Independent Contractor Policy
INDEPENDENT CONTRACTOR AGREEMENT
This is NOT an employment agreement and in no way the present agreement shall create any decision making, partnership, managerial, joint venture or voting rights to the Freelancer or its authorized representative. The Freelancer shall only act as an independent contractor. While some jurisdictions may term the independent contractor as an employee, the relationship and responsibility shall remain the same.
The parties shall not attempt to modify the present agreement in any way. There cannot be any reservation to this agreement even if both parties agree.
The present agreement shall have a term as specified, mentioned or required by the offer requirement.
This Agreement is effective immediately. Your use of the Site will signify your acceptance of and agreement to this Agreement. To the extent permitted by applicable law, 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 in the revised Agreement. Please check the Site often for updates.
1. GENERAL PROVISIONS
1.1 In this Agreement the capitalized terms and expressions shall have the meanings defined in the Terms of Service.
1.2 This Agreement is an integral part of the Terms of Service.
1.3 In case of conflict between the information, obligations, requirements, guidelines availbable on the Site and provisions of this Agreement, with respect to mutual rights and obligations of the Client and Freelancer, the provisions of this Agreement shall prevail.
2. TERMS OF AGREEMENT
2.1 The Freelancer and Client acknowledge and agree that once the Freelancer makes a bid on a job posted by the Client, a Tutor requests a Student's time slot, or a Student requests a Tutor's time slot, and when the respective party accepts such an offer made by the Freelancer than the Freelancer and Client will be deemed to have entered into a "Service Contract". The relationship between the Freelancer and Client is that of an independent contractor.
2.2 When a user, mostly a Freelancer, and in some cases, a Student makes a bid on the proposal of the Client's posted Job, requests a Student's time slot, or when a Student requests a Tutor's time slot, the Freelancer and Client signifies they have read, understood and agrees with the proposal, as well as the Terms of Service Agreement and Independent Contractor Agreement. For the avoidance of doubts, the parties of this Agreement confirm that https://www.wisdomswap.com is not acting as a representative of any party of this Agreement and shall not become a party to the Services Agreement, concluded between a Client and a Freelancer.
2.3 Except expressly provided otherwise, the terms and conditions of the Services Agreement, Terms of Service Agreement or Independent Contractor Agreement are mandatory and may not be modified by the parties of the Services Agreement.
2.4 A Freelancer and a Client shall have the right to modify by their agreement only the deadline and (or) the price of the agreed Job being performed by the Freelancer by making modifications in the project/job agreement where they are obliged to indicate a new agreed price and (or) deadline following the Site Usage Policy, and other guidelines available on the Site.
2.5 The parties to this Agreement (both the Client and the Freelancer) agree not to enter into any contractual provisions or Job terms in conflict with the indicated mandatory terms. Any provision of such an agreement by the parties which conflicts with or modifies the mandatory terms shall be null and void while the other provisions of such an agreement shall remain valid and binding.
2.6 Entering into the Services Agreement by the parties shall be that of an independent relationship for provision of the Freelancer's Services to a Client, and shall not be construed as creating or implying any relationship of franchise, partnership, joint venture or employer-employee relationship between a Client and a Freelancer.
3. OBLIGATIONS, REPRESENTATIONS AND WARANTIES OF THE PARTIES
3.1 The behavior of a Client and a Freelancer in fulfilling their obligations under the Services Agreements influences the reputation of https://www.wisdomswap.com, therefore the parties of this Agreement assume an obligation to each other and towards https://www.wisdomswap.com to comply with and properly execute the concluded Services Agreement.
3.2 A Client is responsible for managing, inspecting, accepting and paying for the Freelancer's Services in accordance with the Services Agreement and other Terms of Service or Independent Contractor Agreement in a timely and professional manner.
3.3 A Freelancer agrees, during the term of this Services Agreement, not to enter into an agreement or accept an obligation that is inconsistent or incompatible with the Freelancer’s obligations under this Agreement. A Freelancer also warrants that there is no such agreement or obligation in effect as of the moment of the conclusion of this Agreement.
4. COMPLETION AND ACCEPTING OF JOBS/PROJECTS/TIME SLOTS
4.1 A Freelancer is responsible for the performance of the Freelancer's Services and delivery of the result following the Services Agreement, Terms of Service or Independent Contractor Agreement in a timely and professional manner.
4.2 The location, place, manner and means that the Freelancer chooses to perform the Freelancer's Services are in the Freelancer’s sole discretion and control, if not agreed otherwise with a Client.
4.3 A Freelancer agrees to use its own equipment, tools and other materials (if necessary) at its own expense.
4.4 A Client is obliged to accept or reject the result of a Job (also referred to as “work product”) provided by a Freelancer within 14 (fourteen) days from the day of receipt (submission) of the result of the Job.
4.5 If the work product is rejected, the Client is obliged to explain to the Freelancer the reasons for such action. In case the Client does not provide respective explanations to the Freelancer, it shall be deemed that the Job was accepted.
4.6 If the Freelancer does not agree with the reason for rejection of the work product, the dispute between the Client and the Freelancer shall be settled according to conditions set forth in this Services Agreement and website’s Terms of Service.
4.7 Upon mutual agreement of the Freelancer and Client, the Freelancer may correct the deficiencies of the work product. In such case the Freelancer and the Client shall agree on another deadline for completion of the Job within 14 (fourteen) days from the initial deadline and specify a new deadline in the Work room following guidelines on the Site. However, some projects such as projects posted in the School Help section may be time sensitive. In such cases when a posted job is time sensitive, and stated before the start of a job, the original time agreement between the Client and Freelancer will be honored.
4.8 If a Job has not been completed within the deadline agreed by the parties of the Services Agreement, it shall be deemed that the Job has not been completed.
4.9 If the work product is neither rejected, nor accepted within 14 (fourteen) days from the deadline for completion of the Job specified by the Client and agreed by parties of the Services Agreement, and if within 14 (fourteen) days from the deadline for the respective Job, neither party of the Services Agreement informs https://www.wisdomswap.com, as well as provides conclusive evidence to https://www.wisdomswap.com, that there is a dispute between the respective parties on the discussed Job, it shall be deemed that the work product was accepted.
4.10 The evidence for initiated and on-going dispute between parties must clearly indicate that the dispute is referred to the dispute system which is competent to resolve the dispute between the parties. https://www.wisdomswap.com shall have the right at its own discretion to decide on whether the provided evidence is sufficient and/or conclusive for purposes of execution of provisions of this Agreement and/or other parts of the Terms of Services.
4.11 If the work product is rejected, the Client is strictly forbidden to use any part of the work product that was presented by the Freelancer to the Client in any way and for any purpose, except if the use of the work product is objectively necessary to resolve a dispute between the Client and the Freelancer, i.e. the Client may use the work product exceptionally for the purpose of a dispute resolution between the Client and the Freelancer (e.g. provide them as evidence in the dispute system, etc.). If a Tutor or Student don't show for a tutoring session, issues arise during a session or for any reason, the tutoring session results to a status of "Not Completed", a dispute must be inititiated to request the return of funds placed in escrow, or any created milestones whereas the money has not been released to the other party.
5. WARRANTIES OF FREELANCER
5.1 A Freelancer hereby represents and warrants that:
(1) the work product will be an original work of the Freelancer;
(2) the work product will fully conform to the requirements of the Client and terms defined on the Site and in this Agreement;
(3) neither the work product or any element thereof will infringe or misappropriate the Intellectual Property Rights of any third party;
(4) will disclose any Technology which the Freelancer proposes to use or incorporate in connection with the work product. If the Freelancer does not disclose the Technology, the Freelancer warrants that it will not use the Technology or incorporate it into the work product, if not expressly agreed otherwise with a Client;
(5) the work product nor any element thereof will be subject to any restrictions or encumbrances;
(6) a Freelancer will not grant, directly or indirectly, any rights or interest whatsoever in the work product to any third party;
(7) has full right to enter into and perform this Agreement without the consent of any third party;
(8) will comply with all laws and regulations applicable to the Freelancer’s obligations under this Agreement.
6. INTELLECTUAL PROPERTY RIGHTS AND TECHNOLOGY
6.1 Upon a Freelancer’s receipt of a payment for the Freelancer‘s Services accepted by a Client, the Freelancer hereby automatically, unconditionally and irrevocably assigns to the Client all transferrable rights and interest worldwide in and to the work product, including without limitation all Intellectual Property Rights related to the work product.
6.2 Except as set forth below, the Freelancer retains no rights to use such Intellectual Property Rights and agrees not to dispute the transfer or validity of the Client’s ownership in such Intellectual Property Rights. The Freelancer hereby waives any Intellectual Property Rights or subsequent rights under applicable law in and to the work product.
6.3 If a Freelancer has any rights to the work product, including any Intellectual Property Rights or Technology, that cannot be assigned to a Client, the Freelancer hereby automatically upon receipt of the payment for the Freelancer‘s Services accepted by the Client unconditionally and irrevocably grants to the Client during the term of such rights, an exclusive, even as to the Freelancer, irrevocable, perpetual, worldwide, fully paid and royalty-free license to such rights, with rights to sublicense, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, use, sell, import, offer for sale and exercise any and all such rights to the extent that they belong to the Freelancer.
6.4 If a Freelancer has any rights to the work product, including any Intellectual Property Rights or Technology, which may not be transferred to the Client or which are not subject to issuance of a license to a Client, that cannot be assigned or licensed, the Freelancer hereby automatically upon receipt of the payment for the Freelancer‘s Services accepted by the Client unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against the Client or related to the Client’s customers, with respect to such rights, and agrees, at the Client’s request and expense, to consent to and join in any action to enforce such rights.
6.5 A Freelancer undertakes to assist a Client at the Client’s request and expense, both during and after the term of this Agreement, to obtain and enforce Intellectual Property Rights relating to the work product in all countries.
7. CONFIDENTIAL INFORMATION
7.1 Both parties agree to keep confidential all information concerning the other party’s business or its ideas, products, customers or services that could be considered to be "confidential information".
7.2 Confidential Information" means all data and information whether in written, machine readable or other tangible form, or obtained by the recipient through observation or examination of such information and material or disclosed orally, that is of value to either party, is not generally known to competitors of the disclosing Party, and which is indicated as such when communicated to the receiving Party. Any information or data which has been marked as "CONFIDENTIAL", "SECRET", "PRIVATE" OR "PROPERIETARY" shall be treated as confidential without any exception.
7.3 Confidential Information includes, but is not limited to, all information or materials prepared in connection with this or any related subsequent Agreement and includes, without limitation, all of the following: designs, software, programs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, ideas, data, "know-how", new product or new technology information, product prototypes, product copies, manufacturing, development or marketing techniques and materials, development timetables, strategies and development plans, including trade names, trademarks, customer, the Agreement or personal names and other information related to customers, the Agreement or personnel, pricing policies and financial information, and other information of a similar nature, whether or not reduced to writing or other tangible form, and any other trade secrets or non-public business information.“Confidential information” is any information belonging to or in the possession or control of a party that is of a confidential, proprietary or trade secret nature and that is furnished or disclosed to the other party. Confidential information will remain the property of the disclosing party and the receiving party will not acquire any rights to that confidential information.
7.4 If the receiving party receives a Court Order to divulge any confidential information belonging to the disclosing party, than the receiving party is permitted to release such information to the court in accordance with any Court Order so served.
7.5 Upon termination of this Agreement, the receiving party, at the option of the disclosing party, will return or destroy all confidential information belonging to the other party.
8. INDEPENDENT CONTRACTOR RELATIONSHIP
8.1 The Freelancer’s relationship with the Client will be that of an independent contractor, and nothing in this Contract will be construed to create a partnership, joint venture, or employer-employee relationship.
8.2 The Freelancer is not the agent of the Client and is not authorized to make any representation, contract, or commitment on behalf of the Client. The Freelancer will choose the manner and means to perform the Freelancer's Services. The Freelancer will provide its own equipment, tools, and other materials at its own expense. The Freelancer, at its sole cost and expense, will maintain appropriate insurance in accordance with generally accepted industry standards.
8.3 The Freelancer is solely and exclusively liable for complying with, and making all payments under, all applicable local, state, federal, and international laws, including laws governing self-employed individuals if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to the Freelancer under this Contract.
8.4 Neither, the Client or https://www.wisdomswap.com will withhold or make payments for social security, unemployment insurance, or disability insurance contributions or obtain workers’ compensation insurance on the Freelancer’s behalf. The Freelancer hereby agrees to indemnify and defend the Client, https://www.wisdomswap.com and our Affiliates against any and all such taxes or contributions, including penalties and interest. The Freelancer will provide proof of payment of the appropriate taxes or fees paid to the Freelancer upon request of the Client or https://www.wisdomswap.com.
9. TERMINATION OF THE AGREEMENT
Both parties can terminate this agreement in case the other party commits the breach and fails to rectify such a mistake within 15 days of being served a notice by the terminating party. The parties must return all the products and material of the other party kept with them within 15 days of such termination.
10.1 Either party shall be obliged to compensate the other party any damage and reimburse all and any losses, expenses and costs, arising out of any breach of this Agreement or violation of any law or the rights of a third party in accordance with this Section.
10.2 In no event shall either party be liable under this Agreement to the other party or third party in any form of liability, for: (1) any indirect or incidental damages that may be incurred; (2) any loss of income, loss of business opportunities or loss of goodwill, business or profits (whether direct or indirect) that may be incurred; and (3) any claim, damage or loss which may be incurred by as a result of any part’s agreement with other Users or other transactions involving the Site.
10.3 If applicable mandatory provisions of laws provide otherwise, some or all of these limitations and exclusions indicated in this Section may not be applied.
10.4 A civil liability shall not apply to the parties to this Agreement for the failure to perform, undue performance or any delay in performance of any obligation hereunder due to irresistible force (force majeure) circumstances, which shall be determined according to the requirements of the applicable law. The time for performance of the parties shall be extended by the period of time such circumstances exist.
11. DISPUTE RESOLUTION
11.1 In case of any dispute, controversy or claim between a Client and Freelancer arising out of or relating to this Service Agreement, the dissatisfied party must submit its claim/complaint to the other party of the Service Agreement before the release of any money/payment/milestone held in escrow, and can do so by clicking on the dispute button connected to the Job, or in the work room/dashboard. Once money/payments/milestones are released, the money/payments/milestones are unrecoverable by https://www.wisdomswap.com.
11.2 The other party of the Service Agreement shall be obliged to respond to the claim/complaint within the specified time indicated within the Dispute Resolution Center or email after receiving the claim/complaint. The dissatisfied party may only initiate a dispute indicated herein below before the release of any money/payments/milestones, which are unrecoverable.
11.3 Before any money/payments/milestones are released, which are unrecoverable, the parties of the Agreement may jointly decide to refer the matter to https://www.wisdomswap.com, i.e. to use https://www.wisdomswap.com dispute resolution services. Both parties of the Agreement (a Client and a Freelancer), intending to use https://www.wisdomswap.com dispute resolution services, shall pay to https://www.wisdomswap.com in advance a dispute resolution fee as decided amongst them; if the Dispute Resolution Center indicates to do so.
11.4 If the parties of the Agreement jointly decide to use https://www.wisdomswap.com dispute resolution services, https://www.wisdomswap.com may (but is not obliged to) examine the situation and provide to the conflicting parties its decision and/or a proposal for amicable settlement of their dispute, but only after the receipt of the dispute resolution fee, if required to do so. If https://www.wisdomswap.com decides to examine the situation and to provide to the conflicting parties a decision and/or proposal for amicable settlement of their dispute, https://www.wisdomswap.com shall put reasonable efforts to provide its decision and/or proposal for amicable settlement of the dispute to the parties within a reasonable period of time, usually not later than within 15 (fifteen) days from the moment of payment of the dispute resolution fee, if a fee is required. Any decision of https://www.wisdomswap.com and/or offer for an amicable settlement shall not be binding to the parties.
11.5 The parties represent and signify that they understand that https://www.wisdomswap.com is not an arbitration/arbitration institution and does not act as an arbitration/arbitration institution, and its decision is not an arbitral award.
11.6 For the examination of the dispute https://www.wisdomswap.com shall follow the documents and other materials provided by the conflicting parties under the respective request of https://www.wisdomswap.com
11.7 The parties of a dispute (a Client and Freelancer) may agree to decision or proposal for an amicable settlement of the dispute offered by https://www.wisdomswap.com, by accepting the respective decision and/or proposal.
11.8 If both parties accept https://www.wisdomswap.com's decision and/or proposal of the amicable settlement offered by https://www.wisdomswap.com, it shall be held that each conflicting party separately and both of them jointly authorized https://www.wisdomswap.com to perform actions specified in https://www.wisdomswap.com's decision and/or proposal for the amicable settlement, including making payments indicated in such decision and/or proposal to either party or both parties. By agreeing to this Agreement and the Terms of Service, you Accept any disputed decision decided by https://www.wisdomswap.com.
11.9 If the conflicting parties do not resolve their conflict within the time frames specified in the Dispute Resolution Center or if either party does not agree with the solution of the dispute offered by https://www.wisdomswap.com, the dispute between a Client and a Freelancer shall not be referred to https://www.wisdomswap.com for repeated examinations and shall be settled according to applicable laws.
11.10 https://www.wisdomswap.com is not and shall not be involved in any dispute between parties of this Agreement whatsoever. Each party of the Service Agreement acknowledges and agrees that https://www.wisdomswap.com is not and shall not be a party to any such disputes between a Client and a Freelancer. In case of any dispute between a Client and a Freelancer, https://www.wisdomswap.com shall be released from any and all claims and demands, all and any damage, which is related to such dispute.
12.1 A Freelancer shall defend, indemnify and hold harmless a Client against all and any damage, cost, loss or expense arising from a claim, suit or law or other proceeding brought against a Client due to that: (1) any work product that a Freelancer delivered pursuant to this Agreement infringes any Intellectual Property Rights, (2) any work product that a Freelancer delivered pursuant to this Agreement misappropriates any right or interests of any third party, or (3) the terms and conditions of this Agreement were breached by the Freelancer.
12.2 Any indemnification of the Freelancer to the Client under the Clause 11.1 shall be conditioned on that the Client having: (1) promptly notified the Freelancer in writing of any such claim, demand, action, cost, liability, loss or threat of any thereof; (2) cooperated with the Freelancer in the defense process or settlement thereof; and (3) allowed a Freelancer to control such defense or settlement. A Client shall be entitled to participate in such processes through its own counsel at its own cost and expense.
13. CONFLICTS OF INTEREST
The Freelancer/independent contractor represents that he or she is free to enter into this Agreement, and that this engagement does not violate the terms of any agreement between the Freelancer and any third party. Further, the Freelancer, in rendering his or her duties shall not utilize any invention, discovery, development, improvement, innovation, or trade secret in which [he or she] does not have a proprietary interest. During the term of this agreement, the Freelancer shall devote as much of his or her productive time, energy and abilities to the performance of his or her duties hereunder as is necessary to perform the required duties in a timely and productive manner. The Freelancer is expressly free to perform services for other parties while performing services for the Client.
14. DISCLAIMER OF WARRANTIES
Other than the warranties expressly stated in this Service Agreement or other Terms of Service, the Freelancer disclaims all other warranties, express or implied, including the implied warranties of merchantability, accuracy, fitness for a particular purpose, arising by statute or otherwise in law or from a course of dealing or usage or trade. Some states and jurisdictions do not allow for all the foregoing on implied warranties, so to that extent, if any, some or all of the above limitations may not apply.
15. INJUNCTIVE RELIEF
The Freelancer acknowledges that, because its services are personal and unique and because the Freelancer will have access to Confidential Information of the Client, any breach of the project/job agreement or this agreement by the Freelancer would cause irreparable injury to the Client for which monetary damages may not be an adequate remedy and, therefore, will entitle the Client to injunctive relief (including specific performance). The rights and remedies provided to each party are cumulative and in addition to any other rights and remedies available to such parties at law or in equity.
16. NOTICES AND COMMUNICATIONS
All notices and communications arising out of or in connection with this Agreement between a Client and a Freelancer must be presented to each other by uploading them to the work room/dashboard. Either of the party agrees and confirms that such communication is safe and satisfies any legal requirement as communication in writing.
Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party and the consent of https://www.wisdomswap.com. In the event that the consent for an assignment is given, the terms of this Agreement will be binding upon each party’s respective successor.
18. GOVERNING LAW
The present independent contractor agreement shall be governed by the laws in the state of Maryland, which is located in the United States. The disputes arising out of this agreement shall be under the exclusive jurisdiction of the courts in the state of Maryland, which is located in the United States.
19. FORCE MAJURE
The parties shall not be held liable for any failure or departure from any obligation or promise mentioned in these terms or any of the policies which has happened due to circumstances beyond the reasonable control of the parties which includes but is not limited to natural disasters like flood, earthquake, acts of god, war, terrorism, religious and other riots, economic and technological embargoes etc. The happening of such an event shall be notified to us and the other party within 3 days of such an event happening.
If any portion of this Agreement is deemed void or unenforceable, than that provision shall be deemed severable from the Agreement and shall not affect the validity and enforceability of the remaining provisions.
The provisions of the Agreement which expressly or by their nature should survive termination of the Agreement shall survive such termination unless adjudged otherwise by the competent courts.
22. NO WAIVER IMPLIED
The failure to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by you of any of the provisions of these provisions, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right to enforce each and every such provision thereafter.
23. ENTIRE AND UNMODIFIED AGREEMENT
The independent contractor agreement, in connection with the other obligations and rules detailed in writing on the Site, constitute the entire agreement between the Freelancer and Client and cannot be modified by the users. This is a standard form contract. The terms of this agreement cannot be modified on an individual basis by any person affiliated, or claiming affiliation, with the Site. Nothing in this subsection will prevent the Site from modifying the terms of this agreement and posting such modifications on the Site.
24. CONTACT US
We are always there to help you. Thus, for further help and assistance you shall contact us by visiting our Contact Us page which is made available on the website.