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New User. Interview.Recommending a friend.

petra_r
Community Guru
Petra R Member Since: Aug 3, 2011
11 of 23

Preston, when in a hole, stop digging.

 

Let's circle back to what you claimed:

 

nonsense.png

 

This is false. That's all there is to it and no amount of trying to twist stuff is going to change that fact.

 

As so often, it's not the stuff you don't know that cause the trouble, it's the stuff you are absolutely adamant that you do know, when that isn't the case.

 

prestonhunter
Community Guru
Preston H Member Since: Nov 24, 2014
12 of 23

This is a worthwhile discussion.

 

I actually do not have any particular preference about this matter. I am simply answering the original poster's question.

 

Clearly there are participants in this thread who look at this matter differently than I do.

 

But at this point, I do not think there is any ambiguity about my understanding of Upwork's policies regarding this question.

petra_r
Community Guru
Petra R Member Since: Aug 3, 2011
13 of 23

Preston H wrote:

I am simply answering the original poster's question.


Well, you were answering her question, by telling her something is fine when it isn't, and then continued to argue that it's fine, including an attempt to claim that regardless of what is in the ToS, that's not actually what they mean...

 

Which part of the text below, which has been confirmed by Upwork, are you not understanding?

 

"[...] By way of illustration and not in limitation of the foregoing, you agree not to: [...] Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site."

 


Preston H wrote:

 

But at this point, I do not think there is any ambiguity about my position.


Oh, there is no ambiguity... none at all. You are claiming that something is fine which directly violates the ToS.

colettelewis
Community Guru
Nichola L Member Since: Mar 13, 2015
14 of 23

Petra R wrote:

Preston H wrote:

I am simply answering the original poster's question.


Well, you were answering her question, by telling her something is fine when it isn't, and then continued to argue that it's fine, including an attempt to claim that regardless of what is in the ToS, that's not actually what they mean...

 

Which part of the text below, which has been confirmed by Upwork, are you not understanding?

 

"[...] By way of illustration and not in limitation of the foregoing, you agree not to: [...] Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site."

 


Preston H wrote:

 

But at this point, I do not think there is any ambiguity about my position.


Oh, there is no ambiguity... none at all. You are claiming that something is fine which directly violates the ToS.


_________________________

 

Preston,

 

There are times when you need an editor Smiley Wink 

 

This is what the OP asked: "Can I recommend some one for  the job/project if I feel the other professional be a better fit?

Should this person be a UpWork user, or you can send the person's information directly to a client?

 

So the answer is:

1) Yes, the person should be an Upwork user, and if the person is an Upwork user, then yes, she can give the client that person's Upwork url. I often do it. 

2) If the person is not an Upwork user and the client is, then no, the OP may not send the client off site to that person. 

 

What's so hard about this? 

 

researchediting
Community Guru
Douglas Michael M Member Since: May 22, 2015
15 of 23

I see that Valeria gave a definitive answer last fall. Though Upwork has indeed taken a hard line on such referrals, it is based on different language in the ToS.

Several informed legal minds express doubt about the clarity or defensiblity of that hard line, while also pointing out the risks involved in a freelancer's pressing them on this point.

https://community.upwork.com/t5/Freelancers/Client-referral/m-p/524639

researchediting
Community Guru
Douglas Michael M Member Since: May 22, 2015
16 of 23

Petra R wrote:

Nichola L wrote:

And continuing on from Petra's post in the same section. Upwork is specific:  "[...] By way of illustration and not in limitation of the foregoing, you agree not to: [...] Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site."


Thanks Nichola, that was the part I actually meant to post.

It could not be clearer, could it?


Well, yes, it could. Were I, hypothetically, to refer a potential client off site, I would not be doing so "for purposes of making or receiving payments off the site." Nor would the referred client follow up on the referral for that purpose; but rather to get their work done by the most suitable person, irrespective of payment methods or source of the referral. They might make a similar decision based on a response to another ad, or a referral from a person not on Upwork. How can Upwork have an interest in, let alone a claim to, any of this?

The "purpose" clause reads to me as a specifically anti-fraud/impersonation/circumvention provision; if anything it distinguishes sham referrals from real and normal ones, such as any professional might make in the course of business.

The mods wrestled with this question a while back, and my arguably imperfect recollection is that they specified that exclusivity applies if the contracting parties "meet" on Upwork. That is not the case being presented here. It's not at all clear to me that Upwork has the least say in referrals I make in which neither I nor they have a vested interest.


abinadab-agbo
Community Guru
Abinadab A Member Since: Sep 26, 2016
17 of 23

One freelancer interpreted those clauses under contention as, "Upwork hijacking a freelancer's referral chain" [paraphrase mine] , and for that specific reason she elects to no longer accept new clients through Upwork.

 

Vladmir also weighed in on this matter one time and said cannot clients cannot do circumvention through referring. In other words, referring so as to circumvent.

 

Preston's understanding seems to be, that the purpose of such referral, in this case, the FL referring, is not to circumvent.

 

There is quite a measure of ambiguity, especially during the interpretation of those referral clauses, and I'm afraid such ambiguity would unavoidable.

 

Presently, Upwork sells our data to advertisers. I'm rather disappointed, because one would think, all those clauses to reign in on circumvention through referrals are so that they can be financially sustainable without having to sell our data like all the other big tech companies we use for free.

 

richard_wein
Community Guru
Richard W Member Since: Jun 22, 2017
18 of 23

Preston, when you're making an assumption (even if it's a sensible one) about Upwork's policy, please state that this is what you're doing. Don't present your assumption as a fact.

researchediting
Community Guru
Douglas Michael M Member Since: May 22, 2015
19 of 23

Abinadab A. wrote:

One freelancer interpreted those clauses under contention as, "Upwork hijacking a freelancer's referral chain" [paraphrase mine] , and for that specific reason she elects to no longer accept new clients through Upwork.

 

Vladmir also weighed in on this matter one time and said cannot clients cannot do circumvention through referring. In other words, referring so as to circumvent.

 

Preston's understanding seems to be, that the purpose of such referral, in this case, the FL referring, is not to circumvent.

 

There is quite a measure of ambiguity, especially during the interpretation of those referral clauses, and I'm afraid such ambiguity would unavoidable.

 

Presently, Upwork sells our data to advertisers. I'm rather disappointed, because one would think, all those clauses to reign in on circumvention through referrals are so that they can be financially sustainable without having to sell our data like all the other big tech companies we use for free.

All interpretive questions have been, as a practical matter, rendered moot by Valeria's November 2018 statement of Upwork policy. Right or wrong, legally defensible or not, the policy has been clearly stated, and site users flout it at thier peril.

abinadab-agbo
Community Guru
Abinadab A Member Since: Sep 26, 2016
20 of 23

You're correct though, Douglas.

Any freelancer who disagrees with how Upwork's official interpretation of those clauses may go to court and spend a fortune there defending his/her interpretation after his account has been suspended. Hopefully, he might get awarded a few millions in damages.

 

Or he/she might simply discontinue using Upwork to avoid the whole debacle.

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