Effective 5 May 2021
PLEASE READ 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.
Subject to the conditions set forth herein, ArtesFAST 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. ArtesFAST 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 increase to any Fees charged by ArtesFAST, ArtesFAST 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”).
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.
- 1. ArtesFAST Accounts
- 1.1 Registration and Acceptance
- 1.2 Account Eligibility
- 1.3 Account Profile
- 1.4 Account Types
- 1.5 Account Permissions
- 1.6 Identity and Location Verification
- 1.7 Usernames and Passwords
- 2. Purpose of ArtesFAST
- 2.1 Relationship with ArtesFAST
- 2.2 Taxes and Benefits
- 2.3 Marketplace Feedback and User Content
- 3. Contractual Relationship Between Business and Expert
- 3.1 Service Contracts
- 3.2 Disputes Among Users
- 3.3 Confidential Information
- 3.4 Third-Party Beneficiaries
- 4. Worker Classification and ArtesFAST Payroll
- 4.1 Worker Classification
- 4.2 ArtesFAST Payroll Services
- 5. ArtesFAST Fees
- 5.1 Service Fees for Experts
- 5.2 Membership Fees and Connects
- 5.3 Disbursement Fees
- 5.4 Business Fees
- 5.5 VAT and Other Taxes
- 5.6 No Fee for Introducing or Finding Projects
- 6. Payment Terms and Escrow Services
- 6.1 Escrow Services
- 6.2 Business Payments on Service Contracts
- 6.3 Disbursements to Experts
- 6.4 Non-Payment
- 6.5 No Return of Funds
- 6.6 Payment Methods
- 6.7 U.S. Dollars and Foreign Currency Conversion
- 7. Non-Circumvention
- 7.1 Making Payments Through ArtesFAST
- 7.2 Opting Out
- 8. Records of Compliance
- 9. Warranty Disclaimer
- 10. Limitation of Liability
- 11. Release
- 12. Indemnification
- 13. Agreement Term and Termination
- 13.1 Termination
- 13.2 Account Data on Closure
- 13.3 Survival
- 14. Disputes Between You and ArtesFAST
- 14.1 Dispute Process, Arbitration, and Scope
- 14.2 Choice of Law
- 14.3 Informal Dispute Resolution
- 14.4 Binding Arbitration and Class Action/Jury Trial Waiver
- 15. General
- 15.1 Entire Agreement
- 15.2 Modifications; Waiver
- 15.3 Assignability
- 15.4 Severability
- 15.5 Force Majeure
- 15.6 Prevailing Language and Location
- 15.7 Access of the Site Outside the United States
- 15.8 Consent to Use Electronic Records
- 16. Definitions
1. ArtesFAST ACCOUNTS
Section 1 discusses what you must agree to before using the Site, App 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
ArtesFAST 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 Expert 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, upon your consent. 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 / update 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. You may not have different types of accounts lined to one e-mail identification. For example, if you are an employee of a small company and opted to open an account to engage experts from the ArtesFAST Platform, you shall not use the same e-mail ID to sign up as an Expert on ArtesFAST platform. You agree not to have or register for more than one Account as Expert 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 infringements without warning if, in our sole discretion, false or misleading information has been provided in creating or maintaining your Profile or Account.
1.4.1 BUSINESS ACCOUNT
You can register for an Account or add an Account type to use the Site and Site Services as a Business (a “Business Account”). Each User under a Business Account (“Team Member”) can be given different permissions to act on behalf of the Business Account. Any user using the Site, Site Services, including Direct Contract Services, for the purpose of publishing a task or using Expert Services is a “Business” for purposes of the Terms of Service.
1.4.2 EXPERT & AGENCY ACCOUNT
You can register for an Account or add an Account type to use the Site and Site Services as an Expert (a “Expert Account”). Another type of Expert Account you can add is an “Agency Account”, the owner of which is referred to as an “Agency”. An Agency Account allows permissions to be granted to Users under the Agency Account which can be given different permissions to act on behalf of the Agency (each, an “Agency expert”). You acknowledge and agree that the Agency is solely responsible, and assumes all liability, for (a) the classification of your Agency Members as employees or independent contractors; and (b) paying your Agency Members in accordance with applicable law for work performed on behalf of the Agency for Projects. You further acknowledge and agree that (i) the Agency may determine the Profile visibility and pricing/rate information of any of its Agency experts, and (ii) Agency experts’ Profiles may display work history that includes work done under the Agency Account, including after the Agency expert is no longer an Agency expert.
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, (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, ArtesFAST 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 ArtesFAST. You authorize ArtesFAST, 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 ArtesFAST 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 ArtesFAST
Section 2 discusses what ArtesFAST 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 an Expert or Business, as detailed below.
The Site is a platform where Businesses and Experts do not identify each other without the matching service by ArtesFAST system and / or personnel. Subject to the Terms of Service, ArtesFAST provides the Site Services to Users, including hosting and maintaining the Site, facilitating and managing the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those Service Contracts, but not of the nature of content in terms of quality and adequacy in all aspects of interpretation. 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 ArtesFAST
ArtesFAST makes the Site and Site Services available to enable Experts and Businesses to sign up, update and manage the contents in their own profile. ArtesFAST system or personnel match experts to the tasks entered by the businesses and facilitate to transact with each other. The interpretation of matching is taken in the broader sense to accommodate matching more than one experts, onsite or otherwise for the effective execution of a project, find Projects for Experts, or find Experts for Businesses. Through the Site and Site Services, Experts may be notified of Businesses whose tasks or projects they are matched with, and Businesses may be notified of Experts who are matched with the tasks (to be interpreted as content, any documents supplied through the task entry page in the Business account as well as deliverables; at all times, however, Users are responsible for evaluating and determining the suitability of any Project, Business or Expert on their own. If Users decide to enter into a Service Contract, the Service Contract is formulated by ArtesFAST connecting the users through ArtesFAST, where the delivery liability will be between the users where ArtesFAST will be in a capacity of facilitator only, without liability on the content, quality or adequacy to either side. ArtesFAST is responsible for raising the invoices to both sides, collecting and making timely payments to the users as the case may be.
You acknowledge, agree, and understand that ArtesFAST is not liable for any damage caused by any dealings between Business and Experts in terms of the contents of delivery and the information supplied, 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 (The users will have an opportunity to make final decision to enter into a service contract, once ArtesFAST system and/or personnel make a short list of matched users available),
(c) negotiating, agreeing to, and executing any technical content delivery terms or conditions of Service Contracts,
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). ArtesFAST does not make any representations about or guarantee the truth or accuracy of any Experts’ or Business’s listings beyond the validation of their information from publicly available information or other User Content on the Site; We do not verify any feedback or information provided by Users about Experts or Businesses. You acknowledge, agree, and understand that ArtesFAST does not, in any way, supervise, direct, control, or evaluate Experts or their work unless expressly defined as Project. As an expert, you agree to complete the task / project once you have accepted it through the system to the full compliance of the task / project deliverable(s). As a Business, you agree to make adequate efforts to define clear deliverables in terms of content, timeline, inputs, license seats and context as needed, provide needed guidance during the performance of the task as well as comply to the standard payment conditions of ArtesFAST once the task deliverables are met.
You also acknowledge, agree, and understand that Experts 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 Expert Services; the type of services they provide. You further acknowledge, agree, and understand that:
(i) you are not an employee of ArtesFAST, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance);
(ii) ArtesFAST will not have any liability or obligations under or related to Service Contracts and/or Expert Services for any acts or omissions by you or other Users;
(iii) ArtesFAST does not, in any way, supervise, direct, or control any Expert or Expert Services; does not impose quality standards or a deadline for completion of any Expert Services; and does not dictate the performance, methods or process Expert uses to perform services;
(iv) Expert is free to determine when and if to perform Expert Services, including the days worked and time periods of work unless it is specified by the business as a requirement, and ArtesFAST does not set or have any control over work hours, work schedules, or work location,
(v) Expert will be paid for the work delivered as per the service contract between the Expert and ArtesFAST at such times and amounts as agreed with a Business in a given Service Contract, and ArtesFAST does not, in any way, provide or guarantee Expert a regular salary or any minimum, regular payment;
(vi) ArtesFAST does not provide Experts with training or any equipment, labor, tools, or materials related to any Service Contract; unless otherwise stated and
(vii) ArtesFAST does not provide the premises at which Experts will perform the work.
Experts shall not use subcontractors or employees to perform Expert Services or delegate work on fixed-price contracts or by agreeing with their Businesss to have hourly contracts for Expert’s subcontractor(s) or employee(s). If an Expert uses subcontractors or employees, Expert further agrees and acknowledges that this paragraph applies to ArtesFAST’s relationship, if any, with Expert’s subcontractors and employees as well and Expert is solely responsible for Expert’s subcontractors and employees. Without limiting the foregoing paragraph, if you are an Agency or Agency expert, you expressly acknowledge, agree, and understand that:
(1) the Agency is solely responsible for paying its Agency experts’ for work performed on behalf of the Agency and that such payments will not be made through the ArtesFAST Site;
(2) ArtesFAST is not a party to any agreement between the Agency and its Agency experts and does not have any liability or obligations under or related to any such agreement, even if the Agency or Agency expert defaults;
(3) neither Agencies nor Agency experts are employees or agents of ArtesFAST;
(4) ArtesFAST does not, in any way, supervise, direct, or control the Agency or Agency experts;
(5) ArtesFAST does not set Agencies’ or Agency Members’ contract terms amongst themselves or with Business, work hours, work schedules, or location of work;
(6) ArtesFAST does not provide Agencies or Agency experts with training or any equipment, labor, tools, or materials needed for any Service Contract;
(7) ArtesFAST does not provide the premises at which the Agency or Agency experts will perform the work; and
(8) ArtesFAST makes no representations as to the reliability, capability, or qualifications of any Agency or Agency expert or the ability or willingness of any Agency to make payments to or fulfill any other obligations to Agency experts, and ArtesFAST disclaims any and all liability relating thereto.
(9) The Agency experts are bound by the Non-disclosure agreement on the information in any form shared by the business through or outside the platform either implicit or explicit, for a period of 12 years. Any violation of this agreement shall render the agency and the agency experts to full and consequential damages claimed by the business.
2.2 TAXES AND BENEFITS
Expert acknowledges and agrees that Expert is solely responsible (a) for all tax liability associated with payments received from Expert’s Business and through ArtesFAST, and that ArtesFAST will not withhold any taxes from payments to Expert; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Expert is not covered by or eligible for any insurance from ArtesFAST; (c) for determining whether Expert is required by applicable law to issue any particular invoices for the Expert Fees and for issuing any invoices so required; (d) for determining whether Expert 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 Expert Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and (e) if outside of the United States, for determining if ArtesFAST is required by applicable law to withhold any amount of the Expert Fees and for notifying ArtesFAST of any such requirement and indemnifying ArtesFAST for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of ArtesFAST, Expert agrees to promptly cooperate with ArtesFAST and provide copies of Expert’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Expert is engaging in an independent business as represented to ArtesFAST.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users can publish and request ArtesFAST 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, once consent is given to ArtesFAST by the user to facilitate the interview / assessment by the users about the task and the Expert. However, such information is based solely on data that Experts or Business voluntarily submit to ArtesFAST and does not constitute and will not be construed as an endorsement by ArtesFAST; ArtesFAST provides such information solely for the convenience of Users to make the final decision to engage or not to engage with each other.
You acknowledge and agree that User feedback benefits the Platform, all Users, and the efficiency of the Site and you specifically request that ArtesFAST post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Job Success Score or similar, wherever referenced, and other User Content highlighted by ArtesFAST on the Site or otherwise (“Composite Information”), 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 ArtesFAST will make Composite Information or its consolidation available to other Users, including composite or compiled feedback. ArtesFAST provides its feedback system as a means through which Users can share their opinions of other Users publicly on their own account, and ArtesFAST does not monitor, influence, contribute to or censor these opinions, with in the platform or outside the platform (such as social media). You acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business shared 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. The users also authorize ArtesFAST to process the composite information to create “ratings” and match confidence scores to improve the services to the users.
ArtesFAST 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. ArtesFAST 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, ArtesFAST reserves the right (but is under no obligation) to remove posted feedback or information that, in ArtesFAST’s sole judgment, violates the Terms of Service or negatively affects our Platform, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of ArtesFAST. You acknowledge and agree that you will notify ArtesFAST of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, ArtesFAST may rely on the accuracy of such information.
3. CONTRACTUAL RELATIONSHIP BETWEEN BUSINESS AND EXPERT
3.1 SERVICE CONTRACTS
If a Business and Expert decide to enter into a Service Contract provided by ArtesFAST, the Service Contract is a contractual relationship between the Business and Expert on all legal and compliance matters through ArtesFAST. Business and Expert have the responsibility to assess and evaluate the content of the Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that ArtesFAST is not a technically competent party to assess the quality and adequacy of the inputs provided by the business and deliverable(s) provided by the expert(s), that the formation of a Service Contract will not, under any circumstance, create an employment or other service relationship between ArtesFAST and any Expert or a partnership or joint venture between ArtesFAST and any User or employment of any type between the expert and the Business.
With respect to any Service Contract, Business and Experts may not enter into any written agreements other than through the ArtesFAST platform (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) and the additional agreements needed shall not conflict with, narrow, or expand ArtesFAST’s rights and obligations under the Terms of Service, including this Agreement and the applicable Escrow Instructions. In certain situations, upon the request of the Business, ArtesFAST may facilitate direct Non-Disclosure agreement directly between the Business and the Expert.
3.2 DISPUTES AMONG USERS
For disputes arising between Business and Experts, you agree to abide by the dispute process that is explained in the Escrow Instructions 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 ArtesFAST will not and is not obligated to provide any dispute assistance beyond what is provided in the Escrow Instructions.
If Expert or Business intends to obtain an order from any arbitrator or any court that might direct ArtesFAST, ArtesFAST Escrow, or our Affiliates to take or refrain from taking any action with respect to an Escrow Account, 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 ArtesFAST or ArtesFAST Escrow, 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
The users agree to respect and comply to the confidentiality agreements stipulated by ArtesFAST to participate in the ArtesFAST platform and in the engagement among the users in the ArtesFAST platform. If any user needs additional confidentiality conditions to be complied by other users in the engagement, the user shall provide the clauses to ArtesFAST for inclusion in the Confidentiality agreements applicable for that engagement. These additional clauses shall not conflict with, narrow, or expand ArtesFAST’s rights and obligations. By agreeing to the Service Contract, the users 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. The time limit for the non-disclosure of sensitive information is limited to 12 years, unless specifically requested by the Business.
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. WORKER CLASSIFICATION AND ARTESFAST PAYROLL
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 ArtesFAST and a User. Business is solely responsible for and has complete discretion with regard to selection of the Expert for any Project from the short-listed number of Experts made available to the Business. Business is solely responsible, warrants its decisions regarding classification are correct, and assumes all liability, for determining the location of performance and delivery of the tasks; ArtesFAST will have no preference in the location of delivery , extent of exposure to the content etc. as between Business and Expert and Users agree that ArtesFAST has no involvement in and will have no liability arising from or relating to any of the above generally or with regard to a particular Project. ArtesFAST may choose to execute a set of tasks as a project, in which case, ArtesFAST assumes reasonable part in safeguarding the sensitive information and content shared among the parties.
4.2 ARTESFAST PAYROLL SERVICES
ArtesFAST do not operate payroll services to the users.
5. ARTESFAST FEES
5.1 SERVICE FEES FOR EXPERTS
ArtesFAST basic service is free of charge for the Experts. ArtesFAST charges service fees to Experts, only for being benefited by the value added services as set forth in the Fee and ACH Authorization Agreement and the Direct Contract Terms. ArtesFAST may use intermediary services (ArtesFAST Escrow services B.V.) to ensure the payment robustness and assurance. The Business shall pay the pre-agreed task value to the designated Escrow account upon the start of the task and thereby authorizes ArtesFAST to pay the experts for portion of the task(s) or project delivered as approved by the Business. The ArtesFAST platform will, upon completion of the task by the Expert and acknowledgement of completion of task by the Business, raise an invoice for the task on behalf of the Expert to ArtesFAST. Upon payment of the invoice by the Business, the ArtesFAST platform may retain a part of the payment as its matching fee pays the pre-agreed payment amount for delivering the task to the Expert. Expert hereby irrevocably authorizes and instructs ArtesFAST to deduct the Matching Fee from the payment from Business for the particular task.
5.2 MEMBERSHIP FEES AND CONNECTS
Experts pay ArtesFAST a membership fee if they subscribe for a paid value-added service membership to access additional features and Site Services. Experts may subscribe to different levels of participation and privileges on the Site, by payment of subscription fees as described in and subject to the terms of the Expert Membership Agreement.
5.3 BUSINESS FEES
Basic services of the platform is free for the Businesses Agreement. Businesses may also choose to pay for a number of Value Added Services, as described in the Fee and ACH Authorization Agreement.
5.4 VAT AND OTHER TAXES
ArtesFAST 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 Expert (the “Taxes“). In such instances, any amounts ArtesFAST is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to ArtesFAST under the Terms of Service.
5.5 ArtesFAST DO NOT CHARGE A FEE FOR INTRODUCTION, BUT CHARGES FOR A MATCH ACCEPTED BY BOTH SIDES OF THE PLATFORM
ArtesFAST does match Experts to Tasks posted by the Businesses. ArtesFAST makes the Site and Site Services available to enable Experts to enter their best skills and knowledge known to the platform as well as for the businesses to publish their tasks known in the platform. This information is only visible to each other only upon the match is made and permission by each party is given to ArtesFAST platform to reveal their identity to each other. The Algorithm (the Intellectual property of ArtesFAST) will analyze the skills, knowledge and experience of the experts and breakdown the tasks to needed skills and expertise to make matches. ArtesFAST does not charge any fee or dues for posting public feedback and composite or compiled feedback, including Composite Information.
6. PAYMENT TERMS AND ESCROW SERVICES
Section 6 discusses your agreement to pay Expert Service Fees on Service Contracts, and describes how ArtesFAST’s Escrow Services work, what happens if a Business doesn’t pay, and related topics, as detailed below.
6.1 ESCROW SERVICES
ArtesFAST Escrow provides escrow services to Users to deliver, hold, and/or receive payment for a Project, and to pay fees to ArtesFAST (“Escrow Services”). The Escrow Services are intended for business use, and you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes.
6.1.1 PAYMENT AGREEMENTS AND ESCROW INSTRUCTIONS
ArtesFAST Escrow will use, and release funds deposited in an Escrow Account only in accordance with this Agreement and the applicable Escrow Instructions. You acknowledge and agree that ArtesFAST Escrow acts merely as an Internet escrow agent. ArtesFAST Escrow has fully delivered the Escrow Services to you if ArtesFAST Escrow provides the Escrow Services described in this Agreement and the applicable Escrow Instructions. ArtesFAST Escrow is only obligated to perform those duties expressly described in this Agreement and any applicable Escrow Instructions. If you authorize or instruct ArtesFAST Escrow to release or make a payment of funds from an Escrow Account associated with you, ArtesFAST Escrow may release or pay those funds as instructed in reliance on your authorization, this Agreement, and the applicable Escrow Instructions. In addition, ArtesFAST Escrow may release or pay funds from an Escrow Account as required by applicable law.
Typically, ArtesFAST projects are Fixed-Price Projects. The Users by default choose fixed-price compensation, and the Users agree that they will be bound by, and ArtesFAST Escrow will follow, the Fixed-Price Escrow Instructions. If the projects consist of Expense Payments, and the Business makes expense payments, then the Users agree that they will be bound by, and ArtesFAST Escrow will follow, the Expense Payment Agreement with Escrow Instructions. By using ArtesFAST services, the users agree not to enter into a Direct Contract with each other. ArtesFAST does not provide Payroll Engagements for users.
6.1.2 ESCROW ACCOUNTS
ArtesFAST Escrow will use, and release funds deposited in an Escrow Account only in accordance with this Agreement and the applicable Escrow Instructions. Depending on your needs and the applicable Escrow Instructions, ArtesFAST Escrow will establish and maintain one of three different types of Escrow Accounts, subject to the applicable Escrow Instructions:
(a) Business Escrow Account is set up for Businesses who intent to have a long term association with ArtesFAST. After entering into a Service Contract, the first time a Business makes a payment for a Project, ArtesFAST Escrow will establish and maintain a “Business Escrow Account” to hold funds for the Business to use to make payments for Projects, to receive refunds in connection with Projects, and to make payments to ArtesFAST for payment for its Matching fee.
(b) Expert Escrow Account. After entering into a Service Contract, the first time an Expert uses the Site to receive payment for a Project, ArtesFAST Escrow will establish and maintain a “Expert Escrow Account” for Expert to receive payments for Projects.
(c) Fixed-Price Escrow Account. When you enter into a Fixed-Price Contract, ArtesFAST Escrow will establish and maintain a “Fixed-Price Escrow Account” to receive, hold, and release payments pursuant to the Fixed-Price Escrow Instructions for the Project that is the subject of that Fixed-Price Contract.
You hereby authorize and instruct ArtesFAST Escrow to act as escrow agent in connection with the Escrow Accounts and the payment, holding, and receipt of funds for each Project and other specified purposes in accordance with the Terms of Service and the applicable Escrow Instructions. Business and Expert may access current information regarding the status of an Escrow Account on the Site.
6.1.3 EXPERT APPOINTMENT OF ARTESFAST ESCROW AND SUBSIDIARIES AS AGENT
If you are an Expert and you request payment related to an Expense Contract or the release of funds from a Fixed-Price Escrow Account, you hereby appoint ArtesFAST Escrow and its wholly-owned subsidiaries, as your agent to obtain funds on your behalf and credit them to your Expert Escrow Account as applicable. Because ArtesFAST Escrow is Expert’s agent, Expert must, and hereby does, fully discharge and credit Expert’s Client for all payments and releases that ArtesFAST Escrow receives on Expert’s behalf from or on behalf of such Business.
6.1.4 TITLE TO FUNDS
ArtesFAST, ArtesFAST Escrow and our Affiliates are not banks. ArtesFAST Escrow deposits and maintains all Escrow Account funds in an escrow trust account at a bank insured by the Federal Deposit Insurance Corporation or the assurance agency of the government of the country where the expert is located, and approved to receive, hold, and deliver escrow funds under applicable laws and regulations. The escrow trust account is separate from the operating accounts of ArtesFAST and each of our Affiliates. ArtesFAST Escrow will not voluntarily make funds deposited in the escrow trust account available to its creditors, or the creditors of its Affiliates, in the event of a bankruptcy, or for any other purpose. As provided in Rules and Law of Bankruptcy of Businesses in Netherlands, ArtesFAST Escrow holds only legal title to, and not any equitable interest in, the escrow trust account and any funds deposited therein. This Agreement is supplementary to the Service Contract and to any other agreement between Business and Expert concerning the Project, as provided in Rules and Law of Bankruptcy of Businesses in Netherlands.
6.1.5 NO INTEREST
You agree that you will not receive interest or other earnings on the funds held in your Escrow Account. ArtesFAST, ArtesFAST Escrow, or our Affiliates may charge or deduct fees, may receive a reduction in fees or expenses charged, and may receive other compensation in connection with the services they provide.
6.1.6 ESCROW AGENT DUTIES
We undertake to perform only such duties as are expressly set forth in this Agreement, the applicable Escrow Instructions, and the other Terms of Service, and no other duties will be implied. We have no liability under, and no duty to inquire as to, the provisions of any agreement, other than the Terms of Service, including this Agreement and the applicable Escrow Instructions. We will be under no duty to inquire about or investigate any content of delivery or communication between Business and Expert, even if posted to the Site. We have the right to rely upon, and will not be liable for acting or refraining from acting upon, any written notice, instruction, or request furnished to us by Business or Expert in accordance with this Agreement or the applicable Escrow Instructions, if we reasonably believe that such notice, instruction, or request is genuine and that it is signed or presented by the proper party or parties. We have no duty to inquire about or investigate the validity, accuracy, or content of any such notice, instruction, or request. We have no duty to solicit any payments or releases that may be due to or from any Escrow Account. We may execute any of our powers and perform any of our duties under this Agreement and the applicable Escrow Instructions directly or through agents or attorneys (and will be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants, and other skilled persons to be selected and retained by us. To the extent permitted by applicable law, we will not be liable for anything done, suffered, or omitted in good faith by us in accordance with the advice or opinion of any such counsel, accountants, or other skilled persons. If we are uncertain as to our duties or rights hereunder or receive instructions, claims, or demands from any party hereto that, in our opinion, conflict with any of the provisions of this Agreement or the applicable Escrow Instructions, we will be entitled to refrain from taking any action, and our sole obligation will be to keep safely all property held in the Escrow Account until we are directed otherwise in writing by Business and Expert or by a final order or judgment of an arbitrator or court of competent jurisdiction.
6.1.7 ESCROW AGENT RIGHT
We have the right, in our sole discretion, but not the obligation, to institute arbitration or, if no arbitration provision applies, other legal proceedings, including depositing funds held in the Escrow Account with a court of competent jurisdiction, and to resolve any dispute between Business and Expert related to the Escrow Account. Any provision of this Agreement and the applicable Escrow Instructions to the contrary notwithstanding and regardless whether we are identified as a party in interest in any dispute, arbitration, or other legal proceeding, nothing herein will be construed to limit our legal and equitable rights, including, but not limited to, depositing funds held in the Escrow Account with a court of competent jurisdiction. Any corporation or association into which ArtesFAST Escrow may be merged or converted or with which ArtesFAST Escrow may be consolidated, or any corporation or association to which all or substantially all the escrow business of ArtesFAST Escrow may be transferred will succeed to all the rights and obligations of ArtesFAST Escrow as escrow holder and escrow agent under this Agreement and the applicable Escrow Instructions without further act to the extent permitted by applicable law.
6.2 BUSINESS PAYMENTS ON SERVICE CONTRACTS
For Non-fixed price Contracts, Expert will receive the communication of invoice to the ArtesFAST and the Business will receive the invoice on pre-agreed regular basis from ArtesFAST, and Business will pay invoices consistent with the relevant Escrow Instructions. For Fixed-Price Contracts, Business becomes obligated to fund escrow immediately upon sending a Fixed-Price Contract offer, designated as acceptance of one or more experts for the task (for the full amount or for the first milestone, if milestones are used) or upon activating any additional milestone.
Business acknowledges and agrees that for both Non-fixed price Contracts and Fixed-Price Contracts failure to decline or dispute an Invoice or request for payment is an authorization and instruction to release payment, as described more fully in the applicable Escrow Instructions. When Business authorizes the payment of the Expert Fees for a Fixed-Price Contract on the Site, Business automatically and irrevocably authorizes and instructs ArtesFAST or its Affiliates, ArtesFAST Escrow or any other affiliated entity, to charge Business’ Payment Method for the Expert Fees. When Business approves a non-fixed price Invoice for a Non-fixed price Contract, Business automatically and irrevocably authorizes and instructs ArtesFAST or its Affiliates, ArtesFAST Escrow or any other affiliated entity, to charge Business’ Payment Method for the Expert Fees.
6.3 DISBURSEMENTS TO EXPERTS
Under the relevant Escrow Instructions, ArtesFAST Escrow disburses funds that are available and payable to an Expert upon Expert’s request. An Expert can request disbursement of available funds any time on a one-time basis at the end of the task or by setting up an automatic disbursement schedule based on the delivery of the task. If Expert does not request a disbursement, ArtesFAST will automatically disburse available funds no more than 90 days after the Expert Fees are released to the Expert Escrow Account, unless the amount in the Escrow Account is less than the Minimum Threshold. For purposes of the Terms of Service, a “Minimum Threshold” is either
(a) €100 for Experts within the Europe (defined as European Union), or
(b) €100 for Experts outside the Europe. When the funds in the Expert Escrow Account are below the Minimum Threshold, the automatic disbursement schedule is paused and the available and payable funds are released on the earlier of (i) Expert’s request, or (ii) on the first scheduled automatic disbursement occurring after the amount exceeds the Minimum Threshold or 180 days after the funds are available in the Expert Escrow Account.
Not withstanding any other provision of the Terms of Service or the Escrow Instructions, and except as prohibited by applicable law, if we believe, in our sole discretion, that you have violated the conditions and restrictions of the Site or the Terms of Service, including by committing or attempting to commit fraud or other illicit acts on or through the Site, ArtesFAST Escrow may refuse to process or may hold the disbursement of the Expert Fees and take such other actions with respect to the Escrow Account as we deem appropriate in our sole discretion and in accordance with applicable law. Without limiting the foregoing, ArtesFAST Escrow, in its sole discretion and to the extent permitted by applicable law, may also refuse to process or may hold the disbursement of the Expert Fees or any other amounts and offset amounts owed to us if:
(a) we require additional information, such as Expert’s tax information, government-issued identification or other proof of identity, address, or date of birth;
(b) we have reason to believe the Expert Fees may be subject to dispute or chargeback;
(c) we suspect fraud;
(d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service; or
(e) we deem it necessary in connection with any investigation or required by applicable law.
If, after investigation, we determine that the hold on the disbursement of the Expert Fees is no longer necessary, ArtesFAST Escrow will release such hold as soon as practicable. In addition, notwithstanding any other provision of the Terms of Service or the Escrow Instructions and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we:
(i) suspect fraud or criminal activity associated with your payment, withdrawal, or Project;
(ii) discover erroneous or duplicate transactions; or
(iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by the Business if you are an Expert, despite our provision of the Site Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by instructing ArtesFAST Escrow to (and ArtesFAST Escrow will have the right to) charge the applicable Escrow Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Site and Site Services and close your Account.
If Business is in “default”, meaning the Business fails to pay the Expert Fees 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 ArtesFAST), ArtesFAST will be entitled to the remedies described in this Section 6.4 in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, User will be deemed to be in default on the earliest occurrence of any of the following:
(a) Business fails to pay the Expert Fees when due,
(b) Business fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days, an account current after a credit or debit card is declined or expires,
(c) Business fails to pay an invoice issued to the Business by ArtesFAST within the time period agreed or, if none, within 30 days,
(d) Business initiates a chargeback with a bank or other financial institution resulting in a charge made by ArtesFAST for Expert Fees or such other amount due being reversed to the Business, or
(e) Business takes other actions or fails to take any action that results in a negative or past-due balance on the Business’ account.
If Business is in default, we may, without notice, temporarily or permanently close Business’ Account and revoke Business’ access to the Site and Site Services, including Business’ authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Expert Services from other Users through the Site. However, Business will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on the Business’ Account as a result of the default. Without limiting other available remedies, Business must pay ArtesFAST 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, ArtesFAST or its Affiliates, ArtesFAST Escrow or other such entities, may, without notice, charge all or a portion of the amount that is owed to any Payment Method on file on the Business’ Account; set off amounts due against other amounts received from Business or held by for Business by ArtesFAST, ArtesFAST Escrow 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.
6.5 NO RETURN OF FUNDS
Business acknowledges and agrees that ArtesFAST or its Affiliates, ArtesFAST Escrow or any such entities, will charge Business’ designated Payment Method for the Expert Fees incurred as described in the applicable Escrow Instructions and the Fee and ACH Authorization Agreement and that once ArtesFAST or its Affiliates, ArtesFAST Escrow or any such entities, charges or debits the Business’ designated Payment Method for the Expert Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. Business also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Business to resolve disputes. To the extent permitted by applicable law, Business therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Expert Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Business initiates a chargeback in violation of this Agreement, Business agrees that ArtesFAST or its Affiliates, ArtesFAST Escrow or any such entities, may dispute or appeal the chargeback and institute collection action against Business and take such other action it deems appropriate.
6.6 PAYMENT METHODS
In order to use certain Site Services, Business must provide account information for at least one valid Payment Method.
(a) Business is legally authorized to provide such information;
(b) Business is legally authorized to make payments using the Payment Method(s);
(c) if Business is an employee or agent of a company or person that owns the Payment Method, that Business is authorized by the company or person to use the Payment Method to make payments on ArtesFAST; and
(d) such actions do not violate the terms and conditions applicable to Business’ use of such Payment Method(s) or applicable law.
When Business authorizes a payment using a Payment Method via the Site, Business 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 Business’ Payment Method(s), Business 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, ArtesFAST is not liable to any User if ArtesFAST 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. ArtesFAST will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement and any applicable Escrow Instructions.
6.7 EURO AND FOREIGN CURRENCY CONVERSION
The Site and the Site Services operate in Euros. If a User’s Payment Method is denominated in a currency other than Euros and requires currency conversion to make or receive payments in Euros, the Site may display foreign currency conversion rates that ArtesFAST, ArtesFAST Escrow, or our Affiliates currently make available to convert supported foreign currencies to Euros. 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 Euros at the foreign currency conversion rate displayed on the Site. A list of supported foreign currencies will be published on the Site. If foreign currency conversion is required to make a payment in Euros and ArtesFAST or its Affiliates, ArtesFAST Escrow or Any such entity, 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, ArtesFAST Escrow or one of our Affiliates will charge, debit, or credit the User’s Payment Method in Euros 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. The User’s authorization of a payment using a foreign currency conversion rate displayed on the Site is at the User’s sole risk. ArtesFAST, ArtesFAST Escrow, or any such entity, and our Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than Euros. ArtesFAST, ArtesFAST Escrow, and any such entity, and our Affiliates are not responsible for currency fluctuations that occur when receiving or sending payments to and from the Escrow Account.
Section 7 discusses your agreement to make and receive payments only through ArtesFAST for two years from the date you first meet your Business or Expert on the Site, unless you pay an Opt-Out-Fee, as detailed below.
7.1 MAKING PAYMENTS THROUGH ARTESFAST
You acknowledge and agree that a substantial portion of the compensation ArtesFAST receives for making the Site available to you is collected through the Service Fee described in Section 5.1. ArtesFAST only receives this Service Fee when a Business and/or an Expert pay and receive payment through the Site. Therefore, for 24 months from the time you are matched with another user through the Site (the “Non-Circumvention Period”), you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “ArtesFAST Relationship”). For the avoidance of doubt, if you, or the business you represent, did not identify and were not identified by another party through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention Period does not apply. If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the business when acting in that capacity with respect to the other User.
Except if you pay the Opt-Out Fee (see Section 7.2), you agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify ArtesFAST immediately if a person suggests to you making or receiving payments outside of the Site in violation of this Section 7.1. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to ArtesFAST by sending an email message to: policy-reports@ArtesFAST.com. If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported on the Site, and therefore choose to cease using the Site, you may pay the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
7.2 OPTING OUT
You may opt-out of the obligation in Section 7.1 with respect to each ArtesFAST Relationship only if the Business or prospective Business or Expert pays ArtesFAST an opt-out fee for each such relationship (the “Opt-Out Fee”). The Opt-Out Fee is computed as follows
(a) interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, on the amount calculated in
(b), from the date Business first makes payment to the subject Expert until the date the Opt-Out Fee is paid; and
(c) the greater of:
(i) €10,000; or
(ii) 25% of the anticipated annualized salary or wages for one year if the Business offers Expert employment directly; or
(iii) all Service Fees that would be earned by ArtesFAST from the ArtesFAST Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Expert from Business during the most recent normalized 8-week period, or during such shorter period as data is available to ArtesFAST;
(iv) provided, however, that if the amount in (ii) and (iii) cannot be ascertained due to uncertainty or lack of sufficient information, then ArtesFAST and you agree that fee shall be €10,000; if only one of (ii) or (iii) can be ascertained, then ArtesFAST and you agree that amount shall be used if it is greater than €10,000.
To pay the Opt-Out Fee, you must request instructions by sending an email message to firstname.lastname@example.org.
If ArtesFAST determines, in its sole discretion, that you have violated Section 7, ArtesFAST or its Affiliates may, to the maximum extent permitted by law (x) charge your Payment Method the Opt-Out Fee (including interest) if permitted by law or send you an invoice for the Opt-Out Fee (including interest), which you agree to pay within 30 days, (y) close your Account and revoke your authorization to use the Site and Site Services, and/or (z) charge you for all losses and costs (including any and all time of ArtesFAST’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
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 ArtesFAST upon request. Nothing in this subsection requires or will be construed as requiring ArtesFAST 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 ArtesFAST’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. ARTESFAST 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, ARTESFAST 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 ARTESFAST WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
10. LIMITATION OF LIABILITY
Section 10 discusses your agreement that ArtesFAST usually will not have to pay you damages relating to your use of the Site and Site Services and, if it is, at most it will be required to pay you €1,000, as detailed below.
ArtesFAST is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL ARTESFAST, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF ARTESFAST, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) €1,000; OR (B) ANY FEES RETAINED BY ARTESFAST WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS BUSINESS OR EXPERT DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES / NATIONS AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Section 11 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 ArtesFAST is not a party of content contribution in the contract between Users, you hereby release ArtesFAST, 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 Expert Services provided to Business by an Expert and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Escrow Instructions.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
This release will not apply to a claim that ArtesFAST failed to meet our obligations under the Terms of Service.
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 ArtesFAST, 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 (described in Section 6.4 (Non-Payment)) 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 an Expert as an independent contractor; the classification of ArtesFAST as an employer or joint employer of Expert; 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 12, your agents include 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.
13. AGREEMENT TERMS AND TERMINATION
Unless both you and ArtesFAST expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to email@example.com. In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. ArtesFAST 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 and ArtesFAST. If you attempt to terminate this Agreement while having one or more open Projects, you agree
(a) you hereby instruct ArtesFAST 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) ArtesFAST 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 ArtesFAST for any Site Services or such other amounts owed under the Terms of Service and to any Experts for any Expert Services.
Without limiting ArtesFAST’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 ArtesFAST 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 ArtesFAST’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 through ArtesFAST. You therefore agree as follows: IF ARTESFAST DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, ARTESFAST 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 ARTESFAST 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.
13.2 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 ArtesFAST will have no liability whatsoever. ArtesFAST, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or ArtesFAST 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.
14. DISPUTES BETWEEN YOU AND ARTESFAST
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and ArtesFAST or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, ArtesFAST, 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 ArtesFAST (including without limitation any claimed employment with ArtesFAST or one of our Affiliates or successors), the termination of your relationship with ArtesFAST, or the Site Services (each, a “Claim”) in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”).
Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Terms of Service, any Service Contract, escrow payments or agreements, any payments or monies you claim are due to you from ArtesFAST or our Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination, retaliation or harassment and claims arising under the Defend Trade Secrets Act of 2016, Civil Rights Act of 1964, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, Civil Rights Act of 1991, the Pregnancy Discrimination Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Medical Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and all other national, federal or state legal claims arising out of or relating to your relationship with ArtesFAST or the termination of that relationship.
Disputes between the parties that may not be subject to pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order from the President of European Union, are excluded from the coverage of this Agreement.
14.2 CHOICE OF LAW
14.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and ArtesFAST agree to first notify each other of the Claim. You agree to notify ArtesFAST of the Claim at Attn Legal, High Tech Campus 41, 5656AE, Eindhoven, The Netherlands or by email to firstname.lastname@example.org, and ArtesFAST agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and ArtesFAST then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or ArtesFAST, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and ArtesFAST will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
15.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and ArtesFAST 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 ArtesFAST 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 ArtesFAST because of the authorship of any provision of the Terms of Service.
15.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon ArtesFAST unless in a written instrument signed by a duly authorized representative of ArtesFAST or posted on the Site by ArtesFAST. 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 ArtesFAST’s prior written consent in the form of a written instrument signed by a duly authorized representative of ArtesFAST. ArtesFAST 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.
15.5 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.
15.6 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service is aimed at attaining highest level of communication clarity among us and Users. For the legal purposes, the communication shall be done in Dutch language, including discussions and interaction sin the court of law in the Netherlands, and 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.
15.7 ACCESS OF THE SITE OUTSIDE THE UNITED STATES
ArtesFAST 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, EU, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the Netherlands Department of Commerce and the sanctions programs maintained by the European Union. 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 EU 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 EU. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the EU Denied Persons or Entity List, the EU Specially Designated Nationals or Blocked Persons Lists, or the EU Debarred Parties List or otherwise ineligible to receive items subject to EU export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.
15.8 CONSENT TO USE ELECTRONIC RECORDS
Section 16 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 Expert or Business; (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.
“Escrow Account” means Business Escrow Account, Expert Escrow Account, or Fixed-Price Escrow Account.
“Escrow Instructions” means the Fixed-Price Escrow Instructions or the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions.
“Fixed-Price Contract” means a Service Contract for which Business is charged a fixed fee agreed between a Business and a Expert, prior to the commencement of a Service Contract, for the completion of all Expert Services contracted by Business for such Service Contract.
“Expert Fees” means: (a) for an Hourly Contract, the amount reflected in the Hourly Invoice (the number of hours invoiced by Expert, multiplied by the hourly rate charged by Expert); (b) for a Fixed-Price Contract, the fixed fee agreed between a Business and an Expert; and (c) any bonuses or other payments made by a Business to a Expert.
“Expert Services” means all services performed for or delivered to Business by Experts.
“Hourly Contract” means a Service Contract for which Business is charged based on the hourly rate charged by Expert.
“Hourly Invoice” means the report of hours invoiced for a stated period by a Expert for Expert Services performed for a Business.
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 ArtesFAST, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as ArtesFAST may accept from time to time in our sole discretion.
“Project” means an engagement for Expert Services that a Expert provides to a Business under a Service Contract on the Site.
“Staffing Employee” means a Expert enrolled in ArtesFAST Payroll, accepted for employment by a Staffing Provider, and assigned by the Staffing Provider to provide Expert Services to one or more Business(s).
“Service Contract” means, as applicable, (a) the contractual provisions between a Business and a Expert governing the Expert Services to be performed by a Expert for Business for a Project; (b) a Direct Contract as defined in the ArtesFAST Direct Contract Terms; or (c) if you use ArtesFAST Payroll, the contractual provisions between Expert and the Staffing Provider for the provision of services to Business, if any.
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“ArtesFAST App” means the online platform accessed using ArtesFAST’s downloaded application or other software that enables time tracking and invoicing, chat, and screenshot sharing with other Users.
“Work Product” means any tangible or intangible results or deliverables that Expert agrees to create for, or actually delivers to, Business as a result of performing the Expert Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.