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Terms of Service Update 2018

Community Guru
Douglas Michael M Member Since: May 22, 2015
111 of 119

@Taylor C wrote:

Thanks for explaining.

 

What is the recommended way to alter or remove the optional service contract terms when entering into an Upwork contract?


Official confirmation or correction is welcome: My understanding is that the optional service contract terms must be opted into by both contractor and client before they apply. Your best bet for having correct contract terms with your client is to have your own contract. How much or how little of the Upwork standard contract you incorporate is up to you.

Active Member
Taylor C Member Since: Aug 23, 2018
112 of 119

Douglas, thanks for replying. I'm pretty sure that the default is that one does agree to the optional service contract terms (which is odd considering the name "optional". The first paragraph is this:

 

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

 

The second sentence seems to support your advice to have your own contract.

 

However, I'm concerned that its not perfectly clear what exactly would "count" as "different terms". What about a separate NDA, combined with chat about what is going to be done? does this count as "terms" that would negate the optional service terms? I suppose exlicitly stating that the terms replace the optional service terms could do the trick, but I'm wondering if Upwork has a more concrete definition or guidance.

Active Member
Taylor C Member Since: Aug 23, 2018
113 of 119
Community Guru
Douglas Michael M Member Since: May 22, 2015
114 of 119

@Taylor C wrote:

Douglas, thanks for replying. I'm pretty sure that the default is that one does agree to the optional service contract terms (which is odd considering the name "optional". The first paragraph is this:

 

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

 

The second sentence seems to support your advice to have your own contract.

 

However, I'm concerned that its not perfectly clear what exactly would "count" as "different terms". What about a separate NDA, combined with chat about what is going to be done? does this count as "terms" that would negate the optional service terms? I suppose exlicitly stating that the terms replace the optional service terms could do the trick, but I'm wondering if Upwork has a more concrete definition or guidance.


Thanks for checking this out, Taylor. Yes, it is a peculiar use of the term "optional." I should know better than to take Upwork's language at face value.

 

You may "rest assured" that Upwork has no more concrete definition or guidance. This thread is full of the most basic questions for clarification to which Upwork's response is: lawyer up.

 

One nice feature of Elance was that the onsite correspondence with clients was considered to be the contract.

You have inspired me to review my standard contract terms and make sure I include them in initial correspondence.

 

Thanks and best,

Michael

Community Guru
Wendy C Member Since: Aug 24, 2015
115 of 119

Does this mean when Upwork 'reviews' messaging it is essentially worthless?

 

I know with eLance all messaging was reviewed and absolutely served to back up either party.

Active Member
Taylor C Member Since: Aug 23, 2018
116 of 119

Understood. I should probably do the same.

 

I notice that many contracts have a clause saying that the current agreement supercedes all others, or something like this. Perhaps such a clause negates the "optional" terms.

Community Guru
Wendy C Member Since: Aug 24, 2015
117 of 119

Taylor, the contract I use does have the clause "this contract overrides and supersedes Upwork's generic contract" in it - and both the client and I sign it before work begins.  It resides in the workroom ... and therein lies the concern.

 

IF Upwork does not actually review and honor items in the workroom ... is it all for naught?

Community Guru
Douglas Michael M Member Since: May 22, 2015
118 of 119

@Wendy C wrote:

Taylor, the contract I use does have the clause "this contract overrides and supersedes Upwork's generic contract" in it - and both the client and I sign it before work begins.  It resides in the workroom ... and therein lies the concern.

 

IF Upwork does not actually review and honor items in the workroom ... is it all for naught?


 Wendy,

Supersession clauses are pretty standard. For all I know, Upwork has one in its "optional" (read: default) contract. It's at a minimum a declaration of the intent of the contracting parties. And as I understand Upwork's peculiar implementation of optionality, the very existence of your own contract with your client means theirs does not apply. How or where it's recorded does not affect its enforceability (or practical lack thereof). Documenting it in the workroom is facial evidence of supersession, with or without Upwork's say-so.

Remember that Upwork as escrow agent is debarred from rendering judgments on any disputes between the contracting parties: they ignore, as they must, the substance of any dispute, and can only suggest that the parties come to an agreement on their own or go to arbitration. To my mind, this is a good thing.

The only thing Upwork can enforce is its own terms of service. That is the rubric under which they can release escrow funds to one party when the other party fails to respond.

 

Best,

Michael

Community Guru
Wendy C Member Since: Aug 24, 2015
119 of 119

Thank you, Michael.  Confirmed once again, you are the most logical and analytical person I know.  

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