This agreement (this “Agreement”), consisting of additional Freelancer Terms, is entered into by and between Trylancer (“Trylancer” or the “Company”) and you (“you” or “Consultant”) as part of your registration with the Site as a Freelancer and your agreement to be bound by the Terms of Service for such Site. By registering for a Freelancer account on the Site, or by clicking to accept the Terms of Service when prompted on the Site, you are deemed to have executed this Agreement and the other Terms of Service electronically, effective on the date you register your account or click to accept the Terms of Service, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.).
A. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Terms of Service for the Site, available at trylancer.com/terms.
B. Trylancer is engaged in the business of operating an online marketplace for Freelancers to communicate with prospective Client Users and to contract with prospective Client Users for services to be performed by the Freelancer (the “Business”).
C. As compensation for providing the Services in connection with the Business, Trylancer charges a Service Fee as a percentage of all fee payments made through the Site.
D. Registration of Freelancers on the Site is by invitation only, and Trylancer desires to invite you to register as a Freelancer on the Site and to offer and provide Freelancer Services to Client Users through the Site.
Now therefore, in consideration of the mutual covenants and the terms and conditions set forth herein, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound by the terms and conditions hereof, hereby agree as follows:
(a) Consultant agrees to perform any Freelancer Services for any Client User in a professional and workmanlike manner and will timely deliver any agreed upon Work Product to any applicable Client User. Consultant further agrees to comply with the Terms of Service and all applicable law in Consultant’s capacity as a Freelancer under the Terms of Service. The manner and means of performing the Freelancer Services will be determined and controlled solely by Consultant. Upon engagement by any Client User and entry into a Services Contract with such Client User as set forth in the Terms of Service, Consultant will be an independent contractor of such Client User.
(b) Consultant acknowledges and agrees to comply with all applicable provisions in the Terms of Service and any other policies, rules, regulations, or agreements applicable to Consultant, including, without limitation, the terms and conditions relating to Trylancer’s Service Fee, the terms and conditions relating to payment of fees, and the terms and conditions of Trylancer’s Non-Circumvention Policy and the Opt-Out Fee due and payable in the event of any breach of Trylancer’s Non-Circumvention Policy.
(c) In agreeing to offer and provide Freelancer Services to Client Users through the Site, and to invoice and receive payments from Client Users through the Site subject to Trylancer retaining amounts in respect of its Service Fee, Consultant shall be deemed to be an independent contractor of Trylancer in respect of such promises and agreements, and in no event shall Consultant be deemed to be an employee, partner, or agent of Trylancer (the “Relationship”).
Consultant acknowledges and agrees that, in connection with the Relationship, including any use of the Site or the performance of any Freelancer Services by Consultant, Trylancer may disclose to Consultant or Consultant may obtain, directly or indirectly, certain Confidential Information (as defined below) of Trylancer.
(a) Confidential Information. “Confidential Information” means any and all information and physical manifestations thereof not generally known or available outside Trylancer and its affiliates and information and physical manifestations thereof entrusted to Trylancer and its affiliates in confidence by third parties, whether or not such information is patentable, copyrightable or otherwise legally protectable. Confidential Information includes, without limitation: technical data, trade secrets, know-how, research, product or service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications, laboratory notebooks, processes, formulas, techniques, mask works, engineering designs and drawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees and consultants of Trylancer or any Client Users or Freelancers or other users on the Site (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and consultants and other persons), lists of, or information relating to, suppliers and customers (including, but not limited to, customers of Trylancer), price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information, or any information or data obtained by Consultant pursuant to its use of the Site (including data assembled by Consultant), including, without limitation, any lists or other information of or about Client Users, any information about any proposals or requests for proposals on the Site or any work performed in respect thereof, or any information in any form obtained by Consultant from its communications or interactions with any Client Users or other users on the Site, whether disclosed to or obtained by Consultant directly or indirectly (whether by oral, written, graphic or machine-readable format or by observation), before, during, or after the Relationship, as well as any notes, analysis, compilations, studies, interpretations, memoranda or other documents and writings prepared by Consultant based upon any of the above types of information.
(b) Consultant agrees that it will not at any time or in any manner, either directly or indirectly, divulge, disclose, or communicate any Confidential Information of Trylancer to any third party (including Consultant’s affiliates, agents, employees, and contractors) without the prior written consent of Trylancer. Consultant will protect the Confidential Information of Trylancer and treat it as strictly confidential. Consultant shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Trylancer in order to prevent it from falling into the public domain. Such measures shall include the degree of care that Consultant utilizes to protect its own Confidential Information of a similar nature. Consultant shall notify Trylancer of any misuse, misappropriation or unauthorized disclosure of Confidential Information of Trylancer that may come to Consultant’s attention.
(c) A violation by Consultant of this Section 2 shall be a material violation of this Agreement and shall entitle Trylancer to terminate this Agreement with immediate effect, and to pursue any legal and equitable remedies available under applicable law.
(d) If Trylancer has a reasonable belief that Consultant has disclosed, has threatened to disclose, or may disclose Confidential Information of Trylancer in violation of this Agreement, Trylancer shall be entitled to an injunction to restrain Consultant from disclosing, in whole or in part, such Confidential Information, or from providing any services to any party to whom such Confidential Information has been disclosed or may be disclosed. Nothing in the foregoing shall be construed to prohibit Trylancer from pursuing any other legal remedies available under applicable law, including, without limitation, a claim for losses and damages.
(e) The foregoing commitments and agreements in this Section 2 shall survive any termination of the Relationship between the parties, and shall continue for a period terminating five (5) years from the date on which this Agreement and the Relationship is terminated.
Consultant agrees not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage, or in any way criticize the personal or business reputation, practices, or conduct of Trylancer, its affiliates, employees, directors, independent contractors, and officers. The parties hereto acknowledge and agree that this prohibition extends to statements, written or verbal, made to any other person, persons, or entities, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, independent contractors, employees (past and present), clients, or any potential or existing or former participants on the Site. The parties understand and agree that this Section 3 is a material provision of this Agreement and that any breach of this Section 3 shall be a material breach of this Agreement, and that Trylancer would be irreparably harmed by violation of this provision.
4. RETURN OF PROPERTY.
Upon termination of this Agreement or the Relationship, Consultant shall deliver to Trylancer all property belonging to Trylancer or related to Trylancer’s Business (including records, notes, data, and memoranda) that is in Consultant’s possession or under Consultant’s control, or, with the consent of Trylancer, any such property shall be destroyed with written certification of such destruction provided by Consultant.
(a) Consultant’s obligations set forth in this Agreement are necessary and reasonable in order to protect Trylancer, its Business, and its Confidential Information. Due to the unique nature of Trylancer’s Business and Confidential Information, monetary damages may be inadequate to compensate Trylancer for any breach by Consultant of its covenants and agreements set forth in this Agreement. Accordingly, the parties hereto each agree and acknowledge that any such violation or threatened violation by Consultant may cause irreparable injury to Trylancer and, in addition to any other remedies that may be available, at law, in equity or otherwise (including money damages), Trylancer shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Consultant.
(b) In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that Consultant has breached this Agreement, Consultant shall be liable to and shall pay Trylancer the reasonable legal fees incurred by Trylancer in connection with such litigation, including any appeal therefrom.
6. ENTIRE AGREEMENT.
This Agreement (along with the Terms of Service) sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.
This Agreement may be modified or amended only by way of an amendment that is made in writing and signed by both parties hereto.
The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or any circumstance, is determined to be invalid, unlawful, void, or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision, and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect in any way the validity or enforceability of any other remaining provisions, or the application thereof in any jurisdiction, which such remaining provisions shall continue to be in full force and effect.
9. WAIVER OF CONTRACTUAL RIGHT.
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
10. APPLICABLE LAW.
This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Illinois, without giving effect to principles of conflicts of law.