SheWorks! Platform Service Agreement
The following Terms and Conditions (“Platform Terms”) apply to every user of the SheWorks! Platform and its associated features, content, and materials, which is owned and operated by Sheworks Inc. (“SW”).
- Account: it is the User’s account created when registering in the platform.
- AWSW Fees: the average weekly amount of SW Fees that became due to SW based upon Services performed for Buyer by the Talent over the four (4) weeks immediately preceding a Buy-Out notice, not counting any weeks in which no SW Fees became due.
- Buyer Account: Account created to purchase Services as a Buyer.
- Buyers: Users who purchase Services on the Platform.
- Contract: the contract executed between Buyer and Talent when Buyer purchases Services from Talent.
- IP: all intellectual property rights, existing under statute or at common law or equity, in force or recognized now or in the future in any jurisdiction, including (i) copyrights (and any neighboring/ancillary right), trade secrets, trademarks, service marks, patents, inventions, designs, logos, trade dress, moral rights, mask works, publicity rights, and database rights, and (ii) any application or right to apply for any of the foregoing rights, and all renewals, extensions, and restorations.
- Platform: the SW-owned online solution that matches Buyers and Talents, allows Buyers to track Talent’s performance using the Tracker, and complete the payment of Fees.
- Pre-Qualification: the process of validating a Talent’s ability to provide Services on the Platform that it conducted by SW.
- Services: the services, and their associated deliverables, offered by Talents on the Platform.
- SW Fees: Fees paid by Buyer to SW.
- Talent Account: Account created to provide Services as a Talent.
- Talent Fees: Fees paid by SW to Talent.
- SW: Fees paid by Buyers to SW.
- Platform Payment: payments executed throughout the Platform.
- Talents: Users who provide Services on the Platform and went through the Pre-Qualification process.
- Tracker: SW’s technology which provides a detailed record of the actual time worked by the Talent.
- User: each specific person or entity which is registered in the Platform by creating an Account.
- Work Product: the work product, and other results, systems and information developed by the Talent when performing the Services.
- GENERAL TERMS FOR USERS
- Each User continuously represent and warrant:
- It is legally capable to execute Contracts in the Platform or to celebrate the Agreement.
- It will not commit any rude, abusive, improper language, or violent messages in the Platform.
- It will not discriminate any User based on gender, race, age, religious affiliation, sexual preference or otherwise.
- It will not submit proposals or solicit parties introduced through the Platform to contract, engage with, or pay outside of the Platform.
- It shall create and maintain records to document satisfaction of its obligations under this Agreement and any Contract (“Records”), including without limitation its payment obligations and compliance with tax laws, and provide copies of such records to SW upon request.
- It shall not offer or accept payments using any method other than the ones approved in the Agreement.
- It shall not make any statements that undermine or circumvent the Agreement.
- It will comply with the Agreement.
- Each User acknowledges that SW does not:
- Provide Talent with training or any equipment, labor or materials needed for a particular Contract.
- Deduct any amount for withholding, unemployment, social security, or other taxes as it would in the case of an employee. Buyer and Talent will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Talent’s performance of Services.
- Set Talent’s work hours or location of work.
- Employ Talent or Buyer.
- Have any liability or obligation related to a Contract.
- Users may report to SW any violation of the Agreement. SW will respond to clear and complete notices of violations of this Agreement.
- Users agree to indemnify, hold harmless and defend SW from any and all claims arising out of or related to: (i) non-compliance of the Agreement; (ii) their Contract, including but not limited to claims that Talent was misclassified as an independent contractor; (iii) any liabilities arising from a determination by a court, arbitrator, government agency or other body that Talent was misclassified (including, but not limited to, taxes, penalties, interest and attorney’s fees), (iv) any claim that SW was an employer or joint employer of Talent, as well as (v) claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.
Talent’s eligibility is constantly evaluated by SW to ensure that the quality standards and expectations of Platform users is kept. Fiverr retains the right to disqualify a Talent’s status considering such evaluation.
- Reviews and ratings
- Feedback reviews provided by Buyers while purchasing Services are an essential part of SW’s rating system. Reviews demonstrate the Buyer’s overall experience with the Talents and their service. Buyers are encouraged to communicate to the Talent any concerns experienced during their active order in regard to the service provided by the Talent.
- Feedback reviews will not be removed unless there are clear violations of our Terms of Service and/or our Community Standards.
- Talent’s rating is publicly displayed calculated based on the reviews posted by Buyers. Talents who cannot maintain their high-quality Service through a severe drop in ratings, stop delivering on time, increased cancellation rate or violate the Agreement risk may have their Talent’s account suspended or cancelled.
- Purchases arranged, determined to artificially enhance Talent ratings, or to abuse the SW platform with purchases from additional accounts, will result in a permanent suspension of all related accounts.
- Withholding the delivery of Services or Work Product with the intent to gain favorable reviews or additional services is prohibited.
- Talents may not solicit the removal of feedback reviews from their Buyers through mutual cancellations.
Talents are responsible for obtaining a general liability insurance policy with coverage amounts that are sufficient to cover all risks associated with the performance of their Services.
Talent represents and warrants that every Work Product shall be original work conceived by the Talent and shall not infringe any third-party rights, including, without limitation, copyrights, trademarks or service marks or that they hold a valid license to use such Work Product and include it in the Service.
- Physical Work Products
If Services include Work Products which must be delivered physically (arts and crafts, collectable items, etc.) (“Physical Work Product”), Talent may decide to define a shipping pricing factor:
- Services that include a shipping pricing factor must have Physical Work Products sent to Buyers.
- Shipping costs added to a Service only pertains to the cost Talents require to ship Physical Work Products to Buyers.
- Buyers who purchase Services that require Physical Work Products will be asked to provide a shipping address.
- Talents are responsible for all shipping arrangements once the Buyer provides the shipping address.
- SW does not handle or guarantee shipping, tracking, quality, and condition of Physical Work Products or their delivery and shall not be responsible or liable for any damages or other problems resulting from shipping.
- Out-Of-Platform Services
- All Contracts must be celebrated in the Platform and pursuant to the Agreement, for the exception of authorized Out-Of-Platform Services (“OOP”).
- A Talent may provide OOP Service to a specific Buyer outside the Platform, and therefore be exempt of SW Fees (“OOP Services”) only in the following scenarios:
- If Talent has provided Services to such Buyer for more than three (3) years in the Platform (“Minimum Term”); or
- In case the Minimum Term has not been reached, if prior to purchasing OOP Services, the Buyer notifies SW and provides a good faith estimate of the then anticipated amount to be paid to the Talent for the provision of the OOP Services during a year period (“1-year Estimate”). In such case, Buyer will pay or authorize SW to deduct from its Account the greatest of (i) 15% of the 1-year Estimate; (ii) 52 times the AWSW Fees; or (iii) $500.
- Any action that encourages or solicits complete or partial payment outside the Platform is a violation of this Agreement. In such case: (i) Buyer will owe SW an amount with respect to each Contract equal to the greater of a) $50,000; or b) the applicable fees had the payments been processed through the Platform plus 40%; and (ii) Talent’s Account will be terminated and Talent will owe SW an amount with respect to each Contract equal to the great of a) $5,000; or b) the applicable fees had the payments been processed through the Platform plus 40%.
3.8. Talent Fees
- SW will disburse Talent Fees through the Platform between the 1st and the 10th day of the following month the SW Fees were paid to SW by Buyer. Talent agrees that it will be paid solely by SW and Talent will not have any recourse against Buyer if Talent is not paid by SW.
- To pay Talent Fees, Talent will be asked to provide a payment method. Additionally, Talent agrees to permit SW to use any updated account information regarding Talent’s selected payment method provided by Talent’s issuing bank or the applicable payment network. Talent agrees to promptly update Talent’s account and other information, including its email address and payment method details, so SW can complete Talent’s transactions and contact Talent as needed in connection with these transactions. Changes made to Talent’s billing account will not affect Talent Fees paid to Talent’s billing account before SW could reasonably act on Talent’s changes to its billing account.
- By providing SW with a payment method, Talent (i) represents that it is authorized to use the payment method provided and that any payment information Talent provides is true and accurate; (ii) authorize SW to pay for the Services or available content using that payment method.
- SW shall have no responsibility for determining the necessity of issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Talent Fees. Instead, Talent shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Talent Fees. Talent shall also be solely responsible for: (a) determining whether Talent or SW is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Talent Fees, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or SW, as appropriate; and (b) determining whether SW is required by applicable law to withhold any amount of the Talent Fees, notifying SW of any such requirement.
- To every extent, SW shall not pay any other type of tax, rate, obligation, levy, custom duty, or charge, imposed or charged by any local or foreign tax agency or authority (including, but not limited to, federal, state, local and provincial taxes, taxes on local sales, use, income tax, stamp tax, consumption tax and other similar taxes) (collectively, “Taxes”). All payments made by SW shall be free and without deductions or withholdings for or to the account of any tax, except as set forth below, unless those deductions or withholdings were established by the applicable law, in which case SW (i) shall withhold the corresponding amount to make the payment, (ii) shall pay the deducted amount to the tax authorities in accordance with the law and (iii) shall provide Talent with a copy of the receipt issued by such tax authority, which reflects the payment or any other commercially reasonable proof to justify such payment. Talent agrees to complete and deliver to SW and, upon request, to the corresponding government or tax authority, the forms, certifications, and other documents SW requests, so as to make the corresponding payments to Talent without deductions or withholdings (or at a reduced rate) taking into account the Taxes. Talent agrees to use its best efforts to cooperate with and help SW to mitigate the tax impact corresponding to any country, state or other jurisdiction where the Contract is executed (each one, an “Applicable Tax Jurisdiction”), including, but not limited to, the following measures (i) recording the value added taxes, gross income taxes, sales taxes and other similar taxes in the Applicable Tax Jurisdiction, (ii) requesting revisions, repayments, remissions, reclassifications or similar measures, in the jurisdictions identified by SW, as long as Talent and their subsidiaries don’t have to act otherwise than in compliance with existing applicable laws. Talent, at its own expense, shall defend, indemnify and hold harmless SW, its Affiliates, and their respective successors, directors, officers, employees, representatives and shareholders (the “Tax Indemnitees”), against any claim, demand, suit or proceeding made or brought by any third party that arise out of or related to: (i) any tax violation by the Talent; (ii) the non-compliance of this section; (iii) any invoice to be delivered by the Talent; (iv) any duplicated tax, included value added taxes, gross income taxes, sales taxes or other similar taxes, which shall be assumed by the Talent.
- SW guarantees payment (“Payment Guarantee”) to Talents working on Hourly-Rate Contracts where: (i) the Buyer has a verified payment method, (ii) the performed worked is tracked by the Tracker, pertains only to the Service being billed and is consistent with the task description in the Contract. Determination of whether these criteria have been met is at the sole discretion of SW. The Payment Guarantee will not apply to Talents or Contracts in violation of this Agreement, where Talent does not meet clear specifications of the Service, or where there is any other involvement in fraudulent activities or abuse of this Payment Guarantee.
Buyers can purchase Services for one or more Talents and assemble them together as teams for specific projects (“Talent Teams”). SW will participate in Talent selection and Talent Teams assembling, as well as will be able to determine Contract terms and conditions.
- The Tracker allows management tools for Talent Teams. Hourly-Based Contract Fees will be calculated based on the tracked performed hours of Service that the Tracker indicates.
4.3. SW Fees
- SW’s profit comes from the difference between SW Fees and Talent Fees. This means that SW makes money by collecting the difference between the fees paid by Buyer to SW and the fees paid by SW to Talents. All payment of Fees will be executed in the Platform.
- Buyer will pay SW Fees in the currency specified by SW.
- Buyer shall pay SW Fees to SW. Buyer will have no obligation of payment to Talent. All SW Fees are non-refundable whether the Contracts were satisfactorily completed unless Buyer complies with the Dispute Resolution Policy.
- For Hourly-Rate Contracts, Buyer will be billed by SW on a weekly basis. For Fixed-Rate Contracts, Buyer will be billed by SW immediately after the project starts. However, SW may, in its sole discretion, deviate from its typical billing cycle for Hourly-Rate Contracts and charge Buyer for all time logs indicated by the Tracker at any time.
- If Buyer fails to pay SW Fees on time, whatever the cause may be, Buyer’s Account may be suspended or cancelled, no additional payments will be processed, and any Service-in-progress will be stopped. Without limiting other available remedies, Buyer must reimburse SW for amounts due upon demand, plus any applicable processing fees, charges, or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, SW may setoff amounts due against other amounts received from or held for Buyer, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
- By providing SW with a payment method, Buyer (i) represents that it is authorized to use the payment method provided and that any payment information Buyer provides is true and accurate; (ii) authorize SW to collect Fees using that payment method. SW may bill Buyer at the same time for more than one of Buyer’s prior billing periods for amounts that haven’t previously been processed.
- Buyer hereby authorizes SW to run credit card authorizations on all credit cards provided by Buyer, to store credit card details as Buyer’s method of payment, and to charge Buyer’s credit card (or any other form of payment authorized by SW or mutually agreed to between Buyer and SW).
- For Hourly-Rate Contracts only, Buyer may dispute hours on the day following the disputed work or during the dispute period following the close of a monthly invoice period. The dispute period for Hourly-Rate Contract is 7 days (“Dispute Period”) after the last day of the Monthly Invoice Period. It is the Buyer’s responsibility to review the Work Diary and Time Log of every Service Contract daily and to file any disputes on a timely basis. Once the Dispute Period has passed, the charges are accepted by the Buyer and can no longer be disputed and can only be refunded by the Talent. Disputes can address the hours billed, the quality of the work performed, and/or the compliance of deliverables with Buyer specifications. SW will promptly investigate the Work Diary and Time Log to determine, in its sole discretion, whether an adjustment is appropriate. SW’s determination shall be final.
- SHEWORKS RIGHTS
Users acknowledge that SW reserves the following rights:
- To supervise, direct or control Talent’s Services.
- Determining Talent Fees and/or decide if they are set as an hourly or fixed rate.
- To audit Talent’s Records.
- To put any Account on hold or permanently disable Accounts due to breach of the Agreement or due to any illegal or inappropriate use of the Platform.
- To purchase Services in the Platform and act as Buyer.
- To disable Talent’s ability to withdraw revenue to prevent fraudulent or illicit activity or during the Dispute Period. This may come because of security issues, improper behavior reported by other users, or associating multiple Accounts to a single withdrawal provider.
- To validate User information at any time, including but not limited to validation against third party databases or the verification of one or more official government or legal documents that confirm the User’s identity.
- To make, directly or through third parties any inquiries necessary to validate User’s identity and confirm User’s ownership of its email address or financial accounts, subject to applicable law.
- To use all publicly published Work Products or Services for SW marketing and promotional purposes.
- To act as User’s agent for the limited purpose of executing documents that confirm User’s activities on the Platform. SW will act on User’s behalf and in a clerical capacity, without in any way restricting SW’s rights or expanding SW’s obligations under this Agreement or any Contract.
- SW does not warrant, nor it provides any guarantee, being exempt from any liability, regarding to: (i) the level of Service offered by Talents; (ii) the execution, payment or the fulfillment of any obligation related to an OOP Services.
- The Contract between Buyer and Talent will be subject to the provisions set forth in this section.
- Fee-Structure. Contracts may have an Hourly-Fee or a Fixed Fee.
- Confidentiality. To the extent a Client or Talent provides confidential information to the other, the recipient shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall: (i) not disclose Confidential Information to anyone except SW and (ii) use the Confidential Information solely for the performance of the applicable Contract. If and when Confidential Information is no longer needed for the performance of Services for the relevant Contract, or at the Client’s or Talent’s written request (which may be made at any time at Client’s or Talent’s sole discretion), the other party shall promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
- Non-Exclusiveness. Buyer may not require an exclusive relationship between Buyer and Talent.
- IP. Talent agrees that the Work Product, shall, to the extent permitted by law, be a “work made for hire” within the definition of U.S copyright law (“WFH”), and shall remain the sole and exclusive property of the Buyer. If Work Product does not qualify as WFH, Talent assigns to Buyer all right, title, and interest in and to such Work Product, and grants Buyer a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up right and license to (i) make, use, reproduce, format, modify, and create derivative works of the applicable Work Product, (ii) publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell and sell, rent, lease, or lend copies of the applicable Work Product and derivative works thereof; (iii) combine the Work Product and derivative works thereof with any software, firmware, hardware, or services; and (iv) sublicense to third parties the foregoing rights, including the right to sublicense to further third parties. In no event will Talent provide any Service in any manner that implicates third-party IP under which Talent does not have the rights necessary to grant Buyer the license and sublicense set forth in this section. In order to ensure that Buyer will be able to acquire, perfect and use such Work Pruduct, Talent will: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to Buyer, including delivery of a complete copy of the source code for any software, documented in sufficient detail to enable a reasonably skilled programmer to correct, integrate and modify it; (ii) sign any documents at Buyer’s request to assist Buyer in the documentation, perfection and enforcement of its rights; and (iii) provide Buyer with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing IP rights in any and all countries. In the case that under applicable law, Talent retains any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights” (collectively “Moral Rights”) or other inalienable rights to Work Product or Confidential Information under this Agreement, Talent irrevocably agrees to waive, and hereby waives, all such rights, or, to the extent Talent cannot waive such rights, Talent agrees not to exercise such rights, until Talent has provided prior written notice to Buyer and then only in accordance with any reasonable instructions that Buyer issues in the interest of protecting its rights. Talent’s obligations under this Section 3.5 will continue even after Talent deregisters from or ceases use of the Platform. All transfer and assignment of IP to the Buyer shall be subject to full payment for the Services.
- Relationship between Parties. All Talents shall be classified as an independent contractor based on the applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Buyer and Talent. Talent does not have authority to enter written or oral – whether implied or express – contracts on behalf of Buyer. A Talent classified as independent contractor is always free to provide Services to persons or businesses other than Buyer, including any competitor of Buyer.
- Beneficiaries. SW is named as a third-party beneficiary of each Contract.
Hourly-Rate Contracts may be terminated by either party at any time for any or no reason. Fixed-Rate Contract may be terminated (i) by the Buyer at any milestone after payment for that milestone has been made or (ii) by Talent at any time if no payment has been made or, if a payment has been made, only with the Client’s consent or after the payment has been refunded. After termination, buyer may not recover any payments already made. Termination shall not relieve Buyer of the requirement to pay for Fees for Services performed prior to the effective date of the termination, which shall be charged, together with any applicable administrative fee or taxes, to Buyer’s credit card or other payment method.