Effective Date: October 1st, 2017
This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) and PanelQuotes.com (“Panel Quotes”, “we,” or “us”). 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.panelquotes.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”), applications and products that are accessible through the Site and all Panel Quotes 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, Panel Quotes 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 Panel Quotes, Panel Quotes 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 Panel Quotes 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 Panel Quotes 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. PANEL QUOTES ACCOUNTS
3.1 Account Eligibility
To use the Site and certain Site Services, you must register for an Account. Panel Quotes 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 Freelancer 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. Panel Quotes 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 Panel Quotes’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. 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 not to register for more than one Client Account and one Freelancer 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 Panel Quotes, if it is a separate legal entity. You authorize Panel Quotes, 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 users (each, an “Agency Member”) may act on your behalf in the roles you assign for your account (an “Agency Account”). A user creates an Agency Account on behalf of a business (the “Agency”), which may be the user as a sole proprietor or a partnership, corporation, or other legal entity the User controls. The user 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, Panel Quotes 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 Panel Quotes’ approval, at Panel Quotes’ 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 Panel Quotes 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 Panel Quotes 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 Panel Quotes will make feedback results available to other marketplace Users, including composite or compiled feedback. Panel Quotes provides this feedback system as a means through which Users can share their opinions publicly and Panel Quotes 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 Freelancer 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.
Panel Quotes does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Panel Quotes 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. Panel Quotes 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, Panel Quotes reserves the right (but is under no obligation) to remove posted feedback or information that, in Panel Quotes’s sole judgment, violates the Terms of Service or negatively affects our marketplace. You acknowledge and agree that you will notify Panel Quotes of any error or inaccurate statement in your feedback results, including the JSS, and that if you do not do so, Panel Quotes may rely on the accuracy of such information.
4. PURPOSE OF THE SITE AND SITE SERVICES
The Site is a marketplace where Clients and Sellers can identify each other and advertise, buy, and sell services online. Subject to the Terms of Service, Panel Quotes 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 Freelancer Services, a Service Contract is formed directly between such Users, subject to the provisions set forth in Section 5 (Contractual Relationship Between Client and Freelancer), unless you are enrolled in Panel Quotes Payroll. When a User enters a Service Contract, the User uses the Site to engage, communicate, invoice and pay online.
4.1 Escrow Accounts
Panel Quotes Escrow provides escrow services to Users to deliver, hold, or receive payment for an Engagement, and to pay service, membership and payment processing and administration fees to Panel Quotes (“Escrow Services”). Panel Quotes Escrow is a Delaware corporation and a licensed Internet escrow agent and holds California Department of Business Oversight License No. 963 5086. The Escrow Services are intended for business use, so you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes.
Depending on your needs and the applicable Escrow Instructions, Panel Quotes Escrow will establish and maintain one of three different types of Escrow Accounts, subject to the applicable Escrow Agreement:
(a) Client Escrow Account. After entering into a Service Contract, the first time a Client makes a payment for an Engagement, Panel Quotes Escrow will establish and maintain a “Client Escrow Account” to hold funds for the Client to use to make payments for Engagements, to receive refunds in connection with Engagements, and to make payments to Panel Quotes for payment processing and administration fees.
(b) Freelancer Escrow Account. After entering into a Service Contract, the first time a Freelancer uses the Site to receive payment for an Engagement, Panel Quotes Escrow will establish and maintain a “Freelancer Escrow Account” for the Freelancer to receive payments for Engagements, withdraw payments, make monthly membership payments and service fees to Panel Quotes, and issue refunds to Clients.
(c) Fixed-Price Escrow Account. When you enter into a Fixed-Price Contract, Panel Quotes Escrow will establish and maintain a “Fixed-Price Escrow Account” to receive, hold, and release payments pursuant to the Fixed-Price Escrow Instructions for the Engagement that is the subject of that Service Contract.
You hereby authorize and instruct Panel Quotes Escrow to act as escrow agent in connection with the Escrow Accounts and the payment, holding, and receipt of funds for each Engagement and other specified purposes (the “Escrow”) in accordance with the Terms of Service and the applicable Escrow Instructions.
5. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND FREELANCER
5.1 Service Contracts
Unless you use the services described in the Panel Quotes Payroll Agreement (such services, “Panel Quotes Payroll”), you acknowledge 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 Panel Quotes’s obligations or restrict Panel Quotes’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 Panel Quotes’s obligations or restrict Panel Quotes’s rights under the Terms of Service; and (e) any other contractual provisions accepted by both the Client and the Freelancer, to the extent that the provisions do not, and do not purport to, expand Panel Quotes’s obligations or restrict Panel Quotes’s rights under the Terms of Service. You acknowledge and agree that Panel Quotes 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 Panel Quotes and any Freelancer.
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 Panel Quotes 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 Panel Quotes Escrow will follow, the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
6. PAYMENT TERMS
6.1 Service Fee
The fees to use the Site and Site Services are paid solely by the Freelancer. When a Client pays a Freelancer, or when funds related to an Engagement are otherwise released to a Freelancer as required by the applicable Escrow Instructions, Panel Quotes Escrow will credit the Freelancer Escrow Account for the full amount paid or released, and then subtract and disburse to Panel Quotes a service fee in the amount specified in the Panel Quotes Fee and ACH Authorization Agreement (the “Service Fee”). Freelancer agrees to pay Panel Quotes the Service Fee for using the Site’s communication, invoicing, dispute resolution and payment services, including Payment Protection. Refer to the Panel Quotes Payroll Agreement for applicable fees to use Panel Quotes Payroll.
6.2 Membership Fees
Freelancers 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 Freelancer 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
Panel Quotes does not introduce Clients to Freelancers and does not help Freelancers secure Engagements. Panel Quotes merely makes the Site Services available to enable Freelancers to do so themselves. Therefore, Panel Quotes does not charge a fee when a Freelancer finds a suitable Client or finds an Engagement. However, a Client and a Freelancer 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, Panel Quotes does not charge any fee or dues for posting public feedback and composite or compiled feedback, including JSS.
6.4 Disbursements to Freelancers
Under the relevant Escrow Instructions, Panel Quotes Escrow disburses funds that are payable to a Freelancer for the Engagement (less any applicable Panel Quotes fees) to Freelancers within 90 days after the Freelancer Fees are due and payable from Client (or for amounts less than $100, within 180 days after the Freelancer Fees are due and payable from Client). Freelancer agrees that it will not receive interest or other earnings on the funds held by Panel Quotes Escrow prior to disbursement to Freelancer.
For Hourly Contracts, funds become payable to Freelancers following the expiration of the dispute period and the security period, unless the Client has any Engagement using Panel Quotes Payroll, in which case there is no dispute period or security period. For Fixed-Price Contracts, the Freelancer Fees become payable to Freelancers following the expiration of the security period, unless the Client has any Engagement using Panel Quotes Payroll in which case there is no security period. The security period begins after Client accepts and approves work submitted by Freelancer by clicking the Make a Payment button. Panel Quotes, Panel Quotes 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, Panel Quotes Escrow may hold the disbursement of the Freelancer Fees. Additionally, Panel Quotes Escrow may also hold the disbursement of the Freelancer Fees if: (a) we require additional information, such as Freelancer’s tax information, government-issued identification, address, or date of birth; (b) we have reason to believe the Freelancer 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, Panel Quotes reserves the right to revoke any payments and instruct Panel Quotes Escrow to (and Panel Quotes Escrow will have the right to) hold and reclaim from Panel Quotes Escrow all Freelancer Fees due to Freelancer (not just the Freelancer 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 Freelancer. You agree that we have the right to obtain such reimbursement by instructing Panel Quotes Escrow to (and Panel Quotes 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 Freelancer 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, Panel Quotes 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 Freelancer Services. Without limiting other available remedies, Client must pay Panel Quotes 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, Panel Quotes or Panel Quotes Escrow, at our discretion, may set off amounts due against other amounts received from or held by Panel Quotes or Panel Quotes 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 Panel Quotes Escrow will charge Client’s designated Payment Method for the Freelancer Fees: (a) for Fixed-Price Contracts, upon Client’s acceptance and approval of the Freelancer 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 Panel Quotes and the Escrow Services provided by Panel Quotes Escrow, Client agrees that once Panel Quotes Escrow charges the Client’s designated Payment Method for the Freelancer 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 Freelancer 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 Panel Quotes or Panel Quotes Escrow may dispute or appeal the chargeback and institute collection action against Client.
6.7 Formal Invoices and Taxes
Panel Quotes 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 Freelancer Fees. Freelancer will be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Freelancer Fees and for issuing any invoices so required. Freelancer will also be solely responsible for determining whether: (a) Freelancer or Panel Quotes 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 Freelancer Fees and remitting any such taxes or charges to the appropriate authorities on behalf of itself or Panel Quotes, as appropriate; and (b) Panel Quotes is required by applicable law to withhold any amount of the Freelancer Fees and for notifying Panel Quotes of any such requirement and indemnifying Panel Quotes (either by Panel Quotes, at our sole discretion, offsetting the relevant amount against a future payment of Freelancer Fees to Freelancer or Freelancer reimbursing Panel Quotes 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 Panel Quotes, Freelancer agrees to promptly cooperate with Panel Quotes and provide copies of Freelancer’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Freelancer is engaging in an independent business as represented to Panel Quotes.
6.8 Payment Methods
Clients are charged a fee for payment processing and administration as described in the Panel Quotes 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 Panel Quotes, Panel Quotes Escrow, and Elance Limited 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 Panel Quotes Escrow. Notwithstanding the foregoing, credit cards and PayPal accounts in Australia, Canada, the Eurozone, and the United Kingdom will be charged by Elance Limited, an Ireland registered company which is an Affiliate of Panel Quotes.
When Client authorizes the payment of the Freelancer Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs Panel Quotes Escrow or Elance Limited to charge Client’s Payment Method for the Freelancer Fees. When Client approves or is deemed to have approved a Time Log for an Hourly Contract, Client automatically and irrevocably authorizes and instructs Panel Quotes Escrow or Elance Limited to charge Client’s Payment Method for the Freelancer 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 Panel Quotes, Panel Quotes Escrow or other Affiliates 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 Panel Quotes, Panel Quotes Escrow, or another Affiliate 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, Panel Quotes 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. Panel Quotes, Panel Quotes Escrow, and other Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. Panel Quotes, Panel Quotes Escrow, and other Affiliates 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 Freelancer, Panel Quotes will provide limited payment protection to the Freelancer as detailed in this Section 6.10 (“Payment Protection”) as a membership benefit to foster fairness, reward loyalty, and encourage the Freelancer to continue to use the Site and Site Services for their business needs.
Panel Quotes only provides Payment Protection to Freelancers 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 Panel Quotes Team Software; (c) the Freelancer 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 Freelancer Services performed, demonstrating Service Contract compliance. Panel Quotes determines whether the foregoing criteria have been met in our sole discretion. Without limiting the foregoing, Payment Protection does not apply to: (w) Freelancers, Freelancer Services, or Service Contracts violating this Agreement or the other Terms of Service; (x) Freelancers that are aware of or complicit in another User’s violation of this Agreement or the other Terms of Service; (y) Freelancers enrolled in Panel Quotes Payroll; or (z) Freelancers that are suspected (in Panel Quotes’s sole discretion) of actual fraudulent activities or abuse of this Payment Protection.
Freelancer hereby irrevocably assigns to Panel Quotes the right to recover from the Client any amounts that Panel Quotes or our Affiliates provide to the Freelancer in connection with the Payment Protection membership benefit.
You acknowledge and agree that a substantial portion of the compensation Panel Quotes receives for making the Site available to you is collected through the Service Fee described in Section 6.1 (“Service Fee”). Panel Quotes only receives this Service Fee when a Client and a Freelancer 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 “Panel Quotes Relationship”). You may opt-out of this obligation with respect to each Client-Freelancer relationship only if Client or prospective Client or Freelancer pays Panel Quotes 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 Panel Quotes 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 Panel Quotes from the Panel Quotes Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Freelancer from Client during the most recent normalized 8-week period, or during such shorter period as data is available to Panel Quotes; 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 Freelancer 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@Panel Quotes.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 Panel Quotes 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 Panel Quotes by sending an email message to: policy-reports@Panel Quotes.com.
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, and except for Freelancer Services using Panel Quotes Payroll, the default terms and conditions of the Service Contract that a Freelancer enters directly with a Client when the Freelancer agrees to provide Freelancer Services to the Client are as set forth in this Section 8. If Panel Quotes Payroll is used for the Engagement, then only Sections 8.7 and 8.8 of this Section 8 apply. 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 Panel Quotes or violate the Terms of Service. Panel Quotes 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 Freelancer 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.
Freelancer will perform the Freelancer Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Freelancer Services will be determined and controlled solely by Freelancer, 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 Freelancer’s Account must be performed by the Freelancer 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 Freelancer 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.
Freelancer, Agency, Delegee, and Client acknowledge and agree that Delegees are not employees, independent contractors or agents of Panel Quotes or Client. Agency, Delegee, and Freelancer 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 Panel Quotes 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 Panel Quotes or Client.
With respect to Delegees, Panel Quotes merely provides the platform for Agency or Freelancer to communicate and share information with Clients and, if they are Users, with Delegees. Agency, Delegee, and Freelancer understand and agree that the contract terms, pay rate, work hours, service dates and working conditions will be established by the Agency, Freelancer, and/or Client and not by Panel Quotes. Agency, Delegee, and Freelancer acknowledge and agree that Delegees are not employees or independent contractors of Panel Quotes, and further acknowledge and agree that they will not be providing any services to Panel Quotes (directly or indirectly) while employed or engaged by the Agency or another User.
Agency, Delegee, and Freelancer acknowledge and agree that Panel Quotes does not, in any way, supervise, direct, or control Delegees; Panel Quotes 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; Panel Quotes will not provide Delegees with training or any equipment, labor, or materials needed for a particular Service Contract; and Panel Quotes 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 Freelancer 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 Freelancers, 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 Freelancer 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 Freelancer 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 Freelancer Fees for any Freelancer 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 Freelancer, the Service Contract does not terminate until the Freelancer Services are completed. However, either Client or Freelancer 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 Freelancer 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 Freelancer other than in the course of providing Freelancer Services to Client under the Service Contract and all Inventions that Freelancer incorporates into Work Product.
“Client Materials” means requests, intellectual property, and any other information or materials that Client provides to Freelancer for Freelancer to perform Freelancer 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.
Freelancer will disclose in the Engagement Terms any Background Technology which Freelancer proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Freelancer discloses no Background Technology, Freelancer warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Freelancer 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 Freelancer, 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, Freelancer 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 Freelancer’s receipt of full payment from Client for delivery of Work Product, Freelancer 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 Freelancer 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 Freelancer 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, Freelancer 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 Freelancer’s premises, systems, or any other equipment or location otherwise under Freelancer’s control. Within ten days of such request from Client, Freelancer agrees to provide written certification to Client that Freelancer has returned or destroyed all Client Materials and Work Product as provided in this subsection.
Ownership of Work Product and Intellectual Property
Upon Freelancer’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 Freelancer has any Intellectual Property Rights to the Work Product that are not owned by Client upon Freelancer’s receipt of payment from Client, Freelancer hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Freelancer retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual Property Rights. Freelancer 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 Freelancer has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Client by Freelancer, Freelancer hereby automatically, upon Freelancer’s receipt of full payment from Client, unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Freelancer, 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 Freelancer has any rights to such Work Product that cannot be assigned or licensed, Freelancer hereby automatically, upon Freelancer’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.
Freelancer 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 Freelancer’s signature on any document needed in connection with the foregoing, Freelancer 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 Freelancer.
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 Freelancers are independent contractors or employees and engaging them accordingly; Panel Quotes disclaims any liability for such determination or the related Engagement. The Terms of Service do not create a partnership or agency relationship between Users. Freelancer does not have authority to enter into written or oral (whether implied or express) contracts on behalf of Panel Quotes. For Service Contracts classified as independent contractor relationships, Client may not require an exclusive relationship. A Freelancer classified as an independent contractor is free at all times to provide Freelancer Services to persons or businesses other than Client, including any competitor of Client.
For Freelancer Services classified as employment, Client must sign up for and participate in the Panel Quotes Payroll program made available on the Site, with employment services provided as discussed in Section 8.8 (Employment Services), unless Client pays the Opt-Out Fee. For all purposes with Panel Quotes Payroll, the employer of the Freelancer will be the third-party Staffing Provider and not Panel Quotes under any circumstances.
8.8 Employment Services
If a Client will receive services from a Freelancer it has classified as an employee, then the Client agrees that the Panel Quotes Payroll Agreement applies, and Client agrees to enroll in Panel Quotes Payroll for each such relationship. In this case, Panel Quotes’s third-party staffing vendor (the “Staffing Provider”) will hire the Freelancer at the request of Client and assign the Freelancer to work for Client, as described in the Panel Quotes Payroll Agreement.
If a Client and a Freelancer decide to use Panel Quotes Payroll, then Freelancer acknowledges that Freelancer has agreed to become a Payroll Employee, employed by the Staffing Provider and assigned to Client, based on Freelancer’s own determination that Client offers work acceptable and appropriate for Freelancer on terms that are acceptable to Freelancer. Freelancer agrees to complete such documents as the Staffing Provider may legally and reasonably require in connection with the employer-employee relationship, including, without limitation, an authorization for a background check, an employment agreement or offer letter, applicable tax forms, and an I-9 or other documentation to establish authorization for employment in the applicable country (collectively, the “Employment Paperwork”). F