and to detect fraud, identity theft, or other misuse of your account. |
| Commercial Information | Transaction Data | Directly from You or Your use of the Service; Third Parties (such as affiliates, agents, service providers and other users) | Providing and Improving the Service, Identification, Communications, Marketing/Advertising, Security, Legal, Compliance and Regulatory Obligations. |
| Financial Data | Credit card or other financial account information, and billing address | Directly from You or Your use of the Service; Third Parties (such as affiliates, agents, service providers and other users) | Providing and Improving the Service, Identification, Communications, Marketing/Advertising, Security, Legal, Compliance and Regulatory Obligations. |
| Internet or Other Network or Device Activities | Unique device and app identifiers, browsing history or other usage data, , the browser and operating system you are using, the URL or advertisement that referred you to the Service, the search terms you entered into a search engine that led you to the Service, areas within the Service that you visited, which links you clicked on, which pages or content you viewed and for how long, other similar information and statistics about your interactions, such as content response times, download errors and length of visits to certain pages and other information commonly shared when browsers communicate with websites | Directly from You or Your use of the Service; Cookies and Other Tracking Technologies; Third Parties (such as affiliates, agents, service providers and other users) | Providing and Improving the Service, Identification, Communications, Marketing/Advertising, Security, Legal, Compliance and Regulatory Obligations. |
| Geolocation Information | Your Location | Directly from You or Your use of the Service; Cookies and Other Tracking Technologies; Third Parties (such as affiliates, agents, service providers and other users) | Providing and Improving the Service, Identification, Communications, Marketing/Advertising, Security, Legal, Compliance and Regulatory Obligations. |
| Sensory Information | Audio recordings if you call our customer service, video recording (if you provide permission). | Directly from You or Your use of the Service; Third Parties (such as affiliates, agents, service providers and other users) | Providing and Improving the Service, Identification, Communications, Marketing/Advertising, Security, Legal, Compliance and Regulatory Obligations. |
| Other information that identifies or can be reasonably associated with you | User-generated content, (e.g., community posts, feedback and job postings), photographs, examples of your work, information on work previously performed via the Service and outside the Service, skills, tests taken, test scores, hourly pay rates and earnings information. | Directly from You or Your use of the Service; Third Parties (such as affiliates, agents, service providers and other users) | Providing and Improving the Service, Identification, Communications, Marketing/Advertising, Security, Legal, Compliance and Regulatory Obligations. |
b. Non-Identifying Information
Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information about your use of the Service, and general project-related data (“Non-Identifying Information”). We may combine information collected from Upwork users, whether they are registered or not (“Upwork Users”). In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
Combination of Personal and Non-Identifying Information: We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
c. Information Collected Automatically
Like other online companies, we receive technical information when you use our Services. We use these technologies to analyze how people use the Service, to improve how our Site functions, to save your log-in information for future sessions, and to serve you with advertisements that may interest you.
Upwork and its partners use cookies or similar technologies to analyze trends, administer the website, track users’ movement around the website, the desktop app, and the mobile app, and to gather demographic information about our user base as a whole. The technology used to collect information automatically from Upwork Users may include cookies, web beacons, and embedded scripts. In addition, we and our marketing partners, affiliates, analytics, and service providers may use a variety of other technologies (such as tags) that collect similar information for security and fraud detection purposes and we may use third parties to perform these services on our behalf.
For further information on cookies and how they are used for the Service, please visit our Cookie Policy at www.upwork.com/legal#cookie-policy.
d. Work Diaries and Work View
With your permission, we collect information about a Freelancer’s work for a Client, including automatically collected information about work on a particular project. If a Freelancer enables Work Diaries, we will share Work Diaries with the relevant Client and Agency. We tell Freelancers when we are capturing information for the Work Diary and allow Freelancers to block such data sharing.
As part of the Service, when enabled by a Freelancer, we collect information about a Freelancer’s work on a project for a Client, including information that may be considered personal information. This feature is known as Work Diary. Work Diaries include information provided by the Freelancer, such as a memo, as well as automatically gathered information about work on a project, such as number of mouseclicks and keyboard strokes and regularly taken screenshots (which may include a webcam picture of you if you have enabled this feature in your settings). In order to use Work Diaries, you must download and install the Team App software from www.upwork.com.
We will share information contained in Work Diaries with the relevant Client and with any manager or administrator of any applicable Freelancer Agency. We inform Freelancers each time we capture information for Work Diary. As set forth in our Terms of Service, End User License Agreement, and help pages on the Site, a Freelancer may choose to block or delete the screen shot and associated data for a recorded work interval, but then the Freelancer may not be paid for that work interval. Upwork may use de-identified or aggregated information from Work Diaries for statistical analysis, product development, marketing and research.
e. Third-Party Analytics Providers, Ad Servers, and Similar Third Parties
We may work with advertising agencies and vendors who use technology to help us understand how people use our Site. These vendors may use technologies to serve you advertisements that may interest you. You can choose to opt out of receiving interest-based advertising.
Upwork works with (or may in the future work with) network advertisers, ad agencies, analytics service providers and other vendors to provide us with information regarding traffic on the Service, including pages viewed and the actions taken when visiting the Service; to serve our advertisements on other websites, within mobile apps and elsewhere online; and to provide us with information regarding the use of the Service and the effectiveness of our advertisements. Our service providers may collect certain information about your visits to and activity on the Service as well as other websites or services, they may set and access their own tracking technologies on your device (including cookies and web beacons), and may use that information to show you targeted advertisements. Some of these parties may collect Personal Information when you visit the Service or other online websites and services. We may also share certain Non-Identifying Information with these parties, including Hashed Information, in connection with the services they provide to us. If you wish to opt out of interest-based advertising, click here (or if located in the European Union, click here). If you choose to opt out, please note you will continue to receive advertisements, but they may be less relevant to you.
While we may use a variety of service providers to perform advertising services, some of these companies are members of the Network Advertising Initiative (“NAI”) or the Digital Advertising Alliance (“DAA”) Self-Regulatory Program for Online Behavioral Advertising. You may want to visit http://www.networkadvertising.org/managing/opt_out.asp, which provides information regarding targeted advertising and the “opt-out” procedures of NAI members. You may also want to visit http://www.aboutads.info/choices/, which provides information regarding targeted advertising and offers an “opt-out” by participating companies in the DAA Self-Regulatory Program.
f. How We Respond to Do Not Track Signals
Upwork does not respond to Do-Not-Track signals.
Please note that your browser setting may allow you to automatically transmit a “Do Not Track” signal to websites and online services you visit. There is no consensus among industry participants as to what “Do Not Track” means in this context. Like many websites and online services, Upwork does not alter its practices when it receives a “Do Not Track” signal from a visitor’s browser. To find out more about “Do Not Track,” please visit http://www.allaboutdnt.com.
g. Messaging
Freelancers, Agencies, and Clients may communicate with each other through the Service. For example, Freelancers, Agencies, and Clients may wish to discuss Client needs and Freelancer work proposals. If you communicate with an Agency or Client, that Agency or Client will also be a “data controller” with respect to such communications.
h. Children
The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com.
2. USE OF INFORMATION
We use information collected through the Service to provide and improve the Service, process your requests, prevent fraud, provide you with information and advertising that may interest you, comply with the law, and as otherwise permitted with your consent.
We Use Information We Collect:
- To provide and improve the Service, complete your transactions, address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at Users' request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Detecting security incidents, protecting against malicious, deceptive, fraudulent or illegal activity, and prosecuting those responsible for that activity.
- Measuring interest and engagement in our Services.
- Short-term, transient use, such as contextual customization of ads.
- Improving, upgrading or enhancing our Services.
- Developing new products and services.
- Ensuring internal quality control and safety.
- Authenticating and verifying individual identities.
- Debugging to identify and repair errors with our Services.
- Auditing relating to interactions, transactions and other compliance activities.
- Enforcing our agreements and policies.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA RETENTION
We will only retain your personal information for as long as is necessary to fulfill the purposes for which it was collected, including for the purposes of satisfying any legal, regulatory, accounting, or reporting requirements.
Unless you request that we delete certain information (see Your Choices and Rights below), we retain government-issued identification documents you submit to verify your identity for 30 days, selfies you submit to verify your identity for 180 days, a copy of the headshot image from your identity document for 3 years, and other information we collect for longer. Your information may persist in copies made for ongoing fraud prevention, backup, and business continuity purposes for additional time.
4. INFORMATION SHARING AND DISCLOSURE
We do not sell your personal information as that term is traditionally defined, however, we may use cookies on our Site that are placed by a third party for the purposes of advertising or marketing to you. This may be considered a “sale” of personal information under applicable data protection laws. We may share information about you to provide the Services, for legal and investigative purposes, in connection with sweepstakes and promotions, or if we are part of a merger or acquisition. We may also share non-identifying information with third parties. You have choices as to whether we share your personal information with third parties for their own marketing purposes.
We may share aggregated Non-Identifying Information and we may otherwise disclose Non-Identifying Information (including, without limitation, Hashed Information) to third parties. We do not share your Personal Information with third parties for those third parties’ marketing purposes unless we first provide you with the opportunity to opt-in to or opt-out of such sharing. We may also share the information we have collected about you, including Personal Information, as disclosed at the time you provide your information, with your consent, as otherwise described in this Privacy Policy, or in the following circumstances:
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to view a job post or submit a proposal for work as a Freelancer via the Service, we may share relevant information with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes, including activities such as IT management, for them to provide services to you, or support and supplement the Services we provide. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration.
5. YOUR CHOICES AND RIGHTS
You may have certain choices and rights associated with your personal information. You may request Upwork to honor these rights by contacting us, or submitting a request here.
a. For Individuals Located in the European Economic Area (EEA), United Kingdom (UK) or Switzerland:
You have a number of rights under applicable data protection laws in relation to your personal information. Under certain circumstances, you have the right to:
- Have access to your personal information by submitting a request to us;
- Have your personal information deleted;
- Have your personal information corrected if it is wrong;
- Have the processing of your personal information restricted;
- Object to further processing of your personal information, including to object to marketing from us;
- Make a data portability request;
- Withdraw any consent you have provided to us;
- Restrict any automatic processing of your personal information; and
- Complain to the appropriate Supervisory Authority.
To exercise any of these rights, please contact us as outlined in the “Contact Us” section below.
b. Notice for California Residents
“Shine the Light” and “Eraser” Laws: Residents of the State of California may request a list of all third parties to which we have disclosed certain information during the preceding year for those third parties’ direct marketing purposes.
California Consumer Privacy Act (CCPA)/California Privacy Rights Act (CPRA): The CCPA, as amended by the CPRA, provides California residents and/or their authorized agents with specific rights regarding the collection and storage of their personal information.
Your Right to Know: California residents have the right to request that we disclose the following information to you about our collection and use of your personal information over the past twelve (12) months. We may ask you to provide certain information to identify yourself so that we may compare it with our records in order to verify your request. Upon verification, we will disclose to you:
- The categories of personal information we have collected about you.
- The categories of sources for the personal information we have collected about you.
- The specific pieces of personal information we have collected about you.
- Our business or commercial purpose for collecting or selling your personal information.
- The categories of third parties to whom we have sold or shared your personal information, if any, and the categories of personal information that we have shared with each third-party recipient.
Your Right to Opt-Out of Sale or Sharing of Personal Information: California residents have the right to opt-out of the sale of their personal information by submitting a request as directed on the homepage of our website or by contacting us using the information in the “Contact Us” section below.
Please note that we do not knowingly sell the personal information of any individuals under the age of 18.
Where we are sharing your personal information with third parties for the purposes of cross-context behavioral advertising or profiling, you may opt-out of such sharing at any time by submitting a request as directed on the homepage of our website or by contacting us using the information in the “Contact Us” section below.
Your Right to Limit Use of Sensitive Personal Information: California residents have the right to request that we limit our use of any sensitive personal information to those uses which are necessary to perform the Services or for other specifically-enumerated business purposes under the CCPA, as amended by the CPRA.
Your Right to Delete: California residents have the right to request that we delete any of the personal information collected from you and retained by us, subject to certain exceptions. We may ask you to provide certain information to identify yourself so that we may compare it with our records in order to verify your request. Once your request is verified and we have determined that we are required to delete the requested personal information in accordance with the CCPA, we will delete, and direct our third-party service provides to delete, your personal information from their records. Your request to delete personal information that we have collected may be denied if we conclude it is necessary for us to retain such personal information under one or more of the exceptions listed in the CCPA.
Your Right to Correct: Under the CCPA, as amended by the CPRA, California residents have the right to request that we correct any inaccurate personal information we maintain about you, taking into account the nature of the personal information and the purposes for which we are processing such personal information. We will use commercially reasonable efforts to correct such inaccurate personal information about you.
Non-Discrimination: You will not receive any discriminatory treatment by us for the exercise of your privacy rights conferred by the CCPA.
Verifying Your Request: Only you, or a person that you authorize to act on your behalf, may make a request related to your personal information. In the case of access and deletion, your request must be verifiable before we can fulfill such request. Verifying your request will require you to provide sufficient information for us to reasonably verify that you are the person about whom we collected personal information or a person authorized to act on your behalf. We will only use the personal information that you have provided in a verifiable request in order to verify your request. We cannot respond to your request or provide you with personal information if we cannot verify your identity or authority. Please note that we may charge a reasonable fee or refuse to act on a request if such request is excessive, repetitive or manifestly unfounded.
c. Notice for Nevada Residents
Under Nevada law, certain Nevada residents may opt out of the sale of “personally identifiable information” for monetary consideration to a person for that person to license or sell such information to additional persons. “Personally identifiable information” includes first and last name, address, email address, phone number, Social Security Number, or an identifier that allows a specific person to be contacted either physically or online.
We do not engage in such activity; however, if you are a Nevada resident who has purchased or leased goods or services from us, you may submit a request to opt out of any potential future sales under Nevada law by emailing privacyrequests@upwork.com. Please note we will take reasonable steps to verify your identity and the authenticity of the request. Once verified, we will maintain your request in the event our practices change.
d. Notice for Virginia Residents
The Virginia Consumer Data Protection Act (“VCDPA”) provides residents of Virginia with certain rights, including the following:
Your Right to Know: Under the VCDPA, you have the ability to confirm whether we are processing personal information about you.
Your Right to Access: Under the VCDPA, you have to ability to obtain a copy of the personal information we maintain and process about you in a portable and, to the extent technically feasible, readily-usable format.
Your Right to Delete: Under the VCDPA, you have the right to request that we delete the personal information we maintain or process about you.
Your Right to Correct: Under the VCDPA, you have the right to request that we correct inaccuracies in the personal information we maintain or process about you, taking into consideration the nature and purpose of such processing.
Your Rights to Opt-Out: Under the VCDPA, you have the right to opt-out of certain types of processing of personal information, including:
- Opt-Out of the “sale” of personal information;
- Opt-Out of targeted advertising by us;
- Opt-Out of any processing of personal information for the purposes of making decisions that produce legal or similarly significant effects.
Please note, as explained above, we do not “sell” personal information as that word is traditionally defined. However, we do share personal information with third parties to provide you with personalized advertising from us. Through the use of cookies, we may also make available certain personal information to third parties. This is the “targeting” that you may opt-out from under Virginia law.
e. Appeals Process & Other Concerns
If we deny your request in whole or in part, you may have the right to appeal the decision. In such circumstances, we will provide you with information regarding the appeals process. Depending on your location, you may also email legalnotices@upwork.com to appeal.
If you have an unresolved privacy or data use concern that we have not addressed to your satisfaction, please contact our U.S.-based third-party dispute resolution provider free at https://feedback-form.truste.com/watchdog/request.
6. SECURITY
We take a number of steps to protect your data, but no security is guaranteed.
Upwork takes reasonable steps to help protect and secure the information it collects and stores about Upwork Users. We maintain reasonable administrative, technical, and physical safeguards designed to protect personal information that we receive against accidental, unlawful, or unauthorized destruction, loss, alteration, access, disclosure or use.
7. CROSS-BORDER DATA TRANSFERS
Because we are a U.S. company, we process and store your information in the United States and our service providers may process and store it elsewhere.
Upwork may transfer your personal information to a third party that is located in a jurisdiction other than the one from which we collected your personal information, including to countries that have not been deemed to have an adequate level of protection for the rights and freedoms of data subjects. If we do transfer your personal information to another jurisdiction, we will do so following due diligence and provided that the data recipient is subject to contractual agreements imposing obligations on it to ensure appropriate technical and organizational are implemented and maintained at all times to prevent the unauthorized and unlawful processing of personal information, and the accidental loss or destruction of, or damage to, personal information, consistent with our obligations under applicable data protection laws.
Privacy Shield Notice
Upwork Global Inc. has certified that their U.S. operations adhere to the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (“Privacy Shield”) with respect to the Personal Information that they receive in reliance on the Privacy Shield. Our Privacy Shield certification is available at https://www.privacyshield.gov/list. To learn more about the Privacy Shield program, please visit https://www.privacyshield.gov.
In light of the judgment of the Court of Justice of the EU in Case C-311/18, Upwork does not rely on the Privacy Shield as a legal basis for the transfer of personal data, however, when Upwork or one of its affiliates receives Personal Information under the Privacy Shield and then transfers it to a third party service provider acting as an agent on their behalf, Upwork or its affiliate may have certain responsibility under the Privacy Shield if both (i) the agent processes the information in a manner inconsistent with the Privacy Shield and (ii) Upwork or its affiliate is responsible for the event giving rise to the damage.
Covered European residents should contact Upwork at the contact information below regarding Upwork’s or its affiliates' compliance with the Privacy Shield. Upwork will attempt to answer your questions and satisfy your concerns in a timely and complete manner as soon as possible. If, after discussing the matter with Upwork, your issue or complaint is not resolved, Upwork and the above-named affiliates have agreed to participate in the Privacy Shield independent dispute resolution mechanisms listed below, free of charge to you. PLEASE CONTACT UPWORK FIRST.
For other Personal Information Upwork or its affiliates receive under the Privacy Shield, Upwork and its affiliates have committed to refer unresolved privacy complaints under the EU-U.S. and Swiss-U.S. Privacy Shield Principles to an independent dispute resolution mechanism, JAMS Privacy Shield Dispute Resolution, operated by JAMS. If you do not receive timely acknowledgment of your complaint, or if your complaint is not satisfactorily addressed, please visit https://www.jamsadr.com/eu-us-privacy-shield for more information and to file a complaint.
If your complaint still is not resolved through these channels, under limited circumstances, an additional binding arbitration option may be available before a Privacy Shield panel, as described at https://www.privacyshield.gov. Every individual also has a right to lodge a complaint with the relevant supervisory authority.
8. LINKS TO OTHER SITES
Our Service contains links to other websites. If you choose to click on a third-party link, you will be directed to that third party’s website. The fact that we link to a website is not an endorsement, authorization or representation of our affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices. We do not exercise control over third party websites. These other websites may place their own cookies or other files on your computer, collect data or solicit Personal Information from you. We encourage you to read the privacy policies or statements of the other websites you visit.
9. CHANGES TO THIS POLICY
We may change this Privacy Policy. If we make substantial changes, we will provide notice.
This Privacy Policy is effective as of the date stated at the top of this page. Upwork may update this Privacy Policy at any time and any changes will be effective upon posting. By accessing or using the Service after we notify you of such changes to this Privacy Policy, you are deemed to have accepted such changes. Please refer back to this Privacy Policy on a regular basis.
10. CONTACT US
If you have any questions about this Privacy Policy, please contact us at https://support.upwork.com or legalnotices@upwork.com, or by mail addressed to Upwork, Attn: Legal, 655 Montgomery Street Suite 490, DPT 17022, San Francisco, CA 94111-2676, USA. You may also contact us by phone at 866-262-4478.
If you are in the United Kingdom and contacting us does not resolve your inquiry, you may contact our UK representative under the following contact details via mail at: VeraSafe United Kingdom Ltd. 37 Albert Embankment, London SE1 7TL, United Kingdom.
If you are located in the EEA, for the purposes of Article 27 of the GDPR, you may contact our EU representative under the following contact details via mail at: VeraSafe Ireland Ltd. Unit 3D North Point House, North Point Business Park, New Mallow Road, Cork T23AT2P, Ireland.
You may also reach our UK and/or EEA Representatives via completing this form.
11. DATA PROCESSING AGREEMENT
Our data processing addendum (“DPA”) that was appended to previous versions of this Privacy Policy is now located here.
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PREVIOUS VERSION (last updated September 26, 2022)
This Privacy Policy tells you Upwork Global Inc.'s (“Upwork”) policies and procedures for the collection, use, and disclosure of information through www.upwork.com (“Site”). It includes websites, features, applications, widgets, or online services owned or controlled by Upwork and that post a link to this Privacy Policy (together with the Site, the “Service”). It also includes any information Upwork collects offline in connection with the Service.
This Privacy Policy describes the choices available to you for the use of, your access to, and how to update and correct your personal information . This Privacy Policy incorporates by reference the Upwork Global Data Processing Agreement. Note that we combine the information we collect from you from the Site, through the Service generally, or offline.
If you have an unresolved privacy or data use concern that we have not addressed to your satisfaction, please contact our U.S.-based third-party dispute resolution provider free at https://feedback-form.truste.com/watchdog/request .
Certain features or services referenced in this Privacy Policy may not be offered on the Service at all times. Please also review our Terms of Service, which governs your use of the Service, and which is accessible at https://www.upwork.com/legal/terms/.
We’ve provided short summaries in this Privacy Policy (in italics throughout) to help you understand what information we collect, how we use it, and what choices or rights you may have. While these summaries help explain some of these concepts in a simple and clear way, we encourage you to read the entire Privacy Policy to understand our data practices.
TABLE OF CONTENTS
- Information Collection
- Information You Provide to Us
- Personal Information
- Payment Information
- Identity Verification
- General Audience Service
- Non-Identifying Information
- Combination of Personal and Non-Identifying Information
- Information Received from Third Parties
- Information Collected Automatically
- Cookies
- Web Beacons
- Embedded Scripts
- How We Respond to Do Not Track Signals
- Work Diaries
- User Profiles
- Community Forums
- Work Listings Through the Service
- Feedback
- Email to Friends and Referral Program
- Social Networking Services
- SMS Terms of Service
- Information You Provide to Us
- Use of Information
- Data Retention
- Information Sharing and Disclosure
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California and Nevada Residents – Your Privacy Rights
- Changes to this Policy
- Contacting Us
- Supplemental Privacy Notice for California Residents
1. INFORMATION COLLECTION
Users of the Service may be Clients, Freelancers, or Agencies, or Site Visitors (as each is defined in the User Agreement ).
Information You Provide to Us
When you use the Service, you may provide us with information about you. This may include your name and contact information, financial information to make or receive payment for services obtained through the Upwork platform, or information to help us fill out tax forms. When you use the Service, we may also collect information related to your use of the Service and aggregate this with information about other users. This helps us improve our Services for you. You may also provide us with information about your contacts or friends if, for example, you’d like to add those contacts to a message room. Agencies may also provide us with information about Freelancers associated with the Agency.
- Personal Information: While using the Service (whether as a Client or Freelancer or Agency), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- Biometric Identifiers or Service Interaction Information: We may collect Personal Information to verify your identity and to detect fraud, identity theft, or other misuse of your account through facial recognition and other technologies.This might be a photograph of your face, a selfie, or data about your interactions with the Service.
We may request documents to verify this information, such as a copy of your government-issued ID. From time to time, Upwork may require you to take and submit another or updated image of your face for comparison to your government-issued ID. The biometric identifiers or information collected are used only to verify your identity and platform security and use integrity purposes. - General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information about your use of the Service, and general project-related data (“Non-Identifying Information”). We may combine information collected from Upwork users, whether they are registered or not (“Upwork Users”). In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Sometimes when non-identifying
information is combined, it can identify an individual. For example, if a birthdate is combined with a first name, it might identify a person even if the birthday or first name alone could not. But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information. - Collection of Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a statutory obligation to provide us with any information, but you may have a contractual obligation to do so, and if we do not receive certain information from you, then we will not be able to provide our Service to you. If you have any questions regarding whether provision of information is mandatory and the consequences for withholding such information, please contact us using the contact information below.
Information Received from Third Parties
Third parties may also give us information about you. If we combine that information with information about you collected through the Service, we will still treat that combined information as set forth in this Privacy Policy.
We also may receive information about you from third parties. For example, we may supplement the information we collect with outside records or third parties may provide information in connection with a co-marketing agreement or at your request (such as if you choose to sign in with a third-party service). If we combine the information we receive from others with information we collect through the Service, we will treat the combined information as described in this Privacy Policy.
Information Collected Automatically
Like other online companies, we receive technical information when you use our Services. We use these technologies to analyze how people use the Service, to improve how our Site functions, to save your log-in information for future sessions, and to serve you with advertisements that may interest you.
We and our third party service providers, including analytics and third party content providers, may automatically collect certain information from you whenever you access or interact with the Service. This information may include, among other information, the browser and operating system you are using, the URL or advertisement that referred you to the Service, the search terms you entered into a search engine that led you to the Service, areas within the Service that you visited, which links you clicked on, which pages or content you viewed and for how long, other similar information and statistics about your interactions, such as content response times, download errors and length of visits to certain pages and other information commonly shared when browsers communicate with websites. We may combine this automatically collected log information with other information we collect about you. We do this to improve services we offer you, and to improve marketing, analytics, and site functionality.
The information we collect also includes the Internet Protocol (“IP”) address or other unique device identifier (“Device Identifier”) for any device (computer, mobile phone, tablet, etc.) used to access the Service. A Device Identifier is a number that is automatically assigned or connected to the device you use to access the Service, and our servers identify your device by its Device Identifier. Some mobile service providers may also provide us or our third party service providers with information regarding the physical location of the device used to access the Service.
Upwork and its partners use cookies or similar technologies to analyze trends, administer the website, track users’ movement around the website, the desktop app, and the mobile app, and to gather demographic information about our user base as a whole. The technology used to collect information automatically from Upwork Users may include the following:
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service. For further information on cookies and how they are used for the Service, please visit our Cookie Policy at https://www.upwork.com/legal#cookie-policy.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and our marketing partners, affiliates, analytics, and service providers may use a variety of other technologies (such as tags) that collect similar information for security and fraud detection purposes and we may use third parties to perform these services on our behalf.
HOW WE RESPOND TO DO NOT TRACK SIGNALS
Upwork does not respond to Do-Not-Track signals.
Please note that your browser setting may allow you to automatically transmit a “Do Not Track” signal to websites and online services you visit. There is no consensus among industry participants as to what “Do Not Track” means in this context. Like many websites and online services, Upwork does not alter its practices when it receives a “Do Not Track” signal from a visitor’s browser. To find out more about “Do Not Track,” please visit http://www.allaboutdnt.com .
The General Data Protection Regulation: Data Processing Agreement
To streamline compliance with the General Data Protection Regulation (“GDPR”), Upwork has posted a Data Processing Agreement (“DPA”) governing the relationship between the Customer (as defined in the DPA) acting as a data controller or processor, as applicable (and as defined in the DPA), of personal data under European Data Protection Legislation; and Upwork (acting as a data processor or subprocessor, as applicable).
Unless otherwise agreed to in writing by you and Upwork, to the extent Upwork processes any EU personal data for you as a controller (as defined by the General Data Protection Regulation (EU) 2016/679) in your role as a Customer, the Data Processing Agreement applies.
Work Diaries and Work View
We collect information about a Freelancer’s work for a Client, including automatically collected information about work on a particular project. If a Freelancer enables Work Diaries, we will share Work Diaries with the relevant Client and Agency. We tell Freelancers when we are capturing information for the Work Diary and allow Freelancers to block such data sharing.
As part of the Service, when enabled by a Freelancer, we collect information about a Freelancer’s work on a project for a Client. This feature is known as Work Diary. Work Diaries include information provided by the Freelancer, such as a memo, as well as automatically gathered information about work on a project, such as number of mouseclicks and keyboard strokes and regularly taken screenshots (which may include a webcam picture of you if you have enabled this feature in your settings). In order to use Work Diaries, you must download and install the Team App software from www.upwork.com .
We will share information contained in Work Diaries with the relevant Client and with any manager or administrator of any applicable Freelancer Agency. We inform Freelancers each time we capture information for Work Diary. As set forth in our Terms of Service, End User License Agreement, and help pages on the Site, a Freelancer may choose to block or delete the screen shot and associated data for a recorded work interval, but then the Freelancer may not be paid for that work interval. Upwork may use de-identified or aggregated information from Work Diaries for statistical analysis, product development, marketing and research.
User Profiles
Freelancers may create a profile, with certain or all information publicly available. Clients and Agencies may also create organization profiles.
You may have the opportunity to create a profile, which consists of information about you, and may include Personal Information, photographs, examples of your work, information on work previously performed via the Service and outside the Service, skills, tests taken, test scores, hourly pay rates and earnings information, feedback/rating information and other information, including your username (“Profile”). The information in your Profile may be visible to all Upwork Users and the general public subject to the privacy choices you make within your Upwork Profile. If you choose to make your profile publicly visible, your profile will be visible to the entire Internet, including clients, freelancers, visitors, and search engines such as Google and Bing, and may appear on Upwork partners' sites. You may edit certain information in your Profile via your account and may choose to limit who is able to view certain content you post to your Profile. Clients and Agencies of associated individual users or companies may also have the opportunity to create an organization Profile. If, in any case, you believe that an unauthorized profile has been created about you, you can request for it to be removed by contacting us at https://support.upwork.com or legalnotices@upwork.com.
Identity Verification
We place a premium on trust in our Service, so we may take steps to verify your identity.
Before a Freelancer can complete registration on the Service, or at any time thereafter, we may request or re-request identity verification. Without limiting the manner in which we request identity verification, we may require Freelancers to participate in a video call after submitting their government issued ID to enable us to confirm that the Freelancer is indeed the individual in the ID. We may record such video calls and take screenshots of the user during the call. Upwork may use the information obtained from Identity Verification for purposes of verifying your identity, enforcing our Terms of Service and other agreements, and preventing fraud.
Messaging
Freelancers, Agencies, and Clients may communicate with each other through the Service. For example, Freelancers, Agencies, and Clients may wish to discuss Client needs and Freelancer work proposals. If you communicate with an Agency or Client, that Agency or Client will also be a “data controller” with respect to such communications.
Community Forums
We may offer public forums or blogs. If you participate, your comments and questions will be publicly displayed.
The Service may provide you the opportunity to participate and post content publicly in forums, on blogs, through interactive features on Upwork and through other communication functionality (“Community Forums”). You may choose, through such features or otherwise, to submit or post questions, comments, or other content (collectively, “User Forum Content”). Please note that certain information, such as your name and Profile may be publicly displayed on the Service along with your User Forum Content. Please note that your use of Community Forums is subject to the Upwork Forum Rules and our Terms of Service.
Note that anything you post to a Community Forum is public — others will have access to your User Forum Content and may use it or share it with third parties. If you choose to voluntarily disclose Personal Information in your User Forum Content or use Community Forums to link to your Profile, that information will be considered public information and the protections of this Privacy Policy will not apply .
To request removal of your personal information from our blog or community forum, contact us at https://support.upwork.com or legalnotices@upwork.com . In some cases, we may not be able to remove your Personal Information, in which case we will let you know if we are unable to do so and why.
Testimonials
We display personal testimonials of satisfied customers on our Service, in addition to other endorsements. With your consent we may post your testimonial along with your name. If you wish to update or delete your testimonial, you can contact us at https://support.upwork.com or legalnotices@upwork.com.
Work Listings Through the Service
If you choose to post a work listing via the Service as a Client, the contents of such listing will be viewable publicly, unless you designate the listing as only viewable through the Service or as private using the settings available on the applicable website. Work listings include information such as budget, location, history of work listing(s) by the Client, the names of other Freelancers performing work for the Client, Client feedback and rating information and timing of project performance.
Feedback
We collect public and private feedback from Upwork Users about their experience with other Upwork Users of our Service. Please note that any public feedback that you provide via the Service about your experience with other Upwork Users of our Service or that is provided about you by other Users is publicly viewable via the Service. On rare occasions, we may remove feedback pursuant to the relevant provisions of our Terms of Service, including the Terms of Use . Any private feedback that you provide via the Service about your experience with other Upwork Users of our Service or that is provided about you by other Users will not be publicly viewable via the Service.
We also collect feedback from Users about o