YESWEAD S.A. (hereinafter, "YESWEAD"), a legal entity registered in accordance with the laws of Argentina, is the company that manages and owns the materials and copyrights of the www.yeswead.com website (hereinafter, the platform), domiciled at Av. Leandro N. Alem 734, 3rd floor in Buenos Aires City, Argentina.
YESWEAD welcomes you and invites you to read carefully the General Conditions of Use and User Agreement on this website (hereinafter, "Conditions of Use"), which describe the terms and conditions applicable to its navigation and constitute a contract between YESWEAD and the end user. Given that YESWEAD may modify in the future these Conditions of Use, we suggest you visit them regularly in order to be duly informed of the changes.
Certain features of the Services or the Site might be subject to additional guidelines, conditions or regulations, which will be published in the Service or on the Site when appropriate. Such additional guidelines, conditions or regulations are referred to in this Agreement; in case of conflict between those conditions, guidelines and regulations and these Conditions of Use, these Conditions of Use shall prevail. The Platform is only available to legal entities and individuals older than eighteen (18) years of age, who also have full legal capacity to enter into legally binding contracts under applicable law.
The User accepts that he/she is not (a) a citizen or resident in a country that forbids the usage of or participation in this site by law, executive order, regulation, treaty or act performed by a governmental authority; (b) a citizen of, resident in, or person or entity located in a country or region subject to sanctions and prohibitions by the U.S. or other sovereign countries, including but not limited to Cuba, Iran, North Korea, Sudan and Syria; or (c) an individual or an individual employed by or associated with an entity listed in the U.S. Department of Commerce's Denied Persons or Entities List, in the Specially Designated Nationals and Blocked Persons List, published by the U.S. Department of Treasury, or the List of Excluded Individuals by the State Department, or who was not capable of receiving items subject to U.S. regulations or export control laws, or any other financial penalty in any sovereign nation.
YESWEAD merely offers its services and third party products and services through the Platform.
YESWEAD provides an online platform that helps contact clients who want to buy creativity, designs, strategies and other services related to advertising communication (the “Clients“) with art directors, copywriters, designers and other creative professionals who want to provide said services. “User” means any user of the Site or the Service, and it could be a client who requests a service or a freelance worker who offers their services. If you are a Client, all conditions related to Clients in this Agreement will apply to you. If you are a freelance worker, all conditions related to freelancers in this Agreement will apply to you. If you are a User, all conditions related to Users in this Agreement will apply to you.
User Status and Acceptance of Conditions
By navigating the platform, you are considered a "User", and this implies the full acceptance without reservations of its Conditions of Use.
The User commits to fulfilling the Conditions of Use as well as the eventual warnings or instructions the platform may include and to always acting in accordance with the law, the good customs, the morality, the public order and the requirements of good faith, using due diligence appropriate to the nature of the service received, not using the platform in a detrimental way to the normal functioning of the platform, the goods or rights held by YESWEAD or any third party in general.
YESWEAD expects its users to treat each other with a friendly, respectful and professional attitude.
Users agree that they need to use their good judgment when publishing information, comments, replies or any other type of content related to other users, YESWEAD or third parties within the Platform. Users will be liable for damage caused on other Users, YESWEAD or third parties as a result of comments, observations or any other type of information or content published on the Platform that is defamatory or punishable by law. All Clients and Independent Contractors must comply with the laws applicable to them or their activities, and with YESWEAD Policies, incorporated into this Agreement by reference. These policies may occasionally be modified at the discretion of YESWEAD, in which case the existing policies will be considered to be part of this Agreement.
In particular, and without limitation, the User undertakes:
- Not to access (or try to access) the Platform by any means other than the provided interface, and not to use the information on the Platform for purposes other than the ones it was created for.
- To become equipped with all the means and technical requirements needed to access the platform.
- To provide true information when completing their personal data in Platform forms and to keep them updated at all times so that they always reflect the real situation of the User. The User will be solely responsible for all false or inaccurate statements and the damages caused to YESWEAD or any third party by the information provided.
- Not to enter, store or spread through the Platform any software, data, virus, code or any other element that may cause damage to any equipments, systems or networks owned by YESWEAD or any third party, or which could otherwise affect their functioning.
- Not to use the Platform for illegal purposes, which are detrimental to a third party's rights and interests, or which can damage, overload, deteriorate or impair the proper functioning of computer equipment, documents, files and all types of content stored in any computer equipment owned by YESWEAD or any other Internet user (hardware and software).
- Not to use personal contents and information that could be obtained through the Platform to send advertisements or commercial messages, without previous request or consent from the other parties, or to send multiple people (spam) any other type of message that is not previously requested or consented to.
- Not to become involved in activities that interfere with or affect the normal functioning of the Platform. Not to post or attach invalid, malicious or unknown files. Not to insert external links that could be malicious or unknown, or could be used to advertise products and services other than the ones offered by YESWEAD.
In accordance with the law, YESWEAD is not liable for comments, information or other contents published or displayed on the Platform by any User or third party, even when such contents or information are defamatory or punishable by law.
YESWEAD is not responsible for, nor controls or censors, contents in order to prove their accuracy and reliability. Nevertheless, YESWEAD reserves the right to delete or restrict access to any content or information published or displayed on the Platform if this was requested by a governmental authority, or if YESWEAD considers that such information or content breaches this Agreement.
2. YESWEAD POLICIES.
Identity and Account Security
All identity information associated with a User account on YESWEAD must be real and verifiable. Every User account on YESWEAD must only be used by one person, and each person is allowed to use only one User account.
YESWEAD reserves the right to validate User information at any time, including –but not limited to– validating information with respect to third party databases or verifying one or more legal or government official documents to confirm the identity of the User.
The User authorizes YESWEAD, directly or through a third party, to make any inquiries necessary to validate your identity and confirm that you are indeed the owner of your email address or your financial instruments. Failure to provide information about you and your business when requested is a violation of this Agreement. The User is solely responsible for ensuring and maintaining the secrecy and security of the password they use for their YESWEAD User account. The User agrees not to disclose their password to third parties and will be solely responsible for any use of or action taken through the use of such password on YESWEAD. You must notify YESWEAD's Support Team immediately if you suspect that your password has been lost or stolen, and it must be changed immediately. By using your YESWEAD User account, you acknowledge and agree that YESWEAD's account security procedures are commercially reasonable. You shall not allow third parties to use this password to perform any action. This includes –but is not limited to– posting projects, offering or providing Services using your YESWEAD User account, except through an authorized YESWEAD API.
It will also be possible for legal entities to register as a User on the Website. In that case, an individual needs to be designated as the contact for the registered business. YESWEAD will be able to establish, at its sole discretion, specific services for businesses.
YESWEAD charges a commission to the Clients for the services and technologies provided, including –but not limited to– Platform maintenance, provision of online monitoring tools and the possibility of achieving optimal performance in the quality of their projects. In general, this commission is 15% on the Client's payment.
Posting a project. No project posted on YESWEAD can include information to facilitate or request payments outside the Platform. Project offers must be professional and describe in detail which Services are required. They must not contain offensive vocabulary or advertise other products or services. Project offers must not request services that are illegal or violate intellectual property rights, copyrights, or the terms of service of other services, products or websites. Project offers related to the creation of explicit or adult content are forbidden. When posting a Project offer that has adult or potentially offensive content, this must be notified to the potential readers by mentioning it in the title of the job offer.
Applying for a Project.All the information included when applying for a project must be true, exact and complete. YESWEAD reserves the right to verify all information included in the User profile. When applying for a project, the User guarantees that they possess all the skills and abilities needed to provide the Services requested in the offer within the deadline.
Project management.Clients agree to check the work and reply without delays to the messages and information requests from the Freelancers. The Client agrees to provide detailed information to the Freelancers.
Performance of contracts. Clients agree to use the communication tools provided by YESWEAD. Any communication made outside of the platform cannot be used in disputes or endorsed by YESWEAD. The Client is responsible for providing all tools and means needed to carry out the Project, unless the Client expressly states otherwise in advance. Freelancers agree to reply messages and information requests from the Client within one business day. In the case the Freelancer is not able to fulfill this requirement due to absence, the Client must be notified with a minimum of 2 weeks notice. Once the Project is finished, the Freelancer agrees to provide the Client with honest and objective feedback in due time.
Once the winner of the bidding process or contest is selected, the Client will pay YESWEAD fees first. Then, once the work is finished, the Client will pay the agreed fees to the freelancer directly according to the selected payment method.
“Client's Payment” means the price selected by the Client when they create a contest or a bidding process. “Freelance Worker Fees” means the Client's payment minus YESWEAD's fees and charges and any other applicable taxes. The Buying Client will not pay the Freelance Worker any amount greater than the Client's Payment for the sold project, nor will they pay outside the Platform any amount related to the delivery of a Project.YESWEAD does not possess a billing service or a safe custody account for the payments from the Client to the Freelance Worker. YESWEAD does not act as an agent for the Freelance Worker with regard to the payments proposed in order to carry out Clients' bidding processes or contests. YESWEAD will establish the necessary conditions for the Freelance Worker to receive the agreed payment.
All payments will be carried out in the currency selected by the Client. You accept responsibility for the collection and/or payment of all Taxes you are liable for in any jurisdiction, arising from the sale or purchase of any Projects sold through our Site or from your provision of services subject to an invoice issued by the Freelance Worker. YESWEAD will not be responsible for collecting, communicating, paying or reducing any such Taxes for you. “Taxes” means any fees, sales taxes, goods and services tax or applicable VAT, or any other taxes that could arise in relation to the operation referred to in this Agreement.
Failure to Pay.
If the Client, for any reason, cannot pay what is due as established by this Agreement, the Client's account will be suspended, no more payments will be processed, and any ongoing projects will be canceled. Without dismissing other applicable compensations, the Client will have to compensate YESWEAD for the unpaid amounts, as well as any other applicable charge or fine, and a minimum monthly interest of two per cent (2%) or the maximum permitted by law, plus attorney's fees and any other collection cost permitted by law. At its sole discretion, YESWEAD will be able to compensate unpaid expenses with other received or deferred payments for the Client, create the necessary reports for credit bureaus and legal authorities, and cooperate with them in any resulting investigation or criminal case.
Clients can dispute a Project within three (3) days after it has been finished. It is the Client's responsibility to analyze all disputes in a timely manner. Once the dispute period has ended, the Client has to accept the charges, which cannot be disputed further and can only be refunded by the Freelance Worker.
All dispute resolutions by YESWEAD are considered final and cannot be appealed. We will always make sure the Client and the Independent Contractor reach an agreement, whichever the situation might be. In cases where it is not possible to reach a consensus, YESWEAD will make the final decision using internal communication records and other means we consider useful. All communications between the Client and the Freelance Worker that have taken place outside YESWEAD will not be used in any dispute.
Rating and Feedback
YESWEAD offers a system for rating and Feedback as a channel through which Users can express their opinions publicly. YESWEAD does not control or censor these opinions, nor do we analyze the comments posted by Users looking for accuracy or reliability. Users acknowledge and accept that the Platform contains public feedback by the Users with whom they have done business. Users understand that a person's feedback is the result of a series of comments and ratings by other Users, and that YESWEAD calculates the number based on these individual ratings. You may be held liable for damages caused on other Users, YESWEAD or third parties as a result of these comments, in case a court finds these references defamatory or punishable by law. YESWEAD is not responsible for feedback or comments posted on the Platform by other Users or third parties, even when that information is defamatory or punishable by law. Any attempt to falsify feedback, manipulate or coerce other Users into providing negative feedback, or offering to sell or buy Services in exchange for feedback violates this Agreement. YESWEAD reserves the right to delete ratings or feedback as deemed appropriate.
YESWEAD manages personally identifiable information in a different way than general information. Personally identifiable information can be used to identify, locate and contact someone. General information is all information that is not personally identifiable and is not related to personal identity information. YESWEAD can transform personally identifiable information into general information by excluding information related to personal identity. You acknowledge that general information belongs to YESWEAD and that YESWEAD has the right to use such information as deemed appropriate. YESWEAD can process information in the country where it was collected, as well as in other countries (including the U.S.), where the laws on processing personal information can be less strict than those in your country.
Security. We will use commercially reasonable methods to ensure the security of personally identifiable information in all our files and systems. For example, we use safe Internet connections, including SSL protocol, which helps protect financial information.
Information collected upon registration. If you register to buy or sell Services through YESWEAD, we collect and store your personally identifiable information, including your name, home address, email address and password. YESWEAD may require additional information from you or a third party in order to validate or complete this information. Clients also need to enter information regarding payment methods, such as credit cards, bank accounts or information about their PayPal accounts. You agree to provide the information we require in a reasonable manner, even if the request is made after you finish your job for a specific Project.
Private and shared sections within the Platform facilitate communication and the exchange of information between Clients and Independent Contractors once the Project has begun. YESWEAD may use general information from these and other sections in the Platform for the following purposes: statistical analysis, product development, marketing and research. YESWEAD reserves the right to monitor all communications in the Site and, if we consider a User is violating this Agreement, YESWEAD Policies or any other international, federal or state law, we may terminate its use. YESWEAD makes commercially reasonable efforts to ensure that the collection of such relevant information does not interfere with your system's operation or security.
Use of personally identifiable information. The Platform describes how personally identifiable information is shared. Also, we use personally identifiable information for our own purposes, such as sending you an email to inform you about Platform updates, and to provide services and information related to transactions made through the Platform. We supply personally identifiable information to third parties who process it following our instructions in order for YESWEAD to provide its services. We reserve the right to disclose your information if we believe in good faith that this (i) is required by law, some regulation or a legal process; (ii) is necessary to detect, prevent or remedy violations of this Agreement, fraud, security or technical problems; or (iii) is permitted with the aim of protecting YESWEAD, other Users or the public. If there were a change of management at YESWEAD due to a merger, an acquisition, or a sale of shares or assets, we will let you know before your personally identifiable information is transferred or becomes subject to other privacy policies.
Companies and Company Workers.
A "Company" is an organization that wants to earn money on YESWEAD by selling the Services of Company Workers. A "Company Worker" is a contract worker that offers their services on YESWEAD on behalf of a Company. A Company has a manager who is responsible for all its members' actions, including its Company Workers, administrators in charge of managing the Company's finances, list and profile, and staff managers responsible for seeking and monitoring Contracts. A User can assume all these different roles, or some of them. Anyone who works for a Company needs to have their own individual User account and a Freelancer profile associated to their Company on YESWEAD. If a Company Worker stops working in a Company, the Company will not be able to use that Freelancer's profile under any circumstances. Workers who terminate their business relationship with a Company need to contact the Company's manager in order to eliminate the association between them and said Company. The Company cannot refuse to eliminate its association with a Company Worker. When severing ties with a Company, Company Workers do not lose their profiles, their works or the feedback and rating they have accumulated. Their records intend to reflect the work they have done. The Company's work history and feedback will still show the Projects of the Workers who have severed ties with the Company.
Enforcement of User Agreement and Policies
YESWEAD has the right, but not the obligation, to suspend or cancel your access to the Platform if it considers that you have violated or acted inconsistently with the spirit of this Agreement, or violated our rights or a third party's rights. Without limiting other applicable remedies by YESWEAD, we may suspend or cancel your account, seek legal advice about our rights in order to claim any available funds, and refuse to give you access to the Platform if (a) you breach any of the terms and conditions in this Agreement or other policies and procedures posted on the Platform; (b) we cannot determine the authenticity or truthfulness of some of the information you provided; or (c) we believe that your actions make you, our Users or YESWEAD legally liable. Once the account is suspended or canceled, YOU SHALL NOT be able to continue using the Platform with any other account or register again to another account. If you try to use the Platform with a different account, we reserve the right to claim any available funds in that account and/or use any available payment method to pay for any outstanding balance. Moreover, the person who violates this Agreement may be penalized with the full extent of the law and may receive additional penalties and sanctions. When your User account is canceled, you no longer have access to any of the Platform sections, including information, messages, files or any other materials stored on YESWEAD. All copyrighted materials provided by the Clients to carry out Projects must be returned immediately when the account is closed.
3. TERMS OF THE SERVICE CONTRACT.
The User understands that the Service Contract entered into by the Client and the Freelancer must include the terms and conditions detailed in the Sections below. The Client and the Freelancer may specify in their Service Contract different terms than the "Standard Terms"; however, no aspect of such Service Contract shall in any way limit or modify YESWEAD's rights.
The Freelancer must provide services in a professional manner. In Creativity Contests and Project Bidding Processes, the Freelancer must deliver the Work Product as agreed.
Creativity Contest and Project Bidding Process
A project is created indicating the job that is required. Art directors, copywriters, designers and other creative professionals interested in the project send their proposals. The Client picks a proposal or a creative professional to carry out the project and accepts their proposal. At that moment, a payment is made to YESWEAD so that both interested parties can start working. Together they develop the required job exchanging all the necessary materials, such as messages or files, through the platform. Thus, YESWEAD can perform a complete monitoring of the process, ensuring both parties comply with their agreement. Once the professional delivers their work, they are paid and the project becomes completed. Each party receives their ratings for future reference.
Creativity Contest. The Client may create a Project for a creativity contest by giving some technical instructions or briefs, and following the remaining instructions on the Platform. Creative professionals invited by YESWEAD (at its sole discretion) to participate in a Contest may submit proposals in the format indicated by YESWEAD and following the instructions. Proposals must comply with the Technical Instructions. The Client must select one or more winning proposals at a certain time, specified by YESWEAD. If none of the proposals met the expectations of the Client and were therefore not selected, the Client may declare the Contest void and make another Creativity Contest, only 1 more time, changing the budget range and the instructions in order to obtain the desired results.
The Client will not be able to: (a) Organize a Contest proposing its creation through a service other than the Site; (b) allow or ask creative professionals to submit Proposals to Clients through any means other than the Site; and (c) act in connivance when selecting a winner in a Contest or declaring as the winner of a Contest another account owned by the Client. Clients and Creative Professionals must operate under fair market conditions. The Client will not be allowed to cancel any Contests in order to directly hire a Creative Professional with whom they have made contact through the Site, when this implies that the Client is eluding paying YESWEAD the Client's Payment or YESWEAD fees and charges.
Project Bidding Process. The Client may create a Project Bidding Process by giving some technical instructions or briefs, and following the remaining instructions in the Platform. Creative Professionals invited by YESWEAD (at its sole discretion) to participate in a Bidding Process may submit proposals in the format indicated by YESWEAD and following the instructions. Proposals must comply with the Technical Instructions. The Client must select one or more winning Proposals at a certain time, specified by YESWEAD. Lots of creative professionals and designers place a bid and establish a delivery date according to the needs specified by the Client in their brief. The Client will also be able to see the Freelancers' work experience and portfolio, as well as their rating on the site.
The selection will be based on the best bid + delivery date + experience and portfolio + YWA ratings. In this case, the Client chooses the winner and starts working with them. If none of the proposals met the expectations of the Client and were therefore not selected, the Client may declare the Bidding Process void and make another one, only 1 more time, changing the budget range and the instructions in order to obtain the desired results.
The Client will not be able to: (a) Organize a Bidding Process proposing its creation through a service other than the Site; (b) allow or ask creative professionals to submit Proposals to Clients through any means other than the Site; and (c) act in connivance when selecting a winner in a Bidding Process or declaring as the winner of a Bidding Process another account owned by the Client. Clients and Creative Professionals must operate under fair market conditions. The Client will not be allowed to cancel any Bidding Processes in order to hire directly a creative professional with whom they have made contact through the Site, when this implies that the Client is eluding paying YESWEAD any Client Payment or fees and YESWEAD charges.
Third Party Sites and Advertisements. The Platform may contain links to third party sites, services and advertisements (“Vendor directory”). Those Third Party Sites and Advertisements are not controlled by YESWEAD, who will not be liable for any Third Party Site or Advertisement. YESWEAD provides those Third Party Sites and Advertisements for convenience only, and does not check, approve, control, support, guarantee or make any statement in relation to those Third Party Sites and Advertisements. You will use all those Third Party Sites and Advertisements at your own risk. When following a link to a Third Party Site or Advertisement, the terms and policies of such third party will apply, including their privacy and data collection policies. You will have to make any inquiries you consider necessary or convenient before making any operation related to those Third Party Sites and Advertisements.
The Worker and the Company understand and acknowledge that neither the Company employees nor the contract workers are employed by YESWEAD or the Client. The Company is solely responsible for the salaries, costs and expenses of the Company employees and the contract workers, and has the sole and exclusive right to supervise and control them. Neither the Client nor YESWEAD will demand contract workers in a Company to work full-time in order to fulfill the contracts entered into by the Company, as requested in this Agreement. Moreover, both the Worker and the Company acknowledge and understand that neither the Company nor any of its employees or agents will be able to file a complaint under this Agreement for the payment of overtime, sick leave, vacations or holidays, pension, workers' compensation benefits, unemployment benefits or any other type of employee benefits from the part of YESWEAD or the Client.
The Client will have to pay the Freelancer the agreed fees for the delivery and acceptance of the Work Product. All sums of money paid by the Client need to be notified to YESWEAD, and this will be done through the Platform, as part of the feedback and monitoring. The Client's commitment to paying the Freelancer is a condition to continue using the Platform and will be reflected on the Client's Rating. .
Ending a Project Bidding Process.
With regard to project Bidding Processes, the Client will be able to end them at any time but will not be able to recover the payments made to the Freelancer, unless this has been previously agreed on by both parties. The Freelancer is able to end a contract at any time only if no payments have been received.
The Client grants the Freelancer a limited, nonexclusive, revocable (at any time, at the Client's sole discretion) right to use the Client's Materials as needed for providing the Service. The Client reserves all other rights and interests, including, but not limited to, property rights to the Client's Materials. Once the Service has been finished or completed, or upon written request from the Client, the Freelancer will have to return all Client's Materials immediately and agrees to dispose of all existing copies of the Materials and Work Product in premises, systems and any other device controlled by the Freelancer. The Freelancer agrees to send the Client a written confirmation that certifies the return and disposal of the Client's Materials within ten (10) days after receiving the written request from the Client.
Any copyright-protected work or paid work prepared by the Freelancer for the Client as part of a Creativity Contest or a Project Bidding Process will be kept by the Freelancer until the Client has made the payment and the Freelancer has accepted it.
If the Client pays a lesser amount than the agreed one in the Service Contract, the Freelancer shall be allowed to return the paid amount within two (2) weeks as of the payment date and to keep the Work Product in their possession.
In so far as, under the applicable law, Property Rights cannot be transferred, the Freelancer agrees to assign and hereby assigns the Client an exclusive (excluding also the Freelancer), perpetual, irrevocable, unlimited, worldwide, fully paid and unconditional license to use and commercialize the Work Product in any manner now known or in the future discovered. In so far as such license grant is not fully valid, effective or enforceable under applicable law, the Freelancer irrevocably agrees to assign, and hereby assigns, the Client such rights reasonably requested by them in order to acquire, as soon as possible, the full and exclusive legal ownership. In order to ensure the Client will be able to acquire, perfect and use such Property Rights, the Freelancer shall: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to the Client; (ii) sign any documents at the Client's request to assist them in the documentation, perfection and enforcement of their rights; and (iii) provide the Client with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Property Rights.
The Freelancer also irrevocably authorizes the Client to act and sign on the Freelancer's behalf and take any necessary steps in order to enforce the Client's rights under this Agreement. In the case that under applicable law, the Freelancer retains any rights of paternity, integrity, disclosure and withdrawal, and any other rights that may be known as or referred to as "moral rights" (collectively "Moral Rights") or other unalienable rights over the Work Product or Confidential Information under this Agreement, the Freelancer irrevocably agrees to waive, and hereby waives, all such rights, or, in so far as the Freelancer cannot waive such rights, the Freelancer agrees not to enforce such rights, until the Freelancer has provided prior written notice to the Client and then only in accordance with any reasonable instructions that the Client issues in the interest of protecting its rights. The Freelancer agrees to assist the Client in every proper way to obtain and enforce the Property Rights and other legal protections for the Work Product in any and all countries. The Freelancer will sign all documents that the Client may reasonably request to use in obtaining and enforcing such protection, including, but not limited to, any assignment deed which the Client may select at its sole discretion. The Freelancer's obligations under this section will continue even after the Freelancer deletes their account or ceases use of the Platform. The Freelancer appoints the Client as a representative to enforce documents on the Freelancer's behalf for the purposes set forth in this Section.
Relationship between the Client and the Freelancer.
This Agreement does not create any association or relation between the Client and the Freelancer. The Freelancer does not have the authority to enter into, implicitly or explicitly, any written or oral contracts on behalf of the Client.The Freelancer understands that YESWEAD does not, in any way, supervise, direct or control the Freelancer's work or services. YESWEAD does not set the Freelancer's work hours or work area. YESWEAD will not provide the Freelancer with training or any equipment, labor or materials needed for a particular Contract.
The Client and the Freelancer will be solely responsible for the payment of all applicable taxes or the filing of any tax returns with any federal, state, or local tax authority with respect to the Freelancer's Services.
All Freelancers belong to the category of Freelance Workers and are free to provide Services to persons or businesses other than the Client, including the Client's competitors.
The Client and the Freelancer are solely responsible for all obligations related to withholding taxes, tax payment and/or granting benefits arising from any relationship.
The Client and the Freelancer agree to indemnify, hold harmless and defend YESWEAD from any and all claims arising from or related to their Service Contract, including but not limited to claims that the Freelancer was misclassified, any liabilities arising from a decision made by a court, arbitrator, government agency (including, but not limited to, taxes, penalties, interests and attorney's fees), any claim that YESWEAD was an employer or joint employer of the Freelancer, as well as claims under any employment laws, such as those related to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, maternity leave, holiday or vacation pay, retirement benefits, workers' compensation benefits, unemployment benefits, or any other employee benefits.
Entire Agreement. The terms and conditions set forth in this Section and any additional or different terms expressly agreed by the Client and the Freelancer shall constitute the entirety of the agreement and understanding between the Client and the Freelancer with respect to each Service Contract, and shall cancel and supersede any other prior or contemporaneous debates, agreements, representations, warranties, and/or other communications between them.
4. USER'S ACKNOWLEDGEMENT OF YESWEAD'S ROLE.
The User expressly acknowledges, agrees and understands that: i) the YESWEAD Platform is merely a venue where Users may act as Clients or Independent Contractors; (ii) YESWEAD is not a party to any Service Contract between Clients and Freelancers; (iii) the User recognizes, acknowledges and agrees that the User is not an employee of YESWEAD and that YESWEAD does not, in any way, supervise, direct, or control User's work or Services; (iv) YESWEAD shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (v) YESWEAD has no control over Freelancers or over the Services promised or rendered by them; and, (vi) YESWEAD will not assume responsibility for the reliability, skills or qualifications of any Freelancers, or the quality, security or legality of any Services. YESWEAD disclaims any and all liability related thereto.
YESWEAD and its licensees reserve all Property Rights over the YESWEAD Platform. The User cannot use the YESWEAD Platform except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement and on the terms set out in the License Agreement. YESWEAD reserves the right to eliminate, expand and otherwise modify the YESWEAD Platform at any time and at its sole discretion. The User shall not be entitled to create any "links" to the Platform, or frame or mirror any content contained on, or accessible through, the Platform, on any other server or Internet-based device.
All contents on the Platform, especially designs, texts, images, logos, icons, buttons, software, trade names, brands, or any other signs that could be used for industrial or commercial purposes are subject to the intellectual and industrial property rights of YESWEAD and third party owners.
The User agrees not to reproduce, copy, distribute, make available or otherwise publicly communicate, transform or modify such contents, unless they have permission from the copyright owner or it is legally permitted to do so. Therefore, under no circumstances will it be understood that YESWEAD grants a license, waivers, transfers, or partially or totally assigns these rights, nor does YESWEAD grant any right or pending rights, especially regarding the alteration, exploitation, reproduction, distribution or public communication of such contents apart from those that are expressly authorized by YESWEAD or by their respective owners.
Information about Copyright/Trademark.
Copyright © 2014, YESWEAD. All rights reserved. All trademarks, logotypes and service brands (the “Brands”) shown on the Platform are owned by ourselves or by third parties. You shall not be able to use these Brands without our previous written consent or without the consent of the third party who owns the Brands.
All YESWEAD Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.
If you provide YESWEAD with any comments or suggestions regarding the Platform or the Services, you hereby assign to YESWEAD all rights over such Comments and agree that YESWEAD will have the right to use such Comments and related information as deemed fit. All Comments you provide to YESWEAD shall be treated as non-confidential and non-proprietary. You agree not to provide YESWEAD with any information or ideas you consider confidential or private.
5. FEES AND PAYMENTS.
Formal Invoices and Taxes.
YESWEAD shall have no responsibility for determining the necessity of or for issuing any formal invoices, or for establishing, remitting, or withholding any taxes applicable to Freelancer or Client Fees. Instead, the Freelancer and the Client shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices and for issuing any other required invoices for the Fees. The Freelancer shall also be solely responsible for: (a) determining whether the Freelancer is required by applicable law to remit to the appropriate authorities any value added tax or any other similar taxes or charges applicable to the Fees, and remitting any such taxes or charges to the appropriate authorities, as appropriate. YESWEAD shall have the right, but not the obligation, to audit and monitor the Freelancer's compliance with applicable tax laws as required by this Section.
The Client hereby authorizes YESWEAD to run credit card authorizations on all credit cards provided by the Client, to store credit card details as the Client's method of payment for Services, and to charge expenses on Client's credit card (or any other form of payment authorized by YESWEAD or mutually agreed to between the Client and YESWEAD).
6. CONFIDENTIAL INFORMATION.
In so far as a Client or Freelancer provides Confidential Information to the other and/or to YESWEAD, the recipient shall exercise at least the same degree of care as it uses with regard to its own Confidential Information, but in no event less than reasonable degree of care, and shall not: (i) disclose Confidential Information to anyone except, in the case of YESWEAD, a Client or Freelancer engaged in the Contract; and (ii) use the Confidential Information, except as necessary for the provision of Services for the relevant Contract (including, but not limited to, the storage or transmission of Confidential Information on or through the Platform).
Return of Confidential Information.
If and when Confidential Information is no longer needed for the provision of the Services established in the Contract , or upon the Client or Freelancer's written request (which may be made at any time at the Client or Freelancer's sole discretion), the Client or Freelancer (as the case may be) shall promptly destroy or return all Confidential Information and any existing copies in their premises, systems, or any other equipment under their control. Both the Client and Freelancer, as applicable, agree to provide the party disclosing the Confidential Information with a written certificate in compliance with this Section within ten (10) days after receiving the disclosing party's written request.
Without limiting this Section, the Client, the Freelancer and YESWEAD shall not publish, or cause to be published, any Confidential Information or Work Product, unless it is necessary for providing the Services of a relevant Contract.
7. NO REPRESENTATIONS OR WARRANTIES.
YESWEAD GIVES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES, WORK PRODUCT, PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YESWEAD DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS, AND NON-INFRINGEMENT. SECTION 10.2 (TERMINATION) STATES THE USER'S SOLE AND EXCLUSIVE REMEDY AGAINST YESWEAD WITH RESPECT TO ANY DEFECTS, FAILURE TO COMPLY OR DISSATISFACTION.
8. LIMITATION OF LIABILITY.
IN NO EVENT SHALL YESWEAD BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF YESWEAD TO ANY USER FOR ANY CLAIM ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED: (A) US$2,500; AND (B) ANY YESWEAD FEES RETAINED WITH RESPECT TO CONTRACTS IN WHICH THE USER WAS INVOLVED AS CLIENT OR FREELANCER DURING A SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY DUE TO ANY REASON OR CAUSE WHATSOEVER, SUCH AS TORTS (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL THEIR ESSENTIAL PURPOSE.
IMPORTANT RELEASE FROM LIABILITY.
WE DO NOT PROVIDE ANY WARRANTY IN RELATION TO CREATIVITY CONTESTS, PROJECT BIDDING PROCESSES, DESIGN OR CREATIVITY PROPOSALS, ANY OTHER PRODUCTS OR SERVICES PROVIDED BY FREELANCERS, CREATIVE PROFESSIONALS, CLIENTS OR OTHER USERS, AND ALL PREVIOUS ITEMS ARE PROVIDED "AS IS". CREATIVE FREELANCERS, DESIGNERS AND PROFESSIONALS SELL, AND THE CLIENTS BUY, SERVICES AND PRODUCTS AT THEIR OWN RISK. YOU SHALL HAVE TO MAKE ANY INQUIRIES YOU CONSIDER NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH A TRANSACTION WITH ANY OTHER USER. YOUR INTERACTIONS WITH OTHER USERS ARE MADE EXCLUSIVELY BETWEEN YOU AND SAID USERS, AND YESWEAD WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM SUCH INTERACTIONS. IF ANY DISPUTE AROSE BETWEEN YOU AND ANOTHER USER, WE ARE UNDER NO OBLIGATION TO BECOME INVOLVED. NOTWITHSTANDING THE FOREGOING, YESWEAD WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICES DESCRIBED IN THIS AGREEMENT AND THE DISPUTE RESOLUTION SECTION. THIS DISCLAIMER DOES NOT LIMIT THE MORE GENERAL DISCLAIMERS CONTAINED HEREIN AND OTHER APPLICABLE DOCUMENTS.
You hereby release and forever discharge us (and our managers, employees, agents, successors, and assignees) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, complaint, right, obligation, liability, action and cause of action of any kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly from, or relates directly or indirectly to, any interactions or transactions with, or act or omission, of other Users, including Clients and Freelancers and Third Party Sites and Advertisements. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “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.”.
Release from liability.
THE PLATFORM AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WE DO NOT GRANT (NOR DO OUR VENDORS) ANY WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ABSENCE OF ERRORS AND NON-INFRINGEMENT. WE DO NOT WARRANT (NOR DO OUR VENDORS) THAT THE SITE OR THE SERVICES: (A) MEET YOUR NEEDS; (B) ARE AVAILABLE IN AN UNINTERRUPTED, TIMELY, SAFE OR ERROR-FREE FASHION; OR (C) ARE PRECISE, RELIABLE, FREE OF VIRUSES AND OTHER MALICIOUS CODES, COMPLETE, LEGAL OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLICIT WARRANTIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU..
Each User shall indemnify, defend and hold harmless YESWEAD and its subsidiaries, affiliates, officers, employees, representatives and agents (each an "Indemnified Party" for purposes of this Section) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to any claim, judgment, or adjudication that any Work Product, Service, or action or omission by such User infringes Property Rights or other rights of any third party.
Indemnification by Client.
Each Client shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or related to (i) such Client's use of Services, including but not limited to claims by or on behalf of any Independent Contractor for Worker's Compensation or unemployment benefits, or (ii) any Service Contract entered into by said Client and an Independent Contractor.
Indemnification by Freelancer.
Each Freelancer shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or related to (i) such Independent Contractor's provision of Services, or (ii) any Service Contract entered into by said Freelancer and a Client.
10. TERM AND TERMINATION.
The term of this Agreement starts on the Effective Date and remains in full force and effect until terminated pursuant to the following Section.
Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or by terminating or suspending the User's account), provided that any such termination for convenience shall not affect the validity of any Service Contracts that are being performed prior to termination and this Agreement must continue to apply to such Service Contracts.
Effects of Termination.
Termination shall not relieve the Client of their obligation to pay for the time spent and expenses incurred prior to the effective date of the termination, whose fees and expenses, together with any applicable taxes, shall be invoiced to the Client following termination, and charged on the Client's credit card or other form of payment pursuant to Payment Section.
Sections 4 through 12 of this Agreement shall survive any termination thereof.
This Agreement sets forth the entire agreement and understanding of the parties regarding its subject matter and extinguishes and supersedes any prior or contemporaneous debates, agreements, representations, warranties, and other communications between them.
Notwithstanding the foregoing, Clients and Freelancers may enter into any supplemental or any other written agreement that they deem appropriate (e.g., confidentiality agreement, work-for-hire agreement, assignment of rights, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand YESWEAD's obligations or restrict YESWEAD's rights under this Agreement.
The User shall not violate any laws or third party rights on or related to the Platform. Without limiting the generality of the foregoing, the User agrees to comply with all applicable import and export control laws and third parties' Property Rights.
Notices: Consent to Electronic Notices.
You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Platform. Notices hereunder shall be invalid unless made in writing and (a) sent by YESWEAD via email (in any case to the address that you provide), (b) posted on the YESWEAD Site or (c) sent by you via email at [email protected] or at any other email addresses specified by YESWEAD. The date of receipt shall be considered as the date on which such notification is transmitted.
No modification or amendment to this Agreement shall be binding upon YESWEAD unless in a written document signed by a duly authorized representative of YESWEAD. For the purposes of this Section, a written document shall expressly exclude electronic communications such as email and electronic notices.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party's right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
The User may not assign this Agreement, or any of the rights or obligations herein, without YESWEAD's prior written consent in the form of a written document signed by a duly authorized representative of YESWEAD (and, for the purposes of this Section, a written document shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). YESWEAD may freely assign this Agreement without consent of the User. Any attempted assignment or transfer in violation of this Section shall be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and authorized assignees of the parties.
If any provision of this Agreement is determined to be illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such part thereof shall be inoperative in the jurisdiction where it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified as necessary to be valid and enforceable pursuant to applicable law and to come closest to expressing the original intention of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall 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.
Choice of Law.
This Agreement and any controversy, dispute or claim arising out of or related to this Agreement ("Claims") shall be governed by and construed in accordance with the laws of the Argentine Republic, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Informal Dispute Resolution and Arbitration.
YESWEAD and the User hereby agree that any Claims shall first be settled through the YESWEAD dispute resolution program. Those Claims that the parties cannot resolve informally and where the amount in controversy is less than USD$25,000, the parties agree to resolve in a cost-effective manner through binding non-appearance- based arbitration conducted by a single arbitrator. If a party elects arbitration, said party shall initiate the arbitration through an alternative dispute resolution (ADR) provider mutually agreed upon by the parties or the American Arbitration Association (AAA) if no other service is agreed upon. The arbitrator shall be randomly selected from a list of no less than five candidates. Unless the parties mutually agree otherwise, the ADR provider and the parties shall proceed as follows:
- the arbitration will be conducted by telephone and/or be solely based on written submissions, as specified by the party that initiates the arbitration;
- the arbitration shall not involve any personal appearance by the parties or witnesses; and
- any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Disputes over $25,000 that do not involve YESWEAD may be resolved in whatever venue the parties deem appropriate.
The Spanish language version of this Agreement shall be controlling in all respects and shall prevail in case of inconsistencies with translated versions, if any. All translations, even if appearing on the site, are made for illustration purposes only in order to facilitate understanding for non-Spanish speakers, but the only version that contractually obliges YESWEAD is the Spanish language version.
12.1 "Client" means any User using the YESWEAD Platform to request Services to be performed by a Freelancer. From time to time, YESWEAD may act as a Client, and the terms and conditions of this Agreement applicable to Clients shall also apply to YESWEAD when acting so.
12.2 "Client's Materials" means instructions, requests, intellectual property and any other information or materials that a Freelancer receives from a Client for a particular Contract.
12.3 "Confidential Information" means Client or Freelancer's Materials, Work Product, and any other information provided to, or created by, a User for a Contract, regardless of whether they are delivered in a tangible, electronic, verbal, graphic, visual or any other format. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of the Freelancer or the Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party with the right to disseminate the information; (c) was already known by the 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 the User without using Confidential Information.
12.4 "Contract" means a particular project or set of ongoing tasks for which a Client has requested Services to be provided by a Freelancer, and the Freelancer has agreed to provide, through the Platform.
12.5 "Freelancer" means any User, whether a company worker or an individual, using the YESWEAD Platform to offer Services to Clients.
12.6 "Freelancer's Materials" means instructions, requests, intellectual property and any other information or materials that a Client receives from a Freelancer for a particular Contract.
12.7 "Freelancer Fees" means any type of payments made by a Client for a particular Contract.
12.8 "Effective Date" means the date of acceptance of this Agreement.
12.9 "License Agreement" is the license agreement between a User and YESWEAD for the use of computer software provided by YESWEAD
12.10 "Property Rights" means any and all rights, title, ownership and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.
12.11"Services" means creativity, design, strategy development, copywriting, marketing, consultancy, strategies, advertising communication, and other online services or services based on communication, media and advertising production.
12.12 "Work Product" means any tangible or intangible results or materials that the Freelancer agrees to create for, or actually delivers to, the Client as a result of performing the Services on a particular Contract, including –but not limited to– advertisements, designs, images, sounds, music or any other information, and any intellectual property developed in connection therewith.
In order to achieve transparency, clarity and simplicity in the use of the Platform, YESWEAD informs the User that any suggestion, doubt or inquiry about the Conditions of Use shall be received and solved by contacting us:
Via email: [email protected]
Via mail: Send your letters to the following address: YESWEAD S.A., Avenida Leandro N. Alem 734, piso 3, C1001AAP, Ciudad Autónoma de Buenos Aires, Argentina.