|Effective Date:||January 10, 2020|
PLEASE READ THE TERMS OF SERVICE CAREFULLY. THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS, INCLUDING VARIOUS LIMITATIONS, EXCLUSIONS, A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
This User Agreement (“Agreement”) is a contract between you (“you” or “User”), Spryng.io Anthrocomplexity LLC (“Spryng,” “we,” or “us”), and our affiliates. You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our website and Platform located at http://spryng.io/legal or any part of the rest of the Services we offer (as defined throughout our Terms of Service).
This Agreement both incorporates by reference and is hereby incorporated by reference into the Terms of Service. Capitalized terms not defined in this document are defined elsewhere in the Terms of Service, or have the meanings given such terms on the Platform.
Subject to the conditions set forth herein, Spryng may amend this Agreement and the other Terms of Service at any time by posting a revised version on our website. Spryng will endeavor to provide reasonable advance notice of any amendment that includes any substantial change by providing notice on the Site and/or sending you notice by email.
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, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY.
1. SPRYNG ACCOUNTS
This section details what you must agree to before using the Platform and the different types of accounts that can be created on the Platform, as detailed below.
1.1 REGISTRATION AND ACCEPTANCE
To access and use certain portions of the Platform, you must register for an Account. By registering for an account to use the Platform (an “Account”), by using the Platform, or by clicking to accept the Terms of Service when prompted on the Platform, you agree to abide by this Agreement and the other Terms of Service.
Subject to the Terms of Service, certain portions of the Platform are available to visitors, including those portions before your Account registration is accepted. Spryng reserves the right to decline a registration to join Spryng or to add an Account type (such as an affiliated Client or Professional Plan user) for any reason, including supply and demand, cost to maintain data, or other business considerations.
If you create an Account as an employee or agent on behalf of an organization, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company.
1.2 ACCOUNT ELIGIBILITY
Spryng offers the Platform for your business or academic purposes only and not for personal, household, or consumer use. To register for an Account or use the Platform, you must, and hereby represent that you (a) have or are an employee or agent of and authorized to act for an independent business (whether it be as a self-employed individual, a corporation, a limited liability company, a governmental unit, or any other entity); (b) will use the Platform for business purposes only (i.e. – non-household, non-consumer use); (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of services; and (d) a legal entity or an individual 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) who can form legally binding contracts.
1.3 ACCOUNT PROFILE
To register for an Account to join the Platform, you must complete a User profile (“Profile”), which you consent to be shown to other Users and the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Platform or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
1.4 ACCOUNT TYPES
1.4.1 FOREVER SPRYNG / TASTE OF SPRYNG ACCOUNT
You can register for an Account or add an Account type to use the Site and Site Services as a Client (a “Client Account”).
1.4.2 SPRYNG FORWARD ACCOUNT
You can register for an Account or add an Account type to use the Site and Site Services as a Client (a “Client Account”). Each User under a Client Account (“Team Member”) can be given different permissions to act on behalf of the Client Account.
1.4.3 SPRYNG PROFESSIONAL ACCOUNT
You can register for an Account or add an Account type to use the Site and Site Services as a Spryng Professional (a “Spryng Professional Account”). Spryng Pro Accounts can be granted access permissions to other accounts to render professional guidance and expert services.
You acknowledge and agree that the Spryng Professional Account owner is solely responsible, and assumes all liability, for (a) the classification of your Users as employees or independent contractors; and (b) paying your Users rendering services to others through the Platform in accordance with applicable law for work performed.
1.5 ACCOUNT PERMISSIONS
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, you represent and warrant that (a) the User is authorized to act on your behalf, (b) you are financially responsible for the User’s actions taken in accordance with those permissions, including, if applicable, entering into binding contracts on behalf of the owner of the Account, and (c) you are fully responsible and liable for any action of any User to whom you have provided any permissions and any other person who uses the Account, including making payments and entering into Service Agreements and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site. Upon closure of an Account, Spryng may close any or all related Accounts.
1.6 IDENTITY AND LOCATION VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on Spryng. You authorize Spryng, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business.
1.7 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person who is not authorized to use your Account. You authorize Spryng to assume that any person using the Platform with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use either or (b) the use would violate the Terms of Service.
2. SPRYNG FEES
This Section describes what fees you agree to pay to Spryng in exchange for Spryng providing the Platform to you and what taxes Spryng may collect, as detailed below.
2.1 SUBSCRIPTION FEES
All Users, except for Forever Spryng Account holders, pay Spryng an annual subscription fee for their organization’s Account on the Platform.
2.2 PAYMENT PROCESSING AND ADMINISTRATION – SERVICE FEES
Clients and Spryng Professional Partners (“SPPs”) pay Spryng non-refundable Service Fees with respect to Service Agreements administered through the Platform. Spryng charges these Service Fees to defray the costs associated with operating the Platform’s proposal generation and payment processing services, as well as for facilitating the arbitration and other services described in the Payment and Escrow Agreement (the “Service Fees”).
When a Client pays an SPP for a Services performed or when funds related to a Service Agreement are otherwise released to an SPP as required by the applicable Escrow Instructions, Spryng will add the amount due from Client for the Service Fee and process the payment. Client hereby irrevocably authorizes and instructs Spryng to add the Service Fee to the payment amount as set forth above and to pay Spryng its behalf for these fees.
Spryng will credit the SPP Account for the full amount paid or released, and then subtract the Service Fee due from the SPP for that payment. Spryng will then disburse to Spryng the Service Fees it has collected from both Client and SPP. SPP hereby irrevocably authorizes and instructs Spryng to deduct the Service Fee from the SPP Account as set forth above and to pay Spryng on SPP’s behalf.
2.3 VAT AND OTHER TAXES
Spryng may be required by applicable law to collect taxes or levies including, without limitation, withholding income tax or VAT (while some countries may refer to VAT using other terms, e.g. GST, we’ll just refer to VAT, GST and any local sales taxes collectively as “VAT”) in the jurisdiction of the Spryng Professional Partner (the “Taxes”). In such instances, any amounts Spryng is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Spryng under the Terms of Service.
3. RECORDS OF COMPLIANCE
This Section addresses your agreement to make and keep all required records, as detailed below.
Users will each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) provide copies of such records to Spryng upon request. Nothing in this subsection requires or will be construed as requiring Spryng to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Service Contract. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on Spryng’s part to store, backup, retain, or grant access to any information or data for any period.
4. WARRANTY DISCLAIMER
This Section details your agreement and understanding that the Platform may not always be available or work perfectly, as detailed below.
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SPRYNG MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPRYNG DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 14 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST UPWORK WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
5. LIMITATION OF LIABILITY
This Section details your agreement that Spryng usually will not have to pay you damages relating to your use of the Platform and, if it is, at most it will be required to pay you $2,500, as detailed below.
Spryng is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, 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 SPRYNG, 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 SPRYNG, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY UPWORK 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.
This Section discusses your agreement not to hold us responsible for any dispute you may have with another User, as detailed below.
In addition to the recognition that Spryng is not a party to any contract between Users, you hereby release Spryng, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers 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 that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Spryng Professional Partner Services provided to Client by an SPP and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Escrow Instructions.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
This release will not apply to a claim that Spryng failed to meet our obligations under the Terms of Service.
This Section details your agreement to pay for any costs or losses we have as a result of a claim brought against us related to your use of the Site or Platform or your illegal or harmful conduct, as detailed below.
You will indemnify, defend, and hold harmless Spryng, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Site and the Platform by you or your agents, including any payment obligations or default incurred through use of the Platform; (b) any Service Agreement entered into by you or your agents, including, but not limited to, the classification of an SPP as an independent contractor; the classification of Spryng as an employer or joint employer of SPP; 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. For purposes of this Section your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
8. AGREEMENT TERM AND TERMINATION
This Section addresses your and Spryng’s agreement about when and how long this Agreement will last, when and how either you or Spryng can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
Unless both you and Spryng expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to email@example.com.
In the event you properly terminate this Agreement, your right to use the Site and Platform is automatically revoked, and your Account will be closed.
Spryng is not a party to any Service Agreement between Users. Consequently, User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Agreement or project entered into between Users. If you attempt to terminate this Agreement while having one or more open projects, you agree (a) you hereby instruct Spryng to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such projects have closed on the Platform; (c) Spryng will continue to perform those services necessary to complete any open project or related transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Agreements, whichever is later, to Spryng for any services or such other amounts owed under the Terms of Service and to any Spryng Professional Partner for any services.
Without limiting Spryng’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the Platform, deny your registration, or permanently revoke your access to the Platform and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Spryng or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or re-register under a new Account without Spryng’s prior written consent. If you attempt to use the Platform 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.
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 Agreements with you. You therefore agree as follows: IF SPRYNG DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, SPRYNG HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE AGREEMENTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT SPRYNG WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY USER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE.
8.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Platform and that that any closure of your Account may involve deletion of any content stored in your Account for which Spryng will have no liability whatsoever. Spryng, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or Spryng 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.
This Section addresses additional terms of the agreement between you and Spryng, including that the Terms of Service contain our full agreement, how the agreement will be interpreted and applied, and your agreement not to access the Site from certain locations, as detailed below.
9.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Spryng relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though Spryng drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Spryng because of the authorship of any provision of the Terms of Service.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Spryng’s prior written consent in the form of a written instrument signed by a duly authorized representative of Spryng. Spryng may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
9.3 ACCESS OF THE SITE OUTSIDE THE UNITED STATES
Spryng makes no representations that the Site is appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.
In order to access or use the Platform, you must and hereby represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Platform is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Platform and your license to use the Platform will be immediately revoked.