General Terms and Conditions
Date of entry into force: 16 April 2018
- DIGITALCOUNSELS ACCOUNT
1.1 ACCOUNT MAINTENANCE AUTHORIZATION
1.2 ACCOUNT REGISTRATION; PROFILE
When you register for an account, you must create a user profile (“Profile”). You agree that your profile may be displayed to other users and, unless you change your privacy settings, to the public. If you are a consultant, you agree to use your profile to market your services to third parties so that you can enter into an independent contractual relationship with other users. You agree to provide true, accurate and complete information about your profile and to update registration forms and other forms you provide on the Website or to us to ensure their accuracy and completeness. You agree not to provide false or misleading information about your location, your company, your skills or the services that your company provides. You agree not to register for more than one customer account and one consultant account without our express written permission. You further agree not to ask or cause any other person to create an account on your behalf, for your use or for your benefit.
1.3 IDENTITY VERIFICATION
Once you have registered for an account, and from time to time thereafter, we may review your account, including validation against third-party databases, official registers and official and legal documents, to confirm your identity and, if a legal entity, your authority to represent your business on digitalCounsels. You authorize digitalCounsels, directly or through third parties, to make all necessary requests to validate your identity and confirm that you are connected to your e-mail address or payment details. Upon request, you must provide us with information about yourself and your company.
1.4 USERNAMES AND PASSWORDS
When you register for an account, you will be prompted to select a username and password for that account. You are solely responsible for maintaining the confidentiality of your username and password for your account. You acknowledge that only you or persons authorized to act on your behalf use the Website with your username and password. You agree to notify us immediately if you suspect or determine any unauthorized use of your account or any unauthorized access to your password or the password of any user of your account, and you agree to promptly change your password. You further agree not to use the username or password of any other user of the Website that you are not authorized to use and not to permit any other unauthorized person to use your account.
1.5 MARKETPLACE FEEDBACK
You agree that feedback on the Marketplace will benefit all users and the efficiency of the Website and Site Services and agree that digitalCounsels may post feedback about users, including you, in user profiles and elsewhere on the Website. You agree that feedback to you, if any, will consist of comments, ratings, user satisfaction indicators and feedback from other users. You agree that digitalCounsels may provide feedback results to other market participants. digitalCounsels provides this feedback system as a tool for users to publicly share their opinions that digitalCounsels does not monitor or censor (see next section). You agree that the published feedback is only
- PURPOSE OF THE WEBSITE AND SITE SERVICES
2.1 ESCROW SERVICES
digitalCounsels offers fiduciary services to users to make payments for service contracts and to pay service, membership and payment processing and administration fees to digitalCounsels (“Escrow Services”).
- TERMS OF PAYMENT
3.1 SERVICE FEE
The fees for the use of the website and site services are paid exclusively by the consultant. If a client pays a consultant or if the fees associated with a service agreement are passed on to a consultant, a service fee will be payable for the use of the Website’s communication, billing, dispute resolution and payment services, including payment protection (“Service Fee”). digitalCounsels may charge the Service Fee directly against payments from the Escrow Service.
3.2 NO FEE FOR THE PROCUREMENT OR PLACEMENT OF ORDERS
digitalCounsels does not charge an agency fee. We do not refer clients to attorneys and do not assure attorneys of any assignments. digitalCounsels provides the website and site services solely to enable attorneys to acquire new mandates themselves. Therefore, digitalCounsels does not charge a fee if a consultant finds a suitable client. However, the client and consultant are obliged to use the Website to receive and pay for payments for their work if they have identified each other through the Website, as described in Section 4 (Non-circumvention) below. In addition, digitalCounsels does not charge any fees or commissions for requesting quotes, submitting quotes or providing feedback.
3.3 PAYMENTS TO CONSULTANTS
digitalCounsels shall pay the consultant the fees from the service contracts (less all service fees incurred) in accordance with the agreed escrow instructions. The consultant agrees not to receive interest on the funds held in trust.
For fixed price offers
The consultant is only obliged to commence consulting once the agreed fixed price offer has been paid in full. The consultant’s fee will be paid within 30 days of completion of the assignment. The assignment is terminated on the website with the button “Close mandate”.
For offers with an hourly rate (as cost ceiling and as open account)
Offers with an hourly rate are offered with a minimum effort. The consultant is only obligated to commence consulting once the fee for the minimum effort has been paid in full by the client. The consultant continuously records his services on the website. The services recorded will be invoiced after 30 days or as soon as the amount of CHF 1,000 is reached. The consultant must approve the invoice. Upon approval of the invoice by the consultant, the outstanding amount for the client becomes due for payment with a payment period of 10 days. Unless otherwise agreed, digitalCounsels shall transfer the amount due to the Consultant within 30 days after the Customer has transferred the fees invoiced to digitalCounsels.
digitalCounsels may, at its sole discretion, deviate from the specified billing cycles for contracts with hourly rates and charge the customer at any time for all recorded services. If the escrow instructions do not comply with this paragraph, the escrow instructions take precedence.
In addition, we reserve the right to require you to reimburse us for any payment we suspect to be fraudulent or criminal in connection with your payment, rescission or obligation; if we detect incorrect or duplicate transactions; or if we have provided our services in accordance with this Agreement but we detect a chargeback of a payment. You agree that we have the right, at our sole discretion, to set off any refund amounts due against any other amounts owed to or held by digitalCounsels for the Customer. Failure to pay such refunds shall constitute grounds for termination of the relevant Trust Account and revocation of your access to the Website.
3.5 INVOICES AND TAXES
digitalCounsels is not responsible for determining or fixing, refunding or withholding any taxes applicable to the Fees. The consultant is solely responsible for deciding whether it is required by applicable law to issue specific invoices for the fees. digitalCounsels will issue VAT-compliant invoices for the payments we make. If a consultant is subject to value-added tax, he must supplement the necessary information in his profile.
3.6 METHODS OF PAYMENT
A fee may be charged to Customer for processing and managing payments.
In order to use certain Site Services, Customer must provide payment information for at least one valid payment method. Customer hereby authorizes digitalCounsels to store credit card and bank information or other details about Customer’s payment methods and to charge Customer’s credit card (or other payment method).
If the customer authorizes payment of the fee for a fixed-price contract on the Website, the customer automatically and irrevocably authorizes digitalCounsels to charge the customer for the payment method to the extent of the authorized payment. If the Client approves the performance protocol of a service contract at hourly rates or impliedly approves it by expiration of the dispute period, the Client automatically and irrevocably authorizes digitalCounsels to charge the payment method to the Client.
By providing information about payment methods through the Web Site, the Customer represents and warrants the following: (a) Customer is legally entitled to provide such information; (b) Customer is legally entitled to make payments using the payment method(s); and (c) such action does not violate the terms and conditions applicable to Customer’s use of such payment method(s) or applicable law. If Customer authorizes a payment by any payment method via the Website, Customer warrants that sufficient funds or funds will be available to complete the payment by the specified payment method. To the extent that the amounts due under this Agreement cannot be collected by Customer’s payment method(s), Customer shall be solely responsible for the payment of such amounts by other means.
3.7 LIMITED PAYMENT PROTECTION
In the rare event that a client does not make payments for purchased services performed by a Consultant, digitalCounsels will offer the Consultant limited payment protection in accordance with this Section 3.7 (“Payment Protection”) for network subscribers up to an amount of CHF 1,000, with the aim of promoting fairness, rewarding loyalty and encouraging the Consultant to continue using the Website and Site Services for its services.
digitalCounsels will provide payment protection to the Consultant only for hourly rate service contracts and only if the following criteria are met: (a) the customer has provided a verified payment method; (b) the services provided are recorded promptly, but not later than 5 business days after the actual service is provided, online in the Service Recording Tool; (c) the consulting services recorded in the Service Recording directly relate to the service contract; and (d) each recorded service is accompanied by a description of the consultant.
With the payment of an amount from the payment protection, the consultant assigns the underlying claim in the amount of the paid amount to digitalCounsels.
- NO BYPASSING
You acknowledge and agree that a substantial portion of the payment that digitalCounsels receives to make the Website available to you is funded by the service fee described in Section 3.1 (the “Service Fee”). digitalCounsels receives this Service Fee only when a customer and a consultant make payments through the Website. Therefore, for a period of 24 months from the time you identify a party through the Website or are identified as a party to the Website (the “Non-Circumvention Period”), you must use the Website as your exclusive instrument to collect, make and receive (the “digitalCounsels Relationship”) all payments for services directly or indirectly related to that party. You may decline this obligation in respect of any digitalCounsels relationship only if the customer or prospective customer or consultant pays digitalCounsels the following for each such digitalCounsels relationship:
(a) an “opt-out fee”, calculated as the greater of the following amounts:
(i) CHF 2’500; or
(ii) 15% of the turnover for digitalCounsels relationship services which are provided during the non-circumvention period or which would have been provided in good faith to the prospective client; or
(iii) all service fees that digitalCounsels would have earned with the digitalCounsels relationship during the Circumvention Period shall be calculated on the basis of the annualised amount that the Consultant has received or would have received from the Client during the last normalised 8-week period or a shorter period; and
(b) interest at the rate of 15% per annum from the date on which Customer makes or should have made the first payment to the Consultant until the date of payment of the Opt-Out Fee.
For payment of the opt-out fee, please email email@example.com. for further instructions.
You agree not to circumvent the payment methods offered by the Website except in the event that you have already paid the opt-out fee. To illustrate the foregoing, the following conduct is prohibited:
– Submit any Offer or contact any party identified through the Website to engage or pay that party outside the Website.
– Accept offers or contact any party identified through the Site to provide services, invoice or receive payments.
– Submit an invoice or service entry on the Website or in an opt-out fee that is less than the actual amount agreed between users.
You are required to notify digitalCounsels immediately if another person does not correctly contact you or suggests making or receiving payments outside the Website. If you become aware of any violation or possible violation of this Non-circumvention Agreement, please submit a confidential report to digitalCounsels by sending an email to firstname.lastname@example.org.
- TERMS AND CONDITIONS OF THE SERVICE AGREEMENT
Users agree that the terms of the service agreement described on the website, including consulting fees, tariffs and opening hours, are part of the service agreement. The User agrees to obtain the consent of the other party before making any changes to the Service Agreement. If the consent of the other party is not obtained, the other party may reject such changes by terminating the Service Agreement (see Section 5.5) or accept such changes by continuing with the Service Agreement.
The consultant will perform the services professionally and expertly and deliver all agreed work products on time. The manner of execution of the consulting service is determined and controlled exclusively by the consultant who is commissioned by the client as an independent contractor.
5.2 RESPONSIBILITY FOR EMPLOYEES AND SUB-ENTREPRENEURS
To ensure accurate billing, only the consultant may collect services for hourly rate service contracts that are themselves registered for the account.
When a Distributor subcontracts or invests a third party to perform consulting services on its own behalf for a service contract, the user guarantees that it will do so on its own behalf and in accordance with all applicable laws and regulations. The term “delegate” in the context of this Agreement refers to any employee, independent contractor or proxy of a Distributor whom the Distributor instructs to provide on its behalf under a Service Agreement.
With regard to the agent, digitalCounsels offers consultants only a platform for communicating and exchanging information with customers. Representatives and consultants acknowledge that the terms of the contract between consultant and agent are not determined by digitalCounsels. Agents and consultants also confirm that agents are not employees or independent contractors of digitalCounsels.
5.3 CUSTOMER PAYMENTS AND BILLING
For service contracts at the hourly rate, the customer is obliged to check and pay the account of the consultant within 10 days after activation of the invoice. After this period digitalCounsels can assume that the customer has approved the invoice. The customer acknowledges and agrees that digitalCounsels has the right to block the account or access to the service contract concerned on the website, and the consultant is entitled to terminate the mandate immediately if the bill is not paid within the dispute period.
In the case of service contracts at the hourly rate, (i) every 30 days or (ii) when the recorded open service exceeds the amount of CHF 1’000.-, a billing of the services covered is prepared and made available to the consultant for approval. The consultant must review and approve billing within 5 days.
Fixed price contracts are due for payment upon acceptance of the offer by the customer. Until the amount due has not been fully paid by the customer, neither the client nor the consultant can access the mandate on the website. The consultant is only obliged to process a fixed price contract if the amount due has been paid in full to digitalCounsels.
5.4 TERMINATION OF A SERVICE AGREEMENT
If the customer has accepted an offer but does not make the agreed advance payment, i.e. the agreed minimum effort or fixed price, within the specified period, DC may unilaterally cancel the service contract. In the event of a cancellation, a cancellation fee of CHF 100 will be due for immediate payment.
In the case of service contracts for the hourly rate, the customer and the consultant have the right to terminate the service contract by mutual agreement. If there is an important reason, the customer as well as the consultant can terminate early. The customer remains obliged to pay for the services rendered before the termination of the service contract.
For fixed-price contracts, where the due payment has been made in full by the customer, the service contract will not end until full provision of the advisory services. However, the client or consultant has the right to terminate a fixed-price contract at any time with the consent of the other party or to terminate in the event of a material breach of contract. If a fixed-price contract is terminated, the customer is not entitled to receive back any payments that have already been made to the consultant for the service.
5.5 QUALIFICATION OF THE SERVICE AGREEMENT
6. RELATIONSHIP WITH DIGITAL COUNSELS
digitalCounsels is not a contracting party in the relationship between customers and consultants. digitalCounsels does not provide customer advisors or vice versa, and does not make any recommendation about selecting the right client or consultant. digitalCounsels provides only the website and the site services, so that consultants have the opportunity to determine the suitability of a customer for themselves, respectively customers have the opportunity to determine the suitability of a consultant for themselves. digitalCounsels does not oversee, direct and control the work of the consultants. digitalCounsels does not determine the advisory scope, consulting time or place of advice of the consultant, nor is digitalCounsels involved in deciding whether the fees for a service contract are set at an hourly or fixed rate.
digitalCounsels does not provide premises in which the consultants carry out the service. digitalCounsels makes no representations and warranties about the quality, accuracy or legality of the services provided or about the accuracy of any information, such as the qualifications, professional experience or identities of a consultant on the website.
7. DIGITAL COUNSELS ‘ROLE
7.1 SERVICE CONTRACTS
You agree that (a) the Website is merely a place where Users may act as Customers and / or Consultants; (b) digitalCounsels is not a party to service contracts between Customer and Consultant; (c) You are not an employee of digitalCounsels and DigitalCounsel’s Distributor is not instructed, supervised, directed or controlled; (d) digitalCounsels assumes no liability or obligation in connection with service contracts for acts or omissions of you or other users; (e) digitalCounsels has no control over consultants or the service contracts offered or provided by consultants; and (f) digitalCounsels makes no representations as to the reliability, ability or qualifications of a Distributor or the quality, safety or legality of any Advisory Services, and DigitalCounsels disclaims any liability in this regard.
- CONFIDENTIAL INFORMATION
To the extent that a client or advisor provides the other with confidential information, the recipient will protect the confidential information of the creator with the same degree of care as to protect his or her own confidential information, but in all cases with due care and will (a ) not disclosing it to third parties or allowing third parties to disclose confidential information without first having obtained the express written consent of the owner of the confidential information; (b) does not use or permit the use of the confidential information of others, except as may be required for the performance of the service contract (including, without limitation, storage or transmission of confidential information on or through the Website for use by the Consultant); and c) grant access to Confidential Information to its employees only to the extent that such information is required for the provision of the Service Agreement.
8.2 RETURN OF CONFIDENTIAL INFORMATION
If Confidential Information is no longer required for the performance of a Service Agreement or for the written request of the Client or Consultant (which may be made at any time at the sole discretion of the Client or Consultant), the Party that has received Confidential Information shall immediately destroy or return, at its expense, the Confidential Information of the Disclosing Party and copies thereof contained in its premises, systems or other facilities under its control, within the limits of the mandatory statutory retention obligations. The party who has received Confidential Information agrees to provide written confirmation of the return or destruction of the Confidential Information upon request.
8.3 ATTORNEY-CLIENT PRIVILEGE AND OTHER PROFESSIONAL SECRETS
Without limiting Section 12.1 (Confidentiality), information exchanged between the Client and the Consultant under the Service Agreement may be subject to attorney-client privilege or other professional secrecy. The Client hereby agrees to release the Consultant from any attorney-client privilege or other professional secret with respect to digitalCounsels.
- WEBSITE UPDATES
- LIMITATION OF LIABILITY
Your use or your inability to use our website or site services;
Delays or disruptions to our website or site services;
Viruses or other painting software obtained by accessing or linking to our website or our site services;
Errors, bugs or inaccuracies of any kind on our website or regarding the Site Services;
Damage to your hardware device through use of the Website or the Site Services;
the content, acts or omissions of use of the Website or Site Services by third parties;
an interruption or other action regarding access to your account; and
Your confidence in the quality, accuracy or reliability of requests, offers, profiles, ratings, recommendations and feedback (including their content, order and presentation) or metrics displayed on the Site or made available through the Site.
Liability for costs and for direct and indirect damages caused by digitalCounsels and its legal representatives and independent contractors, external and own employees and executives, as well as liability for damages in connection with access (or inability to access) to the web platform or for any errors or deficiencies or unequaled results from the use of the web platform, regardless of its legal basis, is excluded; this does not apply to liability for intentional or grossly negligent damages and only to the extent permitted by applicable law. The liability is in any case limited to the greater of the following amounts (i) the fees that we have received in the course of a business relationship during the last 6 months, or (ii) CHF 500.-.
- TERM AND TERMINATION OF THE CONTRACTUAL RELATIONSHIP
If your account is closed for any reason, you will no longer have access to data, messages, files and other material that you store on the Site. If practicable or required by law, digitalCounsels will retain this information for a period of up to ten years from the date of closure.
12 .1 ENFORCEMENT OF THE AGREEMENT
12.2 CONSEQUENCES OF TERMINATION
As part of the contract termination process, the user is asked to back up the data you have stored to a personal data storage device (usually the data processing device through which the user accesses the service from DC). Upon completion of this process, the user account is deactivated. After a retention period of 30 days, the account with all data can be permanently and irrevocably deleted. Until the end of this period, the user has the opportunity to secure all his data there. In the event of the existence of statutory retention obligations, DC is entitled for the duration thereof to continue to store the data required for the deletion and, insofar as necessary to safeguard the statutory duty, to use and process it.
13.1 FORCE MAJEURE
13.2 STANDARD LANGUAGE
13.3 SALVATORY CLAUSES
If individual provisions of this contract violate mandatory law or can not be enforced for other reasons, this does not affect the liabilities of the further content of the contract. In this case, the parties undertake to replace the void or unenforceable clause with another, legally valid clause which comes closest to the economic purpose of the unenforceable provision.
13.4 LAW AND JURISDICTION
Swiss law applies to this contract, excluding any provisions of international private law. Responsible for the assessment of any disputes arising from this contract is the court designated by law at the headquarters of digitalCounsels.