Solved: TOS Change Never Announced? - Page 3

a_lipsey · ‎09-25-2022

I have been searching through the forum to find the announcement that informs us of a TOS change regarding the opt-out fee. It appears that in early July, Upwork changed the TOS to state that now after the two-year mark, if we want to work outside Upwork with a client (get paid outside) a min $1 fee has to be paid versus it simply being at our discretion to do so. Previously, prior to the 2 year mark there was a substantial opt out fee, but after the 2 years, it was at our own discretion with no fee. Now it appears the process has been changed per the TOS and no notification to freelancers that Upwork has changed the TOS.

So why hasn't Upwork made this change more broadly public? I looked through the Product Updates, the Announcements, and Feedback, and there is nothing about this change.

wescowley · ‎09-28-2022

I’m late to this thread thanks to hurricane prep and trying to push as much work out the door before I lose power, and I wouldn’t even post this, but from Stan’s and Valeria’s responses, it’s not clear to me at all that y’all get why some of us are bothered by this.

This change was and continues to be extremely poorly communicated and it’s still very unclear to me whether completing this form and paying the dollar for long-term relationships is required.

Many (most?) of the people posting in this thread are ones that pay close attention to Upwork’s terms because the service is important to our businesses. We encourage newbies to pay attention to the terms, both in these forums and in others. Stan, you said that 1% of SaaS users read the terms. I don’t doubt that. Upwork is not a SaaS. If Airtable, for example, blocks me because I violated terms I haven’t read, I don’t care. If Upwork does so, I care, because it’s the source of a large chunk of my revenue. But I don’t reread the terms constantly. I (apparently foolishly) rely on Upwork to post meaningful updates to trigger me to review them again.

Up until this change, the wording on the help pages regarding taking clients off Upwork said something like after two years we are encouraged to let support know, and I remember seeing similar wording from staff in the forum. But “encouraged" is not a requirement.

As many have pointed out, the update that Valeria linked to said nothing about requiring >2 relationships to go through the process and pay a token fee. (To be clear, I don’t care about the $1.)

So yes, when I saw that announcement, I went to the terms. From user agreement section 7:

You agree to communicate through the Site and make and receive payments only through the Site for two years from the date you first identify or meet your Client or Freelancer on the Site, unless you pay a Conversion Fee.

From this, it’s clear that the conversion fee applies for clients within two years. Not after.

From 7.1:

Therefore, except as set out in Section 7.2, for 24 months from the start of an Upwork Relationship (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 person or arising from that relationship and not to circumvent the Payment Methods offered on the Site unless you pay a fee to take the relationship off of the Site (the “**Conversion Fee**”).

Again, from this it’s clear that that the fee applies within the first two years. Not after.

From 7.3:

You may opt out of the obligations in Section 7.1 with respect to each Upwork Relationship only if the Client or Freelancer pays Upwork a Conversion Fee which is a minimum of $1,000 USD and up to $50,000 USD for each Upwork Relationship, unless Client and Freelancer have had an Upwork Relationship for at least two (2) years.

Again, this is clear that the fee applies only within the two years.

And then later in 7.3:

If Client and Freelancer have had an Upwork Relationship for at least two (2) years, the Conversion Fee is a nominal $1 USD for administrative purposes.

Here we have a mention of the token fee. But everything above tells me the conversion fee only applies in the first two years.

So we go to the help article about the fee that Valeria linked to. The first FAQ “What’s the Conversion Fee?” starts with:

When you use Upwork to find a freelancer, we require you to use the Upwork platform to pay that freelancer for any work they complete for you for the following two years.

Again, this tells me this page applies to relationships within two years.

and

By paying the Conversion Fee, you can move your payments outside of Upwork without violating our Terms of Service (TOS).

So this says the conversion fee allows me to take payments outside of the platform without breaking TOS. Fine, but the TOS applies to < 2 years, not after. So why would I think the conversion fee applies?

Later, in the FAQ “I heard there were changes to the Terms of Service; what were those?” the full answer is:

We’ve recently made new updates to our Terms of Service that impacts users who may want to take their relationship outside of Upwork. The Conversion Fee is now 13.5% of estimated 12 month earnings and calculated differently for hourly and fixed-price projects. The Conversion Fee was formerly called the “Opt-Out Fee.”

This should explain all the changes to the TOS, but there’s nothing here about the change needing to go through the process after 2 years.

It’s only in the last question, “Are there exceptions to the Conversion Fee?“ is the need to submit the form for the $1 fee mentioned. But after all of the above, Why would we even read that far? Especially when the terms state in multiple places that the conversion fee applies within two years, not after.

So, if I take a long-term client off Upwork using my old process of “hey, we’ve been here > 2 years, let’s switch to direct-bill and be done with it”, am I breaking the TOS? I don’t think so, but I honestly can’t tell from the current TOS and help pages.

Circling back: You have a group of relatively high-earning freelancers (and hence high fee) who want to follow Upwork’s rules because it’s important to us that we are able to continue using the platform, but y’all have made it difficult for us to tell when the rules change and in this case even what the rule is.

And, like I said, this same group of freelancers I’m talking about encourages newbies to read the TOS to stay within the rules. But the impression I get from Stan’s post is “most users don’t read the TOS so why are they a big deal” and that providing adequate notice of changes is a cultural thing.

If Upwork doesn’t care about the terms, and doesn’t care if its users know about them and follow them, why should we?

View solution in original post

ericaandrews · ‎09-28-2022

If the contract started BEFORE these changes, then there is NO reason for a client, or freelancer, to have to follow any NEW 'steps' to transfer the contract outside of Upwork, because at the TIME the contract was established, the rules were as follows: The working relationship had to stay on Upwork for 2 years, then after that, both parties could do as they CHOSE. You cannot 'retroactively' change the terms of a contract that is already UNDERWAY to try to corral and force people to stay on the platform for additional time to keep trying to 'rack in' money. Again, to my original question, if after 2 years of working together on Upwork the freelancer and the client decide on their own to take their contractual relationship OFFLINE, how will you KNOW unless one of the parties TELLS you? What I am trying to determine is what FACTORS will you be using to 'determine' a long-term client + freelancer that have been on Upwork for 2 years have 'broken the rules' by moving off the platform without following unnecessary 'steps' and paying a 'fee', unless they TELL you. Are you spying on client and freelancer communications? Going by "word of mouth" that the 2 parties left? Rumor? What exact evidence are you able to 'gather' that a 'violation' has occurred, except that the 2 parties have stopped invoicing over the platform - which could have happened for any NUMBER of reasons besides taking the working relationship offline?

The whole clause is completely UNENFORCEABLE and the only thing you guys are doing is angering, alienating, and potentially driving alway the long-term freelancers that are making you the biggest PROFIT. I think 2 years of 'skimmming off the top' of freelancer earnings is more than enough 'credit' you guys are taking for making a simple 'introduction' between client and freelancers. Attempting to go beyond that is simply being greedy and you are going to run both freelancers and clients AWAY from the platform if they know they are on the 'hook' to pay Upwork 'endlessly', regardless of the length of contract, or be 'dinged' with silly TOS violations and hit with randomly thought-up 'fees' to keep choking as much money out of the 2 parties as possible. It's getting ridiculous and it needs to stop.

a_lipsey · ‎09-28-2022

Valeria K wrote:
Kim, Amanda and others,

I'd like to reiterate that the update about the way the Conversion Fee is now calculated (quoted right below) went into effect in May and was present in the version of TOS linked in Courtney's announcement posted in April. We will be taking feedback shared on this thread into consideration to improve future update.

You agree that the Conversion Fee is 13.5% of the estimated earnings over a twelve (12) month period, which is calculated by taking the Hourly Rate (defined below) and multiplying it by 2,080. “Hourly Rate” means (a) the highest hourly rate charged by the Freelancer on any Service Contract with the Client, if any; or (b) if there is no hourly rate on a Service contract, the hourly rate in the Freelancer’s profile when the conversion is requested. The Conversion Fee includes all applicable taxes and is not subject to the Marketplace Fee. If Client and Freelancer have had an Upwork Relationship for at least two (2) years, the Conversion Fee is a nominal $1 USD for administrative purposes.
In May the Help article about the Conversion fee was also updated to include that information and clients started to see the option to initiate the process of moving their relationship outside Upwork from within their contract rooms (described here.)

As I mentioned in my previous comment, the only updates made in July were around the discount on the Conversion Fee. Specifically, this part:

Upwork will apply a discount on the Conversion Fee that is equal to the total amount of Marketplace Fees that Client has paid to Upwork in the preceding twelve (12) months on each marketplace Service Contract between the Client and the Freelancer. In no event shall the Conversion Fee be discounted below the minimum of $1,000 USD.

Valeria, we have told you a number of times that Courtney's post made no mention of a change to the process to take clients off Upwork after the 2 year mark. As you can see below, it does not alert us to this major change. It seems pointless to discuss this with Upwork, since you seem to have no understanding of what we are complaining about or why we are upset. Or, what seems more likely, is that you all don't care.

Repeating yourself but slightly changing the words doesn't resolve anything or answer our questions. It would be good to try and understand what the problem is that we are upset about, rather than parrotting back the same information over and over, which is getting us nowhere. Wes, Tiffany, and Kim have explained it very well and in detail. The post I have quoted from you and your prior one do not answer our questions or assuage our concerns. So perhaps read the three people's posts I mentioned and understanding our concerns better before replying again with the same information. Thanks.

martina_plaschka · ‎09-28-2022

Please answer these questions:

Why the nominal payment of $1? What kind of contract does this payment constitute? What are the legal grounds for a nominal payment, when no payment seemed to suffice until now? What are the consequences of payment and non-payment, respectively?

m_terrazas · ‎09-27-2022

Valeria K wrote:
Hi Amanda and others,

Thanks for the discussion and feedback.
To clarify, the change you are referring to around the way we calculate the fee users can pay if they met on Upwork but would like to take their work relationship away from Upwork went into effect in May and had been pre-announced in April here.
The only updates made in July were to clarify the language around the discount on the Conversion Fee. Those updates didn’t add any substantial changes to the terms or the process.

In addition to the TOS, the information about Conversion Fee can be found in this help article.

Apart from the fact that the provided link still doesn't work (Phyllis already commented), point two only mentions the new and easy recalculation of the fee to leave Upwork, not that you have to do anything if it's been 2 years.

a_lipsey · ‎09-27-2022

Valeria, nice try but wrong. That update says nothing about changing to a $1 conversion fee.

And if that's the case then what were the TOS changes made as of July 7, since that's the date on the TOS pages right now?

martina_plaschka · ‎09-27-2022

Valeria K wrote:
Hi Amanda and others,

Thanks for the discussion and feedback.
To clarify, the change you are referring to around the way we calculate the fee users can pay if they met on Upwork but would like to take their work relationship away from Upwork went into effect in May and had been pre-announced in April here.
The only updates made in July were to clarify the language around the discount on the Conversion Fee. Those updates didn’t add any substantial changes to the terms or the process.

In addition to the TOS, the information about Conversion Fee can be found in this help article.

This article says absolutely nothing about the NEW exit process, which is fundamentally different from what it was before. This is what we all are talking about.

tlsanders · ‎09-27-2022

Valeria, would you care to clarify the clearly conflicting provisions which cannot possibly be simultaneously enforced?

The current version in the TOS says:

-The conversion fee will be calculated according to (formula)

-The conversion fee will be $1 if it's been at least two years

-The conversion fee will be discounted based on fees paid in the past year

-The conversion fee will never be less than $1,000

Obviously, if the conversion fee is $1, it is less than $1,000. And, presumably, based on the discount representation made in the TOS, the post-two-year conversion fee would always be virtually zero (since it would be fully discounted if the client and freelancer had done any work at all together in the prior year).

kfarnell · ‎09-28-2022

I'd noticed that. It appears to be bad writing rather than anything else, but it is possible to read this as $1,000 being an absolute minimum and therefore demanding that if someone moves off-platform after two years.

renata101 · ‎09-28-2022

This gives exceptions to the conversion fee.

Checking the copy before it goes live would definitely help to alleviate some of the issues. In this case, there are no steps below "following the steps below." So anyone reading this would be tasked with trying to find them.

https://support.upwork.com/hc/en-us/articles/360043723533

tlsanders · ‎09-28-2022

That makes a lot more sense. Unfortunately, it's not what the legally binding contract says.

renata101 · ‎09-28-2022

Then it seems like they announced one thing and put something else into the contract.

m_terrazas · ‎09-28-2022

I went crazy looking for the theme. I had to look at the FAQ to find it.
It should be explained in the main paragraph.

An addition with "If more than 2 years of relationship have passed..............."
It is not that complicated and all the information will be in view without having to search where it can be found.

Regarding the wording of the corresponding part of the TOS, I say nothing. This has already been said by others and honestly, my head is still spinning 🙂

mproffitt · ‎10-02-2022

I just found out about this via a post on a third-party site.

I'm honestly startled at the way Upwork is handling this.

Clearly stating the concerns that I have here:

Changing contract terms for this, given the volume of preexisting contracts, opens Upwork to a hellstorm of customer complaints. For better or worse, their "right to change the terms of service at their discretion, without notifying users is a legal mess.

For one policy analyst's perspective:
**Edited for Community Guidelines **

At best, these changes would never be used maliciously against upworkers. The issue is, life doesn't run "ideally."

In terms of application, this $1 fee change executes the following potentials, which, I remind you Upwork retains the right to apply on a case-by-case basis, without foregoing the right to enforcement in any other cases, in a sweeping sense—or with respect to any accounts that may be eligible for "corrective action."

Account termination;
A minimum fee of $1 or $1,000 (conflicting and ambiguous clauses in the agreement;
Contract termination (on platform);
Client account suspension;
Freelancer account suspension;
Civil lawsuit(s) arising from taking clients off-platform without paying the token fee and submitting the correct forms;

There may be others, but I'm happy to let the list lay at that. The new policy also gives Upwork a DAMNING ABILITY to monitor relationships between client and freelancer using open-source intelligence (OSINT) once the forms have been filed. Maybe they do this in an attempt to win back the business, maybe they do something else altogether. Regardless, that's a substantial overstep of boundaries in my humble opinion.

As an Expert-Vetted Talent freelancer, I'm genuinely shocked to see the staff responding the way they are. And I certainly don't see any limitations imposed on Upwork or their abilities to monitor and/or interfere in the business operations of client and freelancer once they have been moved off platform, after a two-year agreement.

Further, it adds friction to the process of offloading clients from the platform.

To be honest, I'm NOT CONVINCED IN ANY WAY that this change is GDPR (or equivalent) compliant due to the nature of the data that Upwork has now demanded in a mandatory fashion—unless they are willing to erase their data stores on the topic at hand, upon qualifying requests by any and all such affected users.

I'm far more concerned with the "privileged data access" that this clause permits than just about anything else, to be clear. Not saying that I have any liabilities there, but I do know plenty of people that might.

Further, I'm not entirely certain that this wouldn't be debatable in the sense that this forces us to disclose "customer lists" on a line-by-line basis to an entity that has had multiple data breaches in the past. Some of which remained undisclosed for MUCH longer than was kosher.

For example:
**Edited for Community Guidelines **
https://community.upwork.com/t5/Freelancers/So-Upwork-this-security-breach/td-p/562999
https://community.upwork.com/t5/Freelancers/Nightmare-experience-logged-in-as-someone-else/td-p/5628...

Given this history of data and/or access mismanagement, I'm not sure I would want anyone knowing which clients I'd taken off platform.

(Customer lists are readily classifiable as trade secrets, in case anyone is wondering. Upwork taking steps to interfere in the affairs between a customer and freelancer could end VERY poorly for the platform.)

I'm not a lawyer, I'm tired, and it's late here. This is kind of a rant

I would like to have my concerns addressed in a way that is NOT ambiguous. I've brought thousands of dollars in fees to the platform from my successful contracts. I (and the others like me) deserve at least that much.

a_lipsey · ‎10-02-2022

Matthew, thank you for bringing light to these concerns to add to the list so many of us have raised here.

mproffitt · ‎10-04-2022

That's what Upwork Community is here for 🙂

If we don't exercise our voices, they will never have the chance to fix the things.

I hope they do.

For crying out loud, I just got an email about the ebay terms getting updated and haven't used ebay in over a year. LOL

jamqdlaty · ‎01-26-2024

Funny/ridiculous how there are no responses from the Upwork team here.