These Engagement and Payments Terms (“Payments Terms”) are a binding legal agreement between you and Tounca that govern the Engagement Services and Payment Services (defined below) conducted through or in connection with the Tounca Marketplace Platform. When these Payments Terms mention “Tounca”, “we,” “us,” or “our,” it refers to the Tounca LLC you are contracting with for Engagement Services and Payment Services. This policy applies to all users of Tounca Marketplace Platform anywhere in the world, including users of Tounca’s websites, features, future apps, or other services.
Tounca provides opportunity for Experts to publish, offer, and make a contract for their engagement services (collectively, “Engagement Services”) in different types of projects, services, or other engagements, to Clients through their subcontracting by Tounca.
Tounca also provides payments services to Users publishing, offering, and ordering, projects, services, or other Engagement Services, including other current and future services provided via the Tounca Marketplace Platform. These payment services may include (if available) the following (collectively, “Payment Services”):
In order to use the Engagement and Payment Services, you must be at least 18 years old or/and must be authorized person for the company, must have a Tounca account in good standing in accordance with the Tounca Terms and Conditions (“Terms”), and must keep your payment and personal information accurate and complete.
Currently all Payment Services, regardless of the Client or Expert country of residence, will be contracted and perform between you and Tounca LLC.
The Terms separately govern your use of the Tounca Marketplace Platform. If you see an undefined term in these Engagement and Payment Terms, it has the same definition as in the Terms.
By using the Payments Services, you agree to comply with these Engagement and Payments Terms. Tounca may temporarily limit or suspend your access to or use of the Payment Services, or its features, to carry out maintenance measures that ensure the proper functioning of the Payment Services. Tounca may improve, enhance, and modify the Payment Services and introduce new Payment Services from time to time. Tounca will provide notice to Users of any changes to the Payment Services unless such changes do not materially increase the Users’ contractual obligations or decrease the Users’ rights under these Engagement and Payments Terms.
The Payment Services may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services are subject to different terms of service and privacy policies, and Users should review them. Tounca is not responsible or liable for the use of such Third-Party Services. Links to any Third-Party Services are not an endorsement by Tounca of those Third-Party Services.
By using the Engagement Services, you agree to comply with these Engagement and Payments Terms. Tounca may temporarily limit or suspend your access to or use of the Engagement Services, or its features, to carry out maintenance measures that ensure the proper functioning of the Engagement Services. Tounca may improve, enhance, and modify the Engagement Services and introduce new Engagement Services from time to time. Tounca will provide notice to Users of any changes to the Engagement Services unless such changes do not materially increase the Users’ contractual obligations or decrease the Users’ rights under these Engagement and Payments Terms.
The Engagement Services may require additional third-party services (e.g., different infrastructure or platforms, communication tools, project management tools and similar) and contain links to third-party websites, tools, or other resources (“Third-Party Services”). Such Third-Party Services are subject to different terms of service and privacy policies, and Users should review them. Tounca is not responsible or liable for the use of such Third-Party Services. Links to any Third-Party Services are not an endorsement by Tounca of those Third-Party Services.
Tounca may enable features that allow you to authorize other Users or third parties to take certain actions that affect your Tounca account. You may authorize a third party to use your Tounca account if the feature is enabled for your Tounca account. You acknowledge and agree that anyone you authorize to use your Tounca account may use the Engagement and Payment Services on your behalf and that you will be responsible for any of their engagement and payments made by such person.
You authorize Tounca, directly or through third parties, to make any inquiries we consider necessary to verify your identity. This may include (i) screening you against third-party databases or other sources, (ii) requesting reports from service providers, (iii) asking you to provide a form of government identification (e.g., ID, driver’s license, or passport), your date of birth, your address, and other information; (iv) asking you to provide a form of vendors confirmation of your special status if exists or request this kind of information from the vendor you are connected; or (v) requiring you to take steps to confirm ownership of your email address, Payment Method(s) or Payout Method(s). Tounca reserves the right to terminate, suspend, or limit access to the Engagement and/or Payment Services in the event we are unable to obtain or verify any of this information.
Your access to or use of certain Engagement and/or Payment Services may be subject to, or require you to accept, additional terms and conditions. If there is a conflict between these Engagement and Payments Terms and Terms and Conditions applicable to a specific Engagement and/or Payment Service, the latter Terms and Conditions will take precedence with respect to your use of or access to that Engagement or Payment Service, unless specified otherwise.
At the moment of publishing these Payment Terms, Tounca Marketplace Platform provides only wire Payment Method, directly from the client’s bank account for clients. But Tounca will add new Payment Methods soon and from that moment we will use paragraph below where we have explained details about Payment Methods.
When you add a Payment Method to your Tounca account, you will be asked to provide billing information such as name, billing address, and financial instrument information either to Tounca or its third-party payment processor(s). You authorize Tounca and its payment service providers to collect and store your Payment Method information.
When you add or use a new Payment Method, Tounca may verify the Payment Method by (i) authorizing your Payment Method for one or two nominal amounts via a payment service provider, and asking you to confirm those amounts, or (ii) requiring you to upload a billing statement. We may, and retain the right to, initiate refunds of these amounts from your Payment Method. When you add a Payment Method during checkout, we will automatically save and add that Payment Method to your Tounca account so it can be used for a future transaction. You can remove the Payment Method from your Tounca account as long as it is not associated with an active or future project.
You allow Tounca to charge your Payment Method, either directly or indirectly, for all fees due (including any applicable taxes) in connection with your Tounca account.
If your Payment Method’s account information changes (e.g., account number, routing number, expiration date) as a result of re-issuance or otherwise, we may acquire that information from our financial services partners or your bank and automatically update your Payment Method on file.
Tounca generally charges the Total Price for whole project or the project’s phase before start of the project or the first phase of the project as a security deposit (according to the contract), based on Security Deposit Policy (“Security Deposit”). Additional terms and conditions may apply for the use of an alternative payment option. If Tounca is unable to collect the Total Price due, as scheduled, Tounca will collect the Total Price due at a later point in accordance with Section 5.3., but if you fail to pay security deposit for the next project phase in a ten (10) business days after confirmation of the previous phase, it will become Project or Service Issue and Tounca may decide to behave accordingly to the Cancellation and Refund Policy. Once the payment for your phase of requested project is successfully completed, you will receive a confirmation email.
If you extend your requirements or change the on the other way, Tounca (i) may ask for additional amount with due immediately based on your change request; or (ii) may require signing contract addendum with new Payment Plan and require payment accordingly new Payment Plan.
Tounca will process each transaction in the currency you select via the Tounca Marketplace Platform. Currently only USD is available as an option on the Tounca Marketplace Platform, but Tounca planned to use more currencies in the future.
The currencies available to make payments may be limited for regulatory or operational reasons based on factors such as your selected Payment Method, your country of residence, and/or Tounca residency. Any such limitations will be communicated via the Tounca Marketplace Platform, and you will be prompted to select a different currency or Payment Method. Note that if Tounca’s location is different than the country of your Payment Method, or your selected currency is different than your Payment Method's billing currency, your payment may be processed outside of your country of residence. As a result, certain fees may apply, and the amount listed on your card statement may be different from the amount shown at checkout. For example, if you choose Payment Method using a U.S. issued card, but select Euro as your currency, your payment may be processed outside the U.S., and banks and credit card companies may impose international transaction fees and foreign exchange fees. In addition, if you select to pay with a currency that is different than your Payment Method's billing currency, your bank or credit card company may convert the payment amount to your billing currency associated with your Payment Method, based on an exchange rate and fee amount determined solely by your bank. Tounca is not responsible for any such fees and disclaims all liability in this regard. Please contact your bank or credit card company if you have any questions about these fees or the applicable exchange rate.
If a requested project is declined either because it is not accepted by Experts, or you cancel the proposal request before it is accepted by Experts, or Tounca decided so in its sole discretion, any amounts collected by Tounca will be refunded to you, and any pre-authorization of your Payment Method will be released (if applicable). The timing to receive the refund or for the pre-authorization to be released will vary based on the Payment Method and any applicable payment system (e.g., Visa, MasterCard, etc.) rules.
Tounca reserves the right to decline or limit payments that we believe (i) may violate Tounca’s risk management policies or procedures; (ii) may violate these Engagement and Payments Terms or the Terms; (iii) are unauthorized, fraudulent, or illegal; or (iv) expose you, Tounca, or others to risks unacceptable to Tounca.
Payment Methods may involve the use of third-party payment service providers. These payment service providers may charge you additional fees when processing payments in connection with the Payment Services, and Tounca is not responsible for any such fees and disclaims all liability in this regard. Your Payment Method may also be subject to additional terms of use. Please review them before using your Payment Method.
Tounca is not responsible for any loss suffered by you as a result of incorrect Payment Method information provided by you.
2.11.1.1 Tounca may make available to Clients the option to pay a portion of the project’s Total Price at the time of signing the contract and pay the remainder of the Total Price at a later time prior to closing the phase (“Payment Plan”). Availability of this option may depend on the Tounca offerings, subcontracted expert’s offering, chose project management methodology, and/or Payment Method.
2.11.1.2 If you choose a Payment Plan, the Tounca Marketplace Platform will notify you during check out of the amount, currency, and schedule of each payment due. On the following payments due date, Tounca will automatically charge the original Payment Method you used when you signed the contract.
2.11.1.3 If you make a modification extending the project, where we already have signed Payment Plan, Tounca will notify you of the revised payment schedule, as applicable. If the modification increases your Total Price, you may be required to make an additional partial payment of the new Total Price at the time of the modification.
2.11.1.4 You agree that by selecting a Payment Plan, you may not be able to pay for the project with a different Payment Method or pursuant to a different payment schedule.
2.11.1.5 If Tounca is unable to collect your payment, Tounca will notify you of such declined payment, and require you to complete the payment using an alternative Payment Method within 72 hours of the notice. If you fail to complete the payment in a ten (10) business days from contracted due date, you authorize Tounca to cancel the project on your behalf. If the project is canceled, you will be refunded based on theCancellation and Client Refund Policy. You acknowledge that you may incur fees for cancellations pursuant to the Cancellation and Client Refund Policy as well as Pricing and Fees Policy (“Pricing and Fees”).
2.11.2.1 For certain contracts (such as for engagement an accountant or some other expert on the monthly level, or other outsourcing services), Tounca may require a Client to make recurring, incremental payments toward the Total Price owed (“Recurring Payments”). More information on Recurring Payments (including the amount and the frequency of payments) will be made available via the Tounca Marketplace Platform if applicable for ordering or through the signed contract.
2.11.2.2 If Recurring Payments apply to a confirmed engagement, then the Client authorizes Tounca to collect the Total Price due.
2.11.2.3 Client may stop a Recurring Payment by notifying Tounca in writing at least three (3) business days before the scheduled date of the payment.
By contacting Tounca, you are showing an interest in engaging us in one or more of the following areas: (i) project of implementation on of business solutions (such ERP, CRM, HRM, BI, WMS, and similar); (ii) support in ongoing project of implementation of business solutions; (iii) finishing some specific task in active business solution in your company; (iv) upgrade one of existing already implemented business solution; (v) building completely new business solution(s); (vi) service of operative work in some of business solutions (e.g., accountant, manufacturing agent, salesman, marketing expert, HR manager or similar); or (vii) getting outsourced expert for one of your projects or other engagements. Tounca may add more service to this list.
Through the evaluation process when you decide to register yourself, you confirm that you want to be contacted from us and to get proposal for one or more of the services mentioned in this section. You agree that all information you get, or you are exposed in this process you may use only for getting proposal for one or more services we mentioned, and you cannot use for any other purpose (e.g., comparing with other offering, except for comparing with offering you get from us, or using as basis for your own pricing system, or similar). Based on your requirements we will prepare a few easy comparable proposals that will make easy for you to choose the right one, the most fit with your requirements.
If and when you accept our proposal, you will get dedicated Experts to run services you chose as our subcontractors.
Tounca generally collects the Total Price for whole project or the project’s phase from Client before start of the project or the first phase of the project as a security deposit (according to the contract), based on Security Deposit Policy (“Security Deposit”), unless noted otherwise.
In order to receive a Payout, you must have a valid Payout Method linked to your Tounca account. When you add a Payout Method to your Tounca account, you will be asked to provide billing information such as name, government identification, tax ID, billing address, and financial instrument information either to Tounca or its third-party payment processor(s). Depending on the Payout Method selected additional information may be required, such as: residential address, name on the account, account type, routing number, account number, email address, payout currency, identification number and account information associated with a particular payment processor. You authorize Tounca to collect and store your billing information and financial instrument information. Tounca may also share your information with governmental authorities as required by applicable law.
3.3.1 Subject to and conditional upon successful receipt of the payments from Client, Tounca will generally initiate Payouts from the Clients’ Security Deposit account: (i) to all involved and subcontracted Experts (both Companies and/or Individuals) into this phase of project in amount in accordance with their effective engagement in contracted unit of measure; (ii) to your selected Payout Method on your Tounca profile; (iii) for projects and tasks, up to seven (7) days after Client confirms that respective phase is finished; (iv) for accounting and other monthly outsourced services, up to seven (7) days after finished billing month and confirmation from Client side; and (v) for all other services, at the time specified via the Tounca Marketplace Platform.
3.3.2 Tounca may offer you a different Payout time or trigger for payment, which may be subject to additional terms and conditions or signed contract. The time it takes to receive Payouts once released by Tounca may depend upon the Payout Method you select.
Your Payout for your service engagement as a subcontractor will be the Total Price related with your service engagement for respective phase or engagement, less applicable fees like Tounca service fees and applicable taxes in accordance with the Pricing and Fees. In the event of cancellation of a confirmed engagement, Tounca will remit the amount you are due (if any) as provided in the Terms and applicable cancellation and client refund policy.
Tounca may reduce your Payout (i) up to 10% if you late with your task delivering five (5) or more business days and less than ten (10) business days; (ii) up to 15% if you late with your task delivering ten (10) or more business days and less than fifteen (15) business days; and (iii) up to 20% if you late with your task delivering fifteen (15) or more business days and less than twenty (20) business days. If you late with your task delivering more than twenty (20) days, Tounca may decide at its sole discretion to reduce your payment in total. We will count task as delivered if task is confirmed by Client, but Client cannot keep your task on hold, because Client must change status to Confirmed in maximum two (2) two days or add an objective reason why they didn’t do it. Period for waiting on the completely phase confirmation will not be counted as a base for payout reducing.
This Payout is related only with one task where you (if you) late and it is not connected with your other tasks or completely phase or project. If a Client ordered regular monthly outsourced engagement Payout Reducing will not exist in this kind of engagements.
Trigger for payout is confirmed phase by the Client. And that means if Client didn’t confirm a phase there is nothing for Payout and payment cannot be done partially based on some finished tasks.
Tounca may temporarily place a hold, suspend, or cancel any Payout for Experts as subcontractors for purposes of preventing unlawful activity or fraud, risk assessment, security, or completing an investigation; or if we are unable to verify your identity. Furthermore, Tounca may temporarily place a hold on, suspend, or delay initiating or processing any Payout due to you under the Terms as a result of high-volume project and/or service cancellations or modifications arising from a Force Majeure Event (as defined below).
Tounca will remit your Payouts in the currency you select via the Tounca Marketplace Platform if available, otherwise it will be done in USD. The currencies available may be limited for regulatory or operational reasons based on factors such as your selected Payout Method, and/or your country of residence. Any such limitations will be communicated via the Tounca Marketplace Platform, and you will be prompted to select a different currency or Payout Method if available. Note that payment service providers may impose transaction, currency conversion or other fees based on the currency or Payout Method you select, and Tounca is not responsible for any such fees and disclaims all liability in this regard.
For compliance or operational reasons, Tounca may limit the amount of a Payout in its sole discretion. If you are due an amount above that limit, Tounca may make a series of Payouts (potentially over multiple days) in order to provide your full Payout amount and in this case only first installment will be with guaranteed due date mentioned in Section 3.3.1.
Payout Methods may involve the use of third-party payment service providers. These payment service providers may charge you additional fees when processing Payouts in connection with the Payment Services (including deducting charges from the Payout amount), and Tounca is not responsible for any such fees and disclaims all liability in this regard. Your Payout Method may also be subject to additional terms of use. Please review them before using your Payout Method.
As Tounca is directly contractor with the Client, Tounca may combine amounts that it collects from Clients and invest them as permitted under applicable laws, even amounts from Security Deposit but giving a warranty to both sides Client and Expert that this amount is always chargeable in the give due dates. Tounca will retain any interest it earns on those investments.
Tounca is not responsible for any loss suffered by you as a result of incorrect Payout Method information provided by you.
Tounca may send request for proposal (“RFP”) to one or more Experts. RFP can be for the whole contract with the Client or for the one or more parts or tasks. Tounca may use only one Expert for the proposal to the Client or create virtual team with more Experts included, where the proposal to the Client will be combined proposal from more Experts. Sending the proposal based on RFP, Expert confirms that Tounca can continue negotiation with the Client and Expert will not change this proposal until the end of negotiation process.
If Expert’s proposal is not accepted, Tounca will send this information through the Tounca Marketplace Platform or via email. If Expert’s proposal is accepted, Tounca will send this information through the Tounca Marketplace Platform or via email and continue with the process of making contract without changing conditions. After signing the contract, Expert will get scheduled tasks with due dates to work on them. If Tounca combined more Experts in the common proposal and it is accepted as is, all Experts confirm that they will work together in virtual team. All tasks in the virtual team will have assigned Expert. Expert has an obligation to change the status for each of assigned tasks related with the real status of task.
Tounca may calculate contingency plan to ensure business continuity and to prevent negative events on the project. Contingency plan can be calculated only in the case of project engagement. Contingency plan can be calculated up to 15% on a top of your price if you are an individual and up to 5% on a top of your price if you are a company. Percentage depends on your service history, type of engagement, and other relevant information in sole discretion of Tounca.
4.1.1 Each Expert, including each member of virtual team, hereby appoints Tounca as the Expert’s payment collection agent solely for the limited purpose of accepting and processing funds from Clients purchasing services and keeping Security Deposit on the Expert’s behalf.
4.1.2 Each Expert, including each member of virtual team as subcontractor(s), agrees that from the moment Tounca notify them that payment made by a Client through Tounca’s payment process is executed, the Expert will provide the services contracted for the project ordered by the Client. Each Expert agrees that Tounca may refund the Client in accordance with the Terms and this refund may decrease amount for Expert’s payment. Each Expert understands that Tounca’s obligation to pay the Expert is subject to and conditional upon successful receipt of the associated payments from Client and Client’s confirmation about successfully finished phase, task, or project. Tounca guarantees payments to Expert(s) as to the subcontractors (s) only for such amounts that have been successfully received by Tounca from Client in accordance with these Engagement and Payments Terms. In accepting appointment as the limited payment collection agent of the Expert, Tounca assumes no liability for any acts or omissions of the Expert.
4.1.3 Each Client acknowledges and agrees that all funds must be paid directly to Tounca according to the signed contract. Upon a Client’s payment of the funds to Tounca, the Client’s payment obligation for the agreed upon amount is extinguished, and Tounca is responsible for remitting the funds successfully received by Tounca to the Expert(s) as to the subcontractor(s) in the manner described in these Payments Terms. In the event that Tounca does not remit any such amounts, the Expert(s) will have recourse only against Tounca and not the Client directly as Expert(s) have the contract directly with Tounca.
4.2.1 Each Client knows and understands that Tounca doesn’t provide services directly and for each of provided services, Tounca engage Expert(s) as subcontractors. Each Client has the right to demand Expert(s) biographies and references before engaging them and Tounca may not sign subcontracts before Client agrees and approves it. Tounca may offer Expert(s), but the final decision and responsibility for choice is on each Client.
4.2.2 Each Expert, including each member of virtual team, hereby appoints Tounca as the Expert’s engagement collection agent solely for the limited purpose of accepting RFPs, sending proposals in their name, and negotiate with the Clients about purchasing services on the Expert’s behalf.
4.2.3 Each Expert, including each member of virtual team as subcontractor(s), agrees that when Tounca sign the contract with the Client, they will sign contract with the Tounca based on proposals they already sent without changing any of condition, except in a case when it is allowed by Terms.
Expert(s) as subcontractor(s) guarantee all assigned services related with the contract will be finished related with due dates in accordance with these Engagement and Payments Terms and other Terms. In accepting appointment as the limited engagements agent of the Expert, Tounca assumes no liability for any acts or omissions of the Expert.
4.2.4 Each Client acknowledges and agrees that (i) all confirmed designs by Expert makes an obligation only for this Expert to provide a solution and not for Tounca; and (ii) for all customizations, developments, and other programming, there is not responsibility for Tounca and responsibility for this work is only on the Expert(s) involved in this task and Expert(s) must provide all bug-fixes for their work. Only actions Tounca can make are related with the explanations in Cancellation and Refund Policy.
4.2.5 Each Client acknowledges and agrees that all finished services from the Expert(s) will be treated as services done by Tounca and they will not require additional service related with the task. If the Client is not satisfying with the quality, Client may require providing measures detailed in the Cancellation and Refund Policy.
Tounca may charge fees for use of certain Payment Services and other provided services, and any applicable fees will be disclosed to you in the Terms, Pricing and Fees Policy, or via the Tounca Marketplace Platform.
You authorize Tounca to collect from you amounts (as the final payment and/or as the security deposit) due pursuant to these Payment Terms and/or the Terms by either (i) charging the Payment Method associated with the relevant project or other service engagement, or any other Payment Method on file that you authorize in your Tounca profile (unless you have previously removed the authorization to charge such Payment Method(s)), or (ii) by withholding the amount from your future Payout. Specifically, you authorize Tounca to collect from you:
In addition to any amount due as outlined above, if there are delinquent amounts or chargebacks associated with your Payment Method, you may be charged fees that are incidental to Tounca collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees or other third-party charges.
5.3.1 If Tounca is unable to collect any amounts you owe under these Payments Terms, Tounca may engage in collection efforts to recover such amounts from you.
5.3.2 Tounca will deem any owed amounts overdue when: (a) for authorized charges, sixty (60) days have elapsed after Tounca first attempts to charge your Payment Method or the associated services have been provided, whichever is later; and (b) for withholdings from an Expert’s future Payouts, ninety (90) days have elapsed after the adjustment is made to the User’s Tounca account or the associated services have been provided, whichever is later.
5.3.3 Tounca will deem any overdue amounts not collected to be in default when one hundred and twenty (120) days have elapsed: (a) for authorized charges, after Tounca first attempts to charge your Payment Method or the associated services have been provided, whichever is later; and (b) for withholdings from an Expert’s future Payouts, after the adjustment is made to the Expert’s Tounca account or the associated services have been provided, whichever is later.
5.3.4 You hereby explicitly agree that all communications in relation to amounts owed will be made by electronic mail or by phone, as provided to Tounca by you. Such communications may be made by Tounca, or by anyone on their behalf, including but not limited to a third-party collection agent.
5.4.1 Tounca will take the necessary steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the original Payout Method or Payment Method used or selected by you, so that you end up receiving or paying the correct amount. This may be performed by Tounca or a third party such as your financial institution. We may also take steps to recover funds sent to you in error (including but not limited to an event of duplicate payments made to you due to a processing error), by reducing, setting off and/or debiting the amount of such funds from any future Payouts owed to you.
5.4.2 To the extent you receive any funds in error, you agree to immediately return such funds to Tounca.
5.5.1 Any refunds or credits due to a User pursuant to the Terms, Extenuating Circumstances Policy, Cancellation and Client Refund Policy will be initiated and remitted by Tounca in accordance with these Payments Terms.
5.5.2 Subject to this Section 5.5.2, Tounca will process refunds immediately, however, the timing to receive any refund will depend on the Payment Method and any applicable payment system (e.g., Bank account wire, Visa, Mastercard, etc.) rules. In the event of a Force Majeure Event that may affect the processing and settlement of refunds, Tounca will initiate and process the refund as soon as is practicable.
6.1 If you as subcontracted Expert (i) agree to pay the Client in connection with a Damage Claim, or (ii) Tounca determines that you are responsible for any real damaging, you authorize Tounca to charge the Payment Method you use in order to collect any fees, costs and/or expenses associated with the Damage Claim. If Tounca is unable to collect from the Payment Method you use, you agree that Tounca may charge any other Payment Method on file in your Tounca account at the time of the Damage Claim (unless you have previously removed the authorization to charge such Payment Method(s)).
6.2 You agree that Tounca may seek to recover from you under any insurance policies you maintain and that Tounca may also pursue against you any remedies it may have available.
If Tounca holds funds due to you (e.g., because we are unable to issue you a Payout or refund), we may process the funds due to you in accordance with our legal obligations, including by reporting and escheating (sending) such funds to the appropriate governing body.
8.1 You are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Payment Services. In connection with your use of the Payment Services, you may not, and you agree that you will not and will not assist or enable others to:
8.2 You may not use or assist others to use the Payment Services to send or receive funds: (i) into any United States embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. You represent and warrant that: (i) neither you nor your business nor your services are located or take place in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. In addition to complying with the above, you must also comply with any relevant export control laws in your local jurisdiction.
Tounca shall not be liable for any delay or failure to fulfill any obligation under these Payments Terms resulting from causes outside the reasonable control of Tounca, including, but not limited to, acts of God, natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, pandemics, epidemics, or disease, strikes or shortages of transportation facilities, fuel, energy, labor or materials (“Force Majeure Event”).
10.1 If you choose to use the Payment Services, you do so voluntarily and at your sole risk. To the maximum extent permitted by law, the Payment Services are provided “as is”, without warranty of any kind, either express or implied.
10.2 Notwithstanding Tounca’s appointment as the limited payment collection agent of Experts pursuant to Section 4, Tounca explicitly disclaims all liability for any act or omission of any User or other third party. Tounca does not have any duties or obligations as agent for each Expert except to the extent expressly set forth in these Engagement and Payments Terms, and any additional duties or obligations as may be implied by law are, to the maximum extent permitted by applicable law, expressly excluded.
10.3 If we choose to conduct identity verification on any User, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a User or guarantee that a User will not engage in misconduct in the future.
10.4 The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights or warranties which cannot lawfully be excluded. However, the duration of any statutorily required warranties shall be limited to the maximum extent (if any) permitted by law.
11.1 Except as provided in Section 11.2, you acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Engagement and Payment Services remains with you. If you permit or authorize another person to use your Tounca account in any way, you are responsible for the actions taken by that person or business. Neither Tounca nor any other party involved in creating, producing, or delivering the Engagement and Payment Services will be liable for any incidental, special, exemplary, or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Engagement and Payments Terms, (ii) from the use of or inability to use the Payment Services, or (iii) from any communications, interactions, or meetings with other Users or other persons with whom you communicate, interact, transact, or meet with as a result of your use of the Engagement and Payment Services, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not Tounca has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Except for our obligations to pay amounts to applicable Expert pursuant to these Engagement and Payments Terms, in no event will Tounca’s aggregate liability arising out of or in connection with these Engagement and Payments Terms and your use of the Payment Services including, but not limited to, from your use of or inability to use the Payment Services, exceed (i) the amounts you have paid or owe for ordering via the Tounca Marketplace Platform as a Client in the two (2) month period prior to the event giving rise to the liability, or if you are an Expert, the amounts paid by Tounca to you in the two (2) month period prior to the event giving rise to the liability, or (ii) one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Tounca and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S., this does not affect Tounca’s liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter, or any other liability which cannot be excluded or limited under applicable law.
11.2 If you reside in EEA or Australia, Section 11.1 does not apply, and Tounca is liable under statutory provisions for intent and gross negligence by us, our legal representatives, directors, or other vicarious agents. The same applies to the assumption of guarantees or any other strict liability, or in case of a culpable injury to life, limb, or health. Tounca is liable for any negligent breaches of essential contractual obligations by us, our legal representatives, directors, or other vicarious agents; such liability is limited to the typically occurring foreseeable damages. Essential contractual obligations are such duties of Tounca in whose proper fulfillment you regularly trust and must trust for the proper execution of the contract. Any additional liability of Tounca is excluded to the maximum extent allowed by applicable law.
To the maximum extent permitted by applicable law, you agree to release, defend (at Tounca’s option), indemnify, and hold Tounca and its affiliates and subsidiaries, and their officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Engagement and Payments Terms; (ii) your improper use of the Payment Services; (iii) your failure, or our failure at your direction, to accurately report, collect or remit taxes; (iv) your improper use of the engagement and project management tools, or other tools on the Tounca Marketplace Platform; or (v) your breach of any laws, regulations, or third-party rights.
If your country of residence is in the EEA, the indemnification obligation according to this Section 12 only applies if and to the extent that the claims, liabilities, damages, losses, and expenses have been adequately caused by your culpable breach of a contractual obligation.
Except as otherwise required by applicable law, Tounca may modify these Engagement and Payments Terms at any time. If we make material changes to these Engagement and Payment Terms, we will post the revised Engagement and Payment Terms on the Tounca Marketplace Platform and update the “Last Updated” date at the top of these Engagement and Payment Terms. If you are affected by the modification, we will also provide you with notice of the modifications at least thirty (30) days before the date they become effective. If the place of your residence is EEA, UK, or Australia, you will receive at least two (2) months advance notice. If you do not terminate your agreement before the date the revised Engagement and Payment Terms become effective, your continued use of the our Engagements in projects and services as well as Payment Services will constitute acceptance of any changes to the revised Engagement and Payments Terms.
This agreement between you and Tounca reflected by these Engagement and Payment Terms is effective when you create an Tounca account or use the Payment Services and remains in effect until either you or we terminate this agreement in accordance with Section 13.3.
You may terminate this agreement at any time by sending us an email or by deleting your Tounca account. Terminating this agreement will also serve as notice to cancel your Tounca account pursuant to the Terms. Without limiting our rights specified below, Tounca may terminate this agreement for convenience at any time by giving you thirty (30) days' notice via email to your registered email address (or two (2) months’ prior notice for User with residence in EEA, UK, or Australia). Tounca may also terminate this agreement immediately without notice if (i) you have materially breached your obligations under this agreement; (ii) you have provided inaccurate, fraudulent, outdated, or incomplete information; (iii) you have violated applicable laws, regulations, or third-party rights; or (iv) Tounca believes in good faith that such action is reasonably necessary to protect other Users, Tounca, or third parties.
Tounca may limit or temporarily or permanently suspend your use of or access to the Engagement and Payment Services (i) to comply with applicable law, or the order or request of a court, law enforcement, or other administrative agency or governmental body, (ii) if you have breached these Engagement and Payments Terms, the Terms, applicable laws, regulations or third-party rights, (iii) if you have provided inaccurate, fraudulent, outdated, or incomplete information regarding a Payment Method or Payout Method or your knowledge or experience, (iv) for any amounts you owe under these Engagement and Payments Term that are overdue or in default, or (v) if Tounca believes in good faith that such action is reasonably necessary to protect the personal safety or property of Tounca, its Users, or third parties, or to prevent fraud or other illegal activity. Further, for unsuccessful payment due to card expiration, insufficient funds, or otherwise, we may temporarily suspend your access to the Payment Services until we can charge a valid Payment Method.
If Tounca takes any of the measures described in Section 13.3 and 13.4 you may appeal such a decision by contacting Customer Service.
If you cancel your Tounca account as an Expert or Tounca takes any of the measures described above, Tounca may provide a full refund to any Clients with confirmed project(s) or service(s), and you will not be entitled to any compensation for pending or confirmed projects or services that were cancelled. If you cancel your Tounca account as a Client, Tounca will initiate a refund for any confirmed project(s) or service(s) based on the Cancellation and Client Refund Policy. If your access to or use of the Payment Services has been suspended or limited or this agreement has been terminated by us, you may not register a new Tounca account or attempt to access and use the Payment Services through an Tounca account of another User.
Unless your country of residence is in the EEA, Sections 5 through 20 of these Payments Terms shall survive any termination or expiration of this agreement.
If you are contracting with Tounca in US, these Engagement and Payments Terms will be interpreted in accordance with the laws of the State of Delaware and the United States of America, without regard to conflict-of-law provisions. Legal proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 15 must be brought in Court of Chancery in Dover, Delaware or in United States District Court for the District of Delaware, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Dover, Delaware.
This Arbitration Agreement only applies to you if you are contracting with Tounca in US. If you are not contracting with Tounca in US, and you nevertheless attempt to bring any legal claim against Tounca in the United States, this Arbitration Agreement will apply for determination of the threshold issue of whether this Section 15 applies to you, and all other threshold determinations, including residency, arbitrability, venue, and applicable law.
Tounca is committed to participating in a consumer-friendly dispute resolution process. To that end, these Engagement and Payment Terms provide for a two-part process for individuals to whom this Section 15 applies: (1) an informal negotiation directly with Tounca’s Customer Service team (described in paragraph 15.3, below), and if necessary (2) a binding arbitration administered by the American Arbitration Association (“AAA”). You and Tounca each retain the right to seek relief in small claims court as an alternative to arbitration
At least 45 days prior to initiating an arbitration, you and Tounca each agree to notify the other party of the dispute in writing and attempt in good faith to negotiate an informal resolution. You must send your notice of dispute to Tounca by mailing it to Tounca registered agent: A Registered Agent, Inc., 8 The Green, Suite A, Dover, Delaware 19901. Tounca will send its notice of dispute to the email address associated with your Tounca account. A notice of dispute must include: the party’s name and preferred contact information, a brief description of the dispute, and the relief sought. If the parties are unable to resolve the dispute within the 45-day period, only then may either party commence arbitration by filing a written Demand for Arbitration (available at www.adr.org) with the AAA and providing a copy to the other party as specified in the AAA Rules (available at www.adr.org).
You and Tounca mutually agree that any dispute, claim, or controversy arising out of or relating to these Engagement and Payments Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or any use of the Engagement and Payment Services (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Tounca agree that the arbitrator will decide that issue.
You and Tounca each agree that the following causes of action and/or claims for relief are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction (as defined by Section 15): (i) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (ii) a request for the remedy of public injunctive relief. You and Tounca agree that the remedy of public injunctive relief will proceed after the arbitration of all arbitrable claims, remedies, or causes of action, and will be stayed pending the outcome of the arbitration pursuant to section 3 of the Federal Arbitration Act.
This Arbitration Agreement evidences a transaction in interstate commerce and the Federal Arbitration Act governs all substantive and procedural interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules”) then in effect, except as modified here. The AAA Rules are available at www.adr.org. In order to initiate arbitration, a completed written demand (available at www.adr.org) must be filed with the AAA and provided to the other party, as specified in the AAA rules.
In order to make the arbitration most convenient to you, Tounca agrees that any required arbitration hearing may be conducted, at our common option: (a) in Kent County; (b) via phone or video conference; or (c) if all parties agree, by solely the submission of documents to the arbitrator or.
Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. Either party may make a request that the arbitrator award attorneys’ fees and costs upon proving that the other party has asserted a claim, cross-claim or defense that is groundless in fact or law, brought in bad faith or for the purpose of harassment, or is otherwise frivolous, as allowed by applicable law and the AAA Rules.
The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award any relief allowed by law or the AAA Rules, but declaratory or injunctive relief may be awarded only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
You and Tounca acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
You and Tounca acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative or consolidated proceeding. Unless we agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If there is a final judicial determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy, and only that claim, cause of action or requested remedy, will be severed from this agreement to arbitrate and will be brought in a court of competent jurisdiction. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator.
Except as provided in Section 15.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement will be given full force and effect.
If Tounca changes this Section 15 after the date you last accepted these Engagement and Payments Terms (or accepted any subsequent changes to these Engagement and Payments Terms), you may reject that change by sending us written notice (including by email) within thirty (30) days of the date the change is effective. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and Tounca (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and Tounca.
Except as provided in Section 15.12 and subject to Section 13.7, this Section 15 will survive any termination of these Engagement and Payments Terms and will continue to apply even if you stop using the Payment Services or any other Tounca’s services or terminate your Tounca account.
Except as they may be supplemented by additional terms and conditions, policies, guidelines, or standards, these Engagement and Payments Terms constitute the entire agreement between Tounca and you regarding the subject matter hereof and supersede any and all prior oral or written understandings or agreements between Tounca and you regarding the Payment or any other Tounca’s Services. If any provision of these Engagement and Payments Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
Tounca’s failure to enforce any right or provision in these Engagement and Payments Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Engagement and Payments Terms, the exercise by either party of any of its remedies under these Engagement and Payments Terms will be without prejudice to its other remedies under these Engagement and Payments Terms or otherwise permitted under law.
You may not assign, transfer, or delegate this agreement or your rights and obligations hereunder without Tounca’s prior written consent. Tounca may without restriction assign, transfer, or delegate this agreement and any rights and obligations, at its sole discretion, with thirty (30) days’ prior notice (or two (2) months’ prior notice for User with residence in EEA, UK, or Australia).
Unless specified otherwise, any notices or other communications permitted or required under this agreement, will be in writing and given by Tounca via email or Tounca Marketplace Platform notification, and depending on your notification setting, messaging service. The date of receipt will be deemed the date on which Tounca transmits the notice.
The following paragraphs also apply if you are using the Payment Services as a representative (“Representative”) acting on behalf a business, company, or other legal entity (in such event, for purposes of the Engagement and Payments Terms, “you” and “your” will refer and apply to that business, company, or other legal entity).
17.1 You accept the Engagement and Payment Terms, and you will be responsible for any act or omission of employees or third-party agents using the Payment Service or any other Tounca’s Service on your behalf.
17.2 You and your Representative individually affirm that you are authorized to provide the information described in Section 2.1 and Section 3.2 and your Representative has the authority to bind you to these Engagement and Payments Terms. We may require you to provide additional information or documentation demonstrating your Representative’s authority.
17.3 You represent and warrant to us that: (i) you are duly organized, validly existing and in good standing under the laws of the country in which your business is registered and that you are registering for receiving the Payment Services and asking or providing any other Services related with the Tounca marketplace Platform; and (ii) you have all requisite right, power, and authority to enter into this agreement, perform your obligations, and grant the rights, licenses, and authorizations in this agreement.
17.4 If you are using your Payment Method for the benefit of your employees or other authorized third-party in connection with Tounca for Work, as permitted by your account, you authorize Tounca to charge your Payment Method for bookings requested by employees at your company or other permitted third-party.
17.5 For any Payout Method linked to your Tounca account, you authorize Tounca to store the Payout Method, remit payments using the Payout Method for bookings associated with your Tounca account and take any other action as permitted in the Engagement and Payments Terms in respect of the Payout Method.
17.6 If you handle, store, or otherwise process payment card information on behalf of anyone or any third-party, you agree to comply on an ongoing basis with applicable data privacy and security requirements under the current Payment Card Industry Data Security Standard with regards to the use, access, and storage of such credit card information. For additional information, including tools to help you assess your compliance, see https://www.visa.com/cisp and https://www.mastercard.com/sdp.