PLATFORM TERMS AND CONDITIONS
We are Mindsauce Limited, a company registered in England with registration number 09482365 ( “we”, “our” and “us” ). Our registered office is at 40 Bloomsbury Way, Lower Ground Floor, London, WC1A 2SE, United Kingdom and our VAT number is 232420846. We are the owners and operators of a platform that uses encrypted communications technology for the digital and technology industry to facilitate the engagement of industry experts to consult on projects around the world. You can contact us by email at: firstname.lastname@example.org.
These platform terms and conditions (these “Terms” ) apply to a person accessing or applying for access to the Service ( “you”, the “Expert” and/or the “Client” , as applicable). By applying for access to the Service under clause 3, or by accessing or interacting with the Service, you agree to be bound by these Terms and by any other terms expressly incorporated into it by reference.
In these Terms
“Agreement” means the agreement between you and us for the provision of the Service on the terms and conditions set out in these Terms;
“Application Form” means the account creation application form for Clients or Experts available at the Site, on request from email@example.com, or otherwise provided to you by us;
“Client” means a person who participates in the Service as a client to obtain Expert Services;
“Client Fee” means the fee stated in the Letter Agreement;
“Client Payment Terms” means the payment terms stated in the Letter Agreement;
“Confidential Information” has the meaning given to it in clause 10.1;
“Data Protection Laws” means all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner in the United Kingdom or any other supervisory authority, and the equivalent of any of the foregoing in any other jurisdiction;
“Disclosing Party” has the meaning given to it in clause 10.1;
“Session” means the way in which the Expert Services will be provided, for example, using the video or audio facilities on the Site, by phone, face to face, offline session work or a combination of all of the aforementioned;
“Expert” means a person who participates in the Service as a supplier of Expert Services;
“Expert Contract” means a contract for provision of Expert Services made between a Client and an Expert and entered into by using the Service;
“Expert Services” means consultancy services offered by an Expert via the Service;
“Force Majeure Event” means an act or event preventing our performance of our obligations under this Agreement which is beyond our reasonable control;
“Grace Period” means a period of 15 minutes starting at the scheduled commencement time of the booked Session;
“Intellectual Property Rights” means patents, trade marks, rights in respect of logos and get up, trade names, designs, domain names, copyright, database rights, semi conductor topography rights, utility models, other intellectual or industrial property rights and any rights therein, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world including any such rights which may now or in the future subsist;
“Initial Term” means the period stated in the Letter Agreement;
“Letter Agreement” means the letter agreement between us and Client’s only;
“Listing” means a notice placed by either an Expert or a Client on the Platform describing the Expert Services offered or required;
“Messaging Service” has the meaning given to it in clause 6.1;
“Platform” means an online platform accessible via the Site that uses encrypted communications technology and consists of a marketplace for Experts and Clients who wish to use our Service;
“Price” means the price payable by a Client to an Expert under an Expert Contract, which shall include the costs of all preparation work undertaken by the Expert and any expenses incurred by them in relation to the Expert Services but exclusive of any Sales Tax payable and the Transaction Fee;
“Project” means a project for which the Client is looking for Expert Services supplied by the Expert by way of an Session;
“Receiving Party” has the meaning given to it in clause 10.1;
“Sales Tax” means value added tax imposed by the Value Added Tax Act 1994 and legislation and regulations supplemental thereto, or any other tax of a similar nature (including sales tax, use tax, consumption tax and goods and services tax);
“Service” means the service, provided by means of our Platform (as accessed through the Site), to facilitate the session of experts in the digital and technology industry to consult on projects around the world; and
“Transaction Fee” means our fee, which is the greater of:
(a) 20% of the total of the Price and any Sales Tax due on the Price; or
(b) £30 (thirty pounds),
plus, in each case, any Sales Tax which is required to be added to such fee.
NATURE OF THE SERVICE
We provide the Service. Full details of the Service provided are set out on the Site.
However, we do not provide Expert Services. The provision of Expert Services via the Service is concluded pursuant to the Expert Contract between the Client and Expert to which we are not a party. The fact that an Expert offers Expert Services via the Service does not mean that we endorse or recommend that Expert.
ACCESS TO THE SERVICE
If you wish to use the Service as an Expert or Client, you will need to create an account with us. You can create an account by completing the Application Form and submitting it to us at the Site or by whatever means of communication you received the Application Form. We will let you know within a few days of receipt of the Application Form if your application has been accepted or not.
Once an Expert or Client account has been created, we will issue you with a username and password. Your username and password are personal to you. You must treat them as confidential and, in particular, must take all reasonable measures to keep your password secure. You must not share your password with anyone else, and you agree to indemnify us for any loss, damage or claim we may incur as a result of your failure to keep your password secure. If you know or have reason to believe that your password has been compromised, you must tell us immediately.
Should an Expert need to charge Sales Tax in respect of the Expert Services, a valid VAT (or equivalent Sales Tax) number must be submitted to the Service when registering their account in order for the Sales Tax to be included on the Expert’s invoices.
USING THE PLATFORM
The purpose of the Platform is to bring together Experts and Clients.
The Client will pay us the Client Fee in accordance with the Client Payment Terms for full access and use of the Service during the term of this Agreement.
The Platform contains Listings for Expert Services or Projects, Listings for available Experts and enables Experts and Clients to organise video calls, conference calls and face to face meetings. We do not moderate or monitor the Platform, and you are solely responsible for any Listings, messages you may post in or content you may upload to the Platform.
This clause 4.4 sets out what is, and is not, acceptable use by you of our Site and web based services. Please note that your continued access to the Service is dependent upon your compliance with these Terms. You may use the Site only for lawful purposes. You may not use the Site:
in any way that breaches any applicable local, national or international law or regulation, is in any way that unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
to send, knowingly receive, upload, download, use or re use any material which does not comply with our content standards published on the Site from time to time;
to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); or
to knowingly or recklessly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
You also agree
not to reproduce, duplicate, copy or re sell any part of a Site in contravention of these Terms; or
not to access without authority, interfere with, damage or disrupt any part of a Site, any equipment or network used in providing a Site, any software used in the provision of a Site or any equipment or network or software owned or used by any third party.
Contributions to the Site must be accurate (where they state facts), or be genuinely held (where they state opinions).
Contributions to the Site must not:
contain any material which is defamatory of any person or obscene, offensive, hateful or inflammatory;
promote sexually explicit material or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
infringe any right (including but not limited to any Intellectual Property Right) of any other person;
be likely or intended to deceive or mislead any person;
be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety or be likely to harass, upset, embarrass, alarm or annoy any other person; or
be used to impersonate any person, or to misrepresent your identity or affiliation with any person or give the impression that they emanate from us, if this is not the case.
Clients may from time to time post Listings on the Platform, inviting Experts to provide further information and a quotation, which shall include at least:
date/ time for the delivery of the Expert Services; and
details of the Session required.
We do not verify the accuracy or currency of the Listings, Expert profiles or any contributions on the Site. If you are posting a Listing on the Platform you acknowledge and agree that you are solely responsible for the content of the Listing posted. You acknowledge and agree that we will have no liability in respect of Listings (however arising) and that your proper remedy in respect of any loss or damage you may suffer arising out of or in connection with a Listing is against the relevant Expert or Client.
Without prejudice to clause 5.2, we reserve the right to remove without notice any Listing in respect of which we receive a complaint (or we otherwise reasonably conclude) that it is out of date, inaccurate, breaches the rights of any third party, or for any other reason within our discretion. We will use reasonable efforts to process and act on such complaints reasonably promptly.
CONTRACT BETWEEN THE EXPERT AND CLIENT
Clients may invite offers for Expert Services either by posting a Listing or by contacting Experts using the messaging service available on the Platform (“ Messaging Service ”).
Where a Client has posted a Listing, an Expert may submit a quotation to the Client in response to a Listing. Where a Client has contacted an Expert using the Messaging Service, an Expert may in the course of communications with the Client submit a quotation to the Client.
The quotation is an offer, but does not oblige the parties to enter into an Expert Contract with each other. Once a quotation has been accepted by the Client and the Session is booked on the Platform, the Expert Contract between the Client and the Expert comes into existence and the cancellation rules as set out in clause 7 will apply.
The performance of the Expert Contract shall be exclusively as between the relevant Expert and Client, and in particular:
an Expert's obligation to deliver the Expert Services under an Expert Contract is governed by the terms of that Expert Contract; and
where in the course of delivering the Expert Services under an Expert Contract an Expert incurs additional costs (including, without limitation, additional taxes or customs duties), those costs will be allocated between the Client and the Expert as agreed by the Client and Expert,
and we will have no liability in respect of either party's breach of an Expert Contract.
The Expert shall provide the Expert Services to the Client with reasonable care, skill and ability in accordance with best commercial practices and standards in the industry for similar services.
The Client agrees that all Expert Services provided to it are for its sole use and it shall not share any such advice and/or deliverables with any third parties (except its professional advisors and those group companies of the Client which have been agreed in writing with the Expert), unless otherwise agreed with the Expert.
The Expert shall provide the Expert Services based on information provided by the Client only and the Expert accepts no liability for any Expert Services that are provided on information which is incorrect, false, misleading or incomplete.
Unless otherwise agreed between the Expert and the Client, nothing in the Expert Contract shall change the ownership of any Intellectual Property Rights arising from the Expert Services and all Intellectual Property Rights belonging to the Expert shall remain vested in the Expert and all Intellectual Property Rights belonging to the Client shall remain vested in the Client.
Except in respect of any matter of which it would be unlawful to exclude or restrict liability:
the Expert and client shall under no circumstances whatsoever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Expert Contract; and
the Expert's and client's total liability to the other in respect of all other losses under or in connection with the Expert contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equivalent to 125% of the Price paid or payable by the Client to the Expert for the Expert Services.
During the term of the Expert Contract and for five years after its termination, if any party to the Expert Contract (the “Receiving Party” ) receives from any other party to the Expert Contract (the “Disclosing Party” ) any information which is marked as confidential, which the Receiving Party knows is confidential, or which is of its nature confidential ( “Confidential Information” ), the Receiving Party:
may not use Confidential Information for any purpose other than exercising its rights and performing its obligations under the Expert Contract;
may not disclose Confidential Information to any third party except with the prior written consent of the Disclosing Party or as required by applicable law; and
will make all reasonable efforts to prevent the use or disclosure of Confidential Information other than in accordance with clauses 6.10.1 and 6.10.2.
Clause 6.10 does not apply to Confidential Information which:
is on the date of this Agreement, or at any time after that date becomes, publicly known other than by the Receiving Party's breach of this Agreement; or
was known to the Receiving Party before disclosure by the Disclosing Party to the Receiving Party.
Once the Session is complete, we will invoice the Client the Price (plus any Sales Tax payable to the Expert) and the Transaction Fee. All invoices issued by us must be paid by the Client within 30 days from the date of the invoice unless otherwise agreed with the client
We will pay the Expert the Price (plus any Sales Tax) for a Session within 30 days after the Session has concluded, unless otherwise specified by the Client on the platform.
The Expert will comply with any ethics and code of conduct policies of the Client that may be notified to them from to time.
CANCELLATION RULES AND RE SCHEDULING
If you are a Client, and cancel the Expert Services:
5 days or more prior to the date of a daily Session, or 24 hours or more before the start time of an hourly Session, you will not be liable to pay the Price; or
less than 5 days prior to the date of a daily Session, or less than 24 hours before the start time of an hourly Session, you will be liable to pay the full Price.
If you are a Client, you may rearrange a Session:
at any point 5 days or more prior to the date of a daily Session, or 24 hours or more before the start time of an hourly Session, for no additional cost; or
with the agreement of the Expert, if less than 5 days prior to a daily Session or less than 24 hours before the start time of an hourly Session, for no additional cost or at a reduced rate.
If you are a Client and fail to attend the Session prior to expiration of the Grace Period, you will still be liable to pay the full Price.
If you are an Expert and cancel the Session or fail to attend the Engagement prior to the expiration of the Grace Period, the Client will not be charged the Price and no fees will be payable to you. Repeated cancellation or failure to attend an Session by an Expert will be treated as a repeated breach of the terms of this Agreement and we may terminate your account under clause 14.5.3 of these Terms.
PROBLEMS WITH THE SITE, SERVICE AND/OR EXPERT SERVICES
If you have any questions, problems or complaints with the Site, Service or with the Expert Services, please contact us promptly and in respect of the Expert Services within 3 business days of completion of the Expert Services at the latest. You can write to us at: firstname.lastname@example.org.
If your problem or complaint relates to the Expert Services (the “ Dispute ”), the Client and the Expert have 3 business days to notify us by either emailing us directly at email@example.com. Upon notification of a Dispute, we shall not process payment of the Price until we have completed our investigation and in our reasonable satisfaction the Dispute has been resolved.
Except for the licences granted in this clause 9, nothing in this Agreement will alter or create any interest in any Intellectual Property Rights.
We grant you a royalty free, non exclusive, non transferable, revocable, worldwide licence to use the Service solely to the extent necessary to allow you to participate in the Service.
You grant us a royalty free, non exclusive, non transferable, worldwide licence to use your Intellectual Property Rights solely to the extent necessary to allow us to provide the Service to you. For clarity, such use might include such matters as displaying your name, photo and logo next to a Listing, or providing a link to your website. Such use of the Client’s logo will be in accordance with the Client’s brand guidelines and for the purpose of promoting our provision of the Service to the Client but not to imply any kind of partnership with the Client or endorsement of the Client’s services. The Client has the right to request that we stop using their logo for all purposes other than use on the internal platform of the Service.
If you so consent to do so on the Application Form, you grant us a royalty free, non exclusive, non transferable, irrevocable worldwide licence to use your Intellectual Property Rights in your name, profile picture, logo and brand get up (your “Brand”) for the purposes of promoting the Service by means of referring on the Site and in our public statements and publicity material to the fact of your participation in the Service, provided that in doing so we use reasonable efforts to ensure that we do not do anything which damages the goodwill in your Brand. If you no longer wish us to use your Brand for promotional purposes, please notify us at firstname.lastname@example.org.
You must not use any part of the content of the Site for commercial purposes without obtaining a licence to do so from us.
During the term of this Agreement and for five years after its termination, if any party to this Agreement (the “Receiving Party ”) receives from any other party to this Agreement (the “ Disclosing Party ”) any information which is marked as confidential, which the Receiving Party knows is confidential, or which is of its nature confidential (“ Confidential Information ”), the Receiving Party:
may not use Confidential Information for any purpose other than exercising its rights and performing its obligations under this Agreement;
may not disclose Confidential Information to any third party except with the prior written consent of the Disclosing Party, as required by applicable law, as permitted by clause 10.2 or as required to enable MindSauce Limited to resolve a Dispute between the Client and the Expert; and
will make all reasonable efforts to prevent the use or disclosure of Confidential Information other than in accordance with clauses 10.1.1 or 10.1.2.
Clause 10.1 does not apply to Confidential Information which:
is on the date of this Agreement, or at any time after that date becomes, publicly known other than by the Receiving Party's breach of this Agreement; or
was known to the Receiving Party before disclosure by the Disclosing Party to the Receiving Party.
For the avoidance of doubt, these terms also apply to the Expert Contract. We shall not be liable for any claim arising from a breach of confidentiality between any Expert or Client.
Each of you and us will comply with our respective obligations under the applicable Data Protection Laws in connection with this Agreement.
We collect and process personal data in accordance with our data protection notice.
A cookie is a small file of letters and numbers that are stored on your browser or the hard drive of your computer if you agree. Cookies contain information that is transferred to your computer's hard drive.
We use the following categories of cookies:
Strictly necessary cookies. These cookies are required for the operation of the Service. They include, for example, cookies that enable you to log into any secure areas of the Service.
Analytical/performance cookies. These allow us to recognise and count the number of visitors and to see how visitors move around the Service when they are using it. This helps us to improve the way the Service works, for example, by ensuring that users are finding what they are looking for easily.
Functionality cookies. These are used to recognise you when you return to the Service. This enables us to personalise our content for you.
Targeting cookies. These cookies record your visit to the Service, the pages you have visited and the links you have followed. We will use this information to make the Service more relevant to your interests.
You can block cookies by activating the setting on your browser that allows you to refuse the setting of all or some cookies. However, if you use your browser settings to block all cookies (including essential cookies) you may not be able to access all or parts of the Service.
We use third party tracker and data analytics service providers including Google Analytics to help us to understand how people use the Service and our service. You can find more information on Google Analytics.
We do not share the information we gather using cookies with anyone else.
SUSPENSION OF ACCESS TO THE SERVICE AND/OR YOUR ACCOUNT
We reserve the right to suspend your access to the Service and/or your account if:
you breach any provision of this Agreement
you persistently fail to perform your obligations under Expert Contracts, and you do not have an objectively verifiable good reason in each case;
we have received a complaint from another user of our Service about you; or
we otherwise consider (in our sole discretion) that it is appropriate for us to do so.
If we suspend your access to the Service, where applicable, we will give you a reasonable opportunity to rectify the circumstances giving rise to the suspension, or to provide us with assurances and evidence that you have taken sufficient steps to prevent those circumstances recurring.
TERMINATION OF THIS AGREEMENT
Unless you and us agree, in writing, to extend the Initial Term (in which case it shall be extended by such time as we agree), this Agreement shall terminate at the end of the Initial Term.
In addition, you may notify us of your wish to terminate this Agreement at any time.
On notification of your wish to terminate this Agreement, your account will only be closed once you have paid all fees due to us and you have fulfilled all your obligations under any applicable Expert Contract(s) and until then, the terms of this Agreement will apply.
We may terminate this Agreement with an Expert for convenience at any time by giving you not less than 5 business days' notice in writing.
We may terminate this Agreement either with an Expert or a Client immediately if:
you fail to pay to us when due any amount payable under this Agreement, and you remain in default no less than 14 days after notification by us to make such payment;
you commit a material breach of any other term of this Agreement which either cannot be remedied or, if it can be remedied, you fail to remedy that breach within 14 days of being notified by us to do so;
you repeatedly breach any of the terms of this Agreement in such a manner as to reasonably justify the opinion that your conduct is inconsistent with you having the intention or ability to give effect to the terms of this Agreement;
you shall cease carrying on business in the normal cause, or shall call a meeting of your creditors or make a proposal for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or for any other composition or scheme of arrangement with (or assignment for the benefit of) your creditors, or shall be unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, or if a trustee, receiver, administrative receiver or other similar officer is appointed or a meeting is convened for the purpose of considering a resolution for your winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or you are the subject of an administration order; or
any event occurs or proceeding is taken, with respect to you in any jurisdiction to which you are subject to that has an effect equivalent or similar to any of the events mentioned in clause 14.5.4.
Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect. For the avoidance of doubt, termination by us of this Agreement shall not affect the Expert Contract between the Expert and Client.
Nothing in this Agreement excludes our liability for:
death or personal injury caused by our negligence;
fraud or fraudulent misrepresentation; or
any other liability which cannot be limited or excluded under English law.
Subject to clause 15.1, we will not be liable to you, and you shall not be liable to us whether in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with this agreement for:
loss of profits or revenue;
loss of agreements or contracts;
loss of anticipated savings;
loss of or damage to goodwill;
loss of use or corruption of software, data or information; or
any indirect or consequential loss.
Subject to clauses 15.1 and 15.2, our maximum total liability to you, and your maximum liability to us whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising out of or in connection with this Agreement shall be limited to the Client Fee payable for the Initial Term in respect of Clients. Our maximum total liability shall be £1000 (one thousand pounds) in respect of Experts.
STATUS OF AN EXPERT
The Expert is an independent contractor and nothing in this Agreement shall render the Expert an employee, worker, agent or partner of ours and the Expert shall not hold themselves out as such.
It is the intention of the parties that this Agreement does not constitute a contract of employment and accordingly the Expert shall be fully responsible for and shall indemnify us for and in respect of:
any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the Expert’s relationship or dealings with us and/or a Client, and/or in relation to the provision of the Expert Services and/or the provision of the Services, where the recovery is not prohibited by law. The Expert shall further indemnify us against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by us in connection with or in consequence of any such liability, deduction, contribution, assessment or claim; and
for and in respect of any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Expert against us arising out of or in connection with the Expert’s relationship or dealings with us and/or a Client, and/or in relation to the provision of the Expert Services and/or the provision of the Services.
We may at our discretion and option satisfy such indemnity (in whole or in part) by way of deduction from any payments due to the Expert.
We will not be liable for any failure to perform our obligations under this Agreement which is caused by any Force Majeure Event. We will inform you as soon as reasonably practicable of the occurrence of a Force Majeure Event and will use reasonable endeavours to perform our obligations to you notwithstanding that Force Majeure Event.
THIRD PARTY RIGHTS
Except as expressly set out in this Agreement, a person who is not a party to this Agreement will have no right to enforce any provision of this Agreement.
AMENDMENTS TO THESE TERMS
We may change the Transaction Fees, any other fee payable to us under the Agreement, the terms on which we operate the Platform, provide the Service and make available our Site including the content standards from time to time. We will notify you of such changes by email. If you continue to access the Service after such notice, you will be deemed to have accepted such revisions.
This Agreement and the other documents referred to in it constitute the entire agreement between you and us. It supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between you and us, whether written or oral, relating to its subject matter.
Each of you and us agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each of you and us agrees that it shall have no claim for innocent or negligent misrepresentation, or negligent misstatement, based on any statement in this Agreement.
Nothing in this clause 20 shall limit or exclude any liability for fraud.
ASSIGNMENT AND OTHER DEALINGS
This Agreement is personal to you and you may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of your rights and/or obligations under this Agreement.
We may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of our rights and obligations under this Agreement, provided that we give you prior written notice of our intention to do so.
A notice under or in connection with this Agreement shall be in writing and delivered personally by email to the email address provided to us by you when you applied for access to the Service in accordance with clause 3, as updated by you from time to time through the Service.
GOVERNING LAW AND JURISDICTION
This Agreement and all matters arising from or connected with it are governed by English law.
Any dispute between you and us arising out of or in connection with this Agreement, including disputes relating to non-contractual obligations, will either be subject to:
the exclusive jurisdiction of the courts of England and Wales if you are a company or person registered or living in England and Wales; or
the non-exclusive jurisdiction of the courts of England and Wales if you are a company or person registered or living outside of England and Wales