2020 TOS Updates

[Lena E]

We’ve updated portions of our Terms of Service to incorporate recent changes to our service offerings and to clarify a few things, including our Dispute Assistance Program.  

Our updated Terms of Service were posted today and all updates will take effect today, December 21, 2020, for all users that continue to use the Upwork site or services, with the exception of the updated Fixed Price Service Contract Escrow Instructions, which apply to any fixed price service contracts entered into after today.

What’s changed?

We’ve updated the User Agreement, the Terms of Use, the Optional Service Contract Terms, and our Fixed Price Escrow Instructions for service contracts. The purpose of these changes is to incorporate service offerings that we’ve recently rolled out and to improve the clarity and readability of our Terms of Service. Here is a snapshot of the updates for you to be aware of. 

The biggest news is that, with the addition of Project Catalog, we have updated our Fixed Price Escrow Instructions by:

• Changing the title to “Fixed Price Service Contract Escrow Instructions” to differentiate them from the new “Fixed Price Direct Contract Escrow Instructions” that recently went live. 
• Adding a new “Release Condition” for Project Catalog contracts that applies to circumstances where the client does not provide the required instructions within 48 hours of the contract. 
• Clarifying for client cancellations of contracts, the freelancer must either approve or dispute the cancellation by selecting the appropriate option within 7 calendar days.
• Revising our dispute assistance process for fixed-price service contracts (both marketplace and Project Catalog) to improve the user experience by making the process more clear to our customers.  

The specific updates we’ve made to the Disputes Assistance Program process for Fixed Price service contracts include: 

• Funds in Escrow or Released: Previous escrow instructions combined the process for contracts with funds held in escrow and those where funds had already been released. The updated escrow instructions have separate sections for each scenario. Specifically, Sections 6.1 and 6.2, respectively, address disputes with funds in escrow and disputes with funds released.

• Dispute Assistance Deadline: Previous escrow instructions defined the deadline as the date 30 days after the Client was billed for the last milestone, which created some confusion around what timeframe “billed” referred to - whether when the client was billed by Upwork, when the payment appeared on a client’s statement, etc. We have revised the language so that our new escrow instructions define the deadline for eligibility for the Dispute Assistance Program as within 30 calendar days of the date that funds in Escrow have been released from Escrow to the Freelancer. This update was made for contracts both with Funds Held in Escrow and No Funds Held (funds released). Found in sections 6.1 and 6.2 as detailed below.

• 6.1 DISPUTE OF FUNDS IN ESCROW Section A: 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 already been released from Escrow may be eligible for the Dispute Assistance Program under Section 6.2.
  
  
• 6.2 DISPUTE OF FUNDS RELEASED Section A: Dispute Mediation Deadline:  Dispute Mediation must be initiated within 30 calendar days of the date that funds in Escrow have been released from Escrow 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 calendar days prior to the date the dispute is filed is no longer eligible for submission to the Dispute Assistance Program.
  
  

• No Resolution Timeline: The prior escrow instructions did not include a clear timeline for resolution of disputes once a dispute is filed, but we aimed to resolve disputes within 21 calendar days of filing, and have updated the escrow instructions to clearly state this new goal in Section 6.1 (Dispute of No Funds Held in Escrow) and Section 6.2.

We have also made updates to our resource article “Facts About Disputes”, to reflect these changes.

We also made a few minor changes to other portions of the Terms of Service. Specifically:

• We’ve reorganized the Site Terms of Service to improve the flow of the various agreements. We have also recently added and updated the terms and escrow instructions that apply to Direct Contracts.  
• We clarified language in the following areas:
• The User Agreement has been updated to clarify language related to your relationship with Upwork.
• Our Terms of Use have been updated to state more clearly the activities that are prohibited on the Upwork site. 
• The language in the Optional Service Contract Terms related to using subcontractors and ownership of intellectual property has been updated to clarify those terms.  

With the exception of the updated escrow instructions, these updated terms apply to all users who continue to use the Upwork site or services after the terms are posted today. The updated escrow instructions apply to any fixed-price service contracts entered into after the updated escrow instructions are posted today.  

Please review these updates carefully, and thank you for being a part of the Upwork Community. 

[Jennifer M]

Hi Lena,

Does this mean that clients can no longer request all money back on the contract by funding a new milestone? It sounds to me that they can't dispute after a milestone has been released for over 30 days, but what if it's been 45 days (for instance) after milestone 1 has been released, but the client funds a new milestone B. Can they now request dispute of the entire amount or only milestone B?

[Jennifer S]

Hi Jennifer,

Great question. A client can request a refund on paid funds at any time, however it is up to you as the freelancer to authorize it. Filing a dispute does not mean paid funds will be automatically refunded. Technically speaking, if there are funds held in Escrow, the entire contract would be eligible for Dispute Assistance, which includes the option of Arbitration. The goal of Dispute Assistance would be to reach a mutual agreement between both parties. If an agreement cannot be reached, the contract could proceed to Arbitration in which a legal ruling would determine what happens to both the funds held in Escrow and previously paid.

However, I think I understand what you are asking. Can a client fund a new milestone in an attempt to get a refund on past paid funds? While yes, funding a milestone makes the entire contract eligible for Dispute Assistance, we also have systems in place to identify abuse of the Dispute Assistance program. This scenario is rare and one that is usually very obvious and would be handled appropriately on an individual basis. Delayed milestones or additional work needed after 30 days from releasing the first milestone, happen all the time.  The functionality of Escrow allows long term jobs to proceed at the cadence required for the specific project.

[Jennifer M]

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Jennifer S wrote:

Hi Jennifer,

Great question. A client can request a refund on paid funds at any time, however it is up to you as the freelancer to authorize it. Filing a dispute does not mean paid funds will be automatically refunded. Technically speaking, if there are funds held in Escrow, the entire contract would be eligible for Dispute Assistance, which includes the option of Arbitration. The goal of Dispute Assistance would be to reach a mutual agreement between both parties. If an agreement cannot be reached, the contract could proceed to Arbitration in which a legal ruling would determine what happens to both the funds held in Escrow and previously paid.

However, I think I understand what you are asking. Can a client fund a new milestone in an attempt to get a refund on past paid funds? While yes, funding a milestone makes the entire contract eligible for Dispute Assistance, we also have systems in place to identify abuse of the Dispute Assistance program. This scenario is rare and one that is usually very obvious and would be handled appropriately on an individual basis. Delayed milestones or additional work needed after 30 days from releasing the first milestone, happen all the time.  The functionality of Escrow allows long term jobs to proceed at the cadence required for the specific project.

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ok, thank you. I know someone it happened to and customer service told the client how to do it, so I wanted to know if it was a possibility still. Sounds like it is. I just wanted to clarify.

[Tarpinder S]

6.2 DISPUTE OF FUNDS RELEASED Section A: Dispute Mediation Deadline:  Dispute Mediation must be initiated within 30 calendar days of the date that funds in Escrow have been released from Escrow 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 calendar days prior to the date the dispute is filed is no longer eligible for submission to the Dispute Assistance Program.

Then why this, the above  clearly states

any dispute over funds that have been released from Escrow more than 30 calendar days prior to the date the dispute is filed is no longer eligible for submission to the Dispute Assistance Program.

[Jennifer M]

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Tarpinder S wrote:

6.2 DISPUTE OF FUNDS RELEASED Section A: Dispute Mediation Deadline:  Dispute Mediation must be initiated within 30 calendar days of the date that funds in Escrow have been released from Escrow 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 calendar days prior to the date the dispute is filed is no longer eligible for submission to the Dispute Assistance Program.

Then why this, the above  clearly states

any dispute over funds that have been released from Escrow more than 30 calendar days prior to the date the dispute is filed is no longer eligible for submission to the Dispute Assistance Program.

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yeah, it's tricky and cleverly worded. Another reason I only work hourly. I just keep accumulating reasons for avoiding escrow at this point.

[Maria T]

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Jennifer M wrote:

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Tarpinder S wrote:

6.2 DISPUTE OF FUNDS RELEASED Section A: Dispute Mediation Deadline:  Dispute Mediation must be initiated within 30 calendar days of the date that funds in Escrow have been released from Escrow 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 calendar days prior to the date the dispute is filed is no longer eligible for submission to the Dispute Assistance Program.

Then why this, the above  clearly states

any dispute over funds that have been released from Escrow more than 30 calendar days prior to the date the dispute is filed is no longer eligible for submission to the Dispute Assistance Program.

---

yeah, it's tricky and cleverly worded. Another reason I only work hourly. I just keep accumulating reasons for avoiding escrow at this point.

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Why Upwork doesn't write the TOS so that we can understand them?
And no longer because of the language (something very important), but because I am sure that even many English speakers cannot understand what is being said.
I do not understand anything, and specifically the points about disputes, mediations, etc ...

[Yury M]

It would be nice if you do english-russian translation soon.

[Valeria K]

Hi Yury,

We already have the translation of the updated TOS in the works and will make it available to users according to this process as soon as possible. 

[Maria T]

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Yury M wrote:

It would be nice if you do english-russian translation soon.

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Yes, and to some other language. Spanish, for example