terms-of-service
To what extent is this &quot;Terms and Conditions&quot; clause legally valid?
<p>As far as I understand, certain types of clauses that are fully enforcable if added to a written contract are not enforcable as part of a &quot;Terms and conditions&quot; document.</p>
<p>For example, I can imagine that &quot;<em>the user hereby agrees to pay to Company X an amount of 10 Million USD in exchange for the services</em>&quot; would be enforcable if part of a written contract, but not as part of the terms and conditions of a software package.</p>
<p>However, <strong>my question is about the terms and conditions of a specific Canadian company, namely Voices.com</strong> (I've highlighted the important parts):</p>
<blockquote>
<p><strong>3. Payment Service</strong>: Payments for voice talent work must be made through Voices.com and not from Client to Talent directly. Payments for the purchase of voice talent are held by Voices.com until the voice talent delivers the product to the Client, and the Client confirms the work is complete. Voices.com will pay the Talent on its next scheduled payout date.
<strong>Users will not circumvent the Voices.com payment procedures</strong>. <strong>Prohibited acts include (but are not limited to) the following</strong>:</p>
<ul>
<li><p><strong>Submitting proposals to</strong> or soliciting <strong>Clients identified on Voices.com to</strong> contact, hire, manage or <strong>pay outside Voices.com</strong>.</p>
</li>
<li><p>Accepting proposals from or soliciting voice talent identified on Voices.com to contact, deliver voice talent work, invoice, or receive payment outside Voices.com.</p>
</li>
</ul>
</blockquote>
<p>Voices.com obviously wants Voice actors to be paid via voices.com, because that allows them to ask for a commission on the price. However they don't openly state their commissions, and they have recently been found to ask very high commissions between 40 and 80%.</p>
<p><strong>My questions are:</strong></p>
<ul>
<li><p>Would I be liable for fraud (or something like that), if I as a voice actor contact a client whom I identified for an assignment on Voices.com, and receive payment for that outside of Voices.com (given that these are terms and conditions instead of an actual contract)?</p>
</li>
<li><p>If I follow Voices.com's terms and conditions for a CURRENT job, but receive payment for the NEXT job from the same Client directly (which I &quot;identified on Voices.com), would that be legal? Or am I not allowed to pay outside Voices.com for future jobs either?</p>
</li>
</ul>

<h1>There is a difference between "normal" contracts and most Terms of Service agreements</h1>

<p>The distinction you are looking for (I believe) is not the distinction between a contract and terms of service; terms of service (ToS) agreements can be (and virtually all purport to be) contracts; rather, the distinction you are looking for is the difference between a "normal" contract, of the sort two people might sign to deal with an intellectual property lawsuit or sell a house or engage in some other transaction, and a contract of adhesion; many ToS agreements (though not necessarily this ToS agreement; see below) are contracts  of adhesion.  </p>

<p>Per wex (<a href="https://www.law.cornell.edu/wex/adhesion_contract_contract_of_adhesion" rel="nofollow noreferrer">https://www.law.cornell.edu/wex/adhesion_contract_contract_of_adhesion</a>):</p>

<blockquote>
  <p>An adhesion contract (also called a "standard form contract" or a "boilerplate contract")  is a contract drafted by one party (usually a business with stronger bargaining power) and signed by another party (usually one with weaker bargaining power, usually a consumer in need of goods or services).</p>
</blockquote>

<p>These are subject to much stricter scrutiny than are ordinary contracts (again per wex):</p>

<blockquote>
  <p>Courts carefully scrutinize adhesion contracts and sometimes void certain provisions because of the possibility of unequal bargaining power, unfairness, and unconscionability... Courts often use the “doctrine of reasonable expectations” as a justification for invalidating parts or all of an adhesion contract: the weaker party will not be held to adhere to contract terms that are beyond what the weaker party would have reasonably expected from the contract, even if what he or she reasonably expected was outside the strict letter of agreement.</p>
</blockquote>

<p>This distinction is (I believe) fairly common in common law jurisdictions.</p>

<h1>As far as advice for your specific situation, consult a qualified attorney</h1>

<p>As far as whether the voices.com contract which you mentioned constitutes a contract of adhesion, whether the terms in questions are unconscionable or otherwise not binding, and whether it would be worthwhile to disregard those terms given the probability and potential cost (both in time and money) of a potential lawsuit, there is a chance that any of that would be legal advice (I think; I'm new here) and thus not only off-topic but potentially outright illegal UPL. For legal advice, consult a qualified attorney.</p>

<p>"Terms and Conditions" either form a <a href="https://law.stackexchange.com/questions/6263/what-is-a-contract-and-what-is-required-for-them-to-be-valid">contract</a> or they don't. If they form a contract then they are (subject to the law) enforceable. If they don't then they are a waste of (digital) ink.</p>

<p>I have not looked at them but it is more likely than not that they form a valid contract: in return for their finding you a gig, they get paid a commission. Breaching them would expose you to a lawsuit. Reusing a relationship that they initiated without paying them their commission would breach the contract.</p>

<p>The answer is simple: if you don't like the price being charged, you are free to not buy the service. You are not free to steal it.</p>
