USER AGREEMENT
This User Agreement (“Agreement”) contains important information about your legal rights, remedies, and obligations, and is a legally binding agreement between you (“you” or “User”) and ACCARE SERVICES LIMITED (“AcCare,” “we”, or “us”), governing your use of AcCare’s Site and Site Services (collectively, “Services”).You understand that by using the AcCare Site or Site Services (which generally means using in any way our digital marketplace accare.com or our applications), and by clicking accept when prompted on the Site, you agree to be bound by all agreements which constitute AcCare’s Terms of Service, and you agree that the “Terms of Service” means every agreement linked herein and includes the Privacy Policy, Terms of Use, applicable Holding Funds Instructions and this User Agreement.
If you want to use our digital marketplace or any of our services (which we refer to altogether as Services), whether just by looking around or by registering an account, you must first read and agree to this Agreement. If you don’t understand this Agreement or agree to all its terms and conditions, you may not use our Services. If you do not understand or agree to this Agreement, do not click to accept this Agreement, “Sign Up”, “Create My Account”, or similar, and do not visit accare.com, use our mobile applications, or otherwise use our Services. If you are using our Services on behalf of a business or legal entity, you may only do so if you have authority to agree to the Terms of Service on behalf of that business or legal entity.
To make these terms a little easier to understand, we capitalize certain terms and capitalizing them means they have a special meaning. Section 15 provides the definitions of some capitalized terms and others are defined throughout the Terms of Service (look for quotation marks and bold font).
1. ACCARE ACCOUNTS
1.1 REGISTRATION
You must register for an account with us (“Account”) to access and use certain portions of our Services. Registered users of our Services are “Users”, and unregistered users are “Site Visitors”.
Your Account registration is subject to approval by AcCare. We reserve the right to decline a registration either to join AcCare or to add an Account of any type, for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.
1.2 ACCOUNT ELIGIBILITY
AcCare offers the Services for your business purposes only and not for personal or consumer use. By registering for an Account or by using our Services, you represent that you: (a) are doing business under your own name as a self-employed individual/sole proprietor or are an employee or agent of an independent business (such as a corporation, limited liability company, or other entity); (b) will use our Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and any offering or provision of Corporate or Freelancer Services; (d) are either a legal entity or an individual who is at least 18 years old (or the age of majority in your country if the age of majority is over 18), and that you can form legally binding contracts; and (e) will comply with any and all applicable local, state, federal and/or international laws, regulations, and/or conventions in using our Site and Services.
1.3 ACCOUNT PROFILE
To register for an Account to use our Services, you must complete a user profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, to be shown to the public. You agree to provide accurate and complete information on your Profile—and on all registration and other forms you access while using our Services or provide to us—and you agree to keep that information current. You agree not to provide any false or misleading information about your identity or location, your business, the beneficial owner(s) of your business, your skills, or the services your business provides, and you agree to correct any information that is or becomes false or misleading. We reserve the right to suspend or terminate the Account, or access to our Services, of anyone who provides false, inaccurate, or incomplete information in creating, marketing, or maintaining a Profile or an Account.
1.4 ACCOUNT TYPES
Once you register for your Account (only one per User), you can add other Account Types under the same username and password. You agree not to register for or maintain more than one Account and Profile without express written permission from us.
If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter binding contracts, including the Terms of Service, on behalf of yourself and the company. More than one person can create an Account as an employee or agent on behalf of the same company.
1.4.1 CLIENT ACCOUNT
You can register for an Account or add an Account Type to use the Services as a Client (a “Client Account”). Client Account Types have a feature that allows the account owner to give permissions to other Users (“Team Members”) to act on behalf of the Client Account. Each Team Member must have their own Account to be added as a Team Member on the Client Account.
1.5 ACCOUNT PERMISSIONS
You may provide other Users permissions to act on your Account only as described in Section 1.4 and in this Section 1.5 You agree not to request or allow another person to create an Account for you, your use, or your benefit, except that authorized employees or agents may create an Account on behalf of your business. By granting other Users permissions under your Account, including as a Team Member or Agency Member, you represent that: (a) the User is authorized to act on your behalf; and (b) you are fully responsible and liable for what the User does and does not do, including with respect to making payments and entering Service Contracts and the Terms of Service. If any User granted permissions under your Account violates the Terms of Service, it may affect your ability to use our Services. When an Account is closed, AcCare may close any related Accounts as well.
1.6 IDENTITY AND LOCATION VERIFICATION
When you register for an Account and periodically thereafter, your Account will be subject to verification, including but not limited to validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on AcCare. You authorize AcCare, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your business, email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes providing official government or legal documents, and cooperating with other reasonable requests we make to verify your identity. During verification some Account features may be temporarily limited but will be restored if verification is successfully completed.
1.7 USERNAMES AND PASSWORDS
Each person who uses our Services must register for their own Account with a username and password. You are responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with anyone. You are responsible for safeguarding your username and password and for any use of our Services with your username and password. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password. You further agree not to use the Account or log in with the username and password of another User. See Sections 1.4 Account Types and 1.5 Account Permissions for information on allowing another registered User to act on your behalf in your Account.
2. PURPOSE OF ACCARE
The AcCare Site is a work marketplace where Clients and Experts can identify each other and advertise, buy, and sell Services online. Subject to the Terms of Service, AcCare provides the Services to Users, including hosting and maintaining the AcCare Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those contracts. When a User enters a Service Contract, the User agrees to use the Services exclusively to invoice, receive, and pay any amounts owed under the Service Contract.
2.1 RELATIONSHIP WITH ACCARE
AcCare offers a platform that enables Users to find one another, enter into service relationships and agreements, receive, and provide Services, and make and receive payments through escrow. AcCare neither performs nor employs individuals, companies and experts to perform Services. You acknowledge and agree that AcCare does not supervise, direct, control, or monitor Users in the performance of any contractual obligations they may have under a Service Contract and agree that: (a) AcCare is not responsible for ensuring the accuracy or legality of any User Content, for which Users are solely responsible; (b) AcCare is not responsible for the offering, performance, or procurement of Services, (c) AcCare does not make any representations about or guarantee any particular User’s offered services, and (d) nothing will create an employment, agency, or joint venture relationship between AcCare and any User offering services.
You further acknowledge and agree that Users, and not AcCare, are solely responsible for (a) evaluating and determining the suitability of any Project, Client, or Experts; (b) assessing whether to enter into a Service Contract with another User and for verifying any information about another User, including Composite Information; (c) deciding whether to enter into a Service Contract on AcCare as well as the contract terms, and (d) negotiating, agreeing to, and executing any terms or conditions of the contracts and for performing and monitoring performance under them. All Service Contracts between Users are directly between the Users and AcCare is not a party to those contracts.
Nothing in this Agreement is intended to or does prohibit or discourage any User from engaging in any other business activities or providing any services through any other channels they choose, provided, if applicable. Users are always free to engage in such other business activities and services and are encouraged to do so.
As part of our constant effort to improve our Services for our members, we may test or otherwise temporarily offer certain features and beta tools for your use. We will generally flag on the Site or in related user forums when a particular tool is being tested and how the feature works, but we do not guarantee that the Site, or any of its tools or features, will be available at any given time.
2.2 TAXES AND BENEFITS
Experts acknowledge and agree that Expert are solely responsible for: (a) all tax liability associated with payments received from Clients and through AcCare, and (b) obtaining any liability, health, workers’ compensation, disability, unemployment, or other insurance needed or required by law, and that Experts are not covered by or eligible for any insurance from AcCare; (c) determining and fulfilling Experts’ obligations under applicable laws and regulations with respect to invoicing and reporting, collecting, or remitting any applicable taxes or charges. Experts are responsible for paying all taxes arising in connection with any Service Agreement entered into on the Platform and this Agreement, without any offset or deduction to the fees paid to AcCare.
In the event of an audit of AcCare, Experts agree to promptly cooperate with AcCare and provide copies of Experts’ tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Experts are engaging in an independent business as represented to AcCare.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You acknowledge and agree that Users publish and request AcCare to publish on their behalf information on the Site such as feedback, composite feedback, or geographical location. Such information is based on data that Experts or Clients voluntarily submit to AcCare and does not constitute an introduction, endorsement, or recommendation by AcCare. You agree that AcCare is not responsible for verifying such information and provides it solely for the convenience of Users, but providing false or misleading information violates this Agreement and may result in revocation of your access to use the Site Services.
You acknowledge and agree that User feedback benefits the marketplace and its Users, and you specifically request and agree that AcCare may make available to other Users individual and composite feedback about Users, including you. You acknowledge and agree that any feedback results for you. AcCare is not responsible for monitoring, influencing, contributing to, or censoring these opinions. You agree to notify AcCare of any error or inaccurate statement in your feedback results, including the Composite Information, and you agree that AcCare may rely on the accuracy of such information. AcCare provides its feedback system as a means for Users to share their working experiences with and opinions of other Users publicly, and you acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
By using the Services, you may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive, or otherwise harmful. AcCare generally does not review or monitor User Content. You agree that we are not responsible for User Content. We cannot always prevent the misuse of our Services, and you agree that we are not responsible for any such misuse. AcCare reserves the right (but is under no obligation) to remove posted feedback or information that AcCare determines violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of AcCare.
2.4 USER CONTENT AND AI TOOLS
We may use your User Content, including the job posts, proposals, communications, work product, and reviews that you post on AcCare, to train generative AI models and tools on your preferences and work to improve your platform experience.
Unless you opt-out on the Site, you agree to grant AcCare an irrevocable, perpetual, non-exclusive, royalty-free, and worldwide license to use all User Content that you send or receive through the AcCare platform, including Work Product that you own or come to own under a Service Contract, to improve AI models exclusively provided to personalize your AcCare experience, for any other AI-related uses consistent with preferences you set or control, or as otherwise outlined in AcCare’s Privacy Policy. This AI-related license only applies to User Content that you send or receive on AcCare while opted into AcCare’s AI user personalization training program or as laid out in the Privacy Policy.
If you incorporate any third-party material into, or provide third-party material for use in, any User Content, including Work Product, you acknowledge and agree that it is your responsibility to ensure that you have all rights necessary to grant AcCare the limited license described above or have obtained permission from the rightsholder(s) to grant such a license. As set forth in Section 11, you also agree to indemnify, defend, and hold harmless AcCare, any other AcCare companies or Affiliates, and our respective directors, officers, employees, representatives, and agents from any claim relating to or arising out of our use of your User Content, including Work Product, pursuant to the limited license described above, including but not limited to any claim that such use violates a third party’s publicity rights, privacy rights, or Intellectual Property Rights.
Termination of this Agreement by either you or AcCare does not terminate or otherwise affect AcCare’s license with respect to User Content, including Work Product, that you exchanged through the platform prior to termination.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND EXPERT
3.1 SERVICE CONTRACTS
If a Client and an Expert decide to enter a Service Contract, the contract is a contractual relationship directly between the Client and the Expert; AcCare is not responsible for and is not a party to any Service Contract and under no circumstances will any such contract create an employment or any service relationship between AcCare and any User.
With respect to any Service Contract, Clients and Experts may enter into any agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.), provided that those agreements do not conflict with, narrow, or expand AcCare’s rights and obligations under the Terms of Service, including this Agreement and the applicable Fund Holding Instructions.
3.2 DISPUTES AMONG USERS
For disputes arising between Clients and Experts, you agree to abide by the dispute resolution process that is explained in the Fund Holding Instructions that apply to your Service Contract. If that process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that AcCare will not and is not obligated to provide any further dispute resolution assistance.
If Expert or Client seeks an order from an arbitrator or court that might direct AcCare or our Affiliates to take or refrain from taking any action with respect to an Holding Funds instruction, that party will (a) give us at least ten (10) business days’ prior notice of the hearing on the order; (b) include in any such order a provision that, as a precondition to any obligation affecting AcCare or Payment Escrow, we must be paid in full for any amounts to which we would otherwise be entitled; and (c) include in any such order a provision that, as a precondition to any obligation affecting AcCare, AcCare must be paid for the reasonable value of the services the order obligates us to undertake.
3.3 CONFIDENTIAL INFORMATION
Users may agree to any terms they deem appropriate with respect to confidentiality. If Users do not agree to their own confidentiality terms, this Section 3.3 (Confidential Information) applies.
To the extent a User provides Confidential Information to another User, the recipient will take reasonable steps to keep that information confidential. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies of it contained in or on its premises, systems, or any other equipment otherwise under its control. Users specifically agree that this Section 3.3 applies to information exchanged for purposes relating to evaluating whether to enter a Service Contract, even if such contract is never agreed to.
4. ACCARE FEES
4.1 FEES FOR EXPERT
Service Fees. Experts agree to pay AcCare a service fee for the use of the Services (including marketing, invoicing, reporting, payment, and dispute support services (“Service Fees”). Expert is responsible for paying all Service Fees. When a Client pays an Expert for a Project or when funds related to a Project are otherwise released to an Expert as required by the applicable Holding Funds Instructions (see Section 5.1), AcCare will credit the Holding Funds Account for the full amount paid or released by the Client, and then subtract and disburse to AcCare the Service Fee. Expert hereby irrevocably authorizes and instructs AcCare to deduct the Service Fee from the Holding Funds Account and pay AcCare on Expert’s behalf.
Membership Fees and Connects. Experts may subscribe to different levels of participation and privileges on the Site to access additional features and Site Services.
4.2 CLIENT FEES
Membership Fees and Connects. Clients may subscribe to different levels of participation and privileges on the Site to access additional features and Site Services.
4.3 VAT AND OTHER TAXES
AcCare Fees are exclusive of taxes. AcCare may be required by applicable law to collect or pay certain taxes or levies, including income tax or VAT (which some jurisdictions refer to as GST or local sales taxes). These collection and withholding requirements and rates may change based on changes to the law in your area. Any amounts AcCare is required or permitted to collect or withhold for the payment of any such taxes shall be collected or withheld in addition to the fees owed to AcCare under the Terms of Service.
4.4 NO FEE FOR INTRODUCING OR FOR FINDING PROJECTS
AcCare does not introduce Clients to Experts. AcCare offers a platform that enables Experts to introduce themselves and may from time-to-time highlight Projects or Experts that may be of interest. Therefore, AcCare does not charge Client a fee when an Expert finds a suitable Client or finds a Project.
5. PAYMENT TERMS AND HOLDING FUNDS SERVICES
5.1 HOLDING FUNDS SERVICES
AcCare uses Stripe as a payment processor. Its builds payment flows using Stripe Connect by holding funds on behalf of Client and by utilizing Manual Payouts to transfer the payment to the Expert accounts after completion of the transaction. Stripe Connect provides Fund Holding services to Users to deliver, hold, and receive payment for a Project, and to pay fees to AcCare (“Fund Holding Services”).
5.1.1 HOLDING FUNDS INSTRUCTIONS
STRIPE will hold, and release funds deposited in the Account only in accordance with this Agreement and the applicable Instructions. It will create and maintain an account to hold funds for you. You authorize STRIPE to hold your funds and to follow your instructions on the funds held in your Account. Experts authorize STRIPE to act for them to collect and hold payments from Clients.
5.1.2 STRIPE CHARGES
Experts agree that Stripe will hold 3.5% of the transaction value immediately upon acceptance of an engagement. If an Expert does not proceed with the engagement, this 3.5% holding fee is non-refundable and will be retained by Stripe. Experts fully understand and agree to this term. If the Expert does proceed with the engagement, Stripe will refund the 3.5% holding fee to them.
5.1.3 TITLE TO FUNDS
STRIPE will safeguard your money and not voluntarily make your money available to our creditors.
5.1.4 NO INTEREST
You agree that you will not receive interest or other earnings on the funds held in STRIPE Account.
5.2 NON-PAYMENT
The Client must pay the agreed fees in accordance with the Holding Funds instructions upon acceptance of an offer from the Expert. If the Client is in “default”—meaning the Client fails to pay the Expert Fees in accordance with the Holding Funds instructions upon acceptance, or fails to pay any other amounts when due under the Terms of Service or a written payment agreement incorporating the Terms of Service—the agreement between the Expert and the Client will be null and void. In such an event, AcCare will be entitled to the remedies deemed necessary, in addition to any other remedies that may be available under applicable law or the written agreement.
If the Client is in default, we may, without notice, temporarily or permanently close the Client’s Account and revoke the Client’s access to the Services. This includes revoking the Client’s authority to use the Site to process additional payments, enter into Service Contracts, or obtain Services from other Users through the Site. However, the Client will remain responsible for any amounts that accrue on open Projects at the time restrictions are placed on the Client’s Account due to the default. Without limiting other available remedies, the Client must pay AcCare upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
AcCare does not guarantee that the Client is able to pay or will pay the Expert Fees. Furthermore, AcCare is not liable for and may reverse Expert Fees if the Client defaults or initiates a chargeback with their financial institution. Where applicable, the Expert may use the dispute process to recover funds from the Client in the event of a default, or they may pursue other remedies against the Client as they choose.
5.3 NO RETURN OF FUNDS AND NO CHARGEBACKS
Client acknowledges and agrees that the Expert Fees held in the Stripe account are non-refundable. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company or bank to charge back any Expert Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of this obligation constitutes a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client understands that Expert may dispute or appeal the chargeback, institute collection action against Client, close Client’s account, and take any other action it deems appropriate.
5.4 PAYMENT METHODS
As a Client, you hereby authorize AcCare to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment consistent with our Privacy Policy, and to charge Client’s credit card (or any other Payment Method) for the Expert Fees, Service Fees, and any other amounts owed under the Terms of Service.
To the extent permitted by applicable law and subject to our Privacy Policy, you acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage your Payment Method information.
When Client authorizes a payment via the Site, the Client represents that there are sufficient funds or credit available to complete the payment. To the extent that any amounts are owed under this Agreement, Client is solely responsible for paying such amounts by other means.
AcCare is not liable to the Expert if Client does not complete a transaction because of any limit imposed by applicable law or the Client’s financial institution, or if a financial institution fails to honour any credit.
6. NON-CIRCUMVENTION
You agree to communicate through the Site and make and receive payments only through the Site from the date you first identify or meet your Client or Expert on the Site. Violations of this Section constitute a serious breach and may result in permanent suspension of your Account.
You agree to exclusively use AcCare platform to make payments through STRIPE for work that arises out of a relationship you made through AcCare from the date you first established the relationship.
You agree that you will not:
- Offer or solicit or accept any offer or solicitation from parties identified through the Site to contract, hire, invoice, pay, or receive payment in any manner other than through the Site.
- Request an invoice or payment amount lower than that agreed, made, or received between Users.
- 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 other than through the Site.
You agree to notify AcCare immediately if a person suggests making or receiving payments other than through the Site in violation of this Section or if you receive unsolicited contact outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to AcCare by email to [email protected]
You acknowledge and agree that a violation of this Section is a material breach of the Terms of Service and may result in your Account being permanently suspended and charged for a compensation and penalty. This Section still applies if you choose to cease using the Site, and you must pay the Fee for each other User you wish to continue working with after you cease using the Site. Prior to entering a Service Contract, you agree to communicate with other Users exclusively through AcCare.
Users agree to use the communication services available on the Site to communicate with other Users prior to entering a Service Contract. You agree that prior to entering into a Service Contract, you (a) will use AcCare as the sole manner to communicate with other Users; (b) will not provide your Means of Direct Contact to any other User or another person that you identified or were identified by through the Site; (c) will not use Means of Direct Contact of another user to attempt to or to communicate with, solicit, contact, or find the contact information of a User outside of AcCare; (d) will not ask for, provide, or attempt to identify through public means the contact information of another User; and (e) will not include any Means of Direct Contact or means by which your contact information could be discovered in any profile, proposal, job posting, invitation, or pre-hire communication through the Site’s communications services , except as otherwise provided on the Site.
For purposes of the Terms of Service, “Means of Direct Contact” means any information that would allow another person to contact you directly, including, without limitation, phone number, email address, physical address, a link to a contact form or form requesting contact information, any link to an applicant management system or means to submit a proposal or application outside of the Site, or any information that would enable a user to contact you on social media or other website or platform or application that includes a communications tool, such as Skype, Slack, WeChat, or Facebook. Information is a Means of Direct Contact if it would enable another user to identify any of the information above through other sources, such as going to a website that included an email address or identifying you through social media.
You acknowledge and agree that a violation of this Section is a material breach of the Terms of Service, and your Account may be permanently suspended for such violations.
7. RECORDS OF COMPLIANCE
You are solely responsible for creation, storage, and backup of your business records. You agree that AcCare has no obligation to store, maintain or provide you a copy of any content or information that you provide, except to the extent required by applicable law.
8. WARRANTY DISCLAIMER
AcCare and its affiliates make no representation or warranty about the services, including that the services will be uninterrupted or error-free, and provide the Services (including content and information) on an “as is” and “as available” basis. To the maximum extent permitted by applicable law, AcCare and its affiliates disclaim any implied or statutory warranty, including any implied warranty of title, accuracy of data, non-infringement, merchantability, or fitness for a particular purpose.
9. LIMITATION OF LIABILITY
AcCare is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to: (i) your use of or your inability to use our Site or Site Services; (ii) delays or disruptions in our Site or Site Services; (iii) viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services; (iv) glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services; (v) damage to your hardware device from the use of the Site or Site Services; (vi) the content, actions, or inactions of third parties’ use of the Site or Site Services; (vii) a suspension or other action taken with respect to your Account; (viii) your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and (ix) your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Additionally, in no event will AcCare, our affiliates, our licensors, or our third-party service providers be liable for any special, consequential, incidental, punitive, exemplary, or indirect costs or damages, including, but not limited to, litigation costs, installation and removal costs, or loss of data, production, profit, or business opportunities. The liability of AcCare, our affiliates, our licensors, and our third-party service providers to any User for any claim arising out of or in connection with this Agreement or the other Terms of Service will not exceed the lesser of: (a) $1,000 or (b) any fees retained by AcCare with respect to service contracts on which User was involved as Client during the three-month period preceding the date of the claim.
These limitations will apply to any liability, arising from any cause of action whatsoever arising out of or in connection with this Agreement or the other Terms of Service, whether in contract, tort (including negligence), strict liability, or otherwise, even if AcCare has been advised of the possibility of such costs or damages and even if the limited remedies provided herein fail of their essential purpose.
10. RELEASE
In recognition of the fact that AcCare is not a party to any contract between Users, you hereby release AcCare, our other Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this Agreement.
This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Expert Services provided to Client by an Expert and requests for refunds based upon disputes.
11. INDEMNIFICATION
You will indemnify, defend, and hold harmless AcCare, our other Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) your or your agents’ use of the Services, including any payment obligations or default incurred through use of the Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of an Expert as an independent contractor, any employment-related claims; (c) your or your agents’ failure to comply with the Terms of Service; (d) you or your agents’ failure to comply with applicable law; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) you or your agents’ violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights. For purposes of this Section, your agents include any person who has apparent authority to access or use your account demonstrated by using your username and password.
“Indemnified Claim” means all claims, damages, liabilities, costs, losses, and expenses (including attorneys’ fees) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
“Indemnified Liability” means all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
12. AGREEMENT TERM AND TERMINATION
12.1 TERMINATION
Unless both you and AcCare expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided in this Agreement. You may provide written notice to [email protected]. In the event you properly terminate this Agreement, your right to use the Services is automatically revoked, and your Account will be closed.
You agree that AcCare is not a party to any Service Contract between Users. Consequently, you understand and acknowledge that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Project entered between Users. If you attempt to terminate this Agreement while having one or more open Projects, you agree that (a) you thereby instruct AcCare to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Projects have closed on the Site and your access to the Site has been terminated; (c) AcCare will continue to perform those Services necessary to complete any open transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to AcCare for any Services or such other amounts owed under the Terms of Service and to any Experts for any Expert Services.
Without limiting AcCare’s other rights or remedies, we may revoke or limit access to the Services, deny your registration, or revoke your access to the Site and refuse to provide any or all Services to you if: (i) you breach any terms and conditions of this Agreement or any portion of the Terms of Service; (ii) we have reasonable reason to believe that you have provided false or misleading information to us; (iii) we conclude that your actions may cause legal liability for you or others; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity; or (iv) we are required to by law, legal process, or law enforcement. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or re-register for a new Account without AcCare’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of Users’ Account status to all Users, including you and other Users who have entered Service Contracts with you. You therefore agree that: if AcCare decides to close your account temporarily or permanently, AcCare has the right (but no obligation) where allowed by law to: (y) notify other users that have entered Service Contracts with you of your closed account status, and (z) provide those users with a summary of the reasons for your account closure. You agree that AcCare will have no liability arising from or relating to any notice that it may or may not provide to any user regarding closed account status or the reason(s) for the closure.
12.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed, you will no longer have access to information or material you kept on the Site and any content stored in your Account may be deleted, for which AcCare expressly disclaims liability. AcCare may retain some or all your Account information as permitted or required by law and the Privacy Policy.
12.3 SURVIVAL
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions related to arbitration, audits, intellectual property, non-circumvention, indemnification, fees, reimbursements, and limitations of liability each contemplate performance or observance after this Agreement terminates. The termination of this Agreement for any reason will not release you from any obligations incurred prior to termination of this Agreement or other parts of the Terms of Service or that may accrue related to any act or omission prior to such termination.
13. DISPUTES BETWEEN YOU AND ACCARE
13.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and AcCare or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, AcCare, and our Affiliates agree to resolve all claims, disputes, or controversies that arise at any time through binding arbitration on an individual basis in accordance with this Section (sometimes referred to as the “Arbitration Agreement”). This includes all claims that arise out of or relate to this Agreement, the other Terms of Service, your relationship with AcCare (including without limitation any claimed employment with AcCare or one of our Affiliates or successors), the termination of your relationship with AcCare, or the Services (each a “Claim” and collectively, “Claims”).
13.2 CHOICE OF LAW
This Agreement, the Site Terms of Use, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of Canada, without regard to its conflict of law provisions; provided, however, that any Claims made by any Expert located within Canada will be governed by the law of the province in which such Expert resided at the time the dispute arose.
14. GENERAL
14.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, is the only agreement between you and us regarding the Services and supersedes all prior agreements for the Services and supersedes any prior agreements between us for actions occurring after the effective date of this Agreement.
14.2 MODIFICATIONS; WAIVER
We may modify these terms and will provide you reasonable advance notice of substantial changes.
14.3 ASSIGNABILITY
You may not transfer any rights you have under our Terms of Service unless we give you approval.
These Terms of Service and any rights or obligations hereunder may not be transferred or assigned by you unless you follow the provisions in this Section.
14.4 SEVERABILITY; INTERPRETATION
If any provision of this Agreement is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Agreement will continue in full force and effect. To the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in one jurisdiction will not in any way affect the legality, validity, or enforceability of that or any other provision in any other jurisdiction.
14.5 FORCE MAJEURE
The parties to this Agreement will not be responsible for any delay or failure to perform any obligation under this Agreement for a reasonable period due to labor disturbances, accidents, fires, floods, pandemics, telecommunications or Internet failures, strikes, wars, riots, rebellions, terrorism, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar event beyond the parties’ reasonable control.
14.6 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in Canada.
14.7 ACCESS OF THE SITE OUTSIDE CANADA
AcCare makes no representations that the Site or Services are appropriate or available for use outside of Canada. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable laws and regulations, both in Canada and aboard.
14.8 CONSENT TO USE ELECTRONIC RECORDS
AcCare and its Affiliates may need to provide you with certain communications, notices, agreements, statements or disclosures in writing regarding our Services. You consent to receive these records electronically from AcCare and its Affiliates rather than in paper form.
15. DEFINITIONS
Below we define capitalized terms that appear in this Agreement or other parts of the Terms of Service. Other capitalized terms are defined above, which you can tell because the term is put in quotation marks and bold font.
Capitalized terms not defined below or above have the meanings described in the Site Terms of Use or elsewhere in the Terms of Service.
“Affiliate” means anyone or anything that in any way manages, is managed by, or shares management with us.
“Client” means any authorized User of the Site or Site Services to seek or obtain Expert Services, including from another User.
“Client Initiated Direct Contract” means a Service Contract entered between a Client and an Expert.
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, or provided in connection with a Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Expert or Client; (b) was lawfully received by User without restriction from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Holding Fund Account” means Holding Fund Account in Stripe
“Holding Fund Instructions” means the Holding Fund Instructions agreement that is relevant to the Service Contract.
“Fixed-Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and an Expert, prior to the commencement of a Service Contract, for the completion of all Expert Services contracted by Client for such Service Contract.
“Expert” means any authorized User of the Site or Site Services, including Any Hire Services, that utilizes the Site to advertise, provide, or receive payment for the provision of Expert Services to Clients.
“Expert Fees” means: (a) for an Hourly Contract, the amount reflected in the Hourly Invoice (the number of hours invoiced by Expert, multiplied by the hourly rate charged by Expert); (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and an Expert.
“Expert Initiated Direct Contract” means a Service Contract entered on AcCare between an Expert on AcCare and a Client of the Expert’s.
The term “including” as used herein means including without limitation.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, in each case, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to Stripe.
“Project” means an engagement for Expert Services that an Expert provides to a Client under a Service Contract on the Site.
