My client wants to use our contract because for her friend to avoid hiring fees

[pongatot]

Hello Upwork, 

I would like to ask. I have 2 questions :

First :

I have a client. She said that she have a friend that needs something done in her website. Her friend registered on Upwork but having a hard time. So instead of registering, She initiated to use our contract for her friend. She also mentioned that this would save her friend from the charges in hiring a freelancer. Is this ok? 

Second:

Is it ok to work outside upwork? This is outside our contract and I believe this is also outside the TOS. But I don't wanna be so sure because I don't want any violations. I love upwork, that is why I tried to convince her friend to hire me on upwork. 

That is all, I hope to hear your good feedback.

Thank you,

Hiroshi Rubi

[michael_skaggs · Accepted solution]

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Hiroshi R wrote:

I have a client. She said that she have a friend that needs something done in her website. Her friend registered on Upwork but having a hard time. So instead of registering, She initiated to use our contract for her friend. She also mentioned that this would save her friend from the charges in hiring a freelancer. Is this ok?

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I'm not an expert, but this is a very grey area. Technically, she would be the contractor for her friend, and would then subcontract the actual work to you. Basically your client would be paying the processing fees on her friend's behalf. How they work that out would be between them. As long as you do the work and are paid via Upwork, you should be fine, but a staff member could give you a better answer.

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Hiroshi R wrote:

Is it ok to work outside upwork? This is outside our contract and I believe this is also outside the TOS. But I don't wanna be so sure because I don't want any violations. I love upwork, that is why I tried to convince her friend to hire me on upwork. 

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You are correct. It would be a violation of the non-circumvention clause of the TOS. Basically, once you even encounter a client on Upwork, you're bound by that clause for a period of two years. You could argue that it's for a completely different client outside of Upwork, but they could just as easily argue that you would never have found that client if not for your current project on Upwork. Much better to just play it safe and have them get a client account of their own. There are plenty of resources to help them get everything up and running, and that will make sure everything is 100% above board for all parties involved.

[pongatot]

Spoiler

I'm not an expert, but this is a very grey area. Technically, she would be the contractor for her friend, and would then subcontract the actual work to you. Basically your client would be paying the processing fees on her friend's behalf. How they work that out would be between them. As long as you do the work and are paid via Upwork, you should be fine, but a staff member could give you a better answer.

Thanks This is at least ok... This information helps a lot.

Spoiler

You are correct. It would be a violation of the non-circumvention clause of the TOS. Basically, once you even encounter a client on Upwork, you're bound by that clause for a period of two years. You could argue that it's for a completely different client outside of Upwork, but they could just as easily argue that you would never have found that client if not for your current project on Upwork. Much better to just play it safe and have them get a client account of their own. There are plenty of resources to help them get everything up and running, and that will make sure everything is 100% above board for all parties involved.

Yeah. I think you are right. Thank you for this. Better to be safe than to violate. 

[feed_my_eyes]

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Michael S wrote:

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You are correct. It would be a violation of the non-circumvention clause of the TOS. Basically, once you even encounter a client on Upwork, you're bound by that clause for a period of two years. You could argue that it's for a completely different client outside of Upwork, but they could just as easily argue that you would never have found that client if not for your current project on Upwork. Much better to just play it safe and have them get a client account of their own.

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I would disagree with that. If you have an Upwork client and they refer you to a friend who is not on Upwork, I don't see why you would have to work with them via this website. You're not taking the client off of Upwork if they never posted a project on Upwork in the first place, therefore I don't see how it could be argued that it's a TOS violation. But yes, if you want to be on the safe side, it would be good if a moderator could confirm this.

[pongatot]

Thanks Ma'am,

I am also thinking the same. But it is much better to be safe... 

[petra_r]

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Christine A wrote:

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Michael S wrote:

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You are correct. It would be a violation of the non-circumvention clause of the TOS.

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I would disagree with that. If you have an Upwork client and they refer you to a friend who is not on Upwork, I don't see why you would have to work with them via this website.

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Because it is specifically spelled out in the terms of service that you must?

If a client refers you to someone else, it still counts. I would guess that it might be hard to police, but it is in the terms of service.

[firescue17]

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Petra R wrote:

Because it is specifically spelled out in the terms of service that you must?

If a client refers you to someone else, it still counts. I would guess that it might be hard to police, but it is in the terms of service.

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I'm not disputing this outright, and certainly not in the case of the primary point of contact. Do you have a point of reference to where a third-party referral to an off-site client would violate the ToS?

How would the ToS even apply to someone who's not a member of Upwork?

(unless I'm misinterpreting the OP ... the story is very confusing ...)

[petra_r]

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Steven E. L wrote:

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Petra R wrote:

Because it is specifically spelled out in the terms of service that you must?

If a client refers you to someone else, it still counts. I would guess that it might be hard to police, but it is in the terms of service.

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I'm not disputing this outright, and certainly not in the case of the primary point of contact. Do you have a point of reference to where a third-party referral to an off-site client would violate the ToS?

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It's in the ToS, I don't have time to find it right now though, but it is in there, I have seen it.

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Steven E. L wrote:

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How would the ToS even apply to someone who's not a member of Upwork?

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The other party would not be bound by the terms of a site they have never used (although now they have joined they are bound by the ToS) - but the OP certainly is.

[tlbp]

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Steven E. L wrote:

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Petra R wrote:

Because it is specifically spelled out in the terms of service that you must?

If a client refers you to someone else, it still counts. I would guess that it might be hard to police, but it is in the terms of service.

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I'm not disputing this outright, and certainly not in the case of the primary point of contact. Do you have a point of reference to where a third-party referral to an off-site client would violate the ToS?

How would the ToS even apply to someone who's not a member of Upwork?

(unless I'm misinterpreting the OP ... the story is very confusing ...)

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Upwork's mods on the forum have been very firm in stating that any downstream referral belongs to Upwork. Now, there might be room to dispute this claim in a court of law. But, the potential to win if the matter were put before a judge won't keep Upwork from banning a freelancer for violating the TOS. 

[feed_my_eyes]

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Petra R wrote:

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Christine A wrote:

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Michael S wrote:

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You are correct. It would be a violation of the non-circumvention clause of the TOS.

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I would disagree with that. If you have an Upwork client and they refer you to a friend who is not on Upwork, I don't see why you would have to work with them via this website.

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Because it is specifically spelled out in the terms of service that you must?

If a client refers you to someone else, it still counts. I would guess that it might be hard to police, but it is in the terms of service.

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I'm not disagreeing with you and I did refer the OP to a moderator for confirmation, but could you please point out where it says that referrals from clients must also go through Upwork? I just tried to look this up myself but what I read only referred to the original client/freelancer relationship.

[petra_r]

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Christine A wrote:

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I'm not disagreeing with you and I did refer the OP to a moderator for confirmation, but could you please point out where it says that referrals from clients must also go through Upwork?

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here.

Therefore, for 24 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “Upwork Relationship”).

[firescue17]

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Petra R wrote:

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Christine A wrote:

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I'm not disagreeing with you and I did refer the OP to a moderator for confirmation, but could you please point out where it says that referrals from clients must also go through Upwork?

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here.

Therefore, for 24 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “Upwork Relationship”).

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hehe... I was just CTRL-Fing through the ToS for relevant terms.

jeezus. That's sketchy. I'd love to see that go to court.

Thank you for the info.

[petra_r]

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Steven E. L wrote:

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jeezus. That's sketchy. I'd love to see that go to court.

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I know, right?

[pongatot]

Then, I think it is concluded then. Hehehe

[VladimirG]

Hi Hiroshi, Christine and others,

We can confirm that since originally the client connected with you via Upwork, it would be circumvention for their friend to hire you outside of Upwork since the Terms of Service prohibit payment off platform for any work "arising out of your relationship with" the client.

Regarding the first question, you can ask your client to ask their friend to hire you on Upwork to streamline communication amongst other benefits of taking this approach. Also, since you are Top Rated, you can also take advantage of our promo that allows freelancer to bring new clients and work with them at 0% Service Fee.

Noting also that as long as you're hired and paid on Upwork, completing a task the client hired you for (even though it might not be their project per se) is not a violation of Upwork ToS.

[martina_plaschka]

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Hiroshi R wrote:

Hello Upwork, 

I would like to ask. I have 2 questions :

First :

I have a client. She said that she have a friend that needs something done in her website. Her friend registered on Upwork but having a hard time. So instead of registering, She initiated to use our contract for her friend. She also mentioned that this would save her friend from the charges in hiring a freelancer. Is this ok? 

Second:

Is it ok to work outside upwork? This is outside our contract and I believe this is also outside the TOS. But I don't wanna be so sure because I don't want any violations. I love upwork, that is why I tried to convince her friend to hire me on upwork. 

That is all, I hope to hear your good feedback.

Thank you,

Hiroshi Rubi

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From what I understand, it is really easy to create a client account on upwork. If you work for your client, or your client sends you work through her account for a friend, the cost associated would be the same, so I don't understand the argument of savings in this context. 

Working with the same client on a second (or third, or multiple) contract is absolutely not against ToS, so there is no reason why you shouldn't do that. Let's assume the client had contracted you for a task without you knowing it was for a friend, and she handles payment to you through that contract and forwards the work to her friend, you would have unknowingly worked for her friend, but not done anything against ToS. 

[pongatot]

Thanks ma'am,

This explanation is enough for me 😄