ACCESSIBLE CONSULT 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.
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.
1.2 ACCOUNT ELIGIBILITY
Accessible Consult 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) have or are an employee or agent of and authorized to act for 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 consulting 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 Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. 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.
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 add the other Account types under the same username and password. For example, if you already have a Consultant Account (defined below), you can add a Client Account as a separate account type in settings 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 CLIENT 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 can be given different permissions to act on behalf of the Client Account. Any user using the Site, Site Services, including Direct Contract Services, for the purpose of searching for or using consultant Services is a “Client” for purposes of the Terms of Service.
1.4.2 CONSULTANT AND BUSINESS ACCOUNT
You can register for an Account or add an Account type to use the Site and Site Services as a Consultant (a “consultant Account”). Another type of Account you can add is a “Business Account”, the owner of which is referred to as an “Business”. A Business Account allows permissions to be granted to Users under the Business Account which can be given different permissions to act on behalf of the Business.
You acknowledge and agree that the Business is solely responsible, and assumes all liability, for (a) the classification of your consultants as employees or independent contractors; and (b) paying your consultant in accordance with applicable law for work performed on behalf of the company for Projects. You further acknowledge and agree that (i) the business may determine the Profile visibility and pricing/rate information of any of its consultants, and (ii) consultants’ Profiles may display work history that includes work done under the business Account, including after the consultant is no longer a business Member.
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 Business Member, 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 Contracts 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, Accessible Consult 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 Accessible Consult. You authorize Accessible Consult, 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, which includes, but is not limited to, providing official government or legal documents.
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 Accessible Consult 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 either or (b) the use would violate the Terms of Service.
2. PURPOSE OF ACCESSIBLE CONSULT
Section 2 discusses what Accessible Consult 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 consultant or Client, as detailed below.
The Site is a marketplace where Clients and consultants can identify each other and advertise, buy, and sell consulting Services online. Subject to the Terms of Service, Accessible Consult 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 a User enters a Service Contract, the User uses the Site to invoice and pay any amounts owed under the Service Contract.
2.1 RELATIONSHIP WITH ACCESSIBLE CONSULT
Accessible Consult merely makes the Site and Site Services available to enable consultants and Clients to find and transact directly with each other. Accessible Consult does not introduce consultants to Clients, find Projects for consultants, or find consultants for Clients. Through the Site and Site Services, Consultants may be notified of Clients that may be seeking the services they offer, and Clients may be notified of consultants 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 consultant on their own. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users and Accessible Consult is not a party to that Service Contract.
You acknowledge, agree, and understand that Accessible Consult is not a party to the relationship or any dealings between Client and consultant. 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 consultant Services, or (e) paying for Service Contracts or consultant 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, including Composite Information (defined below). Accessible Consult does not make any representations about or guarantee the truth or accuracy of any consultant’s or Client’s listings or other User Content on the Site; does not verify any feedback or information provided by Users about consultants or Clients; and does not vet or otherwise perform background checks on consultants or Clients. You acknowledge, agree, and understand that Accessible Consult does not, in any way, supervise, direct, control, or evaluate Consultants or their work and is not responsible for any Project, Project terms or Work Product. Accessible Consult makes no representations about and does not guarantee, and you agree not to hold Accessible Consult responsible for, the quality, safety, or legality of Consultant Services; the qualifications, background, or identities of Users; the ability of consultants to deliver consultant Services; the ability of Clients to pay for consultant Services; User Content, statements or posts made by Users; or the ability or willingness of a Client or consultant to actually complete a transaction.
You also acknowledge, agree, and understand that consultants 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 consultant 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 Accessible Consult, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Accessible Consult will not have any liability or obligations under or related to Service Contracts and/or consulatnt Services for any acts or omissions by you or other Users; (iii) Accessible Consult does not, in any way, supervise, direct, or control any consultant or consultant Services; does not impose quality standards or a deadline for completion of any consultant Services; and does not dictate the performance, methods or process consultant uses to perform services; (iv) A Consultant is free to determine when and if to perform consulting Services, including the days worked and time periods of work, and Accessible Consult does not set or have any control over consultant’s pricing, work hours, work schedules, or work location, nor is Accessible Consult involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Consultant for a Project; (v) Consultant will be paid at such times and amounts as agreed with a Client in a given Service Contract, and Accessible Consult does not, in any way, provide or guarantee Consultant a regular salary or any minimum, regular payment; (vi) Accessible Consult does not provide Consultants with training or any equipment, labor, tools, or materials related to any Service Contract; and (vii) Accessible Consult does not provide the premises at which consultants will perform the work. Consultants are free to use subcontractors or employees to perform Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Consultant’s subcontractor(s) or employee(s).
Without limiting the foregoing paragraph, if you are Business or a consulting firm, you expressly acknowledge, agree, and understand that: (1) the business is solely responsible for paying its consultants for work performed on behalf of the business and that such payments will not be made through the Site; (2) Accessible Consult is not a party to any agreement between the business and its consultants and does not have any liability or obligations under or related to any such agreement, even if the business or team members; (3) neither business or business team are employees or agents of Accessible Consult; (4) Accessible Consult does not, in any way, supervise, direct, or control the business; (5) Accessible Consult does not set businesses’ contract terms amongst themselves or with Clients (including determining whether the contract will be hourly or fixed price), fees, pricing, work hours, work schedules, or location of work; (6) Accessible Consult does not provide business with training or any equipment, labor, tools, or materials needed for any Service Contract; (7) Accessible Consult does not provide the premises at which the business will perform the work; and (8) Accessible Consult makes no representations as to the reliability, capability, or qualifications of any business or the ability or willingness of any business to make payments to or fulfill any other obligations to consultants, and Accessible Consult disclaims any and all liability relating thereto.
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 comply with the Opt Out provisions. 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
Consultant acknowledges and agrees that Consultant is solely responsible (a) for all tax liability associated with payments received from consultant’s Clients and through Accessible Consult, and that Accessible Consult will not withhold any taxes from payments to Consultant; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that consultant is not covered by or eligible for any insurance from Accessible Consult; (c) for determining whether consultant is required by applicable law to issue any particular invoices for the consultant Fees and for issuing any invoices so required; (d) for determining whether consultant is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the consultant Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request Accessible Consult 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 Consultants or Clients voluntarily submit to Accessible Consult and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Accessible Consult; Accessible Consult 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 Accessible Consult 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 Accessible Consult on the Site, if any, will include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that Accessible Consult will make Composite Information available to other Users, including composite or compiled feedback. Accessible Consult provides its feedback system as a means through which Users can share their opinions of other Users publicly, and Accessible Consult does not monitor, influence, contribute to or censor these opinions. You acknowledge and agree that posted composite or compiled feedback 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.
Accessible Consult 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 if such User Content is legally actionable or defamatory. Accessible Consult 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, Accessible Consult reserves the right (but is under no obligation) to remove posted feedback or information that, in Accessible Consult’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 Accessible Consult. You acknowledge and agree that you will notify Accessible Consult of any error or inaccurate statement in your feedback results, and that if you do not do so, Accessible Consult may rely on the accuracy of such information.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND CONSULTANT
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 Consultant decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Consultant. Client and Consultant 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 Accessible Consult 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 Accessible Consult and any Consultant or a partnership or joint venture between Accessible Consult and any User.
With respect to any Service Contract, Clients and Consultants 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 Accessible Consult’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.
3.2 DISPUTES AMONG USERS
If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that Accessible Consult will not and is not obligated to provide any dispute assistance beyond what is provided.
If Consultant or Client intends to obtain an order from any arbitrator or any court that might direct Accessible Consult 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 Accessible Consult, 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, then they agree that this Section 3.3 (Confidentiality) 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.
3.4 THIRD-PARTY BENEFICIARIES
It is the intent of the Parties to this Agreement that Users who have entered into Service Contracts or disclosed or received Confidential Information to another User are third-party beneficiaries of this Agreement with respect to this Section 3 only.
4. CONSULTANTS CLASSIFICATION
Section 4 discusses what you agree to concerning whether a consultant is an employee or independent consulting service provider and when you agree to use Accessible Consult Payroll, as detailed below.
4.1 CONSULTANT 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 Accessible Consult and a User.
Client is solely responsible for and has complete discretion with regard to selection of any Consultant for any Project. Client is solely responsible, warrants its decisions regarding classification are correct, and assumes all liability, for determining whether Consultants should be engaged as independent contractors or employees of Client and engaging them accordingly; Accessible Consult will have no input into, or involvement in, worker classification as between Client and Consultant, and Users agree that Accessible Consult has no involvement in and will have no liability arising from or relating to the classification of a consultant generally or with regard to a particular Project.
5. ACCESSIBLE CONSULT FEES
Section 5 describes what fees you agree to pay to Accessible Consult in exchange for Accessible Consult providing the Site and Site Services to you and what taxes Accessible Consult may collect, as detailed below.
5.1 SERVICE FEES FOR CONSULTANTS
Consultants pay Accessible Consult a commission (as defined in this Section 5.1) for the use of the Site Services. The commission (to use the Site Services) are paid solely by Consultant. When a Client pays a Consultant for a Project or when funds related to a Project are otherwise released to a Consultant as required. In the event the Consultant chooses to withdraw funds in a currency other than AUD dollars, there may also be a there may also be a foreign currency conversion charge; the rate may differ from rates that are in effect on the date of the payment and you may be able to obtain a better rate from your bank or financial institution.
5.2 MEMBERSHIP FEES AND CONNECTS
Businesses pay Accessible Consult a membership fee if they subscribe for a paid membership to access additional features and Site Services. Businesses may subscribe to different levels of participation and privileges on the Site, by payment of subscription fees and by purchasing different plans and features as described in and subject to the terms of the Membership plans.
5.3 CLIENT FEES
Clients pay Accessible Consult a fee for payment processing and administration related to the Consultant Fees they pay to Consultants they engage through the Site, as described in the Fee section.
5.4 VAT AND OTHER TAXES
Accessible Consult 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 Consultants (the "Taxes"). In such instances, any amounts Accessible Consult is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Accessible Consult under the Terms of Service.
5.6 NO FEE FOR INTRODUCING OR FOR FINDING PROJECTS
Accessible Consult does not introduce Clients to Consultants and does not help Consultants secure Projects. Accessible Consult merely makes the Site and Site Services available to enable Consultants to do so themselves and may from time to time highlight Projects that may be of interest. Therefore, Accessible Consult does not charge a fee when a consultant or a business finds a suitable Client or finds a Project. In addition, Accessible Consult does not charge any fee or dues for posting public feedback and composite or compiled feedback.
6. PAYMENT TERMS
Section 6 discusses your agreement to pay Consultants Service Fees on Service Contracts, and describes how payment work,
6.1 CLIENT PAYMENTS ON SERVICE CONTRACTS
When Client approves an Hourly Invoice for an Hourly Contract, Client automatically and irrevocably authorizes and instructs Accessible Consult to charge Client’s Payment Method for the Consultants Fees.
6.3 PAYOUT TO CONSULTANTS
Under the relevant Accessible Consult Instructions, Accessible Consult disburses funds that are available and payable to a consultant upon Consultant’s request. A Consultant can request payout of available funds any time on a one-time basis or by setting up an automatic payout schedule. For purposes of the Terms of Service, a “Minimum Threshold” is called upon on the Accessible Consult Site. When the funds in the Consultant’s Account are below the Minimum Threshold, the payout amount is charged and the available and payable funds are released on the earlier of Consultant’s request.
6.4 NO RETURN OF FUNDS
Client acknowledges and agrees that Accessible Consult or its Affiliates, will charge Client’s designated Payment Method for the Consultant’s Fees incurred.
6.5 PAYMENT METHODS
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
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 Accessible Consult; 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.
Because the use of any Payment Method may be limited by applicable law or by written agreement with your financial institution, Accessible Consult is not liable to any User if Accessible Consult does not complete a transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. Accessible Consult will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement.
6.6 AUD DOLLARS AND FOREIGN CURRENCY CONVERSION
The Site and the Site Services operate in AUD Dollars. If a User's Payment Method is denominated in a currency other than AUD Dollars and requires currency conversion to make or receive payments in AUD Dollars, the Site may display foreign currency conversion rates that Accessible Consult, currently make available to convert supported foreign currencies to AUD Dollars. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. 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 AUD Dollars at the foreign currency conversion rate displayed on the Site. A list of supported foreign currencies is available on the Site.
7. RECORDS OF COMPLIANCE
Section 7 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 Accessible Consult upon request. Nothing in this subsection requires or will be construed as requiring Accessible Consult 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 Accessible Consult’s part to store, backup, retain, or grant access to any information or data for any period.
8 WARRANTY DISCLAIMER
Section 8 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. ACCESSIBLE CONSULT 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, ACESSIBLE CONSULT 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 ACCESSIBLE CONSULT WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
9. LIMITATION OF LIABILITY
Section 9 discusses your agreement that Accessible Consult usually will not have to pay you damages relating to your use of the Site and Site Services.
Accessible Consult 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), 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 ACCESSIBLE CONSULT, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES.
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 Accessible Consult is not a party to any contract between Users, you hereby release Accessible Consult, 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.
Section 11 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 Accessible Consult, 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 incurred through use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Consultant as an independent contractor; the classification of Accessible Consult as an employer ; 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.
12. AGREEMENT TERM AND TERMINATION
Section 23 discusses your and Accessible Consult’s agreement about when and how long this Agreement will last, when and how either you or Accessible Consult can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
Unless both you and Accessible Consult 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. Accessible Consult 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 Accessible Consult 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) Accessible Consult 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 Accessible Consult for any Site Services or such other amounts owed under the Terms of Service and to any Consultants for any consulting Services.
Without limiting Accessible Consult’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke 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 Accessible Consult 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 Accessible Consult’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.
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 that that any closure of your Account may involve deletion of any content stored in your Account for which Accessible Consult will have no liability whatsoever. Accessible Consult, 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, payout 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 Accessible Consult 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 ACCESSIBLE CONSULT
If a dispute arises between you and Accessible Consult or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively.
Section 14 discusses additional terms of the agreement between you and Accessible Consult, 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 Accessible Consult 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 Accessible Consult 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 Accessible Consult 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 Accessible Consult unless in a written instrument signed by a duly authorized representative of Accessible Consult or posted on the Site by Accessible Consult. 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.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Accessible Consult’s prior written consent in the form of a written instrument signed by a duly authorized representative of Accessible Consult. Accessible Consult 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.
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 similar 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.
14.8 CONSENT TO USE ELECTRONIC RECORDS
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.
“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 is known to the public or that: (a) is generally known by third parties as a result of no act or omission of Consultant or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Services” means all services performed for or delivered to Clients by Consultants.
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, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to Accessible Consult, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Accessible Consult may accept from time to time in our sole discretion.