Terms of Service
Last updated: April 15, 2020
For purposes of these Terms, the terms, “user,” “you” or “your” refers to: (i) the Client or Freelancer, individually, or (ii) the Client and Freelancer, together.
BY PLACING A CHECK MARK NEXT TO THE BOX “ACCEPT”, YOU HEREBY REPRESENT AND WARRANT THAT YOUR ARE DULY AUTHORIZED TO ENTER INTO AND BIND YOURSELF TO THE TERMS AND CONDITIONS OF THESE TERMS AND ACKNOWLEDGE AND AGREE THAT ALL SUCH USE BY YOU IS SUBJECT TO SUCH TERMS AND CONDITIONS. If you do not agree to these Terms or are not authorized to bind yourself do not check mark the box next to “Accept,” you are prohibited from using the Site and Services.
1. NOTIFICATION OF CHANGES TO THIS TERMS OF SERVICE
We update these Terms when needed and place updates on our platforms. If we update the Services in a manner different from that stated in these Terms, we will notify you through our Site. All changes will become effective when posted unless indicated otherwise. Please review these Terms periodically for changes. If you do not agree to any changes after receiving a notice of such changes, you must stop using the Site and Services. Otherwise, your continued use of the Site shall be deemed your conclusive acceptance of the modified Terms.
2. ABOUT NEXTWORK SERVICES
2.1 In general, Our Services. The Site is a marketplace where we provide Services that allow users (Client and the Freelancer) to connect. Our Services provide Clients with access to review Freelancer profiles to determine if a Freelancer meets the requirements of the Project (as defined below). We give users access to an online community, communication tools, and payment services to facilitate the formation of a service agreement between Clients and Freelancers. Unless agreed to by the parties, Clients will have the ability to hire and pay Freelancers through our marketplace platform.
2.2 Nextwork is not a Recruiting Agency. Nextwork does not provide services to the Client or Freelancer, except for the Services described in these Terms. Freelancers are not the employees or agents of Nextwork. We are not involved with the service agreement you have with the Freelancer. For purposes of clarity, you and Freelancer agree that Nextwork shall not be liable for any actions or omissions related to the performance of services.
2.3 We Match Clients to Specific Freelancers. We will recommend up to five (5) Freelancers who have certain qualifications (such as, knowledge, experience, skills, and expertise) to deliver and complete the Client’s Project. We review the profiles of each Freelancer. By using our Site, you acknowledge and agree that you select the individual Freelancer. We use commercially reasonable efforts to confirm that Freelancers have the background and experience; however, it is your responsibility to determine the Freelancer who is most qualified for the Project before you enter into a service agreement with the Freelancer. You understand that we do not make any warranty, guarantee, or representation (i) as to Freelancer’s competence, quality, or qualifications or (ii) that the Freelancer is covered by professional liability insurance.
2.4 Clients Post Jobs. Our Site is a platform for collaboration and communication between Freelancers and Clients. Once you establish a User Account (as defined below), you may post a description of the services you need from a Freelancer (“Project”). We will contact you to discuss the specific details of the Project and then match you to Freelancer(s) that may meet the requirements you need to complete a Project. You can communicate directly with the Freelancers through messaging for the purposes of interviewing and negotiating the details of your Project before entering into a service agreement between you and the Freelancer.
2.5 Client Directly Hires Freelancer. In the event that Client desires to hire Freelancer as a permanent full-time or part-time employee, Client will pay Nextwork a fee equal to twenty percent (20%) of Freelancer’s first year salary within seven (7) days of Freelancer’s date of hire. Client agrees that it will contact Nextwork before it directly hires Freelancer. Client understands that it is solely responsible for paying Freelancer’s salary and benefits and complying with all current employment and labor laws with respect to the direct hire of Freelancer. In the event there is a dispute between Client and Freelancer, it is understood by Client and Freelancer that Nextwork is not responsible or liable for any dispute or claim that arises out of the relationship between Client and Freelancer. Upon payment of the aforementioned fees described in this Section 2.5, Nextwork shall provide written consent for Client to hire Freelancer directly. At Nextwork’s discretion, any user that violates this Section 2.5 may have substantial restrictions placed on their account, which may meaningfully limit their usage of Nextwork’s Site and Services.
2.6 Client Representation and Warranty. Client and Freelancer acknowledge that Nextwork uses substantial labor and effort to connect Nextwork’s Clients with Freelancers. Client represents and warrants that it will not circumvent or attempt to circumvent Nextwork or this Agreement, or in any way procure services from a Freelancer outside of the Nextwork Platform, without Nextwork’s prior written consent. Should Client breach its warranty in this Section 2.6, Client shall pay Nextwork a one-time fee equal to the greater of: twenty percent (20%) of Freelancer’s estimated annual compensation from Client; or $12,500.
3. USER ACCOUNT
3.1 User Account. To use our Services, each user must register for a user account (“User Account”) by completing a profile and creating a username and password to access the Services. By registering for a User Account, each user hereby represents and warrants that (i) we have your consent to share your information (“User Information”) with other users; (ii) you have the authority to, and are of legal age (at least 18 years old) in your jurisdiction, to bind yourself to these Terms, and (iii) your use of our Services will comply with all current applicable laws.
4. RESPONSIBILITIES OF THE CLIENT AND FREELANCER
4.1 Agreement between Client and Freelancer. Any services provided by Freelancer is covered by a services agreement between Client and Freelancer only. Freelancer and Client have sole discretion with respect to the services provided by Freelancer and the specific fees.
4.2 Payment for Services. Unless you agree to directly hire a Freelancer as set forth above in Section 2.5, you will make any and all payments for services performed by Freelancers through our Site and in accordance with the Terms.
4.3 Freelancer Payment Terms. Freelancer will be paid by Client the amount as agreed between the Client and Freelancer. We do not, in any way, provide or guarantee that you will be given a regular salary or any minimum, regular payment.
4.4 Freelancer’s Obligation to Comply with Laws. You are solely responsible for ensuring that these Terms comply with all relevant laws, rules and regulations applicable to you as a Freelancer providing services to a Client. Your right to access the Services is revoked where these Terms or use of our Services is prohibited or to the extent that offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use and not for the use or benefit of any third party unrelated to you or your practice.
4.5 You are Responsible for Your Content. All Content submitted on the Site is the sole responsibility of the person who originated such Content. For purposes of the terms and conditions of the Terms, the term "Content" includes, without limitation, information, data, text, photographs, videos, audio clips, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible by you on or through our Services. You represent and warrant that all Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. We may use and distribute your Content solely to provide Services on your behalf. If any of your Content is subpoenaed, we shall give you prior notice in order for you to be able to contest such subpoena order.
5.1 Nextwork May Modify or Remove Content. We have the sole right (though not the obligation) to, in our sole discretion, determine whether or not any of your Content is appropriate and complies with these Terms, or refuse or remove any Content that, in our reasonable opinion, violates these Terms or is in any way harmful, inappropriate, or objectionable.
5.2 We May Monitor Interactions between the Client and Freelancer. At our discretion, we may employ, monitor and/or record your general interactions relating to our Services (however, not the specifics of your interactions between the Client and Freelancer).
5.3 Availability of Content. We do not guarantee that any Content will be made available on the Site or through the Services. We reserve the right to (without the obligation to) (i) edit, modify or exclude Content, in our sole discretion, at any time, without notice to you and for any reason, or for no reason at all and (ii) to remove or block any Content from the Services.
5.4 Prohibited Content. You agree that you will not, under any circumstances, transmit any Content that: (i) is unlawful or promotes unlawful activities; (ii) defames, harasses, abuses, threatens or incites violence toward any individual or group; (iii) is pornographic, discriminatory or otherwise victimizes or intimidates any individual group on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability; (iv) is spam which constitutes unauthorized or unsolicited advertising, any other form of unauthorized solicitation or any form of lottery or gambling; (v) contains or installs any viruses, worms, malware, trojan horses or other content that is designed or intended to disrupt, damage or limit the function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; (vi) infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity or other rights; (vii) impersonates any person or entity, including any employee or representative of Nextwork; or (viii) violates the privacy of any third party.
6.1 Fees Paid to Nextwork. In exchange for consideration for giving Client access to our Services or Site, Client will pay Nextwork a fee of 20% of the Freelancers hourly rate or fixed Project fee. Such charges are separately stated in the invoice for services performed by Freelancer. For hourly rate Projects, the Freelancer will submit their weekly timesheets, and the Client will pay to Nextwork 20% of Freelancers hourly rate times the hours worked. If the Project is based on a fixed Project fee, whether or not there are milestones, the 20% Nextwork service fee is added on top of the fixed project fee, or each milestone.
6.2 Fees Paid to Freelancer. Nextwork does not charge for services performed by Freelancer. Payments made to the Freelancer via our billing platform are transferred directly to the Freelancer’s payment account, less any associated service and processing fees (e.g. credit card fees). Unless Client directly hires Freelancer as set forth above in Section 2.5, all Freelancers receive payment through the Site for all transactions, including transactions that are not necessarily related to the initial Project. If a Client is either unwilling or unable to make payment via Nextwork, Freelancer agrees to notify Nextwork. Payment by a Client to Freelancer, made outside of the Site without prior notification to Nextwork, constitutes termination of these Terms (as set forth in Section 10 or breach in Section 2.6).
7. PAYMENT AND TRANSACTIONS
7.1 Payment Process. Unless otherwise agreed to in writing by Nextwork, all payments for services performed by Freelancer will be paid by credit card or other payment method that we may make available through our Site. All payments will be processed through StripeTM. For purposes of clarity, all invoices or payments shall be submitted through our Site.
a. Hourly Rate Project. Based on an hourly rate, Freelancer will submit a weekly timesheet and request for payment at the end of each week. Client will pay Freelancer on or after each Monday for the previous week. Once Client clicks “pay now,” the funds from their credit card (or other payment method) will be sent to Freelancer’s bank account.
b. Fixed Fee Project. Upon accepting or hiring a Freelancer based on a Project for a fixed fee, Nextwork may charge the fixed fee amount (as partial payment or the entire amount up front) from Client’s credit card or such other payment method and place such payment in Freelancer’s hold fund account until Freelancer satisfies the work described in the Project.
c. Fund Account. Any deposit or upfront fee may be held in a fund account for only 90 days. If such deposit or upfront fee has not been paid out to Freelancer’s bank account within 90 days, then the amount remaining in Freelancer’s hold fund account shall be sent to Freelancer’s bank account.
7.2 Client’s Responsibility for Payment. You are responsible for all fees, including taxes, service, and processing fees, associated with your use of the Service. By using the Service, you agree to pay Freelancer (through Nextwork) the amount agreed upon, or the undisputed invoice, and the associated service and processing fees.
7.3 Dispute. If either party has a dispute concerning the fees, such party must contact us by sending an email to firstname.lastname@example.org and adhere to the other conditions set forth in Section 15 (Dispute Resolution and Arbitration Agreement). You are responsible for providing us with a valid means of payment. If the Client has taken no action after 10 days, Nextwork will have the right to charge the Client's credit card or other payment method for the full amount of the agreed-upon fee or undisputed invoice, including applicable service or processing fees. The Client and Freelancer can click “raise dispute” on the Site if there is any issue. We will work with you and Freelancer to resolve the dispute, provided that you and Freelancer adhere to the conditions set forth in Section 15 (Dispute Resolution and Arbitration Agreement).
7.4 Payment Authorization. By agreeing to these Terms, you are giving Nextwork permission to charge your on-file payment method (i.e., credit card), for fees that you authorize Nextwork to satisfy. Depending on your Project, Nextwork may charge you on a one-time or recurring basis. You authorize Nextwork to charge you the full amount owed to any Freelancer via the Service, as well as any applicable service and processing fees. For the avoidance of doubt, in the event that a Freelancer uses our Services solely for billing purposes (i.e., Freelancer elects not to use all the communication tools we offer), you shall pay for all services rendered in accordance with these Terms.
We use email and electronic means to stay in touch with our users. For contractual purposes, you (i) consent to receive communications from us in an electronic form via the email address you have submitted or via the Service; and (ii) agree that all Terms of Service, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. This Section 8 does not affect your non-waivable rights.
Nextwork has a proprietary interest in its list of Clients and Freelancers provided on our Site. Therefore, any action that encourages or solicits complete or partial payment outside of our platform is a violation of this agreement if either party (Client or Freelancer) solicits the other party during Freelancer's engagement with Client and for the period ending six (6) months after the termination of this agreement, regardless of how that termination should occur, and within the geographic area within which Freelancer provides services to Client. For purposes of this agreement, the term "solicit" means to solicit, or attempt to solicit, any Client or Freelancer on our platform.
In the event a Client or Freelancer violates this Section 9, the breaching party will owe Nextwork an amount with respect to each service agreement equal to the greater of i) $12,500; or ii) the applicable fees had the payments been processed through Nextwork’s Site, plus 20%. Such amount shall be due immediately.
10.1 Our Right to Terminate. We have the right (without an obligation) to, in our sole discretion, determine whether or not any user conduct is appropriate and complies with these Terms, or terminate or deny access to and use of our Services or Site to any user for any reason, with or without prior notice, effective immediately.
10.2 Your Right to Terminate. You may cancel these Terms and close your account at any time. If you wish to cancel the Services and terminate the Terms or your account with the Service, you may simply discontinue using the Site or Services. If you wish to delete your User Account data, please contact us at email@example.com. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements, but barring legal requirements, we will delete your full profile within 30 days. You are responsible for any and all fees incurred prior to and after termination performed by any Freelancer for services rendered under your service agreement with the Freelancer.
10.3 Some Provisions Survive Termination. All provisions of these Terms which by their nature should survive termination will survive termination, including, without limitation, warranty disclaimers, indemnity and limitations of liability.
11. DISCLAIMER OF WARRANTIES
11.1 Disclaimer. NEXTWORK PROVIDES THE SITE AND THE SERVICE “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, NEXTWORK EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SITE AND THE SERVICE INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. FURTHER, NEXTWORK EXPRESSLY DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY DELAYS OR ERRORS IN THE TRANSMISSION OR DELIVERY OF ANY PRODUCTS OR SERVICES AVAILABLE THROUGH THIS SITE.
11.2 No Warranties. Nextwork makes no representation or warranty that the information we provide or that is provided through the Service is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, that the Service will function in an uninterrupted manner or be secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. You assume full responsibility and risk of loss resulting from your use of information, content or other material obtained from the Service. Some jurisdictions limit or do not permit disclaimers of warranty, so this provision may not apply to you.
We will not be liable for damages or losses arising from your use of the service or arising under these Terms or a service agreement between Client and Freelancer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NEXTWORK BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (i) THE USE, DISCLOSURE, OR DISPLAY OF YOUR GENERATED CONTENT; (ii) YOUR USE OR INABILITY TO USE THE SERVICE; (iii) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE OUR SERVICE AVAILABLE; OR (iv) ANY OTHER INTERACTIONS WITH NEXTWORK OR ANY OTHER USER OF OUR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NEXTWORK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NEXTWORK WILL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND OUR REASONABLE CONTROL. Some jurisdictions limit or do not permit disclaimers of liability, so this provision may not apply to you.
13. THIRD PARTY BENEFICIARIES
Freelancers are intended third-party beneficiaries of this Section 13 of these Terms. Any information provided on the Site is for informational purposes only. Nextwork and any creator of generated Content containing information disclaim all warranties, either express or implied, statutory or otherwise, including but not limited to the implied warranties of merchantability, non-infringement of third parties' rights, and fitness for particular purpose, to the fullest extent permitted by law. IN NO EVENT WILL NEXTWORK BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OF OR INABILITY TO USE OUR SERVICE OR THE GENERATED CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NEXTWORK OR CONTRIBUTORS OF GENERATED CONTENT ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Neither Nextwork nor contributors of generated Content are liable for any personal injury, including death, caused by your use or misuse of the Service or generated Content.
14. INDEMNIFICATION; RELEASE
14.1 Indemnification. You agree to indemnify, defend, and hold harmless Nextwork from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Site and the Service, including but not limited to your violation of these Terms.
14.2 Release. If you have a dispute with one or more users, you release Nextwork from any claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
15. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
15.1 Mediation. The parties agree to attempt to resolve all disputes arising out of or in connection with this agreement, or in respect of any legal relationship associated with it or from it, by mediated negotiation with the assistance of a neutral person appointed by the British Columbia International Commercial Arbitration Centre administered under its Mediation Rules.
15.2 Arbitration. If the dispute cannot be settled within 30 days after the mediator has been appointed, or such other period agreed to in writing by the parties, the dispute shall be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre, pursuant to its Rules. The cost of the binding arbitration proceedings and any proceeding in court to confirm or to vacate any arbitration award, including, without limitation, reasonable attorneys' fees and costs, will be borne by the unsuccessful party and will be determined and awarded by the arbitrator.
16. GOVERNING LAW AND JURISDICTION
This agreement is governed by and are to be construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein and treated in all respects as a Vancouver contract. The parties hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of British Columbia, in Vancouver and all courts competent to hear appeals therefrom.
17.1 Contact. You may contact us by (i) writing to us at Nextwork Ltd, 422 Richards Street, Suite 170, Vancouver, BC V6B 2Z4, (ii) emailing us at firstname.lastname@example.org, or (iii) calling us at +1.450.500.NEXT.
17.3 Severability; Waiver. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
17.4 Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
17.5 Assignment. These Terms are personal to you, and is not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without your consent.
17.6 Agency. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
17.7 Notices. Unless otherwise specified in these Terms, all notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.
17.8 Headings. The section and paragraph headings in these Terms are for convenience only and shall not affect their interpretation.