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Re: Terms of Service Update 2018

Community Guru
Maria T Member Since: Nov 12, 2015
61 of 128

@Reinier B wrote:


 It seems that as a sort of compromise in allowing sub-contracting, contracts are now in peril of a dispute for only 30 days, as opposed to 60 days as before. Interestingly, I also noticed that all references to "Payment Protection" for fixed-price contracts have been removed from the updated ToS/User agreement. Unless of course, I missed something.  


@ @Reinier B, or any other, can you tell me where to find that information?
I was looking and I only found this:

"In cases where you’d like money back from a freelancer, you’ll need to request a refund through Upwork within 180 days of the payment."

Moderator
Vladimir G Moderator Member Since: Oct 31, 2014
62 of 128

Also, the fact that it's now possible to sub-contract hourly jobs as well seems to indicate that UW was tired of dealing with complaints about farming operations. I have the impression that it just got easier to thrive in the 'shadows'. 

 

Hi Ela,

 

The ToS hasn't changed in this respect and transitioning Hourly contracts continues to be prohibited.

 

Community Guru
Jess C Member Since: Feb 18, 2015
63 of 128

@Vladimir G wrote:

Also, the fact that it's now possible to sub-contract hourly jobs as well seems to indicate that UW was tired of dealing with complaints about farming operations. I have the impression that it just got easier to thrive in the 'shadows'. 

 

Hi Ela,

 

The ToS hasn't changed in this respect and transitioning Hourly contracts continues to be prohibited.

 


Please explain.

 

Section 2.1 of the NEW User Agreement states:

 

Freelancers are free to use subcontractors or employees to perform Freelancer Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Freelancer’s subcontractor(s) or employee(s).

 

vs.

 

Section 8.2 of the EXISTING User Agreement:

 

To ensure accurate billing, work billed for Hourly Contracts under a Freelancer’s Account must be performed by the Freelancer that has the Account.

 

The term "subcontractor" only appears in section 2.1 in the NEW User Agreement, and this second statement does not exist there at all.

Moderator
Vladimir G Moderator Member Since: Oct 31, 2014
64 of 128

Hi Jess,

 

To clarify, this is not a change in the way subcontracting works on Upwork. On fixed-price contracts, Upwork is not involved in whether freelancers subcontract. It's up to the client and the freelancer. On hourly projects, a freelancer on the contract still may not allow another freelancer to bill on the contract - that is account sharing and it is not permitted. However, this version of the Terms of Service clarifies (but does not change) that a freelancer may subcontract on hourly contracts by having the subcontracting freelancer enter into a contract directly with the client. The freelancer would then pay the subcontracting freelancer off of Upwork or however the freelancer and subcontracting freelancer agreed. Again, this is not a change - this is how agencies work now.

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Community Guru
Jess C Member Since: Feb 18, 2015
65 of 128

@Vladimir G wrote:

Hi Jess,

 

To clarify, this is not a change in the way subcontracting works on Upwork. On fixed-price contracts, Upwork is not involved in whether freelancers subcontract. It's up to the client and the freelancer. On hourly projects, a freelancer on the contract still may not allow another freelancer to bill on the contract - that is account sharing and it is not permitted. However, this version of the Terms of Service clarifies (but does not change) that a freelancer may subcontract on hourly contracts by having the subcontracting freelancer enter into a contract directly with the client. The freelancer would then pay the subcontracting freelancer off of Upwork or however the freelancer and subcontracting freelancer agreed. Again, this is not a change - this is how agencies work now.


Again, here is the section in question:

 

Freelancers are free to use subcontractors or employees to perform Freelancer Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Freelancer’s subcontractor(s) or employee(s).

 

I cannot see the logic of your interpretation of this sentence as "not a change" - it seems to be a fundamental change, in that the previous User Agreement was unequivocally against "account sharing" and subcontracting on hourly contracts. The new language is LESS clear.

 

This section does not distinguish specifically WHO has the contract with the subcontractor - is it the first freelancer, or the client?

 

Your assertion that the first freelancer would pay the subcontractor off the site makes no sense at all if the subcontractor has an Upwork contract. That would be directly against the non-circumvention rules, correct?

 

Additionally, I cannot find any specific language in the NEW User Agreement about "account sharing" - the only applicable language I can find is in section 1.5:

 

You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, including as a Team Member or Agency Member, you represent and warrant that (a) the User is authorized to act on your behalf, (b) you are financially responsible for the User’s actions taken in accordance with those permissions, including, if applicable, entering into binding contracts on behalf of the owner of the Account, and (c) you are fully responsible and liable for any action of any User to whom you have provided any permissions and any other person who uses the Account, including making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site. Upon closure of an Account, Upwork may close any or all related Accounts.

 

This limits creation of an account, but not use. Granting others permission under your Account includes but is not limited to Agencies or Team Members.

 

Section 1.7 includes this:

 

You authorize Upwork to assume that any person using the Site with your username and password, either is you or is authorized to act for you.

 

If there is another section specifically prohibiting use of another freelancer's account, can you kindly point it out? This does seem to be a major omission.

Community Guru
Ela K Member Since: Feb 9, 2015
66 of 128

@Vladimir G wrote:

Also, the fact that it's now possible to sub-contract hourly jobs as well seems to indicate that UW was tired of dealing with complaints about farming operations. I have the impression that it just got easier to thrive in the 'shadows'. 

 

Hi Ela,

 

The ToS hasn't changed in this respect and transitioning Hourly contracts continues to be prohibited.

 


 And what about this?

 

New 2.1

Freelancers are free to use subcontractors or employees to perform Freelancer Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Freelancer’s subcontractor(s) or employee(s).

 

Maybe it's the language barrier? How can a hypothetical employee of mine have an hourly contract when that person is not on Upwork other than me billing the client for them? While somebody else does the work?

 

 

ETA: only discovered Jess' post now.

Community Guru
Baris A Member Since: Mar 15, 2017
67 of 128

@John K wrote:

Perhaps this is not a new provision in the ToS, but I find this example of prohibited site use curious:

  • Selling, trading, or giving an account to another person without Upwork’s consent;

Does that mean there are circumstances under which Upwork would consent to the sale, trade, or other transfer of freelancer profiles?

 


Maybe it should be rephrased to mean selling and trading a freelancer or client account is prohibited and giving a client account to another person working in the same company should be done with Upwork's consent.

 

However I don't see anything wrong with the current phrasing because I presume Upwork won't be giving consent to anybody selling or trading their accounts.

 

Since this thread is followed by many freelancers I want to ask about the organized crime ring with many client accounts who hire new freelancers for a fee and give them good feedback until they have a 100% JSS. This was asked in another thread and all related info and detective work was given to UW with tickets and private messages. I can still see the clients and their "clients" still active on the site. This is a very lucrative business model. Is this not regulated with ToS?

Active Member
Argelia U Member Since: Feb 8, 2018
68 of 128

I got an email from your company called "Updates to the Upwork Terms of Service", I read all the new terms carefully but it is not clear to me whether the platform is only going to be paid now or there is always a free affiliation for independent workers, thanks for the response.

 

Mayela Umaña

Community Guru
John K Member Since: Feb 17, 2015
69 of 128

If you're asking if Upwork will continue to have a free membership plan, then the answer is yes. In section 5.2 of the Terms of Use, it states,

 

Freelancers pay Upwork a membership fee if they subscribe for a paid membership. Freelancers may subscribe to different levels of participation and privileges on the Site, by payment of subscription fees as described in and subject to the terms of the Freelancer Membership Agreement.

 

I underlined the important part. You only pay a fee if you choose paid membership.

__________________________________________________
"No good deed goes unpunished." -- Clare Boothe Luce
Community Guru
Phyllis G Member Since: Sep 8, 2016
70 of 128

Good grief.

 

Re. forbidding the sharing of off-UW contact info during the interview period: if that passes into "law" then UW becomes virtually useless to me. I'm not a big-ticket earner (yet) but I belong to the segment that UW should recognize as its bread-and-butter: a competent, ethical FL who has learned the platform and is steadily building a loyal clientele.

 

Such "payment protection" as is afforded by UW is all well and good for those FLs for whom it works. But it simply doesn't fit all of our business models. I work a lot of hourly contracts but given the nature of my work, the desktop tracker is useless. It is, therefore, incumbent on me to screen and vet my clients carefully and effectively; ensure we are on the same page about scope of work, time/effort anticipated, factors that could affect time/effort, etc.; and establish a minimum level of mutual trust out of the gate. The same applies to fixed-price contracts, really, and it's just as important because a client can technically claw back payment up to 30 days after a project wraps. 

 

The groundwork for a successful client relationship starts during the interview phase and it cannot be done using only UW's messaging platform. 

 

Instead of trying to construct fail-safes for the inexperienced, lazy, and/or dishonest people, which have the unintended but very real consequence of hamstringing the rest of us, UW should be looking for ways to make sure newbies enter the platform the right way, understanding what's expected of them (and filtering out the scammers).

 

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