These Terms & Conditions serve as a contract between you the user and Kiduchi Network Enterprise. You must read, understand, agree to and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.kiduchi.com/terms-conditions, 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 Freelancer Services, applications and products that are accessible through the Site and all Kiduchi 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, Kiduchi 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 Kiduchi, Kiduchi will provide at least 15 to 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.
Kiduchi is not a party to the dealings between Client and Freelancer, including posts, proposals, screening, selection, contracting, and performance of Freelancer Services. Kiduchi does not introduce Freelancers to Clients or help Freelancers find Engagements. Kiduchi merely makes the Site Services available to enable Freelancers to identify and determine the suitability of Clients for themselves and to enable Clients to identify and determine the suitability of Freelancers for themselves. Kiduchi does not, in any way, supervise, direct, or control Freelancer or Freelancer’s work. Kiduchi does not set Freelancer’s work hours, work schedules, or location of work, nor is Kiduchi involved in determining if the Freelancer Fees will be set at an hourly or fixed rate for a Service Contract. Kiduchi will not provide Freelancer with training or any equipment, labor, or materials needed for a particular Service Contract. Kiduchi does not provide the premises at which the Freelancer will perform the work. Kiduchi makes no representations about, and does not guarantee the quality, safety, or legality of, the Freelancer Services; the truth or accuracy of Freelancer’s listings on the Site; the qualifications, background, or identities of Users; the ability of Freelancers to deliver the Freelancer Services; the ability of Clients to pay for the Freelancer Services; or that a Client or Freelancer can or will actually complete a transaction.
Kiduchi 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.
Kiduchi is not required to and may not verify any feedback or information given to us by Freelancers or Clients, nor does Kiduchi perform background checks on Freelancers or Clients.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT KIDUCHI MAY PROVIDE INFORMATION ON THE SITE 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 KIDUCHI AND DOES NOT CONSTITUTE AND WILL NOT BE CONSTRUED AS AN INTRODUCTION, ENDORSEMENT, OR RECOMMENDATION BY KIDUCHI; KIDUCHI PROVIDES SUCH INFORMATION SOLELY FOR THE CONVENIENCE OF USERS.
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE. 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.
- USER IDENTIFICATION
By signing up for a Kiduchi account on the Site, or by clicking to accept the Terms of Service when prompted on the Site, you are considered 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. 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.
In connection with the Terms of Service, you may be entitled to receive certain information from Kiduchi or our Affiliates. Such information may include contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you permit us to provide these records to you electronically instead of printed paper copy.
- YOUR consent AND YOUR RIGHT TO opt out
By registering for an Account, you accept 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, Kiduchi reserves the right, in its sole discretion, to communicate with you via the Postal Service you provided or 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 your consent withdrawal becomes effective.
2.1 UPDATING US WITH YOUR MOST CURRENT ADDRESS AND EMAIL ADDRESS
In order to ensure that we are able to provide records and notices timely and effectively 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 Postal Service you provided and other third-party mail services, you agree to notify us immediately of any change in your address.
2.2 HARDWARE AND SOFTWARE REQUIREMENTS
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 either Windows or Mac OS; (c) An Internet Connection; (d) Most current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (WARNING! Users utilizing other browsers may experience compatibility difficulties); (e) Most Current Version of a program that reads and displays PDF files efficiently, 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 “Most Current Version”, we mean a version of the software that is currently being supported by its publisher. These requirements are subjected to change 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 (h) you have read and understand the above consent to receive records and notices electronically; (i) you satisfy the minimum hardware and software requirements specified above; and (j) your consent will remain in effect until you withdraw your consent as specified above.
- SIGNING UP
3.1 ACCOUNT ELIGIBILITY
To use the Site and certain Site Services, you MUST register for an Account. Kiduchi 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 must understand that you 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 Freelance 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. Kiduchi reserves the right, in its 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 Kiduchi’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 a sovereign country sanction or embargoes; or (z) an individual employed by or associated with an entity, identified by any Department of Commerce’s Denied Persons or Entity List, any Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or any Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to 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 met, you will immediately cease using the Site and all of the Site Services.
3.2 USER PROFILE
By registering for an account, you must complete a User profile, which you consent to be shown to other Users and, unless you change your privacy settings, the public. If you are a Freelancer, 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 details and other forms you access on the Site or provide to us and to update your information to maintain its validity, 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 & validation
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 Kiduchi, if it is a separate legal entity. You authorize Kiduchi, 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 ACCESS CREDENTIALS
When you register for an Account, you will be asked to choose a username and password for the Account.
You are entirely responsible for securing and maintaining the confidentiality of your Account or Agency Account username and password. You authorize Kiduchi to assume that any person using the Site with your username and password, either is you or is authorized to act on your behalf. 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. 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 any Account at any time.
You acknowledge and agree that feedback benefits the platform, all Users, and the efficiency of the Site and you specifically request that Kiduchi 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 rating, if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. You further acknowledge and agree that Kiduchi will make feedback results available to other platform Users, including composite or compiled feedback. Kiduchi provides this feedback system as a means through which Users can share their opinions publicly and Kiduchi does not monitor or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any Job Success rating relate only to the business advertised in the Freelancer Profile and not to any individual person. You agree not to use the Job Success rating to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
Kiduchi does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Kiduchi 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. Kiduchi 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, Kiduchi reserves the right (but is under no obligation) to remove posted feedback or information that, in Kiduchi’s sole judgment, violates the Terms of Service or negatively affects our platform. You acknowledge and agree that you will notify Kiduchi of any error or inaccurate statement in your feedback results, including the Job Success rating , and that if you do not do so, Kiduchi may rely on the accuracy of such information.
- KIDUCHI WEBSITE & ITS SERVICES GOALS
This Site is a platform for Freelancers and Clients to identify each other and advertise, buy, and sell Freelancer Services online. Subject to the Terms of Service, Kiduchi 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.
4.1 PAYMENT PROTECTION (ESCROW SERVICES)
Kiduchi’s Escrow account is mandated to provide 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 Kiduchi. The Escrow Services are intended for business use, so you agree to use the Escrow Services only for business purposes and not for personal, family, household, consumer, or such related purposes.
Depending on your needs and the applicable Escrow Instructions, Kiduchi Network will establish and maintain one of the different types of Escrow Accounts, subject to the applicable Escrow Agreement:
(a) Freelancer Escrow Account. After entering into a Service Contract, the first time a Freelancer uses the Site to receive payment for an Engagement, Kiduchi Network 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 Kiduchi, and issue refunds to Clients.
(b) Client Escrow Account. After entering into a Service Contract, the first time a Client makes a payment for an Engagement, Kiduchi Network will establish and maintain a Client Escrow 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 Kiduchi for payment processing and administration fees.
(c) Fixed-Price Escrow Account. When you enter into a Fixed-Price Contract, Kiduchi Network will establish and maintain a Fixed-Price Escrow Account to receive, hold, and release payments pursuant to the Fixed-Price Escrow Instructions and procedures for the Engagement that is the subject of that Service Contract.
You hereby authorize and instruct Kiduchi Network 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.
Fixed-Price Engagements. If Users choose fixed-price compensation, then the Users agree that they will be bound by, and Kiduchi Network 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 Kiduchi Network will follow, the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions. In the rare event that a Client does not make payment for legitimate services performed by a Freelancer, Kiduchi will investigate the incidence after which will provide or not provide a limited payment protection to the Freelancer as detailed in this Section 6.10 (“Limited 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.
Kiduchi only provides Payment Protection to Freelancers working on its platform only if all of requirements of the contract agreements, Bonuses, and Expense Payment Agreement with our Escrow Instructions and procedures and the following criteria are met:
(a) Client has a verified Payment Method.
(b) the Freelancer Services performed and recorded are properly accounted for and pertain directly to the Service Contract.
(c) each Time tracking Log is annotated with descriptions of the Freelancer Services performed, demonstrating Service Contract compliance. Kiduchi determines whether the foregoing criteria have been met in its sole discretion. Without limiting the foregoing, Payment Protection does not apply to:
(d) Freelancers, Freelancer Services, or Service Contracts violating this Agreement or the other Terms of Service.
(e) Freelancers that are aware of or complicit in another User’s violation of this Agreement or the other Terms of Service.
(f) Freelancers enrolled in Kiduchi Payroll or;-
(g) Freelancers that are suspected (in Kiduchi’ s sole discretion) of actual fraudulent activities or abuse of this Payment Protection.
Freelancer hereby irrevocably assigns to Kiduchi the right to recover from the Client any amounts that Kiduchi or our Affiliates provide to the Freelancer in connection with the Payment Protection membership benefit.
- PAYMENT TERMS
5.1 SERVICE CHARGE
The service charge to use the Site and Site Services are paid by both the Freelancer and the client. 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, Kiduchi Network will credit the Freelancer Escrow Account for the full amount paid or released, and then subtract (where applicable) and disburse to Kiduchi a service fee in the amount specified in the Fees Agreement. Freelancer or client agrees to pay Kiduchi the Service Fee for using the Site’s communication, invoicing, dispute resolution and payment services, including Payment Protection.
5.2 MEMBERSHIP SUBSCRIPTION FEES
Clients/Companies and Freelancers will subscribe to a fixed monthly subscription fee as described in and subject to the terms of the Membership Agreement, as may be revised from time to time upon such notice as may be appropriate.
The only fee that freelancers are subjected to pay are their monthly subscription fees and the Kiduchi service fees while clients will only pay their membership fees and applicable service fees when hiring. Kiduchi does not introduce Clients to Freelancers and does not help Freelancers secure Engagements. Kiduchi merely makes the Site Services available to enable Freelancers to do so themselves. Therefore, Kiduchi 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 under Section 6 (Non-Circumvention), below. In addition, Kiduchi does not charge any fee or dues for posting public feedback and composite or compiled feedback, including Job Success rating.
5.3 PAYMENTS TO FREELANCERS
Under the applicable relevant Escrow Instructions, Kiduchi Network disburses funds that are payable to a Freelancer for the Engagement (less any applicable Kiduchi fees) to Freelancers within 60 days after the Freelancer Fees are due and payable from Client (or for amounts less than $100, within 90 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 Kiduchi Network prior to disbursement to Freelancer.
For Hourly Contracts, funds become payable to Freelancers following the expiration of the contract period and the security period of 7 working days. For Fixed-Price Contracts, the Freelancer Fees become payable to Freelancers following the expiration of the security period. The security period begins after Client accepts and approves work submitted by Freelancer by clicking the Make a Payment button. Kiduchi or Kiduchi Network may, in its sole discretion, deviate from the typical billing cycle for Hourly Contracts and charge the Client for any and all Time Sheet at any time. To the extent the Escrow Instructions and procedures are inconsistent with this paragraph, the Escrow Instructions and procedures 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 its sole discretion that you have violated the conditions and restrictions of the Site or the Terms of Service, Kiduchi Network may hold the disbursement of the Freelancer Fees. Additionally, Kiduchi Network 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, Kiduchi reserves the right to revoke any payments and instruct Kiduchi Network to (and Kiduchi Network will have the right to) hold and reclaim from Kiduchi Network 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 Kiduchi Network to (and Kiduchi Network 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 a Client fails to pay the Freelancer Fees or any other amounts due under the Terms of Service, whether by canceling credit or debit card, initiating an improper chargeback, or any other means, Kiduchi 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 Kiduchi upon demand for amounts owed under the Terms of Service, plus interest on the outstanding amount at the lesser of two and one-half percent (2.5%) 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, Kiduchi or Kiduchi Network (Kiduchi Escrow Account), at our discretion, may set off amounts due against other amounts received from or held by Kiduchi or Kiduchi Network 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.
Client acknowledges and agrees that Kiduchi Network 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 7th day from the day in which work was started. Therefore, and in consideration of the Site Services provided by Kiduchi and the Escrow Services provided by Kiduchi Network, Client agrees that once Kiduchi Network charges the Client’s designated Payment Method for the Freelancer monthly 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 Kiduchi or Kiduchi Network may dispute or appeal the chargeback and institute collection action against Client.
Kiduchi 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 Kiduchi 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 Kiduchi, as appropriate; and (b) Kiduchi is required by applicable law to withhold any amount of the Freelancer Fees and for notifying Kiduchi of any such requirement and indemnifying Kiduchi (either by Kiduchi, at our sole discretion, offsetting the relevant amount against a future payment of Freelancer Fees to Freelancer or Freelancer reimbursing Kiduchi 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 Kiduchi, Freelancer agrees to promptly cooperate with Kiduchi 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 Kiduchi.
5.7 METHODS OF PAYMENT
Clients are charged a fee of 2.5% of the total amount of each payment made for the Site Services (the “Payment Processing Fee”), except as otherwise provided in this Agreement. We will notify you of the date when we will begin charging the Payment Processing Fee by email and by posting a notice on the Site where applicable. If in any case payments made by a Client are released to the Client Escrow Account for any reason or refunded by a Freelancer, the Payment Processing Fee, if applicable, will not be refunded.
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes Kiduchi and Kiduchi Network 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 Kiduchi Network.
When Client authorizes the payment of the Freelancer Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs Kiduchi Network 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 Kiduchi Network to charge Client’s Payment Method for the Freelancer Fees.
By providing Payment Method information through the Site, Client represents, Authorizes, and agrees 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, Authorizes and agrees 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.
5.8 USD & FOREIGN CURRENCY EXCHANGE RATES
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 Kiduchi, Kiduchi Network 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 Kiduchi, Kiduchi Network (Kiduchi Escrow Account), 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, Kiduchi Network 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. Kiduchi, Kiduchi Network (Kiduchi Escrow Account), 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. Kiduchi, Kiduchi Network (Kiduchi Escrow Account), and other Affiliates are not responsible for currency fluctuations that occur when receiving or sending payments via wire transfer and check to and from the Escrow Account.
- NON CIRCUMVENTION AGREEMENT
You acknowledge and agree that a substantial portion of the compensation Kiduchi receives for making the Site available to you is collected through the monthly subscription fee and any applicable Service Charge described in Section 5.1 (“Service Charge”). Kiduchi only receives this Service Fee when a Client and a Freelancer transact through the Site. Therefore, the time you identify or are identified by any party through the Site, 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. You may opt-out of this obligation with respect to each Client-Freelancer relationship.
You agree to notify Kiduchi 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 Kiduchi by sending an email message to: email@example.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, you choose to cease using the Site.
- TERMINATION OF CONTRACT
Unless otherwise expressly agreed to in writing by both Users, 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 7. 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 Kiduchi or violate the Terms of Service. Kiduchi 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 party 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.
Under Hourly Contracts, either Client or Freelancer has the right to terminate the Service Contract after providing any required notice, or immediately after Service Contract terms completion, 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.
7.1 SERVICES AGREEMENT
Freelancer will perform the Freelancer Services in a satisfactory and professional manner and will deliver in time 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.
7.2 CLIENT PAYMENTS & 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 commencing any additional milestone.
7.3 RESOLVING DISPUTES
With respect to disputes arising between Freelancers and Clients, you accept to abide by the dispute resolution provisions set forth in the Escrow Instructions and procedures that apply to your particular Service Contract.
- INTELLECTUAL PROPERTY RIGHTS
All Digital Inventions which include:- ideas, concepts, information, materials, processes, data, programs, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights 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.
Freelancer will disclose in the Engagement Terms any Digital Invention which Freelancer proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Freelancer discloses no Digital Invention, Freelancer warrants that it will not incorporate any Digital Invention 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 Digital Invention and other third-party materials that have been incorporated into the Work Product and provides, for each item of Digital Invention identified, (a) the name and any associated version number, (b) the applicable 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 (f) be disclosed or distributed in source code form, (g) be licensed for the purpose of making derivative works, or (h) be redistributable at no charge.
8.1 DIGITAL INVENTION LICENSEs
Upon the Freelancer’s receipt of full payment from Client for delivery of Work Product, Freelancer will then automatically grant to Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sub licensees, 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 Digital Invention 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 Digital Inventions issued by them (Clients) for the purpose 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 their Digital Inventions. Upon completion or termination of the Service Contract, or upon Client’s written request, Freelancer will immediately return all digital content previously provided to them to the respective Client and further agrees to destroy all copies of such content (Digital Invention) and Deliverables (except for Digital Invention 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.
8.2 OWNERSHIP OF INTELLECTUAL PROPERTY
Upon Freelancer’s receipt of full payment from Client, Digital Invention, including without limitation all Intellectual Property Rights in the mentioned invention, 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 Digital Invention 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 Digital Invention. If payment is made only for partial delivery of Digital Invention, the assignment described herein applies only to the portion of Digital Inventions delivered.
Freelancer is obliged to offer support to Client in every way, including 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 any country. 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.
- KIDUCHI’S FUNCTIONS
9.1 SERVICE CONTRACTS
You hereby agree, acknowledge, and that you understand that: (a) the Site is merely a platform where Users may act as Clients and/or Freelancers; (b) Kiduchi is not a party to any Service Contracts between Freelancers and Clients; (c) you are not an employee of Kiduchi, and Kiduchi does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (d) Kiduchi will not have any liability or obligations under or related to Service Contracts for any acts or omissions by you or other Users; (e) Kiduchi has no control over Freelancers or the Freelancer Services offered or rendered by Freelancers; and (f) Kiduchi makes no representations as to the reliability, capability, or qualifications of any Freelancer or the quality, security, or legality of any Freelancer Services, and Kiduchi disclaims any and all liability relating thereto.
- KIDUCHI LICENSES AND INTELLECTUAL PROPERTY RIGHTS
Subject to and conditioned on compliance with the Terms of Service, Kiduchi grants you as a user, a limited license to access and, if you have created an Account and payed the required fee where applicable, 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 Freelancer 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 Kiduchi’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 Kiduchi’s prior written consent. You must not frame or link to the Site or Site Services except as permitted in writing by Kiduchi. 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. Kiduchi 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 Kiduchi logos and names are trademarks of Kiduchi 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 Kiduchi’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
When you post User Content on the Site or through the Site Services or provide Kiduchi with User Content, you represent and warrant that you have the right, power, and authority to post such Content and grant the licenses specified below. You further represent and warrant that by posting or providing such Content you will not violate any third-party rights including, without limitation, any Intellectual Property Rights, rights of publicity, copy and privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and that you are the owner of all the copyright rights to such Content and that Kiduchi 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 Kiduchi 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 are allowed at any time to submit comments or ideas about the Site and Site Services, including without limitation about how to improve the Site or Site Services. By submitting any Ideas, you agree that: (a) your disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place Kiduchi 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, Kiduchi does not waive any rights to use similar or related ideas known or developed by Kiduchi or obtained from sources other than you.
10.1 UNAUTHORIZED ACTIVITY ON THE SITE
Unauthorized activity includes forbidden access, site interference use of malicious software and such related illegal activity. You agree that you will not use any automated means to access the Site for any purpose without our express written permission. You will not access the content available on the Site for any purpose or in any manner other than the intended purpose. You agree that you will not: (a) take any action that imposes or we believe may impose 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 except the content that you have submitted to 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 Kiduchi 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 methods 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 any 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, 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 the operations of the Site or any other software, firmware, hardware, computer system, or network of Kiduchi or any third party
The Site may use various services including third party services 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 Kiduchi. Kiduchi 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 Kiduchi’s authorized employees acting in their official capacities.
10.3 THIRD PARTY URLS AND APPLICATIONS
The Site may contain urls to third-party websites. It 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 Kiduchi 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.
10.4 WEBSITE & 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 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. Kiduchi reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without notice. You agree Kiduchi will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.
In the instance a Client or Freelancer exchange Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of caution 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 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 Freelancer Services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Freelancer); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Freelancer Services.
Client, Freelancer, and Kiduchi 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.
- LIABILITY RESTRICTIONS
Kiduchi 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:
- a suspension or other action taken with respect to your account;
- delays or disruptions in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- your use of or your inability to use our Site or Site Services;
- 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 KIDUCHI, 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 KIDUCHI, 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) $2,000; OR (B) ANY FEES RETAINED BY KIDUCHI WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR FREELANCER 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 Kiduchi is not a party to any contract between Users, you hereby release Kiduchi, 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 Freelancer Services provided to Client by a Freelancer and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in subsection 8.3 (Resolving Disputes).
You will compensate, defend, and hold harmless Kiduchi, our Affiliates, and our respective directors, officers, employees, representatives, and agents 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 Insured 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 Freelancer as an independent contractor; the classification of Kiduchi as an employer or joint employer of Freelancer; 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.
- TERM AND TERMINATION
The Terms of Service are subjected to amendments from time to time, and 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 Kiduchi expressly agree otherwise in writing, either of us may terminate this Agreement in its 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. If you have any open engagements, you must legally terminate your relationship with Client or Freelancer, 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) Kiduchi 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 Kiduchi for any Site Services and to any Freelancers for any Freelancer 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 Kiduchi 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 Kiduchi’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: (a) you breach the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (b) we suspect or become aware that you have provided false or misleading information to us; or (c) we believe, in its sole discretion, that your actions may cause legal liability for you, our Users, or Kiduchi or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illegal 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 Kiduchi’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 Kiduchi’s other rights or remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed Kiduchi or our Affiliates under the Terms of Service, you must pay Kiduchi, and you authorize Kiduchi or its Affiliate to charge you, for all fees owed to Kiduchi and our Affiliates and reimburse Kiduchi for any applicable fees, all losses and costs (including any and all time of Kiduchi’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, Kiduchi 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 Kiduchi will have no liability whatsoever.
Kiduchi 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 Kiduchi’s other rights, 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 Kiduchi.
14.1 CONSEQUENCES OF TERMINATION of AGREEMENT
Termination of this Agreement and/or closing of your Account will not relieve Client of the requirement to pay for Freelancer 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 Kiduchi to charge to its Payment Method pursuant to Section 5 of this agreement. Subject to the applicable Dispute Resolution Procedures, Kiduchi will pay Freelancer, in accordance with the provisions of Section 5 of this agreement for all time accounted for in the necessary 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 that: IF KIDUCHI DECIDES TO SUSPEND OR CLOSE YOUR ACCOUNT, KIDUCHI 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.
- GENERAL AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you the user and Kiduchi relating to the subject matter herein and cancels and replaces any prior or existing 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 herein. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though Kiduchi drafted the Terms of Service, you represent that you had more than enough 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 Kiduchi because of the authorship of any provision of the Terms of Service.
15.1 FREELANCERS & CLIENTS SIDE AGREEMENTS
Freelancers and Clients 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 replace any term or condition in a side agreement that purports to expand Kiduchi’s obligations or restrict Kiduchi’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 alterations or adjustments to the Terms of Service will be binding upon Kiduchi unless in a written instrument signed by a duly authorized representative of Kiduchi. For the purposes of this subsection, a written document will automatically exclude electronic communications, such as email and electronic notices, but will include facsimiles. This Section 15.3 (Alterations) does not apply to amendments to the Terms of Service posted by Kiduchi to the Site from time to time.
15.4 LANGUAGE AND LOCATION
The English language version of the Terms of Service will be in force in all respects and will remain general effect in case of any inconsistencies that might arise with translated versions, if any. The Site is controlled and operated from our facilities in the Kenya. Kiduchi 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, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations 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
- DEFINITIONS OF TERMS IN THIS AGREEMENT
Affiliate – Refers to any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Kiduchi.
Client – Refers to an authorized User utilizing the Site to seek and/or obtain Freelancer Services from another User
Confidential - Refers to and may include, all Client Deliverables, Freelancer 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 Freelancer 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 Freelancer 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.
Deliverables – refers to requests, intellectual property, and any other information or materials that a Freelancer receives from a Client to perform Freelancer Services including everything promised to a client.
Engagement – Refers to any commitments for Freelancer Services that a Freelancer provides to a Client on the Site.
Escrow Account - Includes Freelancer Escrow Account, Client Escrow Account, or Fixed-Price Escrow Account.
Escrow Instructions – Refers to the Fixed-Price Escrow Instructions and procedures or the Expense Payment Agreement with Escrow Instructions.
Fixed-Price - Refers to a Service Contract for which Client offers a flat fee agreed between a Client and a Freelancer, prior to the commencement of a Service Contract, for the completion of all Freelancer Services contracted by Client for such Service Contract.
Freelancer – Refers to any authorized User utilizing the Site to advertise and provide freelance Services to Clients.
Freelancer Fees – Refers to: All fees payable to the freelancers as agreed prior to commencement of a service contract
Freelancer Services – Refers to all services performed for or delivered to Clients by Freelancers.
Hourly Contract – Refers to a Service Contract for which freelancer charges based on the hourly rate set by the Freelancer.
Intellectual Property Rights – Refers to 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 – Refers to a valid credit card issued by a bank acceptable to Kiduchi, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Kiduchi may accept from time to time in its sole discretion.
Service Contract – Refers to the contractual provisions between a Client and a Freelancer governing the Freelancer Services to be performed by a Freelancer for Client for an Engagement.
Substantial Change - Refers to any change to the terms of the Terms of Service that grants you more or less rights and responsibilities.
Time Sheet - Refers the logs of hours recorded for a stated period by a Freelancer for the Freelancer Services performed for a Client.
Work Product - Refers any tangible or intangible final product or deliverables that Freelancer agrees to create for, or actually delivers to, Client as a result of delivering the Freelancer Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed here.