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Six questions on non-circumvention

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Ace Contributor
Joseph M Member Since: Feb 17, 2015
1 of 12

Recently I've run into a few questionable situations, and though I just backed out of them to be safe, I'm wondering what the actual consensus is.  A couple of hypothetical ones thrown in for fun.

 

Situation 1: Freelancer identifies client through Upwork but contacts off-site.  Client then refuses to do business through Upwork.  If a contract ensues, is this circumvention?

 

Situation 2: Freelancer completes work with a client on Upwork and refers them to another freelancer's website for unrelated work.  Is this circumvention?

 

Situation 3: Freelancer completes work with a client on Upwork, and client connects freelancer with another client for unrelated work.  Circumvention?

 

Situation 4: Freelancer completes a contract with a client on Upwork.  Client asks freelancer to join their platform which pays royalties for user-generated content.  Do the royalties need to be paid through Upwork to avoid it being considered circumvention?

 

Situation 5: Freelancer completes work for a client through an agency.  Client contacts freelancer outside of Upwork for additional work.  Is this circumvention?

 

Situation 6: Client and Freelancer previously met in a non-business context, but were connected for business via Upwork.  If they take the work off-site, is this circumvention?

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Moderator
Valeria K Moderator Member Since: Mar 6, 2014
2 of 12

Hi Joseph,

 

You can refer to Section 7 or the User Agreement for detailed information. Please note that if you identified or were identified by any party on Upwork, you agree "to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party" on Upwork for 24 months. So all the cases you described would be considered circumvention.

~ Valeria
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Community Guru
John K Member Since: Feb 17, 2015
3 of 12
Valeria, in situation 2, even if the other freelancer who gets a referral does not have an Upwork account, it would still be circumvention?
__________________________________________________
"No good deed goes unpunished." -- Clare Boothe Luce
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Moderator
Valeria K Moderator Member Since: Mar 6, 2014
4 of 12

John,

 

I won't be able to provide a detailed interpretation of the ToS. I suggest contacting a legal professional to review a specific case.

~ Valeria
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Community Guru
Preston H Member Since: Nov 24, 2014
5 of 12

Joseph:

In no way do I want to dismiss your sincere questions about the non-circumvention rules at Upwork.

 

But in case it is helpful, I will give you my very simple take on the whole subject, and this is an approach I know many other other Upwork freelancers take as well:

 

The whole concept of "non-circumvention" is simply Upwork asking its users to be fair. They put a lot of work into creating this resource. The point of the site is to let freelancers connect with clients. Upwork earns a fee based on the work we do for those clients.

 

So how I handle things is very simple: If I find work using Upwork, then I work only through Upwork with those clients. Period.

 

I don't keep track of how long I've been working for them and I don't think about when or why I could stop using Upwork to work with them. I just keep using Upwork. I think that keeps me covered as far as the rules go.

 

Once I've worked for a client for a while, then I'm only paying 10% or 5% fees. Not 20%. At that point, it is DEFINITELY worth it to me to do all my work through Upwork. My hours and work history and job count all accumulate, and that's cool. I get all kinds of advantages such as automatic billing, payment, payment protection, etc. Honestly, when I sometimes work for non-Upwork clients, the whole paymentand billing thing is a hassle and I would PREFER that I was working for them via Upwork.

 

I have no problem with you being interested in this topic and asking questions. It doesn't bother me if you don't look at this the same way I do. It is certainly possible to follow Upwork's rules and not continue working via Upwork with a given client. That's fine. This is just my two cents.

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Ace Contributor
Joseph M Member Since: Feb 17, 2015
6 of 12

Preston -

 

Just want to say I totally agree with you on the convenience.  Payment protection is a really nice thing to have, and I don't really like to spend my spare time chasing invoices.  The only clients I've taken off site were ones that couldn't afford to boost my rates after 2 years - financially I couldn't have continued working with them otherwise.

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Ace Contributor
Joseph M Member Since: Feb 17, 2015
7 of 12

I am a little dismayed at this official "shrug."  In situations 2 and 3, I do not benefit monetarily from the referral.  Am I to understand that if I tell a client to print business cards at Staples, Staples needs to make an Upwork account to receive the payment?  This is an extreme example but it holds true.

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Community Guru
Scott B Member Since: Nov 20, 2015
BEST ANSWER
8 of 12

Situation 2: From ToS 7.1

 

Except if you pay the Opt-Out Fee (see Section 7.2), you agree not to circumvent the Payment Methods offered by the Site. 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.

 

Very recently there was a thread about whether a client could refer a freelancer to another client (not on UW). The answer from UW was "no" this is not allowed. This is what I use, along with the ToS, to suggest that #2 is not allowed. 

 

Situation 3: Same as #2 and directly answered as "No" from UW. 

View solution in original post

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Active Member
Joel D Member Since: Jun 11, 2020
9 of 12

so you don't have a proper answer to your own legal definitions of non-circumventionin common use cases, yet are able to enact punitive measures on users ad-hoc that also threaten their livelihoods?

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Community Guru
Scott B Member Since: Nov 20, 2015
10 of 12

I am not a lawyer but here are my thoughts based on my underestanding both from the ToS Section 7.1 and from what UW has indicated in other threads:

 

Situation 1: Not allowed

Situation 2:  Not Allowed

Situation 3: Not allowed

Situation 4: I *think* this is okay

Situation 5: Not allowed

Situation 6: I *think* if the connection was initially made outside of UW, this is okay.

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