TERMS & CONDITIONS
These terms and conditions (these T&Cs) set out the terms and conditions which govern the legal relationship between you, the expert (referred to herein as you or Expert) with Diakob Enterprises (DKB, we, our, us), including the terms on which you agree to provide services to third parties seeking advice and information through DKB (Clients).
We are registered in England and Wales under company number 09874279 and have our registered office at 52 Burleigh Street, Cambridge, CB1 1DJ
Please read these T&Cs carefully before you accept any Connection (defined below). In agreeing to accept a Connection, you agree to be bound by these T&Cs, which establish a contractual relationship between you and us.
1. Background
1.1 DKB provides a service that connects Clients seeking information or advice relating to a particular purpose or project (Project) within the specific industry with Experts who are able to provide their expertise in respect of the required information or advice to such Clients. Experts provide their expertise in respect of the Clients’ Project (the Expert Services) during a telephone call, discussion, meeting or in the form of a survey or written response or any other interaction (each a Connection).
1.2 In particular, DKB arranges for the following (together the DKB Service):
1.2.1 the communication of Connection requests from Clients who wish to receive the Expert Services from an Expert, subject always to our right to decline to communicate any such Connection request in our sole discretion
1.2.2 the scheduling and confirmation of Connections between Clients and Experts
1.2.3 the facilitation of payment of the Expert Fee for the Expert Services rendered.
1.3 DKB provides a technology platform via our website, https://olddiakob.optimisersinc.com.au (Website) that enables Experts to connect with Clients (and vice-versa). We are not a party to any contract between any Expert and a Client, nor (save as expressly set out herein) responsible for the acts or omissions of any Client. We have no obligation whatsoever to promote or endorse an Expert or their business.
2.Your Status
By agreeing to these T&Cs, you represent and warrant that:
2.1 as between you and us, you will be an independent contractor and nothing in these T&Cs shall render you an employee, worker, agent or partner of us or the Website (as defined in Paragraph 7 below) and you shall not hold yourself out as such;
2.2 you have the full right and authority to agree to these T&Cs and provide your services through DKB, and your provision of services through DKB does not and will not breach or otherwise violate the terms of any other contract that you have entered into (including, without limitation, any employment contract or consultancy contract to which you are a party)
2.3 you shall be fully responsible for and indemnify us against any liability, assessment or claim (including reasonable costs and expenses) for: (i) taxation howsoever arising from or made in connection with the performance of your service and/or payment of the Expert Fee (as defined in Paragraph 9 below); or (ii) any employment-related claim or any claim based on worker status brought by you against us arising out of or in connection with the provision of your services, and we may satisfy such indemnity (in whole or in part) by way of deduction from any payment due to you.
3.Your Profile
3.1 If you agree to provide services through DKB you will be asked to provide personal information which may include (but shall not be limited to) your name, postal address, email address, company name and specialisms (Personal Details). You agree that we may feature any relevant Personal Details of yours (excluding your payment or bank details) and your photo in a profile of you on our Website at our discretion. Such profile will be displayed for the purpose of providing information about the DKB Service and your Expert Services to Clients.
4.The Connection Process
4.1 Clients will approach DKB seeking advice or information in connection with a Project.4.2 DKB will approach you with the following details (a Connection Request):
4.2.1 the advice or information required by the relevant Client for which your Expert Services are sought;
4.2.2 the hourly rate in United States Dollar which would be payable in respect of the Connection (Hourly Rate); and the estimated amount of chargeable time for the proposed Connection(s) (in hours and minutes).
4.3 If you accept the Connection Request, you will be invited to schedule a Connection with the Client via DKB’s conference call service or such other method as determined by DKB. You warrant that you shall not, nor attempt to, schedule or attend a Connection with the Client nor provide your Expert Services to the Client outside of, or independently of, DKB’s conference call services, Website or permitted communication methods.
4.4 You acknowledge and agree that DKB does not guarantee that its conference call service or its online management of the Connections will always be available or be uninterrupted.
5.The Expert Services
5.1 You shall comply with the reasonable instructions of the Client in respect of the Connection and shall provide your Expert Services to the Client in accordance with the instructions in the Connection Request.
5.2 You will at all times act professionally and courteously, and you shall not be rude, disrespectful or derogatory to DKB or any Client or do or say anything that may bring DKB or any Client into public disrepute. Furthermore, you shall not cause nuisance, annoyance, inconvenience, physical harm or property damage to any Client.
5.3 You will provide the Expert Services with the best care, skill and diligence in accordance with best practice in your industry, profession or trade and in accordance with all applicable laws and regulations.
5.4 You shall use your best endeavors to ensure that any advice which you supply to a Client in connection with a Connection is true and accurate in all material respects.
5.5 Pursuant to clause 14.1, you will immediately cease to provide the Expert Services upon being directed to do so by DKB.
6. Intellectual Property Rights
6.1 You shall own and control all Intellectual Property Rights in the Expert Materials, but you agree to grant to the Client a non-exclusive, irrevocable, perpetual, royalty-free license to use the Expert Materials for the purposes of receiving the Expert Services and for the purposes of the Project. You also grant to DKB a non-exclusive, irrevocable, perpetual, royalty-free license to use the Expert Materials to the extent required for DKB to provide the DKB Service to the relevant Client.
6.2 For the purposes of this Clause 6:
6.2.1 Expert Materials shall mean any data, statistics, market intelligence, advice or other information provided by any Expert to the Client (whether such information is provided in writing, orally or by another means) in connection with a Project; and
6.2.2 Intellectual Property Rights shall mean any current and future intellectual property rights, including: (a) copyrights, trademarks, trade names, domain names, rights in logos and get-up, inventions, confidential information, trade secrets and know-how including commercial know-how, design rights, patents, utility models, semi-conductor topographies, all rights of whatsoever nature in computer software and data, rights in databases, privacy rights; (b) all intangible rights and privileges of a nature similar, analogous or allied to any of rights listed in (a); and (c) in every case in any part of the world and whether or not registered, including in relation to any of rights listed in (a) and (b): (i) all granted registrations and all applications for registration; (ii) all renewals, reversions or extensions; (iii) the right to sue for damages for past infringement; and (iv) all forms of protection of a similar nature which may subsist anywhere in the world.
7. Your Obligations
7.1 You will ensure that all Personal Details and any other information that you supply to us is complete and accurate in all material respects. In addition, you shall notify us immediately of any changes to your Personal Details or your payment and bank details.
7.2 You shall at all times obtain and shall maintain all necessary licences, consents, permissions and insurances required to offer and/or provide the Expert Services in connection with the relevant Connection and to perform your obligations under these T&Cs, including without limitation any licenses or consents required by any governing body or industry body and/or any applicable laws applicable in any relevant jurisdiction.
7.3 To avoid potential conflicts of interest, you agree not to provide your Expert Services in relation to any Project relating (directly or indirectly) to a company or other organisation for which you are a current employee, director, trustee, officer, or board member (or for which you hold a similar position) or Expert, nor shall you provide your Expert Services in relation to any Project for a Client that is a direct competitor of a company or organization for which you are a current director, trustee, officer, board member or employee (or for which you hold a similar position).
7.4 Further, you warrant that (and shall be responsible for ensuring that) your provision of the Expert Services does not present any conflict of interest or perceived conflict of interest, nor would it result in a breach of any legal obligation to any third party (including but not limited to your current and former employers and any other entity to which you provide identical or similar services).
7.5 You must inform DKB immediately if you breach any of clauses 7.1 to 7.4 above and you further agree to decline (or immediately cease your participation in) any Connection which results or would result in you breaching any such clause.
7.6 You agree that, unless we otherwise agree in advance in writing, for a period of one year from the completion of any Connection with a Client to whom you have been introduced by us (a Relevant Client), you will not solicit, negotiate with, or enter into any agreement or other arrangement (whether written or oral) with that Relevant Client to provide services of an identical or similar nature to the Expert Services, other than through the DKB platform. This clause 7.6 will survive termination or expiry of these T&Cs.
8. Costs
You agree that you shall be responsible for all costs incurred by you in connection with your provision of the Expert Services (including but not limited to all telephone call charges relating to your use of any conference call services.
9. Payment
9.1 Your fee shall be equal to the Hourly Rate multiplied by the total amount of time which you spend attending one or more Connections with the Client (measured in hours and minutes) (Expert Fee). Following completion of a Connection with a Client, DKB will within 15 days send you a link from the payment service provider, Tremendous, which will enable you to securely provide details for receipt of payment of the Expert Fee to you. Alternative methods of payment may be possible in exceptional circumstances and on request (e.g. paypal or cheque), but will incur an additional processing fee.
9.2 If a Connection is cancelled by the Client or DKB:
9.2.1 more than 12 hours prior to the scheduled time of the Connection, you will receive no payment in respect of the Connection
9.2.2 within 12 hours prior to the scheduled time of the Connection, you will receive payment equal to 50% of the Expert Fee; or
9.2.3 less than 30 minutes before the scheduled time of the Connection, you will receive the full Expert Fee.
9.3 If a Connection is cancelled by the Expert at any time, no payment will be made to you in respect of such cancelled Connection.
9.4 Payment of the Expert Fee in respect of Expert Services consisting of review of Client data will be processed after a quality check by the Client.
10. Reviews
If we make available functionality which allows Clients to provide a review of your Expert Services or of the Client’s use of the Website, we require the Client to agree that: (i) the review represents their honestly-held belief; (ii) we have the right to use that review on the Website or other media platforms, and modify its content, at our discretion; and (iii) we may remove the review from the Website at any time and in our sole discretion. Please notify us immediately if you believe that any review of your Expert Services is misleading or otherwise inaccurate. We disclaim any and all liability, to the extent permitted by applicable law, in relation to any reviews displayed on the Website.
11. Limitation of our liability
11.1 Nothing in these terms of use excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by law.
11.2 The DKB Service is provided “as is” and “as available”. To the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to the DKB Service or any content on it, whether express or implied (including, without limitation, any representation, warranty or guarantee regarding the reliability, suitability, creditworthiness, honesty or integrity of any Client).
11.3 We will not be liable to you for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
11.3.1 use of, or inability to use, the conference call services or any other communication mechanisms supplied or arranged by DKB;
11.3.2 any transaction or relationship between you and any Client; or
11.3.3 any failure in performance for causes beyond our control.
11.4 In addition, we have no liability to you for any:
11.4.1 indirect, incidental, special, exemplary, punitive or consequential damages;
11.4.2 loss of profit, loss of data, personal injury or property damage related to the Website or any Client; or
11.4.3 loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Website or to your downloading of any content on it, or on any website linked to it.
11.5 Given that we operate as a platform and connect you with Clients, our maximum liability to you (whether in contract, tort, negligence, misrepresentation or under any other legal head of liability) in relation to the Website shall be limited to the total amount of the Expert Fee which are due to you from time to time in accordance with these T&Cs.
12. Indemnity
You agree to indemnify and hold DKB and its officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, expenses (including legal fees) arising out of or in connection with:
12.1 your provision of Expert Services to Clients;
12.2 your breach of these T&Cs;
12.3 your infringement of the rights of any third party (including an Intellectual Property Rights).
13. Force Majeure
We shall not be liable for any failure to fulfil any of our obligations to you insofar as such failure is due to a Force Majeure Event. For the purposes of these T&Cs, Force Majeure Event means all events beyond our reasonable control including but not limited to war, hostilities, invasion, riot, civil commotion, royal bereavement, strikes, epidemic or pandemic, government control, network or telecommunications system failure, lock-outs, fire, flood, storm or other natural catastrophe.
14.Termination
14.1 We may terminate your engagement as an Expert under these T&Cs at any time and for any reason. We will provide you with as much notice as is reasonably possible of any such termination, unless: (i) you are in material breach of these T&Cs; or (ii) in our opinion any delay in termination would expose us or any third party (including any Client) to a risk of harm or damage, in either case of which, we may terminate your engagement as an Expert under these T&Cs immediately. Furthermore (without prejudice to your accrued rights and remedies against us), we may remove you from the Website and disable your account at any time at our discretion.
14.2 You may terminate your engagement as an Expert under these T&Cs by giving us no less than 2 weeks’ notice in writing. Notwithstanding the foregoing, where you have accepted any Connection Request(s) prior to giving notice to terminate your engagement, such notice shall expire on the completion of all relevant Connections agreed to before the date on which it is served.
15. Consequences of Termination
On termination of your engagement under these T&Cs pursuant to clause 14:
15.1 these T&Cs will no longer bind you except that any provision of these T&Cs that expressly or by implication are intended to come into or continue in force on or after termination of your engagement shall remain in full force and effect; and
15.2 if so requested by any Client at any time, you shall destroy or return to such Client all documents and materials containing, reflecting, incorporating or based on such Client’s Confidential Information and erase all such Client Confidential Information from your computer and communications systems and devices. To the extent that you are required to retain any Client Confidential Information by applicable law, or to satisfy the requirements of a regulatory authority or body of competent jurisdiction, the provisions of these T&Cs in respect of confidentiality shall continue to apply to any documents and materials retained by you.
16. Confidentiality
16.1 You agree that you shall at all times do everything within your power to keep confidential all Confidential Information held by you or received by you in connection with any Client or DKB and shall not:
16.1.1 use any Confidential Information of any Client or DKB except strictly as required to perform your obligations in respect of such Client or DKB under these T&Cs; nor
16.1.2 Disclose any such Confidential Information to any third party except:
16.1.2.1 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority provided that you shall, if legally permitted, supply a copy of the required disclosure to DKB or the Client (as applicable), incorporate any amendments or additions reasonably requested by the DKB or the Client (as applicable) before it is disclosed and disclose only the minimum Confidential Information required to satisfy such required disclosure; or,
16.1.2.2 with the prior written consent of DKB or the relevant Client.
16.2 For the purposes of these T&Cs, Confidential Information shall mean all information of a confidential or proprietary nature, whether or not marked as such, which becomes available to you (either directly or indirectly) in connection with any Project and/or your provision of the Expert Services from time to time. This includes: 16.2.1 the existence of any Project and any information contained in or forming part of the Expert Materials (including the content of any telephone discussions held with any Client);
16.2.2 the fact that you are providing the Expert Services to a particular Client;
16.2.3 any personal information which relates to or ultimately belongs to any Client;
16.2.4 any information relating to the business, affairs, clients, intentions, or market opportunities of the Client or of any of the Client’s affiliates;
16.2.5 any information relating to the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the Client or of any of the Client’s affiliates; and
16.2.6 any information, findings, data or analysis derived from Confidential Information.
16.3 In respect of a particular Client or DKB, the provisions of clause 16.1 shall not apply to Confidential Information:
16.3.1 which you are able to prove was already in your possession at the date it was received or obtained by you from that particular Client or DKB; or
16.3.2 which you obtained from some other person with good legal title to the same who does not have any duty of confidentiality in relation thereto; or
16.3.3 which comes into the public domain otherwise than through the default or negligence by you; or
16.3.4 which is independently developed by you without reference to or reliance on any Confidential Information (and which you are able to prove by written records).
16.4 Without prejudice to any other rights or remedies that DKB may have, you acknowledge and agree that DKB and any Client for which you provide Expert Services shall, without proof of special damage, be entitled to an injunction or other equitable relief for any threatened or actual breach of the provisions of this clause 17, in addition to any damages or other remedy to which it may be entitled.
16.5 In providing the Expert Services, you:
16.5.1 agree to only share public, non-confidential information with Clients and understand that no Client wishes to receive Confidential Information belonging to a third party;
16.5.2 warrant that you have not breached, nor will breach, any duty or obligation of confidentiality that you owe to any third party in providing any information to any Client or DKB; and
16.5.3 warrant that you have not (i) induced, nor will induce, any third party to breach any duty or obligation of confidentiality owed to any third party; nor (ii) have paid nor will pay any third party, to provide any information to you for the provision of the Expert Services. Where you suspect that any third party who provides you with information for use in the Expert Services has breached any duty or obligation of confidentiality to provide such information to you, you agree not to use such information for the purposes of providing the Expert Services.
17. Data Protection
17.1 Our collection and use of your personal data and any data you input whilst using the Website (including your Personal Details) shall be in accordance with our privacy policy and any Privacy Notice we make available to you from time to time.
17.2 You undertake to comply with the provisions of the Data Protection Legislation in so far as the same relates to your provision of the Expert Services to Clients under these T&Cs. DKB and the Expert record their belief that for the purposes of these T&Cs, we are the Controller and the Expert is the Processor. The provisions of this clause 17 shall apply to your handling of Client Personal Data in connection with your provision of the Expert Services to the Client. The following provisions are in addition to, and do not relieve, remove or replace, your obligations or rights under the Data Protection Legislation.
17.3 For the purpose of this clause 17:
17.3.1 Client Personal Data means any personal data which the Expert processes in connection with the Expert Services, in the capacity of a processor;
17.3.2 Controller, Personal Data and Processor shall have the meanings given to them in the Data Protection Legislation;
17.3.3 Data Protection Legislation means the General Data Protection Regulation (EU) 2016/679, the Data Protection Act 2018, the UK GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as applicable) and any other relevant local laws relating to the protection of Personal Data, the privacy of individuals and the privacy of electronic communications;
17.3.4 UK GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018; and
17.3.5 capitalised terms set out in this clause 17 and not defined elsewhere in these T&Cs shall have the meaning given to them in the Data Protection Legislation.
17.4 In relation to the Client Personal Data, this clause 17.4 sets out the scope, nature and purpose of processing by the Expert, the duration of the processing and the types of personal data and categories of data subject:
Scope The scope of the Expert’s Processing will relate to their provision of the Expert Services.
Nature The nature of the Processing will involve the Expert accessing and Processing the Client Personal Data which Client has lawful access to so as to enable the Expert to fulfil the Expert Services in accordance with the terms and conditions of these T&Cs.
Purpose of Processing The purpose of the Processing is to allow the Expert to fully apply their skills and expertise to the benefit of the Client and to fulfil the provision of the Expert Services.
Duration of processing The Processing shall continue for the duration of the Expert’s work with the Client.
Types of personal data The types of Client Personal Data which the Expert will have access include, but are not limited to: names and email addresses.
Categories of Data Subject The categories of Data Subject whose Personal Data the Expert will have access to are: the employees and partners of the Client; and those Data Subjects involved in the various studies, collaborations or otherwise which the Client is involved in and participates in.
17.5 Without prejudice to clause 17.2, the Expert shall, in relation to Client Personal Data:
17.5.1 process that personal data only on our documented written instructions which are set out in clause 17.4 unless the Expert is required by applicable law to otherwise process that Client Personal Data. Where the Expert is relying on applicable law as the basis for processing Client Personal Data, the Expert shall promptly notify us of this before performing the processing required by the applicable law unless such applicable law prohibits the Expert from so notifying us on important grounds of public interest. The Expert shall immediately inform us if, in the opinion of the Expert, our instructions infringe Data Protection Legislation;
17.5.2 implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against its accidental loss, damage or destruction, including inter alia as appropriate:
17.5.3 ensure and procure that that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
17.5.4 promptly assist us in responding to any request from a data subject and in ensuring compliance with our obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with the Commissioner, supervisory authorities or other regulators and, in particular, the Expert shall notify us without undue delay if it receives any complaint, notice or communication (whether from the Commissioner, any data subject, supervisory authority or other third party) which relates to processing of Client Personal Data;
17.5.5 notify us without undue delay after becoming aware of a Personal Data Breach;
17.5.6 at our written direction, delete or return to us all Client Personal Data on termination or expiry of the provision of Expert Services, and certify in writing it has done so, unless the Expert is required by applicable law to continue to process that Client Personal Data, in which case the Expert shall promptly notify us, in writing, of what that applicable law is and shall only be permitted to process that Client Personal Data for the specific purpose so-notified, and all other requirements set out in this clause 17 shall continue to apply to such Client Personal Data notwithstanding the termination or expiry of the Experts engagement under these T&Cs for as long as such Client Personal Data is processed by the Expert; and
17.5.7 maintain adequate records, and, on our request, make available such information as we may reasonably request, and allow for and submit its premises and operations to audits, including inspections, by us or our designated auditor, to demonstrate compliance with Data Protection Legislation and this Clause 17.
17.6 The Expert shall not, without our prior written consent (and in any event subject to the Expert providing us with reasonable evidence that such activity is being undertaking in full compliance with Data Protection Legislation):
17.6.1 appoint or replace (or change the terms of the appointment of) any other processor in relation to Client Personal Data or transfer any Client Personal Data to the same; or
17.6.2 carry out, via itself or via any other processor, any processing of Client Personal Data, or transfer any Client Personal Data, outside of the UK, including processing Client Personal Data on equipment situated outside of the UK.
18. Viruses
18.1 We do not guarantee that the Website will be secure or free from bugs or viruses.
18.2 You must not:
18.2.1 misuse the Website by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful;
18.2.2 attempt to gain unauthorized access to the Website, the server on which the Website is stored or any server, computer or database connected to the Website; or
18.2.3 attack the Website via a denial-of-service attack or a distributed denial-of service attack.
19. Severability
If any provision or part-provision of these T&Cs is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity or enforceability of the rest of the T&Cs. If any provision or part-provision of these T&Cs is deemed deleted under this clause 18, DKB and the Expert shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provisions.
20. Applicable law and jurisdiction
These T&Cs, their subject matter and thee formation of the Expert engagement hereunder, are governed by Australian law. DKB and the Expert irrevocably agree that the courts of Australia will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these T&Cs or their subject matter or formation of the Expert engagement hereunder.
21. Changes to these T&Cs
We may revise these T&Cs at any time by posting the updated terms of use on the Website but such changes do not apply to your engagement as an Expert until you have been notified of them. Your continued provision of Expert Services after we have notified you of any changes to these T&Cs shall constitute your agreement to be bound by such revised T&Cs. For clarity, any such revised T&Cs shall operate prospectively and shall govern Expert Services rendered in respect of Connections agreed after the date of such revision; however, Expert Services rendered in respect of Connections agreed prior to the date of such revision shall continue to be governed by the version of the T&Cs in operation at the time such Connection was agreed.
22.Contact Us
To contact us, please email accounts@olddiakob.optimisersinc.com.au
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