Five Things You Need to Know About Upwork’s Terms of Service

It’s easy to skim through the Upwork Terms of Service when you’re focused on getting started, but don’t go too quickly: They’re an essential part of how Upwork helps users stay safe and keeps the marketplace trustworthy. This helps protect you whether you’re a freelancer who’s building a business, or a client looking for a skilled professional.

It’s a best practice to carefully read every section of the Terms of Service. Get familiar with the information it contains, both to protect your business and your reputation on the Upwork platform. In the interim, however, here’s a high-level overview of five things you need to know.

1. Circumvention Impacts Clients and Freelancers

Circumvention is the process of avoiding something, such as a legal obligation. With respect to Upwork, when a Client finds a Freelancer on our website, they agree to keep the relationship on Upwork—either for 24 months or until they pay an “Opt-Out Fee”. This means that during this time all payment transactions between the Client and Freelancer must go through Upwork; “under the table” payments aren’t allowed.

In fact, paying someone outside of the Upwork platform is considered Circumvention—something you agree not to do when you accept the Terms of Service. If you breach that agreement, you may be charged the Opt-Out fee and removed from Upwork.

What it means:

Upwork enables Clients and Freelancers to connect and enter into a formal business relationship with one another (a Service Relationship). That relationship enables Clients to get more work done, faster, and Freelancers to get paid quickly and securely.

To help build and maintain a trustworthy community for online work, Upwork charges a Service Fee every time Clients and Freelancers in an Service Relationship pay and receive payments through the Upwork website (Site).

As set out in the Terms of Service, any time two parties enter into a Service Relationship through Upwork both the Client and the Freelancer agree to use the Site as the exclusive method to request, make, and receive payments for the first 24 months—a time referred to as the “Non-Circumvention Period.”

In other words, if a Client enters a working relationship with a Freelancer through Upwork, neither party can move that relationship off of the Upwork platform for the first two years, unless you choose to pay an Opt-Out Fee.

See the full Terms of Service for complete conditions and requirements.

2. Confidentiality Covers Information Shared and the Final Product

Unless a Client and Freelancer agree differently, when a Freelancer and Client enter into a Service Relationship through Upwork they agree that what’s said, written, electronically shared, or performed via Upwork, will strictly stay confidential—between themselves.

There are some exceptions. For example, if a Client publishes research that was produced by a Freelancer, the Freelancer will no longer need to keep the research private—but would still be required to keep the underlying data provided by the Client confidential.

What it means:

Any confidential information shared by a Client with a Freelancer, as well as the Work Product (deliverable or outcome) of the Upwork Relationship, is considered private and confidential (Confidential Information). Once payment is made in full, all Work Product belongs to the Client.

That confidential information can’t be shared with anyone else, in any form, unless express written consent is provided by the other. And when a project is complete, the Freelancer agrees to promptly return or destroy any and all Confidential Information they’ve received from the Client.

As a Client, you can also ask Freelancers to sign your own Non-Disclosure Agreement at the start of a project.

For complete information on Confidentiality, see the full Terms of Service.

3. Intellectual Property Covers a Wide Range of Things and Ideas

Intellectual Property refers to intangible, abstract ideas that come from the imagination, what’s often referred to as inventions. What are “inventions” in the Client-Freelancer relationship, and who owns them? The Terms of Service contain default terms here, too.

The Client owns any information they provide to a Freelancer to do the work, but grants the Freelancer the right to use that material as necessary to create the Work Product. Clients retain all Intellectual Property rights for these materials, and—to protect Confidential Information—the materials must be returned or destroyed when the job wraps up.

Once a Freelancer has received full payment from the Client, any intellectual property generated by the project becomes the full property of the Client. A Freelancer retains no rights to use it. (However, if a Client makes only a partial payment, they own only the portion of the Work Product that’s already been paid for.)

This ownership means that if you’re a Freelancer, and you’d like to include your latest project in your portfolio, you and your client must agree to that, either before or after you work on the project.

Another thing Freelancers need to be aware of is Background Technology. If a Freelancer plans to incorporate any of his or her own inventions—developed before they started working on a Client project (called Background Technology)—into the Work Product, it must be clearly stated in the Upwork Relationship Engagement Terms. By accepting full payment once the work is complete, the Freelancer grants the Client a license to use any Background Technology that has been incorporated in the Work Product.

For complete information on Intellectual Property, see the full Terms of Service.

4. Worker Classification is the Client’s Responsibility

Freelancers may be classified as Independent Contractors or as Employees. Because only the Client knows the requirements of their project and how they plan to work with the Freelancer, it’s the Client’s responsibility to classify Freelancers correctly.

What it means:

Correctly classifying workers as Independent Contractors or Employees can be a balancing act that has both tax and employment law implications—and as explained in “Employee or IC? Compliance at a Glance,” the rules aren’t always easy to interpret.

On Upwork, the Client is responsible for determining the worker classification of each Freelancer and assumes all related liability.

If your Freelancer is best classified as a W-2 Employee, Upwork Payroll can employ the worker and help with payment of wages, tax withholding, and Affordable Care Act and other employment compliance.

For complete information about Worker Classification, see the full Terms of Service.

5. There’s Assistance Available for Disputes and Arbitration

If you should find yourself in a disagreement with another User and need help resolving the issue, we offer Dispute Assistance to Clients and Freelancers. In the rare event you should need it, binding arbitration is also available for fixed-price contracts.

For complete information about Disputes and Arbitration, see the full Terms of Service.

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