||January 1, 2019
If a Client and a Spryng Professional Partner (“SPP”) enter into a Services Agreement, these Payment and Escrow Instructions (“Escrow Instructions”) apply. These Escrow Instructions govern Client Escrow Accounts, Project Escrow Accounts and SPP Escrow Accounts.
To the extent permitted by applicable law, we may modify these Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Platform unless otherwise stated. Please check the Platform often for updates.
This Agreement both incorporates by reference and is hereby incorporated by reference into the Terms of Service. Capitalized terms not defined in in this document are defined elsewhere in the Terms of Service, or have the meanings given such terms on the Platform.
1. DIGITAL SIGNATURE
By clicking to fund Escrow (a “Funding Approval”) or to accept a Service Agreement, Client and SPP are deemed to have executed these Escrow Instructions electronically, effective on the date SPP clicks to accept the engagement, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as may be amended from time to time (the “E-Sign Act”). Doing so constitutes an acknowledgement that you are able to electronically receive, download, and print these Escrow Instructions. All references to the Escrow in these Escrow Instructions will include the initial Funding Approval and any additional Funding Approval for a Service Agreement.
2. RELEASE AND DELIVERY OF AMOUNTS IN ESCROW
Client and SPP irrevocably authorize and instruct Spryng to release applicable portions of a Client Escrow, Project Escrow Account, or SPP Escrow Account , as applicable (each portion, a “Release”) to the appropriate recipients account, upon the occurrence of and in accordance with one or more Release Conditions defined below or as otherwise required by applicable law or the Terms of Service. The amount of the Release will be delivered to the applicable Escrow Account in accordance with SPP’s or Client’s instructions, as applicable, these Escrow Instructions, and the other Terms of Service.
2.1 RELEASE CONDITIONS
As used in these Escrow Instructions, “Release Condition” means any of the following:
- Client clicks to release funds to SPP.
- Client does not take any action for 14 days from the date of an SPP’s Release request, in which case SPP and Client agree that Spryng is authorized and irrevocably instructed to immediately release to SPP the amount associated with to the applicable milestone in connection with such Release request.
- SPP cancels the contract before a milestone payment has been released to SPP, in which case the funds are to be returned to the Client.
- Client and SPP have submitted joint written instructions for a Release to either SPP Escrow Account or Client Escrow Account, as applicable.
- Client and SPP agree to close the contract without release of funds, in which case the funds are to be returned to the Client.
- Client or SPP has failed to make its Arbitration payment or paid its fair share of the Arbitration costs pursuant to the Dispute Resolution Program, in which case the funds are released to the Party that has made its Arbitration Payment.
- Both Client and SPP have failed to timely submit to Arbitration for an unresolved Dispute as such term is defined in the Dispute Resolution Program, in which case the funds are released to the Client.
- Client or SPP has failed timely to respond to a Spryng Dispute Resolution notification as required by the Dispute Resolution Program, in which case the funds are released to the User that has participated.
- Client or SPP otherwise has failed to comply with the Dispute Resolution Program, in which case the funds are to be released to the User that has complied with the Dispute Resolution Program.
- Submittal of a final award of an arbitrator appointed pursuant to the Dispute Resolution Program, in which case the funds will be released in accordance with such award.
- Issuance of the final order of a court of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.
- We believe, in our sole discretion, that fraud, an illegal act, or a violation of Spryng’s Terms of Service has been committed or is being committed or attempted, in which case Client and SPP irrevocably authorize and instruct Spryng to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.
3. INSTRUCTIONS IRREVOCABLE
On the occurrence of a Release Condition, Client and SPP are deemed to and hereby agree that the instruction to Spryng and its wholly owned subsidiaries to release funds is irrevocable. Without limiting the foregoing, Client’s instruction to Spryng and its wholly owned subsidiaries to pay an SPP is irrevocable. Such instruction is Client’s authorization to transfer funds to the SPP from the Client Escrow or Project Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay the SPP, Spryng will transfer funds to the SPP and that Spryng and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Agreement, Client agrees that once Spryng or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.
4. DORMANT ENGAGEMENTS
To be fair to Clients and SPP, Spryng has a procedure for Service Agreements that appear Dormant (as defined below). For purposes of determining Dormant status, “activity” means business term or milestone updates or requests, Escrow Funding, Escrow Release, Escrow Refunds, Funding requests, Release requests, requests to close the Service Agreement, Status Report submittals, or actions under the Dispute Resolution Program.
A “Dormant Engagement” is a Service Agreement that has a Project Escrow Account with a balance but has had no activity for 90 consecutive days after the last milestone date contained in the business terms. Dormant Engagements are subject to the following rules:
- Spryng will notify Client when the Service Agreement becomes Dormant (“Dormant Date”).
- If no activity other than Release requests has occurred within 7 days after the Dormant Date, Spryng will notify the SPP that the Service Agreement is Dormant.
- If neither the SPP nor the Client take any action for 7 days after the Dormant Date, SPP and Client agree that Spryng is authorized and irrevocably instructed to immediately release escrow funds to Client.
- If SPP submits a Release request and Client does not take any action for 14 days from the date of the Release request, SPP and Client agree that Spryng is authorized and irrevocably instructed to immediately release to SPP the amount related to the milestone with Release request.
- All funds released to SPP under this Section, Dormant Engagements, will be subject to the applicable Service Fees.
5. REFUNDS AND CANCELLATIONS
Client and SPP are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in escrow, Client or SPP can cancel the Service Agreement at any time by clicking to close the Service Agreement. If funds are held in escrow, refunds and cancellations must be initiated by Client or SPP by following the steps below.
5.1 CANCELLATION BY SPRYNG PROFESSIONAL PARTNER
If SPP wants to cancel a contract with funds held in escrow, SPP must click to close the contract. When SPP clicks to close the contract, SPP and Client agree that Spryng is authorized and irrevocably instructed to immediately release to Client all Escrow funds associated with the contract.
5.2 CANCELLATION BY CLIENT
If Client wants to cancel a contract with funds held in escrow, Client must click to close the contract. SPP must either click to approve or dispute the Client’s cancellation within 7 days. If SPP approves the cancellation, SPP and Client agree that Spryng is authorized and irrevocably instructed to immediately release to Client all escrow funds associated with the Service Agreement. If SPP is using the Site on a mobile device and does not have the ability to approve or dispute the cancellation with a click on the mobile website or application, SPP must dispute the Client’s cancellation via support ticket within 7 days. If SPP takes no action within 7 days from the date notification of the cancellation is sent to SPP, SPP and Client agree that Spryng is authorized and irrevocably instructed to immediately release to Client all Escrow funds associated with the contract. If SPP disputes the cancellation, SPP and Client will follow the process set forth in the Dispute Resolution Program (as defined herein).
6. DISPUTE RESOLUTION PROGRAM
If Client and SPP fail to come to a mutual resolution by way of the Refund and Cancellation process as stated in Section 5, Spryng provides this Dispute Resolution Program as a mechanism to resolve the Dispute.
6.1 DEFINITIONS AND KEY DATES
“Arbitration” means binding non-appearance based Arbitration by a neutral third party as described in this Section.
“Arbitration Payment” means Client’s or SPP’s applicable portion of the costs of Arbitration as more particularly described in this Section, plus a 5% transaction fee cost for processing the payment.
“Arbitration Limitations Date” means the date 30 days after the date a Dispute is filed via the Platform or via a support ticket with Spryng.
“Project Area” means all of the interfaces on the Platform that detail project particulars with regard to work undertaken under a particular Service Agreement, including the original proposal, contract terms, messages and files, and milestones and payments.
“Dispute” means a dispute between a Client and SPP concerning a Service Agreement and covered by this Dispute Resolution Program.
“Dispute Resolution Deadline” means the date 30 days after the Client was billed for the last milestone.
“Dispute Resolution Program” means the Dispute resolution process set forth in this Section.
“Spryng Dispute Assistance” means the Dispute assistance provided by Spryng as set forth in this Section.
6.2 AVAILABILITY OF SPRYNG DISPUTE ASSISTANCE
Dispute Assistance is only available (i) after initial funding of the Project Escrow Account associated with the Service Agreement, and (ii) prior to the Dispute Resolution Deadline. Dispute Assistance is not available to either the SPP or the Client via the Site after the Dispute Resolution Deadline.
6.3 NON-BINDING ASSISTANCE
Spryng will first attempt to assist Client and SPP by reviewing the Dispute and proposing a mutual, non-binding resolution.
The Spryng Disputes team will notify Client and SPP by providing a notice of dispute along with a request for information and supporting documentation (if any).
If both Client and SPP respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Platform that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
The proposed resolution is non-binding; Client and SPP can choose whether or not to agree to it. If Client and SPP agree in writing to the proposed resolution, Client and SPP agree that Spryng is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the proposed resolution.
If Client or SPP rejects Spryng’s proposed, non-binding resolution, they may proceed to Arbitration. If Client and SPP do not choose to arbitrate, SPP and Client agree that Spryng is authorized and irrevocably instructed to immediately release to Client all funds held in Escrow.
If Client or SPP chooses to arbitrate by notifying Spryng via the Platform of their intent to arbitrate, Spryng will notify both Client and SPP via the Platform that they must make the Arbitration Payment within 5 business days of the notice (the “First Arbitration Notice“). If both parties make the Arbitration Payment (including after initial notice of non-payment), then Spryng will deliver instructions for initiating Arbitration.
If Client or SPP does not make the Arbitration Payment within 5 business days of the First Arbitration Notice, SPP and Client will be deemed to have irrevocably authorized and instructed Spryng to, and Spryng will, release the disputed funds to the party that paid the Arbitration Payment to the extent that any disputed funds remain in the Escrow Account. If no funds remain in the Escrow, Spryng will close the Dispute.
If Client and SPP both do not make the Arbitration Payment by the Arbitration Limitations Date, then Client and SPP will be deemed to have authorized and instructed Spryng to, and Spryng will, release the disputed funds to Client, to the extent that any disputed funds remain in the Escrow Account, if no funds remain Spryng will close the Dispute.
6.4 ARBITRATION FOR SERVICE AGREEMENT
SPP and Client each has the right to demand Arbitration of a Service Agreement before the Arbitration Limitations Date if the Project Escrow Account associated with the Service Agreement has been funded at least once and contains funds. If either Client or SPP demands Arbitration in accordance with these Escrow Instructions and you are not the party that requested Arbitration, you agree to submit to the Arbitration and pay your share of the Arbitration fees detailed below. In any Arbitration, each of you and the other Member is a “Dispute Party,” and collectively you are the “Dispute Parties.”
Any such Arbitration will be conducted by a neutral third-party Arbitration service selected by Spryng, including, but not limited to, organizations such as the American Arbitration Association (the “AAA”). The Arbitration rules and fees then in effect for the selected organization shall be deemed to be incorporated by reference into these Escrow Instructions. By default, Arbitration will be conducted by AAA unless Spryng chooses another Arbitration service.
6.5 FILING THE CASE WITH THE ARBITRATOR
When a User demands Arbitration (the “Arbitration Claimant”), or when the circumstances dictate that Spryng notify a User of its right to file for Arbitration as described above, Spryng will provide the User with instructions on initiating the Arbitration. After the parties have initiated the Arbitration, Spryng will provide the arbitrator with supporting documentation including but not limited to the documents submitted to Spryng during the dispute resolution process, information available via the Platform, and access to the Platform.
If the Arbitration Claimant makes the Arbitration Payment, Spryng will contact the other party (“Arbitration Respondent”) to request that the Arbitration Respondent pay its portion of the Arbitration fees as well. If the Arbitration Respondent fails to make the Arbitration Payment and submit to such Arbitration within 5 business days after the First Arbitration Notice, Spryng will suspend the Arbitration Respondent’s account, and both parties will be deemed to have irrevocably authorized and instructed Spryng to, and Spryng will, release the funds sought by the Arbitration Claimant in the demand for Arbitration to the Arbitration Claimant, to the extent such funds remain in the Project Escrow Account. If no funds remain in the Project Escrow Account, Spryng will close the Dispute.
If both parties pay their portion of the Arbitration fees, Spryng will instruct the parties on the process for initiating the Arbitration with the Arbitration service provider. After the parties have initiated the Arbitration, Spryng will provide the arbitrator with relevant documentation, including information collected in the informal dispute process and contents of the Project Area.
6.6 AUTHORIZATION TO COLLECT ARBITRATION FEES
When you electronically authorize payment of the invoice for the Arbitration Payment as delivered to you by Spryng, you irrevocably authorize and instruct (i) Spryng or its Affiliates, as your agent, to charge your Payment Method for the amount of the payment for credit to your Escrow Account; and (ii) Spryng, as escrow agent, to immediately release that amount from your Escrow Account and credit it to Spryng. If Spryng or its Affiliates cannot collect sufficient funds to fulfill the Escrow for any reason, Spryng has no obligation with respect to making payments or entering credits on your behalf, and you will be considered as not having paid your portion of the Arbitration fees as required by this Section.
6.7 LIMITATIONS PERIOD FOR ARBITRATIONS
If both SPP and Client fail to demand binding Arbitration for an unresolved Dispute by the Arbitration Limitations Date, then Client and SPP will be deemed to have irrevocably authorized and instructed Spryng to, and Spryng will, release all funds in the Project Escrow Account to Client.
6.8 ARBITRATION AWARD
You agree that the arbitrator is authorized to decide the Dispute within its discretion. You agree that the arbitrator’s award is final, that it may be entered in and enforced by any court of competent jurisdiction, and that if the arbitrator delivers notice of any award to Spryng, then Spryng has the right to treat such notice as conclusive and act in reliance thereon.
6.9 SERVICE FEES FOR ESCROW FUNDS RELEASED FOLLOWING DISPUTE ASSISTANCE
All Escrow Funds released under this program are subject to the normal Service Fees associated with Escrow Accounts, as detailed in the User Agreement and applicable Escrow Instructions.
All notices to a User required by these Escrow Instructions will be made via email sent by Spryng to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Spryng, for checking their email and for responding to notices sent by Spryng to the User’s registered email address.
8. COOPERATION WITH THE DISPUTE RESOLUTION PROGRAM
All claims, disputes or other disagreements between you and another User that are covered by the Dispute Resolution Program must be resolved in accordance with the terms in the Dispute Resolution Program. All claims filed or brought contrary to the Dispute Resolution Program will be considered improperly filed, and Spryng will have the right to take any other action, including suspension or termination of your Account, and any other legal action as Spryng deems appropriate in its sole discretion.
Spryng, in its sole discretion, reserves the right to suspend or terminate your Account immediately upon giving notice to you if Spryng believes you may be abusing the Dispute Resolution Program or as otherwise permitted by the Terms of Service. However, any Disputes for any Service Agreements that existed prior to termination will be subject to the Terms of Service.