Hello Upwork community. I need help. I don't know what to do. I hired a freelancer to create a custom website for me. I provide the details and she misses the deadline. She then got back to me and said the work was 80% done. I checked the website and all that was there was a broken template, with links leading back to another website, selling the template. I confronted her about this and she claimed it was completely custom and she "could not have used that template because it has to be paid for." However, later she said she took "ideas from the template." And another time she even admitted to stealing the template with plans of changing things on it.
I cannot pay her for copyright infringement. I also cannot pay her for not doing what I hired her to do. The case has been going back and forth for a while now, with nothing really happening. Upwork dispute team has not been too helpful either.
My question is, since she violated terms of service, and the law, shouldn't I just be able to get my money back? Arbitration would be extreme in this case. Also, especially since the contract was for $300. I'm leaving the website up as proof, but I really want to hire someone else asap.
I`m sorry to hear about the bad experience you had with your freelancer. Please consider following up on your open ticket and kindly communicate with our team through that ticket if you have any questions, in order to keep all the information in one place. We will also follow up with the team about your case.
Upwork states in Section 5.1 7. Release Conditions that "Release Condition" in regards to escrowed funds can mean...
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.
It sounds like you are convinced the freelancer violated copyright. If Upwork believes this to be true, they have reserved the right to return any funds in escrow to you.
I'm sorry to hear that this happened to you.
What I think you may not fully understand is that it is not Upwork's role to decide who is right or wrong in a case like this.
Because you used a fixed-price contract, and thus used escrow, Upwork's employees are actually subject to strict escrow-based guidelines. They can't "rule in your favor."
That would be what arbitration is for, if you wanted to go that route. It would cost you and the freelancer and Upwork $291 each.
If it was ME PERSONALLY, then I would never have involved Upwork in this. I would have settled things directly with the freelancer.
I believe that one of the things that is holding you back in dealing with this situation in the way that is most beneficial to you is you are personally invested in this and you are seeking justice. I advise to not do that. Just try to reclaim as much money out of this situation as you can. Tell the freelancer point blank that you can't use the files she sent you. Tell her you are willing to release $100 immediately if she will accept that as a settlement. If she agrees, then it means you get $200 back.
Or, if you think she might go for it, ask her to agree to a complete refund, and tell her that if she does that, there will be no feedback from this contract on her profile. This is completely true.
Keep in mind that the freelancer you hired worked the only way she knows how to work. Using stuff she copied from the Internet and passing it off as her own is literally how she does every project. So put aside any notions of teaching her a lesson or making sure she gets what she deserves for doing this.
She has done this before, and she will do it again.
If you want to weigh in on any of this, you may leave accurate commends in feedback. But you can NOT leave feedback if you pay her nothing.
If it was me personally, I would be completely fine with getting ALL my money back, and not leaving feedback. Keep in mind that zero-pay contracts also cause a freelancer's JSS to go down.
Thank you for your input. I understand and as a new client, I have learned and will make better decisions hiring in the future. I thought about it and took your advice. Losing $100 is a lot better than losing $300 and I can leave feedback. The good news is that she agreed. However, I'm not seeing the option for the partial refund.
re: "However, I'm not seeing the option for the partial refund."
If the contract has not already been closed with the client requesting a refund, then you should still be able to do a partial refund, without involving Upwork.
Go to where you are able to release payment. You will have the option to edit the dollar amount. You can change it to any number you want. If the amount is LESS than originally agreed, then it will automatically send a message to the freelancer to APPROVE the refund.
Jake, I don't want to muddle the issues, but if this is a wordpress site you're referring to, then WordPress GPL license pretty much allows copying of themes and plugins. That doesn't excuse the freelancer not informing you of this beforehand, or installing an unlicensed copy that doesn't work properly.
"No good deed goes unpunished." -- Clare Boothe Luce