Effective Date: April 09, 2018
This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) and ConsultingPad Inc. (“ConsultingPad”, “we,” or “us”) and, to the extent expressly stated, our affiliates if any. You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.consultingpad.com, all affiliated websites, including mobile websites and applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”), all services (except the Consultant Services), applications and products that are accessible through the Site and all ConsultingPad mobile applications that link to or reference this Agreement (“Site Services”) whether provided by us or our Affiliates.
Subject to the conditions set forth herein, ConsultingPad may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site and will provide reasonable advance notice of any amendment that includes a Substantial Change. If the Substantial Change includes an increase to Fees charged by ConsultingPad, ConsultingPad will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each, as applicable, the “Effective Date”).
Your continued use of the Site or the Site Services after the Effective Date of a revised version of this Agreement or of any other Terms of Service constitutes your acceptance of and agreement to be bound by the Terms of Service as revised. In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control unless the other Agreement explicitly states that it controls. Capitalized terms are defined throughout this Agreement and in Section 23 (Definitions).
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 21.4 OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE. IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY OR AGENCY.
1. DIGITAL SIGNATURE
By registering for an ConsultingPad account on the Site (an “Account”), or by clicking to accept the Terms of Service when prompted on the Site, you are deemed to have executed this Agreement and the other Terms of Service electronically, effective on the date you register your Account or click to accept the Terms of Service, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, the other Terms of Service, and any amendments.
2. CONSENT TO USE ELECTRONIC RECORDS
In connection with the Terms of Service, you may be entitled to receive certain records from ConsultingPad or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.
2.1 YOUR CONSENT AND YOUR RIGHT TO WITHDRAW CONSENT
By registering for an Account, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via the U.S. Postal Service and other third-party mail services using the address under which your account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting Customer Support. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
2.2 KEEPING YOUR ADDRESS AND EMAIL ADDRESS CURRENT WITH US
In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting Customer Support. In addition, so that we may communicate with you via the U.S. Postal Service and other third-party mail services, you agree to notify us immediately of any change in your address.
2.3 HARDWARE AND SOFTWARE YOU WILL NEED TO USE THE SITE SERVICES FOR YOUR BUSINESS
To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current Version”, we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of all of the records and notices we send to you electronically.
By accepting and agreeing to this Agreement and the other Terms of Service electronically, you represent that (x) you have read and understand the above consent to receive records and notices electronically; (y) you satisfy the minimum hardware and software requirements specified above; and (z) your consent will remain in effect until you withdraw your consent as specified above.
3. CONSULTINGPAD ACCOUNTS
3.1 ACCOUNT ELIGIBILITY
To use the Site and certain Site Services, you must register for an Account. ConsultingPad offers the Site and Site Services for your business purposes only, and not for personal, household, or consumer use. To use the Site and Site Services, you must have, and hereby represent that you have, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity) and further represent that you intend to use the Site and Site Services for your business purposes only, unless you use the Site and Site Services solely as an employee and Agency Member of a registered Agency Account. You understand that you must comply with any licensing or registration requirements with respect to your business, and you represent that you comply with all such requirements. To register for an Account, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older who can form legally binding contracts. By registering for an Account, by using the Site or Site Services after the Effective Date if you had an account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to: (a) abide by this Agreement and the other Terms of Service; (b) be financially responsible for your use of the Site and the purchase or delivery of Consultant Services; and (c) perform your obligations as specified by any Service Contract that you enter into, unless such obligations are prohibited by applicable law or the Terms of Service. ConsultingPad reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or for any other reason or no reason in ConsultingPad’s sole discretion.
You represent that you are not: (x) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (y) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (z) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services.
3.2 ACCOUNT REGISTRATION; PROFILE
By registering for an account, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. If you are a Consultant, unless you use the Site solely as an employee and Agency Member of a registered Agency Account, you represent and warrant that you use your Profile to market your business to others for the purpose of entering into independent contractor relationships with other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide and to correct any information about your location, your business, your skills, or the services your business provides that is or becomes false or misleading. You agree to provide your LinkedIn account details. You agree not to register for more than one Client Account and one Consultant Account without express written permission from us (except that you may register as an Agency Member of other Accounts as provided below). You agree not to ask or allow another person to create an Account on your behalf, for your use, or for your benefit.
3.3 IDENTITY VERIFICATION
When you register for an Account and from time to time 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 and your ability to represent your business on ConsultingPad, if it is a separate legal entity. You authorize ConsultingPad, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business.
3.4 AGENCY ACCOUNTS
You may create an account through which other authorized Consultants (each, an “Agency Member”) may act on your behalf in the roles you assign for your account (an “Agency Account”). A Consultant creates an Agency Account on behalf of a business (the “Agency”), which may be the Consultant as a sole proprietor or a partnership, corporation, or other legal entity the User controls. The Consultant that registered the Agency Account may also grant certain account administration privileges for the Agency Account to one or more Agency Members (each, an “Agency Account Administrator”). Except as otherwise required by applicable law, only the User who registered the Agency Account and the Agency Account Administrators can add or remove Agency Members to or from the Agency Account.
Each Agency Member must have an Account and a Profile. You understand and agree that the Agency may determine the Profile visibility and hourly rate of any of its Agency Members, and you authorize the Agency to do so by becoming an Agency Member. Each Agency Member must be a User and must be a real person or legally recognized entity. Each Agency Member’s Account Profile must contain the Agency Member’s real name, and Agency Members must comply with all Terms of Service. Agency Members’ identities will be subject to verification. If any of your Agency Members violate the Terms of Service, it may affect your ability to use the Site. Upon closure of an Agency Account, ConsultingPad may close any or all related Accounts.
You agree to grant access to the Agency Account, including with respect to any Agency Members, only to Users authorized to act on your behalf and only in accordance with the Terms of Service. Additionally, you agree to be fully responsible and liable for any action of any Agency Member and any other User who uses the Agency Account, including Agency Account Administrators. You represent that your Agency Members have the authority to accept the Terms of Service on your behalf and to create a legally binding obligation on your behalf. You understand and agree that an Agency Member may accept and enter into Service Contracts on behalf of the Agency, and that the Agency is responsible and liable for all Service Contracts accepted by anyone acting as an Agency Member.
Each Agency Member is either an employee or an independent contractor of the Agency, as determined by the Agency. Without limiting the Agency’s obligations described in Section 8.2 (Responsibility for Employees and Subcontractors, Including Agency Members), the Agency acknowledges and agrees that it assumes all liability for the classification of its Agency Members as employees or independent contractors. The Agency further acknowledges and agrees that the Agency is responsible for paying its Agency Members. Agency Members acknowledge and agree that their Agency is solely responsible for paying them for work on behalf of the Agency and that such payments will not be made through the Site.
Your Agency Account (including feedback) and username are transferable only upon ConsultingPad’s approval, at ConsultingPad’s sole discretion.
You understand and agree that Agency Members’ Profiles may display work history that includes work done under the Agency, including after the Agency Member is no longer an Agency Member.
3.5 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. Each User and any Agency Account Administrator will also be asked to choose the initial username and password for any Agency Account that is added to the Account (and can change the password for the Agency Account at any time).
You are entirely responsible for safeguarding and maintaining the confidentiality of your Account or Agency Account username and password. You authorize ConsultingPad to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or Agency Account or any unauthorized access to your password or the password of any User of your Account (or any related Agency Account). You further agree not to use any username, or password of another User of the Site that you are not authorized to use, and not to allow others who are not authorized to do so to use your Account or Agency Account at any time.
3.6 MARKETPLACE FEEDBACK
You acknowledge and agree that feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that ConsultingPad post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Job Success Score (“JSS”), if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. You further acknowledge and agree that ConsultingPad will make feedback results available to other marketplace Users, including composite or compiled feedback. ConsultingPad provides this feedback system as a means through which Users can share their opinions publicly and ConsultingPad does not monitor or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any JSS relate only to the business advertised in the Consultant Profile and not to any individual person. You agree not to use the JSS to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
ConsultingPad does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that ConsultingPad do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if such remarks are legally actionable or defamatory. ConsultingPad is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, ConsultingPad reserves the right (but is under no obligation) to remove posted feedback or information that, in ConsultingPad’s sole judgment, violates the Terms of Service or negatively affects our marketplace. You acknowledge and agree that you will notify ConsultingPad of any error or inaccurate statement in your feedback results, including the JSS, and that if you do not do so, ConsultingPad may rely on the accuracy of such information.
4. PURPOSE OF THE SITE AND SITE SERVICES
The Site is a marketplace where Companies and Consultants can identify each other and advertise, buy, and sell Consultant Services online. Subject to the Terms of Service, ConsultingPad provides the Site Services to Users, including hosting and maintaining the Site, enabling the formation of Service Contracts, and coordinating disputes related to those Service Contracts. If Users agree on terms for Consultant Services, a Service Contract is formed directly between such Users, subject to the provisions set forth in Section 5 (Contractual Relationship Between Client and Consultant). When a User enters a Service Contract, the User uses the Site to engage, communicate, invoice and pay online.
5. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND CONSULTANT
5.1 SERVICE CONTRACTS
Youacknowledge and agree that a Service Contract is comprised of the following agreements (as applicable): (a) The Fixed-Price Escrow Instructions; (b) the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions; (c) the Engagement terms awarded and accepted on the Site to the extent that the terms do not, and do not purport to, expand ConsultingPad’s obligations or restrict ConsultingPad’s rights under the Terms of Service; (d) the terms in Section 8 (Service Contract Terms), unless other terms are agreed to by the parties, to the extent that the provisions do not, and do not purport to, expand ConsultingPad’s obligations or restrict ConsultingPad’s rights under the Terms of Service; and (e) any other contractual provisions accepted by both the Client and the Consultant, to the extent that the provisions do not, and do not purport to, expand ConsultingPad’s obligations or restrict ConsultingPad’s rights under the Terms of Service. You acknowledge and agree that ConsultingPad is not a party to any Service Contracts, and that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between ConsultingPad and any Consultant.
5.2 PAYMENT AGREEMENTS AND ESCROW INSTRUCTIONS
Fixed-Price Engagements. If Users choose fixed-price compensation, then the Users agree that they will be bound by, and ConsultingPad Escrow will follow, the Fixed-Price Escrow Instructions.
Hourly Engagements, Bonus Payments, or Expense Payments. If Users choose hourly compensation, and/or if the Client makes bonus or expense payments, then the Users agree that they will be bound by, and ConsultingPad Escrow will follow, the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
6. PAYMENT TERMS
Payment processing services for consultant on consultingPad are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to [this agreement / these terms / etc.] or continuing to operate as a consultant on consultingPad, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of consultingPad enabling payment processing services through Stripe, you agree to provide consultingPad accurate and complete information about you and your business, and you authorize consultingPad to share it and transaction information related to your use of the payment processing services provided by Stripe.
6.1 SERVICE FEE
The fees to use the Site and Site Services are paid solely by the Consultant. When a Client pays a Consultant, or when funds related to an Engagement are otherwise released to a Consultant as required by the applicable Escrow Instructions, ConsultingPad Escrow will credit the Consultant Escrow Account for the full amount paid or released, and then subtract and disburse to ConsultingPad a service fee in the amount specified in the ConsultingPad Fee and ACH Authorization Agreement (the “Service Fee”). Consultant agrees to pay ConsultingPad the Service Fee for using the Site’s communication, invoicing, dispute resolution and payment services, including Payment Protection.
6.2 MEMBERSHIP FEES
Consultants will subscribe to different levels of participation and privileges on the Site, by payment of subscription fees as described in and subject to the terms of the Consultant Membership Agreement, as may be revised from time to time upon such notice as may be appropriate.
6.3 NO FEE FOR INTRODUCING OR FOR FINDING ENGAGEMENTS
ConsultingPad does not introduce Clients to Consultants and does not help Consultants secure Engagements. ConsultingPad merely makes the Site Services available to enable Consultants to do so themselves. Therefore, ConsultingPad does not charge a fee when a Consultant finds a suitable Client or finds an Engagement. However, a Client and a Consultant are obligated to use the Site to pay and receive payment for their work together if they identified each other through the Site, as detailed in Section 7 (Non-Circumvention), below. In addition, ConsultingPad does not charge any fee or dues for posting public feedback and composite or compiled feedback, including JSS.
6.4 DISBURSEMENTS TO CONSULTANTS
Under the relevant Escrow Instructions, ConsultingPad Escrow disburses funds that are payable to a Consultant for the Engagement (less any applicable ConsultingPad fees) to Consultants within 90 days after the Consultant Fees are due and payable from Client (or for amounts less than $100, within 180 days after the Consultant Fees are due and payable from Client). Consultant agrees that it will not receive interest or other earnings on the funds held by ConsultingPad Escrow prior to disbursement to Consultant.
For Hourly Contracts, funds become payable to Consultants following the expiration of the dispute period and the security period, unless the Client has any Engagement using ConsultingPad Payroll, in which case there is no dispute period or security period. For Fixed-Price Contracts, the Consultant Fees become payable to Consultants following the expiration of the security period, unless the Client has any Engagement using ConsultingPad Payroll in which case there is no security period. The security period begins after Client accepts and approves work submitted by Consultant by clicking the Make a Payment button. ConsultingPad, ConsultingPad Escrow, and Elance Limited may, in their sole discretion, deviate from the typical billing cycle for Hourly Contracts and charge the Client for any and all Time Logs at any time. To the extent the Escrow Instructions are inconsistent with this paragraph, the Escrow Instructions govern.
Notwithstanding any other provision of the Terms of Service or the Escrow Instructions, and except as prohibited by applicable law, if we determine in our sole discretion that you have violated the conditions and restrictions of the Site or the Terms of Service, ConsultingPad Escrow may hold the disbursement of the Consultant Fees. Additionally, ConsultingPad Escrow may also hold the disbursement of the Consultant Fees if: (a) we require additional information, such as Consultant’s tax information, government-issued identification, address, or date of birth; (b) we have reason to believe the Consultant Fees may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under a Service Contract, this Agreement, or other Terms of Service; (e) we deem it necessary in connection with any investigation; or (f) required by applicable law.
In cases of fraud, abuse, or violation of the Terms of Service, ConsultingPad reserves the right to revoke any payments and instruct ConsultingPad Escrow to (and ConsultingPad Escrow will have the right to) hold and reclaim from ConsultingPad Escrow all Consultant Fees due to Consultant (not just the Consultant Fees from the Service Contract(s) under investigation) unless prohibited by applicable law. In addition, we reserve the right to seek reimbursement from you, and you will reimburse us, if we suspect fraud or criminal activity associated with your payment, withdrawal, or Engagement; if we discover erroneous or duplicate transactions; or if we have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Client if you are a Consultant. You agree that we have the right to obtain such reimbursement by instructing ConsultingPad Escrow to (and ConsultingPad Escrow will have the right to) charge an applicable Escrow Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. Failure to pay for reimbursements of chargebacks is cause for termination of the applicable Escrow Account and revocation of your access to the Site.
If Client fails to pay the Consultant Fees or any other amounts due under the Terms of Service, whether by canceling Client’s credit or debit card, initiating an improper chargeback, or any other means, ConsultingPad may suspend or close Client’s Account and revoke Client’s access to the Site, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Consultant Services. Without limiting other available remedies, Client must pay ConsultingPad upon demand for amounts owed under the Terms of Service, 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. To the extent permitted by applicable law, ConsultingPad or ConsultingPad Escrow, at our discretion, may set off amounts due against other amounts received from or held by ConsultingPad or ConsultingPad Escrow for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
6.6 NO RETURN OF FUNDS
Client acknowledges and agrees that ConsultingPad Escrow will charge Client’s designated Payment Method for the Consultant Fees: (a) for Fixed-Price Contracts, upon Client’s acceptance and approval of the Consultant Services, and (b) for Hourly Contracts, on the Monday after the week in which work was performed. Therefore, and in consideration of the Site Services provided by ConsultingPad and the Escrow Services provided by ConsultingPad Escrow, Client agrees that once ConsultingPad Escrow charges the Client’s designated Payment Method for the Consultant Fees as provided in this Agreement or the other Terms of Service, the charge is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Consultant Fees or other Fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that ConsultingPad or ConsultingPad Escrow may dispute or appeal the chargeback and institute collection action against Client.
6.7 FORMAL INVOICES AND TAXES
ConsultingPad will have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to the Consultant Fees. Consultant will be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Consultant Fees and for issuing any invoices so required. Consultant will also be solely responsible for determining whether: (a) Consultant or ConsultingPad 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 Consultant Fees and remitting any such taxes or charges to the appropriate authorities on behalf of itself or ConsultingPad, as appropriate; and (b) ConsultingPad is required by applicable law to withhold any amount of the Consultant Fees and for notifying ConsultingPad of any such requirement and indemnifying ConsultingPad (either by ConsultingPad, at our sole discretion, offsetting the relevant amount against a future payment of Consultant Fees to Consultant or Consultant reimbursing ConsultingPad for the applicable amount) for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of ConsultingPad, Consultant agrees to promptly cooperate with ConsultingPad and provide copies of Consultant’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Consultant is engaging in an independent business as represented to ConsultingPad.
6.8 PAYMENT METHODS
Clients are charged a fee for payment processing and administration as described in the ConsultingPad Fee and ACH Authorization Agreement.
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes ConsultingPad, Stripe Inc. 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 for Services, and to charge Client’s credit card (or any other Payment Method). Credit cards and PayPal accounts and, if applicable, bank accounts in most countries will be charged by Stripe Inc.
When Client authorizes the payment of the Consultant Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs Stripe Inc. to charge Client’s Payment Method for the Consultant Fees. When Client approves or is deemed to have approved a Time Log for an Hourly Contract, Client automatically and irrevocably authorizes and instructs Stripe Inc. Limited to charge Client’s Payment Method for the Consultant Fees.
By providing Payment Method information through the Site, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
6.9 US DOLLARS AND FOREIGN CURRENCY CONVERSION
The Site and the Site Services operate in U.S. Dollars. If Client’s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make payments in U.S. Dollars, the Site may display foreign currency conversion rates that ConsultingPad, Stripe Inc. currently make available to convert supported foreign currencies to U.S. Dollars. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Client, at its sole discretion and risk, may authorize the charge of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Site. A list of supported foreign currencies is available on the Site. If foreign currency conversion is required to make a payment in U.S. Dollars and either ConsultingPad, Stripe Inc. does not support the foreign currency or Client does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Site, ConsultingPad Escrow or an Affiliate will charge Client’s Payment Method in U.S. Dollars and Client’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by Client’s Payment Method provider. Client’s Payment Method provider may also charge fees directly to the Payment Method used to fund a cross-border payment even when no currency conversion is involved. Client’s authorization of a payment using a foreign currency conversion rate displayed on the Site is at Client’s sole risk. ConsultingPad, Stripe Inc. are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. ConsultingPad, Stripe Inc. are not responsible for currency fluctuations that occur when receiving or sending payments via wire transfer, check or automated clearinghouse to and from the Escrow Account.
6.10 LIMITED PAYMENT PROTECTION
In the rare event that a Client does not make payment for legitimate services performed by a Consultant, ConsultingPad will provide limited payment protection to the Consultant as detailed in this Section 6.10 (“Payment Protection”) as a membership benefit to foster fairness, reward loyalty, and encourage the Consultant to continue to use the Site and Site Services for their business needs.
ConsultingPad only provides Payment Protection to Consultants working on Hourly Contracts and only if all of requirements of the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions and the following criteria are met: (a) Client has a verified Payment Method; (b) the time represented is captured online using the ConsultingPad Team Software; (c) the Consultant Services performed and recorded in the Time Log pertain directly to the Service Contract; and (d) each Time Log is annotated with descriptions of the Consultant Services performed, demonstrating Service Contract compliance. ConsultingPad determines whether the foregoing criteria have been met in our sole discretion. Without limiting the foregoing, Payment Protection does not apply to: (w) Consultants, Consultant Services, or Service Contracts violating this Agreement or the other Terms of Service; (x) Consultants that are aware of or complicit in another User’s violation of this Agreement or the other Terms of Service; (y) Consultants enrolled in ConsultingPad Payroll; or (z) Consultants that are suspected (in ConsultingPad’s sole discretion) of actual fraudulent activities or abuse of this Payment Protection.
Consultant hereby irrevocably assigns to ConsultingPad the right to recover from the Client any amounts that ConsultingPad or our Affiliates provide to the Consultant in connection with the Payment Protection membership benefit.
You acknowledge and agree that a substantial portion of the compensation ConsultingPad receives for making the Site available to you is collected through the Service Fee described in Section 6.1 (“Service Fee”). ConsultingPad only receives this Service Fee when a Client and a Consultant pay and receive payment through the Site. Therefore, for 24 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you must use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “ConsultingPad Relationship”). You may opt-out of this obligation with respect to each Client-Consultant relationship only if Client or prospective Client or Consultant pays ConsultingPad for each such relationship:
(a) an “Opt-Out Fee” computed to be the greater of the following amounts:
(i) $2,500; or
(ii) 15% of the cost to the Client of the services to be performed in the ConsultingPad Relationship during the Non-Circumvention Period, as estimated in good faith by the prospective Client; or
(iii) all Service Fees that would be earned by ConsultingPad from the ConsultingPad Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Consultant from Client during the most recent normalized 8-week period, or during such shorter period as data is available to ConsultingPad; and
(b) interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, calculated from the date Client first makes payment to the subject Consultant until the date the Opt-Out Fee is paid.
To pay the Opt-Out Fee, you must request instructions by sending an email message to optoutfee@ConsultingPad.com.
Except if you pay the Opt-Out Fee, you agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:
- Submit proposals or solicit parties identified through the Site to contact, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
You agree to notify ConsultingPad immediately if another person improperly contacts you or suggests making or receiving payments 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 ConsultingPad by sending an email message to: firstname.lastname@example.org.
If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported on the Site, and therefore choose to cease using the Site, you may pay the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
8. SERVICE CONTRACT TERMS
Unless otherwise expressly agreed to in writing by both Users, the default terms and conditions of the Service Contract that a Consultant enters directly with a Client when the Consultant agrees to provide Consultant Services to the Client are as set forth in this Section 8. Users may agree between them on any additional or different terms for their Service Contract as long as such terms do not and do not purport to affect the rights or responsibilities of ConsultingPad or violate the Terms of Service. ConsultingPad is not a party to any Service Contract by or between Users.
Users agree that the terms concerning the Service Contract described on the Site, including Consultant Fees, rates, hours, and milestones, form part of the Service Contract. Users agree to obtain the consent of the other before making changes to the Service Contract by adding additional or different milestones or making other changes to the Service Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Service Contract (see Section 8.5) or accept such changes by continuing to work on the Service Contract.
Consultant will perform the Consultant Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Consultant Services will be determined and controlled solely by Consultant, which is engaged by Client as an independent contractor.
8.2 RESPONSIBILITY FOR EMPLOYEES AND SUBCONTRACTORS, INCLUDING AGENCY MEMBERS
To ensure accurate billing, work billed for Hourly Contracts under a Consultant’s Account must be performed by the Consultant that has the Account. With an Agency Account, the Agency may bill for hourly work done by Agency Members.
If a User subcontracts with or employs third parties to perform Consultant Services on behalf of the User for any Engagement, the User represents and warrants that it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations. As used in this Agreement, the term “Delegee” refers to any employee, independent contractor, or agent of a User, including an Agency Member, that the User engages to perform any work on its behalf under a Service Contract. Regardless of whether a User has Delegees, the User remains responsible for all services performed under the User’s Service Contracts, including ensuring that the services comply with the Terms of Service (including confidentiality and intellectual property obligations). Each Agency specifically acknowledges and agrees that Agency Members have the authority to bind the Agency to Service Contracts entered into by Agency Members on behalf of the Agency.
Consultant, Agency, Delegee, and Client acknowledge and agree that Delegees are not employees, independent contractors or agents of ConsultingPad or Client. Agency, Delegee, and Consultant represent, warrant, and covenant that: (a) Agency and, if applicable, each other User is solely responsible for all payments, obligations, wages, costs, unemployment insurance, workers’ compensation insurance, contributions, and expenses of Delegees; (b) neither ConsultingPad nor Client has the right or power to supervise or control Delegees; and (c) no Delegees of any Agency or other User will have any claim under this Agreement or the other Terms of Service for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, contributions, or any other employee benefits of any kind from ConsultingPad or Client.
With respect to Delegees, ConsultingPad merely provides the platform for Agency or Consultant to communicate and share information with Clients and, if they are Users, with Delegees. Agency, Delegee, and Consultant understand and agree that the contract terms, pay rate, work hours, service dates and working conditions will be established by the Agency, Consultant, and/or Client and not by ConsultingPad. Agency, Delegee, and Consultant acknowledge and agree that Delegees are not employees or independent contractors of ConsultingPad, and further acknowledge and agree that they will not be providing any services to ConsultingPad (directly or indirectly) while employed or engaged by the Agency or another User.
Agency, Delegee, and Consultant acknowledge and agree that ConsultingPad does not, in any way, supervise, direct, or control Delegees; ConsultingPad does not set Delegees’ contract terms (including determining whether the contract will be set at an hourly or fixed fee), fees, rates, work hours, work schedules, or location of work; ConsultingPad will not provide Delegees with training or any equipment, labor, or materials needed for a particular Service Contract; and ConsultingPad does not provide the premises at which the Delegees will perform the work.
8.3 CLIENT PAYMENTS AND BILLING
For Hourly Contracts, Client becomes obligated for Consultant Fees on a weekly basis. For Fixed-Price Contracts, Client becomes obligated immediately upon sending a Fixed-Price Contract offer or upon activating any additional milestone.
8.4 DISPUTE RESOLUTION
With respect to disputes arising between Clients and Consultants, you agree to abide by the dispute resolution provisions set forth in the Escrow Instructions that apply to your particular Service Contract.
8.5 TERMINATION OF A SERVICE CONTRACT
Under Hourly Contracts, either Client or Consultant has the right to terminate the Service Contract after providing any required notice, or immediately on the end date specified in the Service Contract terms and/or upon completion of the Consultant Services, in the event of a material breach, or with the consent of the other party. Except as required by law, Client remains obligated to pay the Consultant Fees for any Consultant Services provided prior to termination of the Hourly Contract.
Under Fixed-Price Contracts, once a Client’s Payment Method has been charged to fund the escrow account for the Engagement, absent a full refund to Client by Consultant, the Service Contract does not terminate until the Consultant Services are completed. However, either Client or Consultant has the right to terminate a Fixed-Price Contract at any time with the consent of the other party or in the event of a material breach. If a Fixed-Price Contract is terminated, Client does not have the right to recover any payments already released to Consultant from the escrow account for the Engagement.
8.6 INTELLECTUAL PROPERTY RIGHTS
CERTAIN DEFINED TERMS
The following capitalized terms have the following meanings:
“Background Technology” means all Inventions developed by Consultant other than in the course of providing Consultant Services to Client under the Service Contract and all Inventions that Consultant incorporates into Work Product.
“Client Materials” means requests, intellectual property, and any other information or materials that Client provides to Consultant for Consultant to perform Consultant Services.
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.
Consultant will disclose in the Engagement Terms any Background Technology which Consultant proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Consultant discloses no Background Technology, Consultant warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Consultant will separately provide, with each delivery of Work Product to Client, a third-party bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Consultant, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Engagement Terms, Consultant agrees that it will not incorporate into Work Product or otherwise deliver to Client any software code for which the use or distribution of the code will create (or purport to create) obligations for Client to grant any rights or immunities under Client intellectual property to a third-party, including without limitation any obligation that the Work Product or Client software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.
LICENSE TO BACKGROUND TECHNOLOGY
Upon Consultant’s receipt of full payment from Client for delivery of Work Product, Consultant hereby automatically grants to Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated or used in Work Product delivered for that payment. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
Client grants Consultant a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Materials as necessary solely for the performance of the Consultant Services under the applicable Service Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Service Contract, or upon Client’s written request, Consultant will immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables (except for Background Technology as permitted by the Service Contract) contained in or on Consultant’s premises, systems, or any other equipment or location otherwise under Consultant’s control. Within ten days of such request from Client, Consultant agrees to provide written certification to Client that Consultant has returned or destroyed all Client Materials and Work Product as provided in this subsection.
OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY
Upon Consultant’s receipt of full payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Consultant has any Intellectual Property Rights to the Work Product that are not owned by Client upon Consultant’s receipt of payment from Client, Consultant hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Consultant retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual Property Rights. Consultant hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered.
LICENSE TO OR WAIVER OF OTHER RIGHTS
If Consultant has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Client by Consultant, Consultant hereby automatically, upon Consultant’s receipt of full payment from Client, unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Consultant, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Consultant has any rights to such Work Product that cannot be assigned or licensed, Consultant hereby automatically, upon Consultant’s receipt of payment from Client, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or related to Client’s customers, with respect to such rights, and will, at Client’s request and expense, consent to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
Consultant will assist Client in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Contract, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Client is unable, after reasonable effort, to secure Consultant’s signature on any document needed in connection with the foregoing, Consultant hereby designates and appoints Client and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Consultant.
A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. section 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
8.7 WORKER CLASSIFICATION
Client is responsible and assumes all liability for determining whether Consultants are independent contractors or employees and engaging them accordingly; ConsultingPad disclaims any liability for such determination or the related Engagement. The Terms of Service do not create a partnership or agency relationship between Users. Consultant does not have authority to enter into written or oral (whether implied or express) contracts on behalf of ConsultingPad. For Service Contracts classified as independent contractor relationships, Client may not require an exclusive relationship. A Consultant classified as an independent contractor is free at all times to provide Consultant Services to persons or businesses other than Client, including any competitor of Client.
10. RELATIONSHIP WITH CONSULTINGPAD
ConsultingPad is not a party to the dealings between Client and Consultant, including posts, proposals, screening, selection, contracting, and performance of Consultant Services. ConsultingPad does not introduce Consultants to Clients or help Consultants find Engagements. ConsultingPad merely makes the Site Services available to enable Consultants to identify and determine the suitability of Clients for themselves and to enable Clients to identify and determine the suitability of Consultants for themselves. ConsultingPad does not, in any way, supervise, direct, or control Consultant or Consultant’s work. ConsultingPad does not set Consultant’s work hours, work schedules, or location of work, nor is ConsultingPad involved in determining if the Consultant Fees will be set at an hourly or fixed rate for a Service Contract. ConsultingPad will not provide Consultant with training or any equipment, labor, or materials needed for a particular Service Contract. ConsultingPad does not provide the premises at which the Consultant will perform the work. ConsultingPad makes no representations about, and does not guarantee the quality, safety, or legality of, the Consultant Services; the truth or accuracy of Consultant’s listings on the Site; the qualifications, background, or identities of Users; the ability of Consultants to deliver the Consultant Services; the ability of Clients to pay for the Consultant Services; or that a Client or Consultant can or will actually complete a transaction.
ConsultingPad does not deduct any amount for withholding, unemployment, Social Security, or other taxes for Client or Consultant, each of which is 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 Consultant’s performance, and Client’s acceptance, of Consultant Services.
ConsultingPad is not required to and may not verify any feedback or information given to us by Consultants or Clients, nor does ConsultingPad perform background checks on Consultants or Clients.
You hereby acknowledge and agree that ConsultingPad may provide information on the Site about a Consultant or Client, such as feedback, composite feedback, including a strength or risk score, geographical location, or verification of identity or credentials. However, such information is based solely on data that Consultants or Clients voluntarily submit to ConsultingPad and does not constitute and will not be construed as an introduction, endorsement, or recommendation by ConsultingPad; ConsultingPad provides such information solely for the convenience of Users.
11. THIRD-PARTY BENEFICIARY
Users appoint ConsultingPad as a third-party beneficiary of their Service Contracts for purposes of enforcing any obligations owed to, and any benefits conferred on, ConsultingPad hereunder. For example, Section 5.1(c) and Section 5.1(d) of this Agreement prohibit certain terms in any Service Contract and ConsultingPad is hereby made a third-party beneficiary for purposes of enforcing such prohibitions. Users further agree that ConsultingPad has the right to take such actions with respect to their Accounts, including, without limitation, suspension, termination, or legal actions, as we, in our sole discretion, deem necessary to enforce our rights as a third-party beneficiary under the Service Contracts.
The Terms of Service and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between Users and ConsultingPad, except and solely to the extent expressly stated in this Agreement.
12. COMMUNICATIONS FROM YOU TO CONSULTINGPAD
All notices to ConsultingPad or our Affiliates intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: Attn: Legal, 441 Logue Ave., Mountain View, CA 94043; or (c) in writing via email to email@example.com . All such notices are deemed effective upon receipt by ConsultingPad. ConsultingPad does not accept service of any legal process by email or mail; all such service should occur by hand delivery on ConsultingPad or its registered agent for service of process.
13. CONSULTINGPAD’S ROLE
13.1 SERVICE CONTRACTS
You expressly acknowledge, agree, and understand that: (a) the Site is merely a venue where Users may act as Clients and/or Consultants; (b) ConsultingPad is not a party to any Service Contracts between Clients and Consultants; (c) you are not an employee of ConsultingPad, and ConsultingPad does not, in any way, supervise, direct, or control the Consultant or Consultant Services; (d) ConsultingPad will not have any liability or obligations under or related to Service Contracts for any acts or omissions by you or other Users; (e) ConsultingPad has no control over Consultants or the Consultant Services offered or rendered by Consultants; and (f) ConsultingPad makes no representations as to the reliability, capability, or qualifications of any Consultant or the quality, security, or legality of any Consultant Services, and ConsultingPad disclaims any and all liability relating thereto.
14. LICENSES AND THIRD-PARTY CONTENT
14.1 SITE LICENSE AND INTELLECTUAL PROPERTY RIGHTS
Subject to and conditioned on compliance with the Terms of Service, ConsultingPad grants you a limited license to access and, if you have created an Account, to use the Site for the purpose of using the Site Services. You must not access (or attempt to access) the Site or Site Services by any means other than the interface provided, and you will not use information from the Site or Site Services for any purposes other than the purposes for which it was made available. You agree not to use the Site or Site Services for offering any goods or services other than Consultant Services as permitted by this Agreement. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Site Services in any way for any public or commercial purpose without ConsultingPad’s prior written consent. You must not use any content of the Site or Site Services on any other website or in a networked computer environment for any purpose except your own viewing without ConsultingPad’s prior written consent. You must not frame or link to the Site or Site Services except as permitted in writing by ConsultingPad. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law. You will not access Site Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Site Services. ConsultingPad and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The ConsultingPad logos and names are trademarks of ConsultingPad and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in the Terms of Service confers any license under any of ConsultingPad’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
14.2 USER CONTENT LICENSE
When you post User Content on the Site or through the Site Services or provide ConsultingPad with User Content, you represent and warrant that you have the right, power, and authority to post that User Content and grant the licenses specified below. You further represent and warrant that by posting or providing such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that ConsultingPad may exercise the rights to your User Content granted under the Terms of Service without any liability or obligation for any payment.
The licenses to User Content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your User Content from the Site, except that you grant ConsultingPad and our successors and Affiliates the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
You may submit comments or ideas about the Site and Site Services, including without limitation about how to improve the Site or Site Services (collectively, “Ideas”). By submitting any Ideas, you agree that: (a) your disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place ConsultingPad under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties, and (c) we are free to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission, ConsultingPad does not waive any rights to use similar or related ideas known or developed by ConsultingPad or obtained from sources other than you.
14.3 UNAUTHORIZED ACCESS AND USE; SITE INTERFERENCE; MALICIOUS SOFTWARE
The Site contains robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual content available on the Site for any purpose or in any manner other than streaming. You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of ConsultingPad and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of ConsultingPad or any third party
14.4 THIRD-PARTY VERIFICATION
The Site makes available various services provided by third parties to verify a User’s credentials and provide other information. Any information or content expressed or made available by these third parties or any other Users is that of the respective author(s) or distributor(s) and not of ConsultingPad. ConsultingPad neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than ConsultingPad’s authorized employees acting in their official capacities.
14.5 LINKS AND APPLICATIONS
The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their licensors. Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and agree that ConsultingPad is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. You are responsible for deciding if you want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
14.6 MOBILE AND OTHER DEVICES
When using our mobile applications, please be aware that your carrier’s normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications may not contain the same functionality available on the Site.
14.7 SITE UPDATES
We may from time to time in our sole discretion develop and provide Site Services updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You will promptly download and install all Updates and acknowledge and agree that Site Services or portions thereof may not work properly should you fail to do so. You further agree that all Updates will be subject to the terms of the Terms of Service, unless otherwise provided in terms associated with such Update. ConsultingPad reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without notice. You agree ConsultingPad will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.
15. CONFIDENTIAL INFORMATION
To the extent a Client or Consultant provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s 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 will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Consultant Services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Consultant); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Consultant Services. A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. section 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
If and when Confidential Information is no longer needed for the performance of the Consultant Services for a Services Contract or at Client’s or Consultant’s written request (which may be made at any time at Client’s or Consultant’s sole discretion), the party that received Confidential Information, will, at its expense, promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party’s written request for such certification.
Without limiting Section 15.1 (Confidentiality), Client, Consultant, and ConsultingPad will not publish, or cause to be published, any other party’s Confidential Information or Work Product, except as may be necessary for performance of Consultant Services for a Services Contract.
16. WARRANTY DISCLAIMER
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. CONSULTINGPAD MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE OTHE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONSULTINGPAD DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 20 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST CONSULTINGPAD WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
17. LIMITATION OF LIABILITY
ConsultingPad 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:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
- 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 CONSULTINGPAD, 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 CONSULTINGPAD, 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) $2,500; OR (B) ANY FEES RETAINED BY CONSULTINGPAD WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR CONSULTANT DURING THE SIX-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 ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
In addition to the recognition that ConsultingPad is not a party to any contract between Users, you hereby release ConsultingPad, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees 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. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Consultant Services provided to Client by a Consultant and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in subsection 8.4 (Dispute Resolution).
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You will indemnify, defend, and hold harmless ConsultingPad, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) 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 relating to: (a) use of the Site and the Site Services by you or your agents, including any payment obligations incurred through use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Consultant as an independent contractor; the classification of ConsultingPad as an employer or joint employer of Consultant; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents.
20. AGREEMENT TERM AND TERMINATION
The Terms of Service as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Site and will remain in effect for the duration of your use of the Site or Site Services. Unless both you and ConsultingPad 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 herein. You may provide written notice to firstname.lastname@example.org. If you are using ConsultingPad Payroll, you must legally terminate your relationship with Client or Consultant, as applicable, before terminating this Agreement. In the event you properly terminate this Agreement, your right to use the Site is automatically revoked, and your Account will be closed; however, (a) if you have any open Engagements when you terminate this Agreement, you will continue to be bound by this Agreement and the other Terms of Service until all such Engagements have closed on the Site; (b) ConsultingPad will continue to perform those Site Services necessary to complete any open Engagement or related transaction between you and another User; and (c) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Engagements, whichever is later, to ConsultingPad for any Site Services and to any Consultants for any Consultant Services. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you, any User with whom you have entered into a Service Contract, or ConsultingPad from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of the Terms of Service necessary to implement the foregoing survive termination of this Agreement for any reason.
Without limiting ConsultingPad’s other rights or remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or ConsultingPad or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity. If your Account is suspended or closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without ConsultingPad’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.
Without limiting ConsultingPad’s other rights or remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed ConsultingPad or our Affiliates under the Terms of Service, you must pay ConsultingPad, and you authorize ConsultingPad or its Affiliate to charge you, for all fees owed to ConsultingPad and our Affiliates and reimburse ConsultingPad for the Opt-Out Fee, if applicable, all losses and costs (including any and all time of ConsultingPad’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees. In addition, violations of the Terms of Service may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
If your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable or required by law, ConsultingPad will retain this information along with all your previous posts and proposals for a period of up to five years from the date of closure. However, you understand that any closure of your Account may involve deletion of any content stored in your Account for which ConsultingPad will have no liability whatsoever.
20.1 ENFORCEMENT OF AGREEMENT
ConsultingPad has the right, but not the obligation, to suspend or revoke your access to the Site and Site Services if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Terms of Service or violated our rights or those of another party. Without limiting ConsultingPad’s other rights or remedies, we may suspend or close your Account, use self-help in connection with our rights to reclaim funds, and refuse to provide any further access to the Site or the Services to you if (a) you breach any terms and conditions of this Agreement or other Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, other Users, or ConsultingPad.
20.2 CONSEQUENCES OF AGREEMENT TERMINATION
Termination of this Agreement and/or closing of your Account will not relieve Client of the requirement to pay for Consultant Services performed prior to the Effective Date of the termination or thereafter for any Service Contracts executed before termination of this Agreement, which fees and expenses, together with any applicable taxes, Client hereby authorizes ConsultingPad to charge to its Payment Method pursuant to Section 6 (Payment Terms). Subject to the applicable Dispute Resolution Procedures, ConsultingPad will pay Consultant, in accordance with the provisions of Section 6 (Payment Terms) for all time recorded in the Time Logs incurred prior to the Effective Date of the termination or thereafter for any Service Contracts executed before termination of this Agreement.
Except as otherwise required by applicable law, we will notify you if we close your Account, unless we believe, in our sole judgment, that giving notice may cause damage. You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF CONSULTINGPAD DECIDES TO SUSPEND OR CLOSE YOUR ACCOUNT, CONSULTINGPAD HAS THE RIGHT BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR CLOSED ACCOUNT STATUS, AND (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT SUSPENSION OR CLOSURE.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting Confidential Information, requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
21. CANCELLATIONS, REFUNDS, AND DISPUTES
21.1 DISPUTE PROCESS AND SCOPE
For disputes arising between Clients and Consultants, you agree to abide by the dispute process that is explained in the Escrow Instructions that apply to your particular Service Contract.
If a dispute arises between you and ConsultingPad or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, ConsultingPad, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with ConsultingPad (including any claimed employment with ConsultingPad or one of its Affiliates or successors), the termination of your relationship with ConsultingPad, or the Site Services (each, a “Claim”) in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the Terms of Service, any Service Contract, escrow payments or agreements, any payments or monies you claim are due to you from ConsultingPad or its Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination or harassment and claims arising under the Uniform Trade Secrets Act as enacted in any state, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with ConsultingPad or the termination of that relationship. Only with respect to the Arbitration Provision, Claims do not include disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and are excluded from the coverage of the Arbitration Provision.
You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration and Class Action/Jury Trial Waiver.”
21.2 CHOICE OF LAW
This Agreement, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
21.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you agree to first notify ConsultingPad of the Claim at Attn: Consulting Pad, Inc. Rocket Lawyer 2035 Sunset Lake Road, Suite B-2, Newark, Delaware, 19702 or by email to legalnotices@ConsultingPad.com, and ConsultingPad agrees to provide to you a notice at your email address on file (in each case, a “Notice”) and seek informal resolution of the Claim. Any Notice from you must include your name, pertinent account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Any Notice from ConsultingPad must include pertinent account information, a brief description of the Claim, and ConsultingPad’s contact information, so that you may evaluate the Claim and attempt to informally resolve the Claim. Both you and ConsultingPad will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
22.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and ConsultingPad relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though ConsultingPad drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or ConsultingPad because of the authorship of any provision of the Terms of Service.
22.2 SIDE AGREEMENTS
Notwithstanding subsection 22.1 (Entire Agreement), Clients and Consultants may enter into any supplemental or other written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.). The terms and conditions of the Terms of Service, however, will govern and supersede any term or condition in a side agreement that purports to expand ConsultingPad’s obligations or restrict ConsultingPad’s rights under the Terms of Service.
User will not violate any applicable foreign, federal, state, or local laws or third-party rights on or related to the Site. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to, import and export control laws and third parties’ Intellectual Property Rights.
No modification or amendment to the Terms of Service will be binding upon ConsultingPad unless in a written instrument signed by a duly authorized representative of ConsultingPad. For the purposes of this subsection, a written instrument will expressly exclude electronic communications, such as email and electronic notices, but will include facsimiles. This Section 22.4 (Modifications) does not apply to amendments to the Terms of Service posted by ConsultingPad to the Site from time to time.
22.5 NO WAIVER
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without ConsultingPad’s prior written consent in the form of a written instrument signed by a duly authorized representative of ConsultingPad (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). ConsultingPad may freely assign this Agreement or the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and permitted assigns of the parties.
If and 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 that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
22.8 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party will be extended by the period of such delay. Irrespective of any extension of time, if an event of Force Majeure occurs and its effect continues for a period of 60 days, either the party may give to the other a 30-day notice of termination. If, at the end of the 30 day period, the effect of the Force Majeure continues, the Agreement and the other Terms of Service will terminate, except as provided in Section 20.3.
22.9 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 the United States. ConsultingPad makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software. You may not use or access the Site if you are: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit your use or access to the Site; or (c) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
“Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with ConsultingPad.
“Client” means any authorized User utilizing the Site to seek and/or obtain Consultant Services from another User. From time to time, ConsultingPad may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to ConsultingPad when ConsultingPad acts in this way.
“Client Deliverables” means requests, intellectual property, and any other information or materials that a Consultant receives from a Client to perform Consultant Services.
“Confidential Information” means Client Deliverables, Consultant Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract or to perform or assist in performing Consultant Services, regardless of whether 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 Consultant or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure 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.
“Engagement” means an engagement for Consultant Services that a Consultant provides to a Client under a Service Contract on the Site.
“Escrow Account” means Client Escrow Account, Consultant Escrow Account, or Fixed-Price Escrow Account.
“Escrow Instructions” means the Fixed-Price Escrow Instructions or the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
“Fixed-Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Consultant, prior to the commencement of a Service Contract, for the completion of all Consultant Services contracted by Client for such Service Contract.
“Consultant” means any authorized User utilizing the Site to advertise and provide Services to Clients.
“Consultant Deliverables” means requests, intellectual property, and any other information or materials that a Client receives from a Consultant for a particular Service Contract.
“Consultant Fees” means: (a) for an Hourly Contract, an amount equal to the number of hours recorded by Consultant in the Time Logs, multiplied by the hourly rate set by the Consultant; (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Consultant; and (c) any bonuses or other payments made by a Client.
“Consultant Services” means all services performed for or delivered to Clients by Consultants.
“Hourly Contract” means a Service Contract for which Client is charged based on the hourly rate set by the Consultant.
“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, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to ConsultingPad, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as ConsultingPad may accept from time to time in our sole discretion.
“Payroll Employee” means a Consultant enrolled in ConsultingPad Payroll, accepted for employment by a Staffing Provider, and assigned by the Staffing Provider to provide Consultant Services to one or more Client(s).
“Service Contract” means, as applicable, (a) the contractual provisions between a Client and a Consultant governing the Consultant Services to be performed by a Consultant for Client for an Engagement; or (b) if you use ConsultingPad Payroll, the contractual provisions between Consultant and the Staffing Provider for the provision of services to Client, if any; and, in each case, the additional agreements referenced in Section 5.1 (Service Contracts).
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Time Logs” means the report of hours recorded for a stated period by a Consultant for the Consultant Services performed for a Client.
“ConsultingPad Team Software” means the online platform accessed using ConsultingPad’s downloaded team software that enables time tracking and invoicing, chat, and screenshot sharing with other Users.
“User Content” means any data, feedback, content, text, photographs, images, video, music, or other information that you post to any part of the Site or provide to ConsultingPad.
“Work Product” means any tangible or intangible results or deliverables that Consultant agrees to create for, or actually delivers to, Client as a result of performing the Consultant Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.
24. CONTACTING US
If you have questions or need assistance, please contact Customer Support.