Last updated: 23.08.2021, version 1.1
Summary of Terms, please read the whole document.
- KAPSLY, Service Providers, and Clients act as independent contracting parties.
- KAPSLY mediates the transactions between Service Providers and Clients in the role of an intermediary agent.
- Members are solely responsible for the content they provide and ensure they are right holders to the content. Intellectual Property clauses apply.
- When booking a service, Clients agree to pay all service fees, including applicable fees to KAPSLY.
- Service Provider are responsible for complying with its local tax obligations.
- KAPSLY does not take any liability for the services provided to Clients through the KAPSLY platform.
- Service Provides grant KAPSLY the right to invoice the Client and forward the payment to the Service Provider less commission fees.
- KAPSLY is entitled to a commission fee of 10% on the service value.
] and, where applicable the Agile Service Agreement [separate contract to be closed through KAPSLY], constitute a legally binding agreement ("Agreement") between you and KAPSLY GmbH, [c/o Impact Hub, Sihlquai 131, 8005 Zürich] Switzerland (hereinafter referred to as "KAPSLY ", "we", "us" or "our(s)") providing your use of our KAPSLY-Platform (kapsly.com and bootstrpd.com) for its services.
1.5 You acknowledge and agree that this is a service agreement and that KAPSLY will not deliver any copies or licenses of the software used to you. All right, title, and interest in, to and under the KAPSLY-Platform including all intellectual property throughout the world herein as well as to all other technologies and technical solutions of KAPSLY belong to and remain at all times the sole property of KAPSLY. You receive a limited, revocable, non-exclusive and non-assignable right to use the KAPSLY-Platform as well as other technologies necessary for the fulfillment of this contract for the duration of this Agreement.
2. The Services
2.1 Free Services
We may provide free services that give you access to the kapsly.com marketplace and bootstrpd.com platform, as described on the website or order confirmation. External or additional users may be invited to get free access to already paid services.
2.2 Purchased Services
For purchased services you may get access to our platforms with additional features. You may be able to invite other users free of charge to join your projects. Purchased services may also include consulting, coaching, initial implementation, support or development services.
2.3 Third party services
We may use or indicate third party services on our platforms. Such services are clearly indicated on and may require you to enter a separate agreement with the third party service provider. KAPSLY does not take any lliability for damages arising out of the use of third party services.
3. General Principles
3.1 KAPSLY offers an online venue that enables users (hereinafter "Member(s)") to publish, offer, search for and book services. A Member who publishes and offers services is a "Service Provider", a Member who searches for, books and uses these services is a "Client". Service Provider offers different kinds of services, (e.g. software development, business development, strategy consulting, marketing & sales, legal services etc.) ("Services").
3.2 KAPSLY also provides a platform to track contributions of various kind, such as time, money, savings and others. The platform enables a Client to track and manage contributions from Service Providers and all other stakeholders in Clients project. The Client may use such values as an indication for a fair compensation of Service Providers and other stakeholders.
3.3 Members shall create an account to access and use the features of the KAPSLY-Platform and shall keep the account information accurate and up to date.
3.4 KAPSLY does not endorse or warrant the existence, conduct, performance, safety, quality, legality or suitability of any Member or third party and does not warrant any form of verification of identity of any Member or prevent future misconduct of our Members. We are not responsible for outages or disruptions of the internet and telecommunications infrastructure which are beyond our control and can lead to interruptions in the availability of the KAPSLY-Platform. KAPSLY may, temporarily and under consideration of the Members’ legitimate interests, restrict the availability of the KAPSLY-Platform or certain features thereof, if this is necessary with regards to capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved performance of the KAPSLY-Platform.
3.5 KAPSLY decides independently on such maintenance windows, further developments, restrictions and settings as well as their implementation. The Members, in particular the Service Provider, expressly waives the right to claim damages, lost profits or other contractual or non-contractual claims against KAPSLY due to partial or complete discontinuation of the KAPSLY-Platform and related data loss.
3.7 KAPSLY has the right, after prior consultation, to advertise individual Service Providers or their Services on the KAPSLY-Platform and/or via other marketing channels. A right of the Service Provider to general advertising or the advertising of individual Services on the KAPSLY-Platform or on other marketing channels of KAPSLY does not exist. The Service Provider may only use the trademarks, logos and names of KAPSLY for the Services booked via the KAPSLY-Platform and for other marketing channels of KAPSLY-Platform and with the prior written consent of KAPSLY.
3.9 The Services are intended for informational purposes only without regard to any particular entity’s investment objectives, financial situation, or means, and KAPSLY is not soliciting any action based upon it. This material is not to be construed as a recommendation; or an offer to buy or sell; or the solicitation of an offer to buy or sell any security, financial product, or instrument. Investments made in unlisted companies give rise to substantial risk and are not suitable for all investors, and you should not enter into any transactions unless you have fully understood all such risks and have independently determined that such transactions are appropriate for you. You should not construe any of the material contained herein as business, financial, investment, hedging, trading, legal, regulatory, tax, or accounting advice. KAPSLY takes no responsibility for the actions or omissions, which you make on the basis of the information on KAPSLY’s platforms.
4. Special Provisions for Service Provider
4.1 Our goal. Our goal is to make professional and secure resource investing accessible to everyone. Talents, knowledge workers, professional service companies and everyone who offers support to entrepreneurs and business founders can benefit from the real value creation and development of the clients’ business. KAPSLY makes it easy to find new business partners and close professional contracts fast. The Service Provider gets the opportunity to offer its Services on our KAPSLY-Platform. The Service Provider can create a profile and has control over when and how its Services shall be made available.
4.4 General Obligations. The Service Provider shall be responsible for its own acts and omissions and those of its employees, contractors and other third parties assisting in the performance of its Services. All Services shall be provided in a professional manner consistent with the good industry practice.
4.6 The Service Provider shall be responsible for identifying and complying with all laws, rules, regulations and contracts with third parties applicable to it. The Service Provider shall be responsible for the handling and use of personal data of Clients and all other personal data which the Service Provider may upload to the KAPSLY-Platform or otherwise provide to us in accordance with the applicable laws and the Agreement. If the Service Provider includes, or authorizes others to include, personal data on the KAPSLY-Platform, then the Service Provider represents that it is either the data controller or that it has, prior to the provision of such data, been instructed by or obtained the consent of the relevant data controllers. With respect to such personal data provided to us, the Service Provider appoints KAPSLY as the data processor to process such personal data.
4.7 Taxes/Information. The Service Provider shall be responsible for complying with its obligations under applicable law to properly report, collect, remit and include in its price any applicable taxes (e.g., value added tax) or other indirect, income or other taxes and duties (collectively, "Taxes"). In certain jurisdictions, we may be required by tax regulations to obtain and/or report tax information about the provider and/or withhold taxes from disbursements to the provider.
5. Special Provisions for Client
5.1 Our goal. Our goal is to foster entrepreneurship and enable entrepreneurs and business founders to get their projects off the ground with the resources they really need. Money is just a means to pay for resources, KAPSLY makes it easy to find the right business partners that allow flexible compensation methods. With KAPSLY more founders can realize their projects and close professional contracts fast. The Client can search Service Provider profiles or Services on our KAPSLY-Platform. The tracking and valuation of contributions (such as services but also from co-founders, advisors and other stakeholders) may provide guidance for a fair compensation and create transparency and trust between Client and Service Provider.
5.2 Booking Services. When the Client books a Service through our KAPSLY-Platform, the Client agrees to pay all Service fees for the Services, including any applicable fees specified at the time of contracting or the payment process, in addition to the Agile Service Agreement. When the Client receives the booking confirmation, the Agile Service Agreement for the Services is concluded between the Client and Service Provider.
6. KAPSLY-Platform and Content
applies to our processing of such Content.
6.4 Members shall be responsible for the handling and use of any personal data contained in such Content and all other personal data which they may upload to the KAPSLY-Platform or otherwise provide to us in accordance with the applicable laws and the Agreement. If Members include, or authorize others to include, personal data on the KAPSLY-Platform, they represent that they are either the data controller or that they have, prior to the provision of such data, been instructed by or obtained the consent of the relevant data controllers. With respect to such personal data provided to us, the Members appoints KAPSLY as the data processor to process such personal data.
6.5 Members are solely responsible for ensuring the correctness, accuracy and lawfulness of the Content and its appropriate protection and backup. The KAPSLY-Platform may not be used in any jurisdiction for unlawful, obscene, offensive or fraudulent content or activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive, or deceptive messages, viruses or harmful code, or violating third party rights. The following content shall in particular not be permitted on KAPSLY-platform: spam, unsolicited contacts or content that is repeatedly shared in a disruptive manner; content that advocates or promotes illegal or harmful activities or that is sexually explicit, violent, graphic, threatening or harassing; content that is discriminatory; attempts to impersonate another person or act on behalf of another user account or organization, including a representative of KAPSLY Content that is illegal or violates the rights of another person or entity, including intellectual property rights and privacy rights; Content that contains private or confidential information of another person, including Content that is sufficient to identify the location of an accommodation. The Member shall hold KAPSLY and its affiliates, directors and employees harmless from and against any claims that may arise out of the Member’s violation of this provision or the applicable laws and regulations.
7. Invoicing / Payment / Collection
7.1 For the payment of KAPSLY services, the means of payment specified on the KAPSLY-Platform or the means of payment specified by KAPSLY apply (e.g. purchase on account, credit card payment).
7.3 KAPSLY may cooperate with external companies and specialized service providers (e.g. factoring, collection or credit card companies) for invoicing as well as the collection of the receivables and may further assign or sell the receivables to such. The Service Provider has no right to reassignment of the receivables, but only a right to payment in accordance with clause 7.7 hereunder.
7.4 The Service Provider agrees to assign and hereby assigns to KAPSLY without reservation, by way of a blanket assignment, all accruing future monetary claims, including contingent and time-limited claims, arising from the sale of Services to Clients via the KAPSLY-Platform, each, to the extent assignable, together with all related contractual and statutory secondary claims, ancillary rights, privileges and interest accruing thereon (collectively, the "Claims"), and KAPSLY accepts such assignment (the "Assignment"). The Service Provider shall be liable to KAPSLY for the existence of the receivables pursuant to Art. 171 of the Swiss Code of Obligations. KAPSLY does not incur liabilities for Clients in case of bankruptcy or other events of insolvency and does not indemnify losses or expenses of Service Provider.
7.5 The Service Provider warrants to refrain from anything that may adversely affect the value of the receivables and, upon KAPSLY's request, to take all necessary precautions to achieve the maintenance and validity of the global assignment. The Service Provider undertakes to obtain KAPSLY's consent before waiving and/or asserting any rights in connection with the receivables in court or under debt collection law, if doing so may in good faith adversely affect KAPSLY's interests in any way. KAPSLY may not refuse consent without reasonable cause.
7.6 For the operation of the KAPSLY-Platform as well as the assumption of the receivables, the Member shall pay KAPSLY a commission of 10% (the "Commission") on the service fees generated via the KAPSLY-Platform. Depending on the time of compensation, the fee will be either paid by the Service Provider (for timely/monthly payments) or by the Client for deferred payments (included but not limited to the compensation through revenue shares, virtual or real company shares). KAPSLY shall have the right to adjust the Commission at any time with a notice period of thirty (30) days by unilaterally notifying the Service Provider. If the Service Provider does not terminate this Agreement within thirty (30) days, the adjusted Commission shall be deemed accepted. KAPSLY shall be entitled to deduct the Commission from the payment or to offset it against this or future payments.
7.7 Unless otherwise agreed, KAPSLY shall collect from Client and then transfer the Service fees, less the Commission and any other fees agreed between the parties, to Service Provider on a monthly basis (the "Payout"). The payment shall be based on a statement of account prepared by KAPSLY for all Services performed in the respective billing period. The statement shall include all Services of Service Provider within the billing period, regardless of Client's payment status, for which (i) Client's twenty (20) day return period has expired unused and (ii) the claim is not disputed by Client.
7.8 The Member(s) shall notify KAPSLY in writing of any objections to the statement immediately, but no later than within seven (7) days of receipt. After expiry of this period, the invoice shall be deemed to have been accepted without reservation.
8. Data Protection and Data Use
of KAPSLY and confirms to comply with them as far as applicable.
8.3 KAPSLY may use certain user data for analytical purposes. Users consent to receive e-mail communication based on the account activity.
8.4 Your Data belongs to you or the person or company you act for, regardless of whether it was imported into the KAPSLY-Platform by you, or by third parties or us on your behalf. Upon your request we shall delete or anonymize your data.
9. Warranty /Liability
9.2 Any and all liability of KAPSLY for damages of any kind and regardless of their legal nature is excluded to the extent permitted by the applicable law. In particular and without limitation, liability for indirect damages, consequential damages, lost profits and income.
10. Term / Termination
10.1 This Agreement is concluded for an unlimited period of time and may be terminated by KAPSLY and the Members with thirty (30) days' notice to the end of a calendar month.
10.3 In case of termination of the contract, the Members undertake in good faith to fulfill their contractual obligations until the termination of the Agreement, in particular, the Service Provider undertakes to duly fulfill the Services concluded until the termination of the Agreement and KAPSLY to refund the corresponding payments to the Service Provider.
11. Final Provisions
11.1 Should any individual provisions of this Agreement be void and/or ineffective in whole or in part, the validity and/or effectiveness of the remaining provisions or parts of such provisions shall remain unaffected. The invalid and/or ineffective provisions shall be replaced by such provisions that come as close as possible to the sense and purpose of the invalid and/or ineffective provisions in a legally effective manner. The same shall apply in the event of any loopholes in the provision.
11.2 Nothing in this Agreement shall affect the Client's mandatory rights under the applicable law in the jurisdiction of the Client's residence.
11.3 This Agreement shall be governed exclusively by Swiss substantive law, excluding its conflict of law rules and to the extent that the mandatory law of the jurisdiction of the Client's domicile does not prevail over Swiss substantive law.
11.4 The applicability of the Vienna Convention on the International Sale of Goods is explicitly excluded.
11.5 The parties submit to the exclusive jurisdiction of the competent courts of the city of Zurich, Switzerland, for any dispute arising out of or in connection with this User Agreement. Notwithstanding the foregoing, this clause does not limit the Member from exercising his or her mandatory rights as a consumer against us or from requesting that legal proceedings take place in the place of his or her residence.