Terms of Service
User Agreement
Effective 13-12-2020
PLEASE READ THIS USER AGREEMENT AND ALL OTHER AGREEMENTS AND POLICIES REFERENCED HEREIN COLLECTIVELY DEFINED BELOW AS THE “TERMS OF SERVICE” CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) and Worcreate B.V. (“Worcreate,” “we,” or “us”). You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our website located at www.worcreate.com or any part of the rest of the Site (defined in the Site Terms of Use) or the Site Services (defined in the Site Terms of Use).
This Agreement includes and hereby incorporates by reference the following important agreements, as they may be in effect and modified from time to time: : Site Terms of Use; Cookie Policy and Privacy Policy.
These agreements are collectively, with this Agreement, called the “Terms of Service”. Subject to the conditions set forth herein, Worcreate 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. Worcreate will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. If the Substantial Change includes an increase to Fees charged by Worcreate, Worcreate will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).
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 EXCEPT AS PERMITTED BY THE SITE TERMS OF USE.
IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR AGENCY, 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 AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR AGENCY.
Table of Contents
1.1 REGISTRATION AND ACCEPTANCE
1.4.1 Student and Professional
1.6 IDENTITY AND LOCATION VERIFICATION
2.1 RELATIONSHIP WITH WORCREATE
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
4.2 WORCREATE PAYROLL SERVICES
6.3 EURO´S AND FOREIGN CURRENCY CONVERSION
7.1 COMMUNICATING THROUGH THE SITE; NOT SHARING CONTACT DETAILS
- RECORDS OF COMPLIANCE
- WARRANTY DISCLAIMER
- 10. RELEASE
- 11. INDEMNIFICATION
- 12. AGREEMENT TERM AND TERMINATION
13.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
14.4 SEVERABILITY; INTERPRETATION
14.6 PREVAILING LANGUAGE AND LOCATION
14.7 ACCESS OF THE SITE OUTSIDE THE NETHERLANDS
14.8 CONSENT TO USE ELECTRONIC RECORDS
1. WORCREATE ACCOUNTS
Section 1 discusses what you must agree to before using the Site or Site Services and the different types of accounts that can be created on the Site, as detailed below.
1.1 REGISTRATION AND ACCEPTANCE
By registering for an account to use the Site or Site Services (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 abide by this Agreement and the other Terms of Service.
To access and use certain portions of the Site and the Site Services, you must register for an Account. Subject to the Site Terms of Use, certain portions of the Site are available to Site Visitors, including those portions before your Account registration is accepted. Wocreate reserves the right to decline a registration to join Worcreate or to add an Account of any type (i.e., as a Client or Service provider), for any lawful 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 a company, 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. Your privacy is important to Worcreate and your information will be handled in accordance with our Privacy Policy, which is part of the Terms of Service, and applicable law.
1.2 ACCOUNT ELIGIBILITY
Worcreate offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you: (a) are an employee or agent of and authorized to act for and bind an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site and Site Services for business purposes only; (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) are either a legal entity or an individual who is 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) in each case who can form legally binding contracts.
1.3 ACCOUNT PROFILE
To register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, to be shown to the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide 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. If misuse is determined by other users, Worcreate will send a warning. If not adjusted, the account will be terminated.
1.4 ACCOUNT TYPES
As described in this Section, there are a number of different Account types. Once you register for one Account type, you can make use of all the perks within that account. If you want to change your account type, you agree to the additional / adjusted condition of the newly desired account. You can change the account after the cancellation period of the former account.
For example, if you already have a Student Account (defined below), you can upgrade to a Professional Account (defined below) as a separate account type, without re-registering. You agree not to have or register for more than one Account without express written permission from us. We reserve the right to revoke the privileges of the Account or access to or use of the Site or Site Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.
1.4.1 Student and Professional
You can register for an Account or add an Account type to use the Site and Site Services as a Student (a “Student Account”). The student can offer … services max. Should the user wish to increase the number of services offered, the account would need to be upgraded to e.g. Professional.
The professional can offer … services max.
You acknowledge and agree that (i) the User may determine the Profile visibility and pricing/rate information of any of its Student or Professional Service; and (ii) Users Profiles may display work history that includes work done under the Student or Professional Service.
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, including as a Team Member or Agency Member, you represent and warrant that: (a) the User is authorized to act on your behalf; and (b) you are fully responsible and liable for the User’s acts and omissions, including for obligations and liabilities relating to making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site and Site Services. Upon closure of an Account, Worcreate 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 could 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 Worcreate. You authorize Worcreate, 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/or your business, which includes, but is not limited to, providing official government or legal documents. During verification some Account features may be temporarily limited. When a verification is successfully completed, Account features will be restored.
1.7 USERNAMES AND PASSWORDS
Each person who uses the Site must register for their own Account. 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. You agree not to share your username or password with any person, and, if you are a legal entity who is not a natural person, to only share your username and password with a person who is authorized to use your Account. You authorize Worcreate to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or 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 both or (b) the use would violate the Terms of Service.
2. PURPOSE OF WORCREATE
Section 2 discusses what Worcreate does and does not do when providing the Site and Site Services and some of your responsibilities when using the Site to find or enter into a Service Contract with a Service provider or Client, as detailed below.
The Site is a marketplace where Clients and Service providers can identify each other and advertise, buy, and sell Products/Services online. Subject to the Terms of Service, Worcreate provides the Site Services to Users, including hosting and maintaining the Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those Service Contracts. When the Client and Service provider come to an agreement as to work together and/or work via the Clients business, all the further agreements such as payment and terms of service fall outside the scope of Worcreate. Worcreate only provides the platform and does not handle further affairs between Users.
2.1 RELATIONSHIP WITH WORCREATE
Wocreate merely makes the Site and Site Services available to enable Service providers and Clients to find and transact directly with each other. Worcreate does not introduce Service providers to Clients, find Projects for Service providers, or find Service providers for Clients. Through the Site and Site Services, Service providers may be notified of Clients that may be seeking the services they offer, and Clients may be notified of Service providers that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Project, Client or Service provider on their own. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users and Worcreate is not a party to that Service Contract.
You acknowledge, agree, and understand that Worcreate is not a party to the relationship or any dealings between Client and Service provider. Without limitation, Users are solely responsible for: (a) ensuring the accuracy and legality of any User Content; (b) determining the suitability of other Users for a Service Contract (such as any interviews, vetting, background checks, or similar actions); (c) negotiating, agreeing to, and executing any terms or conditions of Service Contracts; (d) performing Service provider Services; and/or (e) paying for Service provider Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Contract with another User and for verifying any information about another User. Worcreate does not make any representations about or guarantee the truth or accuracy of any Service provider’s or Client’s listings or other User Content on the Site; does not verify any feedback or information provided by Users about Service providers or Clients; and does not perform background checks on or guarantee the work of Service providers or Clients. You acknowledge, agree, and understand that Worcreate does not, in any way, supervise, direct, control, or evaluate Service providers or their work and is not responsible for any Project, Project terms or Work Product. Worcreate makes no representations about and does not guarantee, and you agree not to hold Worcreate responsible for, the quality, safety, or legality of Service provider Services; the qualifications, background, or identities of Users; the ability of Service providers to deliver Service providers Services; the ability of Clients to pay for Service provider Services; User Content and statements or posts made by Users; or the ability or willingness of a Client or Service provider to actually complete a transaction. While Worcreate may provide certain badges on Service provider or Client profiles, such badges are not a guarantee or warranty of quality or ability or willingness of the badged Service provider or Client to complete a Service Contract and is not a guarantee of any kind, including, the quality of Service provider Services or Client Project.
You also acknowledge, agree, and understand that Service provider are solely responsible for determining, and have the sole right to determine, which Projects to accept; the time, place, manner, and means of providing any Service provider Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Worcreate, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Worcreate will not have any liability or obligations, including under or related to Service Contracts and/or Service provider Services for any acts or omissions by you or other Users; (iii) Worcreate does not, in any way, supervise, direct, or control any Service provider or Service provider Services; does not impose quality standards or a deadline for completion of any Service provider Services; and does not dictate the performance, methods or process Service provider uses to perform services; (iv) Service provider is free to determine when and if to perform Service provider Services, including the days worked and time periods of work, and Worcreate does not set or have any control over Service provider´s pricing, work hours, work schedules, or work location, nor is Worcreate involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Service provider for a Project; (v) Service provider will be paid at such times and amounts as agreed with a Client in a given Service Contract, and Worcreate does not, in any way, provide or guarantee Service providers a regular salary or any minimum, regular payment; (vi) Worcreate does not provide Service providers with training or any equipment, labor, tools, or materials related to any Service Contract; (vii) Worcreate does not provide the premises at which Service provider will perform the work. Service providers are free to use subcontractors or employees to perform Service provider Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Service provider’s subcontractor(s) or employee(s); and (viii) Worcreate does not provide shipping services for any physical Work Product. If a Service provider uses subcontractors or employees, Service provider further agrees and acknowledges that this Section applies to Worcreate’s relationship, if any, with Service provider’s subcontractors and employees as well and Service provider is solely responsible for Service provider’s subcontractors and employees.
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels they choose, provided, if applicable. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
2.2 TAXES AND BENEFITS
All prices that are displayed on the website of Worcreate, and that are charged by Worcreate to the users for the payed subscription services are excl. VAT (BTW, Taxes). The VAT as charged will be the standard of 21% of the respective package price.
The prices as determined for the services by the Users can be displayed excl. VAT (BTW, Taxes). However, Worcreate is not responsible for the price determined between Service provider and set Client nor can we be held accountable for payments between Service provider and Client.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request Worcreate to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that Service providers or Clients voluntarily submit to Worcreate and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Worcreate; Worcreate provides such information solely for the convenience of Users.
You acknowledge and agree that User feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that Worcreate 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, wherever referenced, and other User Content highlighted by Worcreate on the Site or otherwise (“Composite Information”), if any, may include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that Worcreate will make Composite Information available to other Users, including composite or compiled feedback. Worcreate provides its feedback system as a means through which Users can share their opinions of other Users publicly, and Worcreate does not monitor, influence, contribute to or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
Worcreate does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content. Worcreate 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, Worcreate reserves the right (but is under no obligation) to remove posted feedback or information that, in Worcreate’s sole judgment, violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of Worcreate. You acknowledge and agree that you will notify Worcreate of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, Worcreate may rely on the accuracy of such information.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND Service provider
Section 3 discusses the relationship you may decide to enter into with another User, including Service Contracts between Users, as detailed below.
3.1 SERVICE CONTRACTS
If a Client and Service provider decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Service provider. Client and Service provider have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that Worcreate is not a party to any Service Contract, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between Worcreate and any User or a partnership or joint venture between Worcreate and any User.
With respect to any Service Contract, Clients and Service providers may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Worcreate’s rights and obligations under the Terms of Service, including this Agreement. The parties to a Service Contract can, if the parties prefer, agree to the Optional Service Contract Terms in whole or in part, in addition to or instead of other such agreements. Only to the extent that they have not entered into another agreement or terms with respect to a Service Contract, the parties to a Service Contract agree that the Optional Service Contract Terms apply to their Service Contract.
The Optional Service Contract Terms are provided as a sample only and may not be appropriate for all jurisdictions or all contracts. Users are responsible for complying with any local requirements, including applicable laws, rules, and regulations. Worcreate does not assume any responsibility for any consequence of using the Optional Service Contract Terms. The Optional Service Contract Terms are not intended to and do not (a) constitute legal advice, (b) create an attorney-client relationship, or (c) constitute advertising or a solicitation of any type. Each situation is highly fact-specific and requirements vary by situation and jurisdiction and therefore any party should seek legal advice from a licensed attorney in the relevant jurisdictions. Worcreate expressly disclaims any and all liability with respect to actions or omissions based on the Optional Service Contract Terms.
3.2 DISPUTES AMONG USERS
For disputes arising between Clients and Service providers, you agree to abide by the dispute process that apply to your particular Service Contract. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that Worcreate will not and is not obligated to provide any dispute assistance beyond what is provided.
If Service providers or Client intends to obtain an order from any arbitrator or any court that might direct Worcreate or our Affiliates to take or refrain from taking any action, that party will (a) give us at least five business days’ prior notice of the hearing; (b) include in any such order a provision that, as a precondition to obligation affecting Worcreate, we be paid in full for any amounts to which we would otherwise be entitled; and (c) be paid for the reasonable value of the services to be rendered pursuant to such order.
3.3 CONFIDENTIAL INFORMATION
Users may agree to any terms they deem appropriate with respect to confidentiality. If and to the extent that the Users do not articulate any different agreement with regard to confidentiality, then they agree that this Section 3.3 (Confidential Information) applies.
To the extent a User provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
4. WORKER CLASSIFICATION AND WORCREATE PAYROLL
Section 4 discusses what you agree to concerning whether a Service provider is an employee or independent contractor and when you agree to use Worcreate Payroll, as detailed below.
4.1 WORKER CLASSIFICATION
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Worcreate and a User.
Client is solely responsible for and has complete discretion with regard to selection of any Service provider for any Project. Client is solely responsible for and assumes all liability for determining whether Service providers should be engaged as independent contractors or employees of Client and engaging them accordingly. Client warrants its decisions regarding classification are correct and its manner of engaging Service provider complies with applicable laws, regulations, and rules. Worcreate will have no input into, or involvement in, worker classification as between Client and Service providers and Users agree that Worcreate has no involvement in and will have no liability arising from or relating to the classification of a Service provider generally or with regard to a particular Project.
4.2 WORCREATE PAYROLL SERVICES
Client agrees to enrol in Worcreate Payroll if it will receive services from a Service provider under terms and conditions that would give rise to an employment relationship. When the Client enrols in Worcreate Payroll, Client will engage Worcreate’s third-party staffing vendor (the “Staffing Provider”), which is an Agency on Worcreate, through the Site. The Staffing Provider will hire Service provider at the request of Client and Service provider according to the terms described on the Site and otherwise agreed to by the Staffing Provider and Client and/or Service provider, and subject to the Worcreate Payroll Agreement. For all purposes with Worcreate Payroll, the employer of Service provider will be the Staffing Provider and not Worcreate under any circumstances.
Service provider, acknowledges, understands, and agrees that Worcreate will have no control over, or involvement in determining or influencing, the terms and conditions of any employment relationship that may arise between Service provider and Staffing Provider or Client, including the selection of an employee, pay rate, work hours, employment dates and working conditions. Service provider will not have any contract on the Site or contact with Worcreate regarding such employment terms. Where Service provider and Client have enrolled in Worcreate Payroll the Site is provided for, and Users agree to use the Site for, the sole purpose of enabling Service provider to communicate with the Staffing Provider and the Client.
6. PAYMENT TERMS
Section 6 discusses your agreement to pay the monthly subscription costs, what happens if a Client doesn’t pay, and related topics, as detailed below.
6.1 NON-PAYMENT
If Client is in “default”, meaning the Client fails to pay the monthly subscription costs
or any other amounts when due under the Terms of Service, or a written agreement for payment terms incorporating the Terms of Service (signed by an authorized representative of Worcreate), Worcreate will be entitled to the remedies described in this Section 6.1 in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, Client will be deemed to be in default on the earliest occurrence of any of the following: (a) Client fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days after accrual of the charge, an account current after a credit or debit card is declined or expires; (b) Client fails to pay an invoice issued to the Client by Worcreate within the time period agreed or, if no period is agreed, within 30 days; (c) Client initiates a chargeback with a bank or other financial institution resulting in a charge made by Worcreate for amounts due being reversed to the Client; or (d) Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s account.
If Client is in default, we may, without notice, temporarily or permanently close Client’s Account and revoke Client’s access to the Site and Site Services, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Services from other Users through the Site. However, Client will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on the Client’s Account as a result of the default. Without limiting other available remedies, Client must pay Worcreate upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
At our discretion and to the extent permitted by applicable law, Worcreate or its Affiliates may, without notice, charge all or a portion of any amount that is owed on any Account to Worcreate or otherwise to any Payment Method on file on the Client’s Account; set off amounts due against other amounts received from Client or held by for Client by Worcreate or another Affiliate; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
Worcreate does not guarantee that Client is able to pay or will pay due bills and Worcreate is not liable for costs if Client is in default. Service provider may use the dispute process, in order to recover funds from Client in the event of a default or may pursue such other remedies against Client as Service provider chooses. If Worcreate recovers funds from a Client in default pursuant to this Section 6.1, Worcreate will disburse any portion attributable to the applicable Service provider to the extent not already paid by Client or credited by Worcreate through any Payment Protection program.
6.2 PAYMENT METHODS
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes Worcreate as applicable, 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 consistent with our Privacy Policy, and to charge Client’s credit card (or any other Payment Method) for any amounts owed under the Terms of Service. To the extent permitted by applicable law and subject to our Privacy Policy, you acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage your Payment Method information.
By providing Payment Method information through the Site and authorizing payments with the Payment Method, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to make payments using the Payment Method(s); (c) if Client is an employee or agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on Worcreate; and (d) such actions do 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 and warrants 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.
Worcreate is not liable to any User if Worcreate does not complete a transaction as a result of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. Worcreate will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement.
6.3 EURO´S AND FOREIGN CURRENCY CONVERSION
The Site and the Site Services operate in Euro´s. If a User’s Payment Method is denominated in a currency other than Euro´s and requires currency conversion to make or receive payments in Euro´s, the Site may display foreign currency conversion rates that Worcreate or our Affiliates currently make available to convert supported foreign currencies to Euro´s. These foreign currency conversion rates adjust regularly based on market conditions. Each User, at its sole discretion and risk, may authorize the charge, debit, or credit of its Payment Method in a supported foreign currency and the conversion of the payment to Euro´s at the foreign currency conversion rate displayed on the Site. If foreign currency conversion is required to make a payment in Euro´s and Worcreate or its Affiliate, as applicable, does not support the foreign currency or the User does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Site, Worcreate will charge, debit, or credit the User’s Payment Method in Euro´s and the User’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by the User’s Payment Method provider. The User’s Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved.
7. NON-CIRCUMVENTION
Section 7 discusses your agreement to only use the Worcreate site to communicate any arrangements between Service provider and Client.
7.1 COMMUNICATING THROUGH THE SITE; NOT SHARING CONTACT DETAILS
The provisions of this Section 7.1 apply to any interaction between Service provider (User) and the Client.
For Users subject to this Section 7.1, Users agree to use the communication services available on the Site to communicate with other Users prior to entering into a Service Contract. You agree that prior to entering into a Service Contract, you (a) will use Worcreate as the sole manner to communicate with other Users; (b) will not provide your Means of Direct Contact (defined below) to any other User or another person that you identified or were identified by through the Site; (c) will not use Means of Direct Contact of another user to attempt to or to communicate with, solicit, contact, or find the contact information of a User outside of Worcreate; (d) will not ask for, provide, or attempt to identify through public means the contact information of another User; and (e) you will not include any Means of Direct Contact (defined below) or means by which your contact information could be discovered in any profile, proposal, job posting, invitation, or pre-hire communication through the Site’s communications services (including in each case in any attached file), except as otherwise provided on the Site.
For purposes of the Terms of Service “Means of Direct Contact” means any information that would allow another person to contact you directly, including, without limitation, phone number, email address, physical address, a link to a contact form or form requesting contact information, any link to an applicant management system or means to submit a proposal or application outside of the Site, or any information that would enable a user to contact you on social media or other website or platform or application that includes a communications tool, such as Skype, Slack, Wechat, or Facebook. For the avoidance of doubt, information is a Means of Direct Contact if it would enable another user to identify any of the information above through other sources, such as going to a website that included an email address or identifying you on social media, such as through Facebook or LinkedIn.
You acknowledge and agree that a violation of any provision of this Section 7.1 is a material breach of the Terms of Service. Your Account may be permanently suspended if you violate this Section 7.1.
8. RECORDS OF COMPLIANCE
Section 8 discusses 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 Worcreate upon request. Nothing in this subsection requires or will be construed as requiring Worcreate 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 Worcreate’s part to store, backup, retain, or grant access to any information or data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses your agreement and understanding that the Site and Site Services 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. WORCREATE MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, USER CONTENT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WORCREATE 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 13 (AGREEMENT TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST WORCREATE WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
10. RELEASE
Section 10 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 Worcreate is not a party to any contract between Users, you hereby release Worcreate, 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 Service provider Services provided to Client by a Service provider and requests for refunds based upon disputes.
11. INDEMNIFICATION
Section 12 discusses 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 Site Services or your illegal or harmful conduct, as detailed below.
You will indemnify, defend, and hold harmless Worceate, 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 Site Services by you or your agents, including any payment obligations or default incurred through use of the Site Services; (b) any Work Product or User Content developed, provided, or otherwise related to your use of the Site Services; (c) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Service provider as an independent contractor; the classification of Worcreate as an employer or joint employer of Service provider; 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; (d) failure to comply with the Terms of Service by you or your agents; (e) failure to comply with applicable law by you or your agents; (f) negligence, wilful misconduct, or fraud by you or your agents; and (g) 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 12, 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.
12. AGREEMENT TERM AND TERMINATION
Section 12 discusses your and Worcreate’s agreement about when and how long this Agreement will last, when and how either you or Worcreate can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
12.1 TERMINATION
Unless both you and Worcreate 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. In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. Worcreate is not a party to any Service Contract 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 Contract 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 Worcreate 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 Site; (c) Worcreate will continue to perform those Site 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 Contracts, whichever is later, to Worcreate for any Site Services or such other amounts owed under the Terms of Service and to any Service providers for any Services.
Without limiting Worcreate’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke or limit access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site 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 Worcreate 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 reregister under a new Account without Worcreate’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.
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 as follows: IF WORCREATE DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, WORCREATE HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS 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 WORCREATE 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.
12.2 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 Site and any closure of your Account may involve deletion of any content stored in your Account for which Worcreate will have no liability whatsoever. Worcreate, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
12.3 SURVIVAL
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 Worcreate 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.
13. DISPUTES BETWEEN YOU AND WORCREATE
Section 13 discusses your agreement with Worcreate and our agreement with you about how we will resolve any disputes, including that we will both first try to resolve any dispute informally and, if you are in the Netherlands, that we both agree to use arbitration instead of going to court, as detailed below.
13.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and Worcreate or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, Worcreate, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with Worcreate (including without limitation any claimed employment with Worcreate or one of our Affiliates or successors), the termination of your relationship with Worcreate, or the Site Services (each, a “Claim”) in accordance with this Section 13.
14. GENERAL
Section 14 discusses additional terms of the agreement between you and Worcreate, 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.
14.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Worcreate 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 Worcreate 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 favouring or disfavouring you or Worcreate because of the authorship of any provision of the Terms of Service.
14.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon Worcreate unless they are agreed in a written instrument signed by a duly authorized representative of Worcreate or posted on the Site by Worcreate. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
14.3 ASSIGNABILITY
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Worcreate’s prior written consent in the form of a written instrument signed by a duly authorized representative of Worcreate. Worcreate 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.
14.4 SEVERABILITY; INTERPRETATION
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
14.5 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.
14.6 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the Netherlands.
14.7 ACCESS OF THE SITE OUTSIDE THE NETHERLANDS
Worcreate makes no representations that the Site is appropriate or available for use outside of the Netherlands. 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, Dutch, and local laws and regulations. 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 Dutch origin products, including services or software.
In order to access or use the Site or Site Services, 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 Site or Site Services 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 Dutch or other sovereign country sanctions or embargoes. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.
14.8 CONSENT TO USE ELECTRONIC RECORDS
In connection with the Site Terms of Use, you may be entitled to receive, or we may otherwise provide, certain records from Worcreate or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.
15. DEFINITIONS
Section 15 gives you some definitions of capitalized terms that appear in the Terms of Service but other capitalized terms are defined above, which you can tell because the term is put in quotation marks and bold font.
Capitalized terms not defined below or above have the meanings described in the Site Terms of Use or elsewhere in the Terms of Service.
“Client” means any authorized User utilizing the Site or Site Services, including to seek and/or obtain Services and/or products, including from another User.
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, regardless of whether the information is 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 Service provider or Client; (b) was lawfully received by User without restriction 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.
“Service provider” means any authorized User utilizing the Site or Site Services, including to advertise or provide Services to Clients. A Service provider is a customer of Worcreate with respect to use of the Site and Site Services.
“Service provider Services” means all services performed for or delivered to Clients by Service providers.
The term “including” as used herein means including without limitation.
“Intellectual Property Rights” means 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, in each case, under the laws of any country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to Worcreate, via Mollie, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Worcreate may accept from time to time in our sole discretion.
“Project” means an engagement for Services that a Service provider provides to a Client under a Service Contract on the Site witch is strictly between the Client and the Service provider.
“Staffing Employee” means a Service provider enrolled in Worcreate Payroll, accepted for employment by a Staffing Provider, and assigned by the Staffing Provider to provide Services to one or more Client(s).
“Service Contract” means, as applicable, (a) the contractual provisions between a Client and a Service provider governing the Services to be performed by a Service provider for Client for a Project.
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“User Content” means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other content or information that you or any Site Visitor or User post to any part of the Site or provide to Worcreate, including such content or information that is posted as a result of questions.
“Work Product” means any tangible or intangible results or deliverables that Service provider agrees to create for, or actually delivers to, Client as a result of performing the Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.