Effective Date: November 1, 2016
This Services Agreement (“Agreement”) is a contract between you (the “User”) and POURED, LLC or its Affiliates (“Poured” or “we” or “our” or “us”). “Affiliates” are entities that control, are controlled by or are under common control with POURED. You must read, agree with and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.getpoured.com , all affiliated websites including mobile websites and applications owned and operated by us or our Affiliates (the “Website”) and all services (except the Freelancer Services), applications and products that are accessible through the Website and all POURED mobile applications that link to or reference this Agreement (the “POURED Services”) whether provided by us or our Affiliates.
We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter. Your continued use of the Website following the posting of revised Agreement means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
YOU UNDERSTAND THAT BY CHECKING THE BOX AND CLICKING THE “SUBMIT” BUTTON, OR BY USING THE WEBSITE OR POURED SERVICES, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE WEBSITE OR POURED SERVICES. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY.
Purpose of this Website and POURED Services:
Poured offers the POURED Services under the terms and conditions of this Agreement to allow Users that seek services (“Clients”) to find and connect with Users who are providers of services (“Freelancers”) and to allow Freelancers to advertise their services to prospective Clients. In order to utilize the POURED Services, both Clients and Freelancers must become Users under the terms and conditions of this Agreement.
By registering for a POURED account on the Website (an “Account”), or by clicking to accept the Agreement when prompted at your onboarding session 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 Agreement, 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.
Consent to Use Electronic Records
In connection with this Agreement, you may be entitled to receive certain records from POURED or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Website and the POURED Services, you give us permission to provide these records to you electronically instead of in paper form.
Your Consent and Your Right to Withdraw Consent
By registering for an Account, you consent to electronically receive and access, via email or the Website, all records and notices for the services provided to you under this Agreement 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 POURED’s Customer Support (See Section 16 below) (“Customer Support”). If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Website and the POURED Services, and you will no longer be permitted to use the Website or the POURED 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.
Keeping Your Contact Information 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 Website 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.
Hardware and Software You Will Need to Use the POURED Services
To access and retain the records and notices we provide to you electronically, you will need: (i) a valid email address; (ii) a computer system that operates on a platform like Windows or Mac; (iii) a connection to the Internet; (iv) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Website (Users utilizing other browsers may experience compatibility difficulties); (v) a Current Version of a program that accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (vi) the Current Version of Qwil located at http://www.qwil.co/ or the mobile application operated by Qwil; (vii) a computer or device and an operating system capable of supporting all of the above; and (viii) 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 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.
To use the Website and certain POURED Services, you must register for an Account. To register for an Account, you must be, and hereby represent that you are, a legal entity or an individual who is at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. You agree that you are not: (i) a citizen or resident of a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act; (ii) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or (iii) 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 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 Website and POURED Services.
By registering for an Account, by using the Website or POURED 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 Website, you agree to: (x) abide by this Agreement and the other Terms of Service; (y) be financially responsible for your use of the Website and the purchase or delivery of Freelancer Services; and (z) perform your obligations as specified by any Service Contract that you enter into, unless such obligations are prohibited by applicable law or this Agreement. POURED reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Website and POURED Services upon discovery that any information you provided on any form or posted on the Website is not true, accurate, or complete, or such information or other conduct otherwise violates this Agreement, or for any other reason or no reason in POURED’s sole discretion.
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 Freelancer, 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 Website 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. You agree not to ask or allow another person to create an Account on your behalf, for your use, or for your benefit.
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. You authorize POURED, 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.
Usernames and Passwords
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your Account username and password. You authorize POURED to assume that any person using the Website 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 any unauthorized access to your password or the password of any User of your Account. You further agree not to use any username, or password of another User of the Website that you are not authorized to use, and not to allow others who are not authorized to do so to use your Account at any time.
To make or collect payment for Freelancer Services performed by Freelancers for Clients through the Website, you will need to maintain an account with Qwil using Qwil’s website located at http://www.qwil.co/ and/or mobile application operated by Qwil. The email address associated with your Qwil account must at all times be the same as the email address you use for your POURED Account. Your use of Qwil’s services are subject to the terms and conditions found at www.qwil.co/terms/. Freelancer agrees that it will be paid solely by Client through Qwil, and Freelancer will not have any recourse against POURED if Freelancer is not paid by Client.
Service Contract Terms Between Client and Freelancer
The terms and conditions of this Agreement shall govern the receipt and provision of any Freelancer Services.
If a Client desires to purchase Freelancer Services from a Freelancer, and Freelancer desires to provide Freelancer Services to such Client, such Client and such Freelancer shall enter into a Service Contract that provides for the following terms: (a) scope of services; (b) term of services; (c) compensation, including whether charges are based on a fixed-fee or hourly rate; (d) payment terms; and (e) performance schedule, if applicable.
Unless otherwise agreed to in a writing signed by both Client and Freelancer, the terms and conditions of the Service Contract are set forth in this section; provided however that Client and Freelancer may not agree to any other terms and conditions that affect the rights or responsibilities of POURED.
Freelancer will perform the Freelancer Services in a professional and workmanlike manner in compliance with all applicable laws and Client rules and policies applicable to Client personnel or contractors generally. Freelancer 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.
No Assignment by Freelancer
Freelancer may not assign or delegate, whether voluntarily or by operation of law, any of Freelancer’s obligations under the Service Contract, except with Client’s prior written consent. Subject to the foregoing, the rights and obligations of the parties hereunder will be binding upon and inure to the benefit of the parties and their respective successors, assigns, heirs, executors, administrators and legal representatives.
Client Payments and Billing
Client shall pay the agreed-upon amount for time spent (under Hourly Contracts) or the approved project (under Fixed-Price Contracts) to Freelancer through Qwil. For Hourly Contracts, Client is billed hourly for Freelancer Fees on a weekly basis. For Fixed-Price Contracts, Client is billed immediately upon sending a Fixed-Price Contract offer.
Termination of a Service Contract
Under Hourly Contracts, either party may terminate the Service Contract at any time for any or no reason after providing any required notice. Except as required by law, Client remains obligated to pay the Freelancer Fees for any Freelancer Services provided by Freelancer prior to termination of the Hourly Contract.
Under Fixed-Price Contracts, the Client may terminate at any time but may not recover any payments already made. The Freelancer may terminate a Fixed-Price Contract at any time if no payment has been made. If a payment has been made on a Fixed Price Contract, the Freelancer may terminate only with the Client’s consent or after the payment has been refunded.
Client is responsible and assumes all liability for determining whether Freelancer is an independent contractor or employee and engaging Freelancer accordingly. POURED disclaims any liability for such determination or the related Engagement. This Agreement does not create a partnership or agency relationship between Client and Freelancer. Freelancer does not have authority to enter into written or oral (whether implied or express) contracts on behalf of Client or POURED.
Records of Compliance
Each of the Users will: (a) create and maintain records to document satisfaction of their respective obligations under this Agreement; any Service Contract, including without limitation their respective payment obligations and compliance with tax and employment laws; and (b) provide copies of such records to POURED upon request. Nothing in this subsection requires or will be construed as requiring POURED to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Service Contract.
Users appoint POURED as a third-party beneficiary of their Service Contracts for purposes of enforcing any obligations owed to, and any benefits conferred on, POURED hereunder. Users further agree that POURED 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.
This Agreement and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between Users and POURED, except and solely to the extent expressly stated in this Agreement.
The terms and conditions set forth in this Section 6 and any additional or different terms expressly agreed by Client and Freelancer shall constitute the entire agreement and understanding of Client and Freelancer with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties or communications between them.
Acknowledgements by User of POURED’s Role
You hereby acknowledge and agree that: (a) POURED is not a party to the dealings between Client and Freelancer, including posts, proposals, screening, selection, contracting, and performance of Freelancer; (b) POURED is not a party to any Service Contract between Client and Freelancer; (c) User is not an employee of POURED; (d) POURED does not, in any way, supervise, direct or control Freelancer or Freelancer Services promised or rendered by Freelancer; (e) POURED shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by any User; and (f) POURED makes no representations as to the reliability, capability, identity or qualifications of any User or the quality, security or legality of any Freelancer Services, including without limitation the ability of Freelancer to deliver the Freelancer Services, the ability of Clients to pay for the Freelancer Services or that Client or Freelancer can or will actually complete a transaction, and POURED disclaims any and all liability relating thereto.
POURED does not deduct any amount for withholding, unemployment, Social Security, or other taxes for Client or Freelancer, 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 Freelancer’s performance, and Client’s acceptance, of Freelancer Services.
POURED is not required to and may not verify any feedback or information given to us by Freelancers or Clients, nor does POURED perform background checks on Freelancers or Clients.
You hereby acknowledge and agree that POURED may provide information on the Website about a Freelancer 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 Freelancers or Clients voluntarily submit to POURED and does not constitute and will not be construed as an introduction, endorsement, or recommendation by POURED. POURED provides such information solely for the convenience of Users.
Communications from you to POURED
All notices to POURED 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 address provided in Section 16 below; or (c) in writing via email to [EMAIL FOR NOTICE PURPOSES]. All such notices are deemed effective upon receipt by POURED. POURED does not accept service of any legal process by email or mail; all such service should occur by hand delivery on POURED or its registered agent for service of process.
To the extent a Client or Freelancer 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: (i) 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; (ii) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Freelancer Services (including, without limitation, the storage or transmission of Confidential Information on or through the Website for use by Freelancer); and (iii) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Freelancer 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 Freelancer Services for a Services Contract or at Client’s or Freelancer’s written request (which may be made at any time at Client’s or Freelancer’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 9.1 (Confidentiality), Client, Freelancer and POURED 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 Freelancer Services for a Services Contract.
POURED MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, POURED SERVICES OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, POURED DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 14 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST POURED WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.
Limitations of Liability
IN NO EVENT SHALL POURED, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM YOUR USE OF THE POURED SERVICE (INCLUDING, WITHOUT LIMITATION, MOBILE SERVICES) OR THIS AGREEMENT, OR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR DATA, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR USE OF THE SERVICE, OR THE ACTS OR OMISSIONS OF EMPLOYERS OR THEIR EMPLOYEES, OR ACTS OR OMISSIONS OF CONTRACTORS, INCLUDING WITHOUT LIMITATION, DURING ANY TRANSPORTATION TO OR FROM WORKING ON A PROJECT (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT POURED IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT POURED SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. IN NO EVENT WILL POURED’S TOTAL AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO USE THE POURED SERVICE DURING THE PRIOR SIX (6) MONTHS.