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Does disintermediation apply to Elance clients?

suznee
Community Guru
Suzanne N Member Since: Aug 15, 2012
31 of 45

@John K wrote:

Michael wrote earlier, and Susanne expressed the same point, that "Elance seems to be wanting to transfer its rights without transfering its obligations." The buy-out fee would be one such right, and the 8.75% fee one such obligation. As Garnor put it, the Upwork justification for the apparent inconsistency is that "the User Agreement states that Elance can change the Terms of Service by posting the new agreements on the website. You consent by continuing to use the Site." This is of purely academic interest to me, but it seems a stretch to apply new terms retroactively to contracts that predate the new terms. In Garnor's example of "when AT&T acquired Cingular. Cingular customers became AT&T customers", if the Cingular customers had a multi-year contract with Cingular, I presume AT&T honored the terms of those contracts.


Kind of a poor example to compare it to Cingular and AT&T as they did not honor the terms and a class action lawsuit went forward. They ended up settling.  

 

http://www.consumeraffairs.com/news04/2009/05/arbitration_att.html

yitwail
Community Guru
John K Member Since: Feb 17, 2015
32 of 45

Suzanne & Fergus, obviously I don't follow the business news too closely. Don't blame me for the example, Garnor introduced it. Cat Embarassed

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"No good deed goes unpunished." -- Clare Boothe Luce
fergusm1970
Community Guru
Fergus M Member Since: May 23, 2015
33 of 45

I'm not blaming you at all!

If liberty means anything at all, it means the right to tell people what they do not want to hear.― George Orwell
researchediting
Community Guru
Douglas Michael M Member Since: May 22, 2015
34 of 45

@John K wrote:

Michael wrote earlier, and Susanne expressed the same point, that "Elance seems to be wanting to transfer its rights without transfering its obligations." The buy-out fee would be one such right, and the 8.75% fee one such obligation. As Garnor put it, the Upwork justification for the apparent inconsistency is that "the User Agreement states that Elance can change the Terms of Service by posting the new agreements on the website. You consent by continuing to use the Site."


Good point, John, about the 8.75% commission being a transferred obligation. Somehow Upwork blessed this carrot for Elance providers; many of us are puzzled by their tight grip on the stick of disintermediation. (OK, I nominate myself for belabored dead metaphor of the day.)

 

Continued use of a site implying consent to any change in the Terms of Service is boilerplate for any web service. The courts have tended to strike that form of implied consent: It is an unreasonable expectation of the user to go periodically rooting through the ToS to ensure the safety and security of their firstborn or whatever other requirements the more powerful party has imposed. Moreover, Elance may have shot itself in the foot by requiring explicit consent to ToS changes at least twice in the last few years. If it was necessary then, why not now?

kugrin
Community Guru
Krisztina U Member Since: Aug 7, 2009
35 of 45

Do the Elance terms require consent to assign or have a change of control right to terminate? If neither is the case, which I doubt because they would've changed it pre-merger I am sure, I'd honor the contract.

fergusm1970
Community Guru
Fergus M Member Since: May 23, 2015
36 of 45

The Elance terms refer explicitly to Elance.com, "the Site". Extending the disintermediation clause to Upwork.com isn't assigning a right to Upwork; it's changing the terms of the agreement to include a site that didn't even exist when we agreed to it.

If liberty means anything at all, it means the right to tell people what they do not want to hear.― George Orwell
kugrin
Community Guru
Krisztina U Member Since: Aug 7, 2009
37 of 45

@fergus M wrote:

The Elance terms refer explicitly to Elance.com, "the Site". Extending the disintermediation clause to Upwork.com isn't assigning a right to Upwork; it's changing the terms of the agreement to include a site that didn't even exist when we agreed to it.


I disagree as that's always the case when a company gets acquired. I am not a lawyer, but I would not contest it unless there is a CoC right to terminate or consent is required to assign, and even in those instances it's questionable, because the legal cost would by far outweigh the buy out fee.

fergusm1970
Community Guru
Fergus M Member Since: May 23, 2015
38 of 45

Dunno. The consensus from those people who've already spoken to lawyers is that any attempt to enforce the disintermediation clause would get laughed out of court. We'll just need to see what happens with the first cases. I suspect there are going to be a lot of people doing it, because some of the Elancers who've moved here are already closing their accounts and I know they have regular clients. Somehow I doubt they're going to stop working with those clients when Elance closes.

If liberty means anything at all, it means the right to tell people what they do not want to hear.― George Orwell
kugrin
Community Guru
Krisztina U Member Since: Aug 7, 2009
39 of 45

@fergus M wrote:

Dunno. The consensus from those people who've already spoken to lawyers is that any attempt to enforce the disintermediation clause would get laughed out of court. 


Unless they spoke to laywers that specialized on M&A and are equipped to travel to CA to fight it out, I wouldn't hold my breath. It's also not worth it in my opinion. Much easier to get through the two year period and leave on good terms. The minimum that will happen is that they'll get banned, and it's stupid to burn bridges.

fergusm1970
Community Guru
Fergus M Member Since: May 23, 2015
40 of 45

"The minimum that will happen is that they'll get banned, and it's stupid to burn bridges."

 

In principle I agree, but Upwork is burning the Elance bridge anyway and plenty of people just aren't interested in this one. If neither freelancer nor client wants to deal with the Upwork platform it's hard to see why they would care much about the ToS of a defunct site.

If liberty means anything at all, it means the right to tell people what they do not want to hear.― George Orwell
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