SERVICE CONTRACT

This Service Contract (the “Service Contract”) is made and entered into by and between (i) _____ (“Client”), and (ii) _____ (“Professional” and, together with Client, the “Parties”).

RECITAL

 

WHEREAS, Client is requiring services of the kind offered by Professional; and

 

WHEREAS, Client desires that Professional perform or cause to be performed, on and subject to the terms and conditions herein, services (the “Professional Services”) as set forth in Appendix A hereto;

 

WHEREAS, Professional desires to perform the Professional Services on and subject to the terms and conditions hereof;

 

NOW THEREFORE, in consideration of the covenants and mutual agreements hereafter set forth below, the Parties, intending to be legally bound, hereby agree as follows:

 

1-    INTEGRAL PART

1.1         The recitals set out in the preamble of this Service Contract, as well as the appendices attached hereto, shall form an essential and integral part of this Service Contract and shall have the same effect as the rest of the provisions hereof.

1.2         The Parties to this Service Contract are deemed to have read and accepted the Terms of Service, including the User Agreement and the Privacy Policy, for accessing and using the http://www.handiss.com website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”), which Terms of Service are hereby incorporated in this Service Contract by reference.

1.3         Parties may not, by agreement amongst themselves, alter the rights or responsibilities of Handiss or Handiss Escrow, including any provision of the Escrow Instructions, or agree to any terms that would violate the Terms of Service.

For the avoidance of doubt, neither Handiss, Handiss Escrow, nor any affiliate of Handiss is a party to this Service Contract or to any agreement by or between the Parties.

2-    APPOINTMENT OF PROFESSIONAL

2.1         Client hereby engages Professional and Professional agrees to provide Client with the Professional Services as described in Appendix A hereto. Professional acknowledges that the duration figures and milestones of the Professional Services are of the essence, for the payment by Client of the sum(s) of money due to Professional as set forth by the terms and conditions of this Service Contract.

3-    PERFORMANCE OF PROFESSIONAL SERVICES

3.1         Client and Professional agree that Professional is performing services as an independent contractor and that Professional is not an employee or agent of Client. Professional will perform the Professional Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product within the schedule set forth in Appendix A. The manner and means of performing the Professional Services will be determined and controlled solely by Professional, which is engaged by Client as an independent contractor.

3.2         The terms concerning the services to be performed under the Service Contract described on the Site form part of the Service Contract. Parties agree that, once accepted, the terms of the Service Contract cannot be modified by a Party without obtaining the consent of the other party before making changes to the Service Contract, including by adding additional or different milestones, by closing a Service Contract, or making other changes to the Service Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Service Contract or accept such changes by continuing to work on the Service Contract.

4-    RESPONSIBILITY FOR EMPLOYEES AND SUBCONTRACTORS, INCLUDING AGENCY MEMBERS

4.1         Professional shall provide and make available as necessary such professional, supervisory, managerial, administrative and other personnel as are necessary to perform the Professional Services, which personnel may be officers or employees of Professional or an affiliate of Professional. Such personnel shall be qualified and experienced in the duties to which they are assigned.

4.2         If a Party subcontracts with or employs third parties to perform Professional Services on behalf of the Party for any Engagement, the Party represents and warrants that it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations. Further, at all times a Party that agreed to perform services under the Service Contract remains responsible for the quality of the services and represents and warrants that any employee or subcontractor has entered into agreements on confidentiality and intellectual property at least as strong as those in this Service Contract.

4.3         Professional shall not assign or encumber any right, title or interests under this Service Contract to any third party unless such assignment has first been agreed to by Client in writing.

5-    COMPENSATION AND PAYMENT

5.1         For the performance of the Professional Services by Professional, Client shall pay or cause to be paid to Professional the fees (the “Fees”) in accordance with the Schedule of Rates set out in Appendix B hereto, with the Fee and Automated Clearing House Authorization Agreement reproduced in Appendix C hereto, and with the Escrow Instructions set forth in Appendix D hereto.

6-    OBLIGATIONS OF PROFESSIONAL

6.1         Subject to the terms and conditions of this Service Contract, Professional shall maintain sufficient resources to perform its obligations hereunder. Client and Professional may agree on the standards of performance to which Professional shall adhere in the provision of the Professional Services. Where none is set forth, Professional shall use reasonable efforts to provide the Professional Services in accordance with its policies, procedures and practices in effect at the time of this Service Contract and shall exercise a degree of skill and judgment normally exercised by recognized firms of similar stature and reputation in the same industry performing services of a similar nature.

6.2         Without limiting the generality of Clause 6.1, Professional shall during the term of this Service Contract:

a.            Keep Client fully and properly informed of all aspects of the Professional Services for which Professional is responsible.

b.            Attend regular meetings with Client upon the latter’s request. It being understood that such meetings may be held remotely via the use of electronic platforms.

C             Professional shall comply with all reasonable instructions and directions given by or on behalf of Client in connection with the Professional Services.

7-    OBLIGATIONS OF CLIENT

7.1.        Client shall cooperate fully with Professional at all stages of Professional’s performance of the Professional Services and to furnish Professional with all necessary documents, information, studies and data in a timely manner to enable Professional to comply with its obligations under this Service Contract.

8-    INTELLECTUAL PROPERTY RIGHTS

8.1         Professional represents and warrants that Professional will not incorporate or use the materials of any third party including those of any other client or any employer, in performing the Professional Services that are not generally available for use by the public or have not been legally transferred to the Client.

8.2         Professional will disclose any Background Technology which Professional proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Professional discloses no Background Technology, Professional warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Professional will separately provide, with each delivery of Work Product to Client, a bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Professional, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed, Professional agrees that it will not incorporate into Work Product or otherwise deliver to Client any software code for which the use or distribution of the code will create (or purport to create) obligations for Client to grant any rights or immunities under Client intellectual property to a third-party, including without limitation any obligation that the Work Product or Client software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.

8.3         Client grants Professional a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Materials as necessary solely for the performance of the Professional Services under the applicable Service Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Service Contract, or upon Client’s written request, Professional will immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables (except for Background Technology as permitted by the Service Contract) contained in or on Professional’s premises, systems, or any other equipment or location otherwise under Professional’s control. Within ten days of such request from Client, Professional agrees to provide written certification to Client that Professional has returned or destroyed all Client Materials and Work Product as provided in this subsection.

8.4         Upon Professional’s receipt of full payment from Client, the Work Product (except for any Background Technology), including without limitation all Intellectual Property Rights in the Work Product (except for any Background Technology), will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Professional has any Intellectual Property Rights to the Work Product that are not owned by Client upon Professional’s receipt of payment from Client, Professional hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Professional retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual Property Rights. Professional hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered and paid for.

8.5         Upon Professional’s receipt of full payment from Client for delivery of Work Product, Professional hereby automatically grants to Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated in Work Product delivered for that payment. If payment is made only for partial delivery of Work Product, the license described herein applies only to the portion of Work Product delivered and paid for.

8.6         If Professional has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Client by Professional, Professional hereby automatically, upon Professional’s receipt of full payment from Client, unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Professional, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Professional has any rights to such Work Product that cannot be assigned or licensed, Professional hereby automatically, upon Professional’s receipt of payment from Client, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or related to Client’s customers, with respect to such rights, and will, at Client’s request and expense, consent to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.

8.7         Professional will assist Client in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Contract, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Client is unable, after reasonable effort, to secure Professional’s signature on any document needed in connection with the foregoing, Professional hereby designates and appoints Client and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Professional.

9-    CONFIDENTIAL INFORMATION

9.1         To the extent a Client or Professional provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Professional Services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Professional); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Professional Services.

9.2         If and when Confidential Information is no longer needed for the performance of the Professional Services for a Service Contract or at Client’s or Professional’s written request (which may be made at any time at Client’s or Professional’s sole discretion), the party that received Confidential Information, will, at its expense, 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 party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party’s written request for such certification.

9.3         Without limiting Section 9 (Confidentiality), Client and Professional will not publish, or cause to be published, any other party’s Confidential Information or Work Product, except as may be necessary for performance of Professional Services for a Service Contract.

9.4         A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. Sec. 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

10-    TERM

10.1       The present Service Contract shall enter into force as of the date of signature by both Parties (the “Effective Date”) and shall remain in effect, for a Term specified in Appendix A hereto, unless the Agreement is earlier terminated in accordance with the provisions of this Agreement.

10.2       Once a Client’s Payment Method has been charged to fund the escrow account for the Project, absent a full refund to Client by Professional, the Service Contract does not terminate until the Professional Services are completed.

11-    TERMINATION

11.1       This Agreement may be terminated by:

11.1.1.  either Party by notice in writing with immediate effect if the other Party is declared bankrupt, or commits an act of bankruptcy or becomes insolvent, or has an administrator or receiver appointed over its assets.

11.1.2.  either Party by notice in writing if the other Party commits a material breach of this Service Contract and such breach has not been remedied within thirty (30) days after the defaulting Party’s receipt of prior written notice setting out reasonable details of such breach.

11.2.      This Agreement may be terminated by Professional by notice in writing with immediate effect if:

11.2.1.  Client engages in activity that is detrimental to Professional.

11.2.3.  Client fails to address Professional’s reasonable requests for information/documents.

11.3.      If any circumstance constituting an event of Force Majeure has a substantial adverse effect on the performance of the Service Contract, each Party shall have the right, by notice to the other Party, to terminate this Service Contract. Neither Party shall be liable for any delay or failure in the performance of its obligations under this Service Contract due to any circumstance constituting Force Majeure.

12-    EFFECT OF TERMINATION

12.1       Upon the expiry or termination of this Agreement for any reason whatsoever:

12.1.1   The expiry or termination of this Service Contract for any reason whatsoever shall not release the Parties from any liability or cause of action which at the time of expiry or termination would have already accrued or which may thereafter accrue in respect of any act committed or omission occurred prior to such expiry or termination, including the obligation of Client to pay Consultant its fees resulting from the provision of Professional Services.

12.1.2   The Parties shall immediately cease all and any use of the Confidential Information and shall return to the other Party or otherwise dispose of, as the owner of the Confidential Information may instruct, each and every document (including any copy thereof) and each and every record of any kind whatsoever and howsoever made (including electronically held data) which contains or relates to the Confidential Information.

13-    DEFINITIONS

  13.1       The following capitalized terms have the following meanings:

Background Technology” means all Inventions developed by Professional other than in the course of providing Professional Services to Client under the Service Contract and all Inventions that Professional incorporates into Work Product.

Client” means any person who entered into a Service Contract to obtain Professional Services from a Professional.

Client Deliverables” means requests, intellectual property, and any other information or materials that a Professional receives from a Client to perform Professional Services.

Client Materials” means requests, intellectual property, and any other information or materials that Client provides to Professional for Professional to perform Professional Services.

Confidential Information” means Client Deliverables, Professional Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract or to perform or assist in performing Professional Services, regardless of whether 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 Professional or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.

Escrow Instructions” means the Fixed-Price Escrow Instructions or the Hourly Agreement with Escrow Instructions.

Fixed-Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Professional, prior to the commencement of a Service Contract, for the completion of all Professional Services contracted by Client for such Service Contract.

Hourly Contract” means a Service Contract for which Client is charged based on the hourly rate set by the Professional.

Hourly Invoice” means the report of hours recorded for a stated period by a Professional for the Professional Services performed for a Client.

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.

Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.

Professional” means any person who entered into a Service Contract to perform Professional services for a Client.

Professional Deliverables” means requests, intellectual property, and any other information or materials that a Client receives from a Professional for a particular Service Contract.

Professional Fees” means: (a) for an Hourly Contract, an amount equal to the number of hours recorded by Professional in any Hourly Invoice, multiplied by the hourly rate set by the Professional; (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Professional.

   “Professional Services” means all services performed for or delivered to Clients by Professionals.

Project” means a project for Professional Services that a Professional provides to a Client under a Service Contract on the Site.

Service Contract” means the contractual provisions between a Client and a Professional governing the Professional Services to be performed by a Professional for Client for a Project.

Work Product” means any tangible or intangible results or deliverables that Professional agrees to create for, or actually delivers to, Client as a result of performing the Professional Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.

14-    DIGITAL SIGNATURE

14.1       By clicking to accept a Service Contract, Client and Professional are deemed to have executed this Service Contract electronically, effective on the date Client clicks to accept the Service Contract, pursuant to the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as may be amended from time to time (the "E-Sign Act"). Doing so constitutes an acknowledgement that Client and Professional are able to electronically receive, download, and print this Service Contract.

 

 

Appendix A

Indicative scope of Professional Services

 

[Scope and milestone & term of Professional services will be inserted here automatically for every contract]

 

 

Appendix B

Schedule of Rates

 

 

[Details and breakdown of fees payable to Professional will be inserted here automatically for every contract]

 

 

Appendix C

Fee and Automated Clearing House Authorization Agreement

 

This Fee and Automated Clearing House Authorization Agreement (this “Fee and ACH Agreement”) is between you and Handiss Inc. as described below in Section 1 (Parties). This Agreement provides information on the fees Handiss Inc. ("Handiss") and its Affiliates and Handiss Escrow Inc. (“Handiss Escrow”) charge for use of the Site’s communication, invoicing, dispute resolution and payment services, including Payment Protection, and includes eligible Users’ authorization for debits and credits from and to their designated bank accounts via the automated clearing house network (“ACH”). This Fee and ACH Agreement is part of the Terms of Service. Capitalized terms not defined in this Agreement are defined in the User Agreement, or elsewhere in the Terms of Service.

By clicking to accept the Terms of Service on the Site or by continuing to use the Site or the Services on or after the effective date noted above, you accept and agree to this Agreement. To the extent permitted by applicable law and except as otherwise provided in the Terms of Service, we may modify this Agreement without prior notice to you, and any revisions to this Agreement will take effect when posted on the Site unless otherwise stated. However, we will provide advance notice of any increase in prices or fees affecting current Users. Please check the Site often for updates.

1. PARTIES

You are entering into this Agreement with Handiss (also referred to as “we” and “us”).

2. FEES CHARGED TO PROFESSIONALS

Pursuant to the User Agreement, we charge Professionals a Service Fee for each payment their Client makes to the Professional on a Service Contract. Where applicable, Handiss, or Handiss Escrow may also collect taxes (such as value added tax (VAT) in Europe) on Service Fees.

Additionally, the use of various Payment Methods offered through the Site and the Services may incur added fees or charges. All Payment Methods will be posted on the Site along with any associated fees or charges, which we may update from time to time at our sole discretion. You hereby authorize us to charge to you and to collect from you (consistent with this Fee and ACH Agreement, the User Agreement, or elsewhere in the Terms of Service) any fees, charges, or taxes described in this Section 2.

2.1 Standard Service Fee

We will charge you a standard Service Fee based on the total Professional Fees collected by you from your Client (less any refunds or reversals) for the duration of your relationship with your Client (the “Project Relationship”). The standard Service Fee rate is 12% of the total Professional Fees you have collected from your Client for the Project Relationship (the “Standard Service Fee”).

2.2 Alternate Service Fee

Alternate Service Fee (defined below) only applies to Service Contracts when any of the following are true:

(a) you entered into the Service Contract before Handiss first started charging the Standard Service Fee;

(b) you entered into the Service Contract pursuant to a feature of the Site where we advertised a different Service Fee; or

As described in this Section 2.2, if Alternate Service Fee applies, we will typically charge you a Service Fee of a fixed percent (“Alternate Service Fee ”). The Alternate Service Fee is a percentage of the total Professional Fees paid to Professionals unless other rates for Alternate Service Fee are expressly communicated to you, including by communications through the Site.

3. FEES CHARGED TO CLIENT

Handiss offers several membership plans for Clients, and each includes access to certain features and services of the Site, as described on the Site (each plan a “Client Membership Plan”). Current Client Membership Plans are Handiss Basic, Handiss Plus. Handiss Basic is free and does not require a monthly membership fee. Handiss Plus is a paid membership requiring either (i) payment of a monthly membership fee of 290 US Dollars, or (ii) payment of a yearly membership fee of 2,900 US Dollars. Fees for Client Membership Plans, if any, automatically renew until they are cancelled as described on the Site and this Fee and ACH Agreement.

In addition to the foregoing, it is open for the Client to enter into a Pay Per Hire service where Handiss makes available a dedicated account manager who shall present prospective Professionals to Client for a specific Project. In return for the Pay Per Hire service, Client shall make an upfront payment of a deposit representing 10% of the total Project cost, and Handiss Service Fee shall amount to 17% of the total Professional Fees collected by Professional from Client for the Project Relationship (i.e. Standard Service Fee in addition to a 5% margin).

Handiss reserves the right to change membership fees, change the features and services included in each Client Membership Plan, change the membership fees or fees for certain premium services or options, or institute new fees at any time, in each case upon reasonable notice posted in advance on the Site for existing Users. No refunds of fees already paid will be given. If Handiss exercises its right to cancel a membership, Handiss will not refund the membership fee already paid unless otherwise required by law.

3.1 Taxes

Where applicable, Handiss, or Handiss Escrow may also collect taxes (such as value added tax (VAT) in Europe) on membership fees and the cost for premium services or features, as set forth in the User Agreement.

3.2 Automatic Membership Renewal

You must pay your Handiss membership fees through your Handiss Escrow Account. The membership billing period begins on the date that we receive payment. Handiss membership fees are calculated from the beginning of that billing period. After any free membership period, we automatically renew your Handiss monthly membership, and you irrevocably authorize and instruct us to make the required monthly payments to Handiss on your behalf. Automatic renewal occurs on the first day after the expiration date.

If you have a Handiss Plus plan and your Account is suspended, then your Account will be downgraded to a free membership plan at the next membership renewal. If your Account is reinstated after the downgrade, we may resubscribe you to the Handiss Plus plan at the time of reinstatement and charge you the applicable membership fee. You may change your Client Membership Plan at any time pursuant to Section 3.3.

3.3 Changes to Membership Plans

If you change your Client Membership Plan, the new program and new billing period will be based upon the date we receive payment of the new membership fee. If you upgrade a membership, it will result in a new billing date effective upon the date of payment of the additional fees and, if applicable, will result in a credit of the unused portion of the existing category membership fees. If you downgrade a membership, you will not receive a refund or credit for the fees already paid. The downgrade will go into effect at the beginning of the next billing period. Handiss reserves the right to modify its Client Membership Plans at any time, upon reasonable notice posted in advance on the Site.

For more information on upgrading, downgrading, or canceling your membership, check the Site or contact Customer Support.

4. AUTHORIZATION FOR AUTOMATIC PAYMENT OF RECURRING CLIENT FEES

You must pay the Client Membership Plan fees, if any, through your Client Escrow Account. Each Client Membership Plan fee, if any, covers a monthly or yearly billing period beginning on the date that you first make payment and ending one month or one year later as the case may be. For example, if you select the Handiss Plus plan and are charged on the 15th of the month, the billing period will end on the 14th of the next month. You irrevocably authorize and instruct us to automatically charge the fees for the Client Membership Plan, if any, to your Client Escrow Account at the beginning of each billing period. This authorization will remain in full force and effect until you change your settings in your Profile to change your Client Membership Plan, otherwise notify us that you wish to revoke your authorization by contacting Customer Support, or cancel your Account.

You can switch between Client Membership Plans at any time, but you will not receive a refund or a credit for any of the Client Membership Plan fee for a given period if you downgrade your membership, including by switching to a free Client Membership Plan, before the end of a billing period. However, if you switch to a free Client Membership Plan, you will still have your paid Client Membership Plan until the end of the billing period.

6. AUTHORIZATION FOR ACH DEBITS AND CREDITS AND OTHER TRANSACTIONS

If and to the extent permitted by Handiss in its sole discretion, Users may pay Professional Fees, Membership Fees, fees for Client Membership Plans, and other fees owed under the Terms of Service from their designated bank accounts. Subject to Handiss’ eligibility requirements, if you elect to pay Professional Fees or any other amounts owed under the Terms of Service via ACH transfers from your designated bank account, you hereby authorize us to electronically debit and, if necessary, electronically credit your designated bank account via ACH for such amounts pursuant to the Terms of Service, and you agree to comply with the ACH rules issued by the National Automated Clearing House (“NACHA”) and all applicable laws, including, but not limited to, the federal Bank Secrecy Act, the U.S.A. Patriot Act, and economic sanctions overseen by the Office of Foreign Assets Control (OFAC). Your authorization for ACH transfers contained in this Section will remain in full force and effect until you notify us that you wish to revoke your authorization by removing your bank account information from you Profile or by contacting Customer Support. You understand that we require at least one (1) business day’s prior notice in order to cancel your authorization for ACH transfers contained in this Section.

You must notify us of any change in your designated bank account’s information at least five (5) business days before any such change by updating your bank account information in your Profile or by contacting Customer Support. If we do not receive notice at least five (5) days before any such change, we may attempt, in our sole discretion, to implement such change prior to any ACH debit or credit transfer performed pursuant to your authorization provided in this Section. However, we assume no responsibility for our failure to do so.

You may view a history of your Account transactions by logging in to the Site. You are solely responsible for promptly reconciling your Account transaction history with the transaction records for your bank account. You must notify us of any errors or discrepancies in your Account transaction history (each, an “Error”) within 30 days of when the Error could be viewed in your Account transaction history on the Site. If you do not notify us of an Error within 30 days of when the Error could be viewed in your Account transaction history on the Site, you will forfeit the right to contest the Error, except to the extent such forfeiture is prohibited by applicable law or the NACHA rules.

Subject to the foregoing notice requirement: (a) if and to the extent an Error is caused by us, we will correct the Error and (b) if an Error is caused by you, we may, but are under no obligation to, attempt to correct the Error and will offset any costs we incur from any funds returned to your bank account or your Client Escrow Account, as applicable.

7. DIGITAL SIGNATURE

By clicking to accept the Fee and ACH Agreement, Client and Professional are deemed to have executed this Fee and ACH Agreement electronically, effective on the date Client and Professional click to accept the Fee and ACH Agreement, pursuant to the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as may be amended from time to time (the "E-Sign Act"). Doing so constitutes an acknowledgement that Client and Professional are able to electronically receive, download, and print this Fee and ACH Agreement.

 

 

 

Appendix D

Escrow Instructions

 

[in case of fixed-priced Contract]

If a Client and a Professional enter into a Fixed-Price Contract, these Fixed-Price Escrow Instructions (“Escrow Instructions”) apply. These Escrow Instructions govern Fixed Price Escrow Accounts.

To the extent permitted by applicable law, we may modify these Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.

These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. These Escrow Instructions do not apply to Hourly Contracts.

1. RELEASE AND DELIVERY OF AMOUNTS IN ESCROW

Client and Professional irrevocably authorize and instruct Handiss Escrow Inc. (“Handiss Escrow“) to release applicable portions of the Fixed Price Escrow Account (each portion, a “Release”) to their Professional Escrow Account or Client Escrow Account, as applicable, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. The amount of the Release will be delivered to the applicable Escrow Account in accordance with Professional’s or Client’s instructions, as applicable, these Escrow Instructions, and the other Terms of Service.

1.1 RELEASE CONDITIONS

As used in these Escrow Instructions, “Release Condition” means any of the following:

1. Client clicks to release funds to Professional.

2.Client does not take any action for 14 days from the date of a Professional’s Release request, in which case Professional and Client agree that Handiss Escrow is authorized and irrevocably instructed to immediately release to Professional the amount associated with the applicable milestone in connection with such Release request.

3. Professional cancels the contract before a milestone payment has been released to Professional, in which case the funds are to be returned to the Client.

4. Client and Professional have submitted joint written instructions for a Release to either Professional Escrow Account or Client Escrow Account, as applicable.

5. Client and Professional agree to close the contract without release of funds, in which case the funds are to be returned to the Client.

6. Issuance of the final order of a court of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.

7. We believe, in our sole discretion, that fraud, an illegal act, or a violation of Handiss’ Terms of Service has been committed or is being committed or attempted, in which case Client and Professional irrevocably authorize and instruct Handiss Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.

2. INSTRUCTIONS IRREVOCABLE

On the occurrence of a Release Condition, Client and Professional are deemed to and hereby agree that the instruction to Handiss Escrow and its wholly owned subsidiaries to release funds is irrevocable. Without limiting the foregoing, Client’s instruction to Handiss Escrow and its wholly owned subsidiaries to pay a Professional is irrevocable. Such instruction is Client’s authorization to transfer funds to Professional from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Professional, Handiss Escrow will transfer funds to the Professional and that Handiss, Handiss Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Service Contract, Client agrees that once Handiss Escrow or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.

3. DORMANT PROJECTS

To be fair to Clients and Professionals, Handiss has a procedure for Fixed-Price Contracts that appear Dormant (as defined below). For purposes of determining Dormant status, “activity” means business term or milestone updates or requests, Fixed-Price Escrow Funding, Fixed-Price Escrow Release, Fixed-Price Escrow Refunds, Funding requests, Release requests, requests to close the Fixed-Price Contract, or Status Report submittals.

A “Dormant Project” is a Fixed-Price Contract that has a Fixed-Price Escrow Account with a balance but has had no activity for 90 consecutive days after the last milestone date contained in the business terms. Dormant Projects are subject to the following rules:

1. Handiss will notify Client when the Fixed-Price Contract becomes Dormant (“Dormant Date”).

2. If no activity other than Release requests has occurred within 7 days after the Dormant Date, Handiss will notify the Professional that the Fixed-Price Contract is Dormant.

3. If neither Professional nor Client take any action for 7 days after the Dormant Date, Professional and Client agree that Handiss Escrow is authorized and irrevocably instructed to immediately release escrow funds to Client.

4. If Professional submits a Release request and client does not take any action for 14 days from the date of the Release request, Professional and Client agree that Handiss Escrow is authorized and irrevocably instructed to immediately release to Professional the amount related to the milestone with Release request.

5. All funds released to Professional under this Section, Dormant Projects, will be subject to the applicable Service Fees.

4. REFUNDS AND CANCELLATIONS

Client and Professional are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in escrow, Client or Professional can cancel the contract at any time by clicking to close the contract. If funds are held in escrow, refunds and cancellations must be initiated by Client or Professional by following the steps below.

4.1 CANCELLATION BY PROFESSIONAL

If Professional wants to cancel a contract with funds held in escrow, Professional must click to close the contract. When Professional clicks to close the contract, Professional and Client agree that Handiss Escrow is authorized and irrevocably instructed to immediately release to Client all Escrow funds associated with the contract.

4.2 CANCELLATION BY CLIENT

If Client wants to cancel a contract with funds held in escrow, Client must click to close the contract. Professional must either click to approve or dispute the Client’s cancellation within 7 days. If Professional approves the cancellation, Professional and Client agree that Handiss Escrow is authorized and irrevocably instructed to immediately release to Client all escrow funds associated with the contract. If Professional is using the Site on a mobile device and do not have the ability to approve or dispute the cancellation with a click on the mobile website or application, Professional must dispute the Client’s cancellation via support ticket within 7 days. If Professional takes no action within 7 days from the date notification of the cancellation is sent to Professional, Professional and Client agree that Handiss Escrow is authorized and irrevocably instructed to immediately release to Client all Escrow funds associated with the contract.

5. NOTICES

All notices to a User required by these Escrow Instructions will be made via email sent by Handiss to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Handiss, for checking their email and for responding to notices sent by Handiss to the User’s registered email address.

6. ABUSE

Handiss, in its sole discretion, reserves the right to suspend or terminate your Account immediately upon giving notice to you as permitted by the Terms of Service.

7. DIGITAL SIGNATURE

By clicking to accept a Fixed-Fee Contract, Client and Professional are deemed to have executed these Escrow Instructions electronically, effective on the date Client clicks to accept a Fixed-Fee Contract, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as amended from time to time (the “E-Sign Act”). Doing so constitutes an acknowledgement that Client and Professional are able to electronically receive, download, and print these Escrow Instructions.

 

 

[in case of Hourly Contract]

If Client and Professional enter into an Hourly Contract, this Hourly Contract with Escrow Instructions (the “Escrow Instructions”) applies.

To the extent permitted by applicable law, we may modify these Escrow Instructions, without prior notice to you, and any revisions to the Agreement will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.

These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. These Escrow Instructions do not apply to Fixed-Price Escrow Accounts.

1. MAKING OR RECEIVING AN HOURLY PAYMENT

1.1 HOURLY INVOICES

For Hourly Contracts, the weekly billing cycle starts Monday at 00:00 midnight UTC and ends Sunday at 23:59 UTC. Professional irrevocably authorizes and instructs Handiss, as its agent, to (i) create an invoice on behalf of Professional for payment due based upon the hours that the Professional recorded before the Hourly Invoice Deadline (such invoice, the “Hourly Invoice”); and (ii) submit the Hourly Invoice on behalf of Professional to Professional’s Client for payment.

By an Hourly Invoice to be created based on the time recorded, Professional represents and warrants that (i) Professional has completed the applicable Professional Services fully and satisfactorily; and (ii) the hours Professional reports are true, accurate, and complete.

1.2 HOURLY INVOICE REVIEW

Client must review and approve or dispute the Hourly Invoice by 11:59 PM UTC of the Friday following submission of the Hourly Invoice. Payments will be held in escrow during the Dispute Period (defined below), providing four additional days to review and dispute the invoice before funds are released. During the Dispute Period, Client may initiate a Dispute as to some or all of the time invoiced on the Hourly Invoice.

On the Friday of the week following submission of the Hourly Invoice, Client will be deemed to have approved all undisputed amounts on the Hourly Invoice, and irrevocably instructed Handiss’ Affiliate, Handiss Escrow Inc. (“Handiss Escrow“), to release escrow funds as described in these Escrow Instructions.

2. INSTRUCTIONS TO PAY IRREVOCABLE

Client’s instruction to Handiss Escrow and its wholly owned subsidiaries to pay a Professional is irrevocable. Such instruction is Client’s authorization to transfer funds to Professional from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected, and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Professional, Handiss Escrow will transfer funds to the Professional and that Handiss, Handiss Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Service Contract, Client agrees that once Handiss Escrow or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.

3. RELEASE AND DELIVERY OF AMOUNTS IN ESCROW

In addition, Handiss Escrow is authorized to and will release applicable portions of the Client Escrow Account (each portion, a “Release”) to the Professional Escrow Account, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. The amount of the Release will be delivered to the Professional Escrow Account, in accordance with Professional’s and Client’s instructions, as applicable, these Escrow Instructions, and the other Terms of Service.

3.1 RELEASE CONDITIONS

As used in these Escrow Instructions, “Release Condition” means any of the following:

1. Client and Professional have submitted joint written instructions for a Release.

2. Client has approved all or a portion of the Professional’s Hourly Invoice. This Release Condition will only apply to amounts invoiced by the Professional that Client has approved. Client’s failure to dispute an Hourly Invoice, or a portion of an Hourly Invoice, within the Dispute Period pursuant as provided in these Escrow Instructions, constitutes approval by the Client for purposes of this Release Condition.

3. Handiss reviews Client’s dispute of amounts invoiced on Professional’s Hourly Invoice for an Hourly Contract pursuant to this Service Contract and determines that the time is related to the Hourly Contract requirements or Client’s instructions.

4. Client initiates a Dispute with respect to Professional’s Hourly Invoice for an Hourly Contract pursuant to this Service Contract and Client and Professional resolve the dispute without the assistance of Handiss.

5. Issuance of a final order of a court or arbitrator of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.

6. We believe, in our sole discretion, that fraud, an illegal act, or a violation of Handiss’ Terms of Service has been committed or is being committed or attempted, in which case Client and Professional hereby irrevocably authorize and instruct Handiss Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.

4. NO RESPONSIBILITY FOR SERVICES OR PAYMENTS

Handiss and Affiliates merely provide a platform for Internet payment services. Handiss and Affiliates do not have any responsibility or control over the Professional Services that Client purchases. Nothing in this Service Contract deems or will be interpreted to deem Handiss or any Affiliate as Client’s or Professional’s agent with respect to any Professional Services, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. For example, Handiss does not guarantee the performance, functionality, quality, or timeliness of Professional Services or that a Client can or will make payments.

5. DIGITAL SIGNATURE

By clicking to accept an Hourly Contract, Client and Professional are deemed to have executed these Escrow Instructions electronically, effective on the date Client clicks to accept an Hourly Contract, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as amended from time to time (the “E-Sign Act”). Doing so constitutes an acknowledgement that Client and Professional are able to electronically receive, download, and print these Escrow Instructions.