This Terms of Service is intended to give our users an explanation of our service and what they agree to by using our service.
Effective as of November 5, 2016
• UpCounsel provides a platform for collaboration and communication between legal professionals (“Consultant Users”) and Users seeking legal assistance.(“Legal Clients”). UpCounsel is not a law firm, attorney referral service or employment agency, and does not guarantee results. Please use UpCounsel responsibly and please read more about our service in Section 2 below.
• You are responsible for the security of your account, and for all activities that take place under your account. Please read more about user responsibilities in Section 3 below.
• Certain conduct, such as use of the service for illegal activity, is not permitted on UpCounsel. Please read more about user conduct in Section 4 below.
• Certain content, such as threatening posts or content that violates another party’s intellectual property rights, is not permitted on UpCounsel. UpCounsel has the right to remove User-Generated Content that violates our policies. Please read more about User-Generated Content in Section 5 below.
• Certain special terms govern UpCounsel’s Consultant Users. For instance:
Consultant Users are not the employees or agents of UpCounsel.
No attorney-client relationship is formed with UpCounsel, and no duty of confidentiality arises, through use of the UpCounsel Website, including posting of jobs.
An attorney-client relationship may be formed through use of the service between Legal Clients and Consultant Users.
Consultant Users are solely responsible for ensuring that any information, solicitations, or advertisements they post on the UpCounsel website comply with all applicable laws and rules of professional conduct.
UpCounsel does not make any kind of guarantee as to the legal ability, competence, or quality of the Consultant Users who may be listed on our Website
• Consultant Users are free to create and maintain a profile on UpCounsel’s website. While UpCounsel makes commercially reasonable efforts to confirm a Consultant User’s license to practice law, UpCounsel makes no representations about a Consultant User’s background or qualifications.
• A Consultant User may become a “Verified Consultant User” by providing UpCounsel with additional verification that he or she is an active, licensed attorney and in good standing to practice law. Verified Consultant Users may also pay a fee for access to additional UpCounsel services and practice management tools. UpCounsel does not endorse or recommend Consultant Users and it is the responsibility of the Legal Client to take precautions before hiring a Consultant User for legal work.
• There is no cost for Legal Clients to post a job request on UpCounsel or use any of UpCounsel’s online tools or documents. A service or processing fee (e.g. credit card fee) may apply on invoices paid through UpCounsel.
Please read more about Consultant Users in Section 6 below.
• UpCounsel complies with the Digital Millennium Copyright Act’s safe harbor provisions. If you believe that materials located on or linked to by UpCounsel violates your copyright, you are encouraged to notify UpCounsel in accordance with UpCounsel’s Digital Millennium Copyright Act Policy. Please read more about UpCounsel’s DMCA Policy in Section 8 below.
• UpCounsel may send you email as part of its service. You may opt out of email communications. Please read more about email communications in Section 10 below.
Please see the full Terms for more information.
By accessing or using any part of the Website, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website or use any of our services. The Website is available only to individuals who are at least 18 years old.
The term “Service” refers to the services provided by UpCounsel, including without limitation access to UpCounsel’s online community; communication tools; document management and storage solutions; and payment services. UpCounsel does not provide an attorney referral service or serve as an employment agency. We provide a venue for our Users to meet and exchange information with our Consultant Users.
The “Website” refers to UpCounsel’s website located at https://www.upcounsel.com, all subpages and subdomains, and all content, services, and products available at or through the Website.
“UpCounsel,” “We,” and “Us” refer to UpCounsel, Inc., as well as our affiliates, directors, subsidiaries, officers, and employees. Consultant Users are not part of UpCounsel.
“The User,” “You” and “Your” refer to the person, company, or organization that has visited or is using the Website and/or the Service. A User may be a Legal Client, a Consultant User, both, or neither.
“Consultant Users” refer to registered consultant users in the legal field who may communicate with and provide contracting or consulting work to Legal Clients or fellow Consultant Users via the Service. Consultant Users are not the employees or agents of UpCounsel. Please see Section 6 of this Agreement for more information about Consultant Users.
“Legal Clients” refer to 1) Users who submit requests for proposals from Consultant Users for providing legal services for a fee (“Jobs”); and 2) Users who contract with Consultant Users for additional work, which, for purposes of Section 7 below, may include permanent employment, beyond the initial Job which established the Consultant User-Legal Client relationship. Consultant Users may submit proposals (“Bids”) for such Jobs and may also establish terms of the relationship with the Legal Client via a signed engagement letter or other written agreement. Please see Section 6(b) for more information about Jobs, Bids, and Legal Clients
“Content” refers to content featured or displayed through the Website, including without limitation text, documents, information, data, articles, opinions, images, photographs, graphics, software, applications, video recordings, audio recordings, sounds, designs, features, and other materials that are available on the Website. Content includes, without limitation, User-Generated Content, which may be submitted by any UpCounsel User (Legal Client or Consultant User).
2. About the UpCounsel Service.
The UpCounsel Service is a platform for collaboration and communication between legal professionals and those seeking legal assistance. The UpCounsel Service provides access to UpCounsel’s virtual community of professional Consultant Users; easy collaboration through UpCounsel’s communication management tools; document management and storage; and simple, secure payment and invoicing tools.
a. UpCounsel Is Not A Law Firm. UpCounsel does not offer legal representation. UpCounsel does not offer any legal advice, legal opinions, recommendations, referrals, or counseling. Consultant Users are not the employees or agents of UpCounsel. UpCounsel is not involved in agreements between Users or in the representation of Users. At no point may UpCounsel be held liable for the actions or omissions of any Consultant User performing consulting services for you.
b. UpCounsel Is Not An Attorney Referral Service or Employment Agency. UpCounsel is not an attorney referral service or employment agency. UpCounsel does not select or endorse any individual Consultant User to service a Legal Client. While UpCounsel uses commercially reasonable efforts to confirm that registered Consultant Users are licensed attorneys, we do not make any warranty, guarantee, or representation as to the legal ability, competence, quality, or qualifications of any Consultant User. UpCounsel does not warrant or guarantee that Consultant Users are covered by professional liability insurance. UpCounsel encourages Legal Clients to research any Consultant User before accepting professional advice.
c. UpCounsel does not vouch for any of its Users. UpCounsel simply provides a platform on which those seeking legal assistance may communicate and transact with legal professionals. UpCounsel does not endorse any of its Consultant Users and does not sanction statements that Consultant Users make on the platform. UpCounsel makes no representation concerning the qualifications of non-attorney legal service providers.
d. UpCounsel Does Not Guarantee Results. From time to time, Legal Clients may submit reviews of Consultant Users; these reviews do not constitute a guarantee, warranty, or prediction regarding the outcome of any future legal matter. UpCounsel will have no responsibility or liability of any kind for any User-Generated Content or legal advice you encounter on or through the Website, and any use or reliance on User-Generated Content or legal advice is solely at your own risk.
e. Use of UpCounsel Does Not Create An Attorney-Client Relationship With UpCounsel. UpCounsel does not offer legal advice or services. Any use of the UpCounsel Service is not intended to, and does not, create an attorney-client relationship. Any communication via UpCounsel may not be held confidential. UpCounsel is not liable for the actions or omissions of any Consultant User performing consulting services for you.
3. User Responsibilities. You, and you alone, are responsible for your account and anything that happens while you are signed in to or using your account. Your security is your responsibility.
a. User Account Security. If you sign up for the Service, you will create a personalized account which includes a unique username and a password to access the Service and to receive messages from UpCounsel. You are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the account. You agree to notify UpCounsel immediately of any unauthorized use of account, or any other breaches of security. We will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your computer, mobile device, or other computing device and/or account.’
b. Relationship with Consultant Users. Because we cannot guarantee the fitness of any of our Consultant Users for your specific needs, we encourage Legal Clients to research any Consultant User before accepting professional advice. Legal Clients may also request a written legal engagement agreement specifying the terms, scope, limitations, and conditions of the representation.
c. No Reliance on User-Generated Content. User-Generated Content posted on the Website, such as blog posts, is provided for informational purposes only, with no assurance that the User-Generated Content is true, correct, or accurate. User-Generated Content is not a substitute for professional legal advice or a solicitation to offer legal advice regarding specific facts. You should not delay or forego seeking legal advice or disregard professional legal advice based on User-Generated Content. Delay in seeking such legal advice could result in waiver of any claims you may have, depending on the applicable statute(s) of limitation. User-Generated Content is not regulated by any state or national bar association.
d. Compliance with Laws. You represent and warrant that: (i) you have the authority to, and are of legal age in your jurisdiction to, bind yourself to this Agreement; (ii) your use of the Service will be solely for purposes that are permitted by this Agreement; (iii) your use of the Service will not infringe or misappropriate the intellectual property rights of any third party; and (iv) your use of the Service will comply with all local, state and federal laws, rules, and regulations, and with all other UpCounsel policies.
4. Use and Conduct Restrictions. You are allowed to use the service as long as you follow a few basic rules. The following Use Restrictions and Conduct Restrictions are the basic rules we expect users to follow while using the Service. We are not responsible for the content our users post, and we have the right to close accounts if we need to.
a. Prohibited Content. You agree that you will not under any circumstances transmit any Content (including software, text, images, or other information) that
i. is unlawful or promotes unlawful activity
ii. defames, harasses, abuses, threatens, or incites violence towards any individual or group
iii. is pornographic, discriminatory, or otherwise victimizes or intimidates an individual or group on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability
iv. is spam, is machine- or randomly-generated, constitutes unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
v. contains or installs any viruses, worms, malware, Trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party;
vi. infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity, or other rights
vii. impersonates any person or entity, including any of our employees or representatives; or
viii. violates the privacy of any third party.
b. Users Must Be Over Age 18. You represent that you are over the age of 18. UpCounsel does not target our Content to children or teenagers under 18, and we do not permit any Users under 18 on our Service. If we learn of any User under the age of 18, we will terminate that User’s account immediately.
c. No Liability for User Interactions; UpCounsel May Monitor Interactions. Any liability, loss or damage that occurs as a result of any User interactions, including, without limitation, Job Postings, that you input or receive through your use of the Service is solely your responsibility. At our discretion, we, or technology we employ, may monitor and/or record your general interactions with the Service, though not the specifics of your legal interactions.
5. User-Generated Content. You own your content, but you allow us certain rights to it, so that we can display and share the content you post. We have the right to remove content if we need to.
a. Responsibility for User-Generated Content. You may create content, written or otherwise, while using the Service (“User-Generated Content”). You are solely responsible for the content of, and any harm resulting from, any User-Generated Content that you post, upload, link to or otherwise make available via the Service, regardless of the form of that content. Any liability, loss or damage that occurs as a result of the use of any User-Generated Content that you make available or access through your use of the Service is solely your responsibility. We are not responsible for any public display or misuse of your User-Generated Content.
b. Right to Post. You represent and warrant that you have the right to post all User-Generated Content you submit. Specifically, you warrant that you have fully complied with any third party licenses relating to User-Generated Content, and have taken all steps necessary to pass through to end users any required terms.
d. Ownership of User-Generated Content. Except for Content that originates from UpCounsel, we do not claim ownership of any Content that is transmitted, stored, or processed in your account. You retain all ownership of, control of, and responsibility for User-Generated Content you post. You may control access to your User-Generated Content through settings in your user account.
e. License Grant. Solely to allow UpCounsel to use Content you upload to the Service reasonably without violating any rights you have in it, you grant us the following rights: by posting any Content via the Website, you expressly grant UpCounsel and our successors a worldwide, sublicenseable, fully-paid and royalty-free, and non-exclusive license to use, reproduce, display, modify, adapt, distribute, and perform the Content in connection with UpCounsel’s business purpose. This license does not grant UpCounsel the right to sell User-Generated Content or otherwise distribute it outside of our Website. This license will terminate at the time when the Content is removed from the Website.
6. Consultant Users. Consultant Users are independent legal professionals who offer to perform consulting services for prospective Legal Clients. They are not employees of UpCounsel.
a. No Attorney-Client Relationship through Website Use. Use of the UpCounsel Website may not form an attorney-client relationship with Consultant Users. Information posted or made available on or through the Website, including, without limitation, any responses to legal questions posted on the Website; information in UpCounsel’s Guides and Documents; information posted publicly on the Website; or information sent in an unsolicited message to a User is not intended as legal advice, is not confidential, and does not create an attorney-client relationship. It is considered User-Generated Content.
b. Attorney-Client Relationship through Service Use. An attorney-client relationship may be formed through the use of the Service between Users and Consultant Users only. Legal Clients may post Jobs through the Service. Consultant Users may submit Bids and negotiate details of these Jobs prior to acceptance. Upon acceptance, the scope of a Consultant User’s representation is strictly limited to the matter agreed upon in the Bid unless Legal Client and Consultant User subsequently formalize their arrangement via a signed engagement letter or other written agreement, in which case the most recent written agreement would take precedence over a previously accepted proposal. A Bid is not a substitute for an in-person or telephone consultation with an attorney licensed to practice in your jurisdiction about your specific legal issue, and you should not rely upon information contained in a Bid as legal advice. UpCounsel takes every reasonable effort to ensure the privacy of Bids and other personal messages on our Service, but it cannot guarantee confidentiality. Communications requiring confidentiality should take place outside the UpCounsel Service, such as via telephone.
c. User Responsibilities. Consultant Users are solely responsible for ensuring that any information, solicitations, or advertisements they post or place on the Website, including without limitation User-Generated Content, and any communications they may have with prospective clients through the Website or the Service, fully comply with all applicable laws and rules of professional conduct, including those concerning the unauthorized practice of law and those regulating the form, manner or content of communications with clients, advertising, or other matters.
d. Payment of Consultant Users. Certain specific terms govern Consultant Users and payment.
i. UpCounsel Is Not A Party To Contracts. Legal Clients may contract with Consultant Users through posting and acceptance of Jobs. Such contracts are solely between the Legal Client and the Consultant User. UpCounsel will not be a party to any contracts for Jobs submitted through our Service, unless posted by an UpCounsel officer. UpCounsel facilitates these contracts by supplying a platform for communication management and payment tools.
ii. All Legal Fees Are Paid To Consultant Users. UpCounsel does not provide legal services and does not charge for legal services. Payments made to Consultant Users via UpCounsel’s billing platform are transferred directly to the Consultant User’s payment account, less any associated service and processing fees (e.g. credit card fees).
iii. Consultant Users Shall Receive Payment Through The Service For All User Transactions. Consultant Users who receive Jobs through the Service shall receive payment through the service for all transactions related to that user, including subsequent transactions not necessarily related to the initial Job. If a Legal Client is either unwilling or unable to make payment via UpCounsel, Consultant User agrees to notify UpCounsel of any new payment arrangement. Payment by a Legal Client to Consultant User, made outside of the service without prior notification to UpCounsel, constitutes a full waiver by both parties of UpCounsel’s payment guarantee/dispute protections as discussed in Sections 14 and 15 below, even as they may relate to prior payments made within the service.
e. Promotional Codes and Credits. UpCounsel may, in its sole discretion, create promotional codes that may be redeemed for account credit, or other features or benefits related to a Consultant User’s services, subject to the following terms and any additional terms that UpCounsel establishes on a per promotional code basis (“Promo Codes”). Certain specific terms govern Consultant Users and payment.
i. Use of Promo Codes Does Not Imply an Attorney-Client Relationship. From time to time, Legal Clients may have access to discounts supplied by UpCounsel which, in part, use UpCounsel’s funds to pay for a portion of the legal fees paid by Legal Clients to Consultant Users. The use of such coupons does not imply any attorney-client relationship between UpCounsel and the Consultant Users where a coupon is used for any paid billings from a Legal Client.
ii. Promo Codes must be used by their intended audience, for their intended purpose, and in a lawful manner.
Promo codes may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by UpCounsel. Promo Codes have no cash value and may expire or be disabled by UpCounsel at any time, for any reason, prior to your use. UpCounsel reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that UpCounsel determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms.
7. User Offers of Employment to Consultant Users.
7.1 Success Fee for Employment. In the event that a Consultant User accepts an offer of employment (“Covered Employment”) made by a User (each, an “Employer User”), whether for an indefinite or fixed term, during or within the eighteen (18) month period (such period, the “Covered Offer Period”) after the Consultant User commences the initial Job for such User (each, a “Covered Offer”), the following terms and conditions shall apply:
For Consultant Users.
Each Consultant User agrees that (1) if you receive a Covered Offer, you shall promptly notify UpCounsel of your initial date of Covered Employment (the “Start Date”) and the key terms of such Covered Offer (and notify UpCounsel promptly in writing should that Start Date or offer terms change at any time), (2) you shall provide UpCounsel with (a) a copy of a fully executed Covered Offer, or (b) execute a document between you, the Employer User and UpCounsel that states material employment terms, including, among other things, Start Date and compensation, promptly upon the signing of a Covered Employment offer letter between you and the Employer User (the “Effective Date”), as requested in writing by UpCounsel, and (3) you will promptly notify UpCounsel in writing after termination of your employment as an employee in the event that (a) an Employer User terminates your Covered Employment based on unsatisfactory performance within ninety (90) days of the date on which your Covered Employment commenced, or (b) you voluntarily terminate your Covered Employment within ninety (90) days of the date on which your Covered Employment commenced. In the event that before the Start Date, either you or the Employer User elect not to begin the employment relationship contemplated by the Covered Offer, you shall promptly notify UpCounsel in writing.
For Employer Users.
When a Consultant User accepts your Covered Offer, you agree to pay a success fee to UpCounsel (each, a “Success Fee”) equal to the following percentage of the Consultant User’s base salary set forth in the Covered Offer (the Consultant User’s “Base Salary”), which amount shall be due and payable no later than thirty (30) days after the Start Date and otherwise in accordance with the first sentence of each of Section 13.b. and Section 13.d. hereof:
If Start Date occurs on or before the following number of days after the commencement of the initial Employer User-User Consultant Job Base Salary Percentage
1-182 days 15%
183-365 days 10%
366-550 days 5%
≥ 551 days 0%
7.2 Success Fee Provisions.
Notwithstanding the foregoing, in the event of a Success Fee dispute, if an Employer User can establish that the Employer User had an Active Process (as defined below) with the Consultant User before using UpCounsel’s Website and/or Service (e.g., the Consultant User had already begun the interview process with the Employer User and such process had not been terminated, or the Employer User had received the Consultant User’s resume from an employment agency or headhunter and was under active consideration by the Employer User), the Employer User may be exempted from paying the Success Fee. However, the final determination as to whether a Success Fee is owed by the Employer User for an accepted Covered Offer will be at the sole discretion of UpCounsel. For the purposes hereof, “Active Process” shall mean continuous direct, interactive communication, in an active recruiting or hiring context where a decision to put a candidate on hold or reject has not been made, within the three (3) months prior to using the Website and/or Services for a Consultant User who exists in Employer User’s applicant tracking system or that was submitted by a recruiting agency.
If (a) an Employer User hires a User Consultant and terminates the User Consultant’s employment based on unsatisfactory performance within ninety (90) days of the Start Date, (b) a User Consultant voluntarily terminates his or her employment within ninety (90) days of the Start Date, or (c) a User Consultant does not start employment because either Employer User or User Consultant elects not to begin the employment relationship contemplated in the Covered Offer (each, a “Termination Event”), upon written receipt and confirmation of such information, UpCounsel will fully refund to the Employer User the Success Fee related to the terminating User Consultant.
8. Third Party Content. There may be content from third parties on UpCounsel’s website, such as blog posts written by other users or links to other websites. Because we cannot control that content, we are not responsible for that content or for the websites that content may link to.
Access To Third Party Content. By using the Service, you will be able to access Content belonging to or originating from third parties (“Third Party Content”). Your use of the Service is consent for UpCounsel to present this Content to you. You acknowledge all responsibility for, and assume all risk for, your use of Third Party Content.
No Responsibility For Third Party Content. As part of the Service, UpCounsel may provide you with convenient links to third party website(s) as well as other forms of Third Party Content. These links are provided as a courtesy to Service subscribers. We have no control over third party websites or content or the promotions, materials, information, goods or services available on them. By linking to such content, we do not represent or imply that we adopt or endorse, nor are we responsible for, the accuracy or reliability of any opinion, advice, or statement made by parties other than UpCounsel. We are not responsible for any Third Party Content accessed through our Website. If you decide to leave the Website and access Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any such content.
No Authorization To Use Third Party Content. This Agreement does not authorize you to distribute, publicly display, publicly perform, make available, alter, or otherwise use any Third Party Content except as permitted by UpCounsel’s terms and conditions.
9. Copyright Infringement and DMCA Policy. If you believe that material located on or linked to by UpCounsel violates your copyright, please notify UpCounsel in accordance with our Digital Millennium Copyright Act Policy.
a. Termination of Repeat Infringer Accounts. UpCounsel respects the intellectual property rights of others and requests that our Users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, we will terminate a User’s access to and use of the Website if, under appropriate circumstances, the user is determined to be a repeat infringer of the copyrights or other intellectual property rights of UpCounsel or others. We may terminate access for participants or users who are found repeatedly to provide or post protected third party content without necessary rights and permissions.
b. DMCA Take-Down Notices. If you are a copyright owner or an agent of a copyright owner and believe, in good faith, that any materials provided on the Service infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending a properly formatted take-down notice in writing to UpCounsel’s designated copyright agent at 580 Market St, #500, San Francisco, CA 94104.
c. Response To DMCA Take-Down Notices. If UpCounsel takes action in response to an infringement notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by that party to UpCounsel. Any DMCA infringement notice may be forwarded to the party that made the content available or to third parties such as ChillingEffects.org.
d. Counter-Notices. If you believe that your User-Generated Content that has been removed from the Website is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content you submitted to the Website, you may send a properly formatted counter-notice to UpCounsel’s copyright agent using the contact information set forth above.
e. Response to DMCA Counter-Notices. If a counter-notice is received by UpCounsel’s copyright agent, UpCounsel may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content will be reinstated on the Website in 10 to 14 business days after receipt of the counter-notice.
10. Intellectual Property Notice. UpCounsel retains all ownership of our intellectual property, including our copyrights, patents, and trademarks.
a. No Transfer. UpCounsel retains ownership of all intellectual property rights of any kind related to the Website and Service, including applicable copyrights, patents, trademarks and other proprietary rights. Other trademarks, service marks, graphics and logos used in connection with the Website and the Service may be the trademarks of other third parties. This Agreement does not transfer from us to you any UpCounsel or third party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with us. We reserve all rights that are not expressly granted to you under this Agreement.
b. Specifically, UpCounsel, upcounsel.com, and all other trademarks that appear, are displayed, or are used on the Website or as part of the Service are registered or common law trademarks or service marks of UpCounsel, Inc. These trademarks may not be copied, downloaded, reproduced, used, modified, or distributed in any way without prior written permission from UpCounsel, except as an integral part of any authorized copy of the Content.
11. Email Communications. We use email and electronic means to stay in touch with our users.
b. Legal Notice To UpCounsel Must Be In Writing. Communications made through email or the Service’s private messaging system will not constitute legal notice to UpCounsel or any of our officers, employees, agents or representatives in any situation where notice to UpCounsel is required by contract or any law or regulation.
12. Termination. You may cancel this Agreement and close your account at any time. Termination of the UpCounsel Service does not terminate attorney-client relationships or obligations.
a. You May Terminate This Agreement. If you wish to terminate this Agreement or your account with the Service, you may simply discontinue using UpCounsel. If you wish to delete your User account data, please contact UpCounsel at email@example.com. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements, but barring legal requirements, we will delete your full profile within 30 days.
b. UpCounsel May Terminate This Agreement. UpCounsel may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately.
c. Relationships Between Attorney And Client Survive Termination. Termination of your relationship with UpCounsel does not affect your relationship with any consultant or client you have retained through the UpCounsel Service. All legal, contractual, and ethical duties, obligations and responsibilities survive termination of the UpCounsel relationship.
d. Some Provisions Survive Termination. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
13. Payment and Transactions.
a. Payment Process. Payment will be processed as specified in the proposal and/or invoice and agreed upon by the Legal Client and the Consultant User. When a Job (or a segment thereof as pre-agreed in writing by the Legal Client and the Consultant User) is marked as completed by the Consultant User, UpCounsel will inform the Legal Client that the Job (or a segment thereof as pre-agreed in writing by the Legal Client and the Consultant User) is complete. The Legal Client must then pay the agreed-upon amount or request changes. If the Legal Client has taken no action after 10 days, UpCounsel will have the right to charge the Legal Client's credit card, bank account, or PayPal account for the full amount of the agreed-upon fee or undisputed invoice, including applicable service or processing fees. The Legal Client may submit disputes over payment to firstname.lastname@example.org provided that he or she adheres to the other conditions set forth in Section 14 (Legal Client-Consultant User Dispute Resolution Procedures).
b. Responsibility for Payment. You are responsible for all fees, including taxes, service, and processing fees, associated with your use of the Service. By using the Service, you agree to pay the Consultant User through UpCounsel the amount agreed on in the Bid or undisputed invoice, and the associated service and processing fees, unless you dispute the invoice by sending an email to email@example.com and adhere to the other conditions set forth in Section 15 (Legal Client-Consultant User Dispute Resolution Procedures). You are responsible for providing us with a valid means of payment.
c. UpCounsel’s Responsibility. UpCounsel agrees to present you with a full invoice of each charge in advance of charging your credit card or PayPal account. UpCounsel agrees to pay the applicable Consultant User the amount received, less service or processing fees, if any.
d. Payment Authorization. By agreeing to these terms, you are giving UpCounsel permission to charge your on-file credit card, PayPal account, or other approved methods of payment for fees that you authorize UpCounsel to satisfy. Depending on your Bid specifications, UpCounsel may charge you on a one-time or recurring basis. You authorize UpCounsel to charge you the full amount owed to any Consultant User via the Service, as well as any applicable service and processing fees. For the avoidance of doubt, in the event that in a particular instance a Consultant User only uses the Services to invoice you for legal services other than those which are the subject of a Bid, by placing your credit card or PayPal account on file with UpCounsel or our third party payment processor, you acknowledge and agree that the payment terms set forth in this Section 12 shall apply.
14. Verified Consultant User Limited Payment Guarantee. UpCounsel guarantees the payment of each Verified Consultant User’s invoice for the completion of Jobs (or a segment thereof as pre-agreed in writing by the Legal Client and the Consultant User) for Legal Clients (UpCounsel’s “Limited Payment Guarantee”), subject to the following terms and conditions (the “Limited Payment Guarantee Conditions”):
a. The Legal Client has failed to satisfy the Verified Consultant User’s invoice (the dollar amount of such invoice, the “Unpaid Invoiced Amount”) by the end of the tenth (10th) calendar day after the invoice has been submitted (such date, the “Legal Client Payment Due Date”).
b. The Verified Consultant User has submitted to UpCounsel a written claim for the Unpaid Invoiced Amount (i) within a twenty-one (21) calendar day period, beginning on the day immediately following the Legal Client Payment Due Date (such period, the “Verified Consultant User Claim Submission Period”) and (ii) provide in reasonable detail the facts and circumstances of the Job, including any rationale provided by the Legal Client for his/her failure to make such payment and/or any rationale the attorney can in good faith speculate on as to why client refuses to make payment (such claim, a “Limited Payment Guarantee Request”). Failure to submit the Limited Payment Guarantee Request within the Verified Consultant User Claim Submission Period shall constitute such Consultant User’s permanent waiver of his or her right to receive the Unpaid Invoiced Amount from any person or entity, including UpCounsel and the Legal Client. To the extent that UpCounsel determines in its sole and absolute discretion that it is commercially reasonable to do so, it may continue its collection efforts with the Legal Client and if successful, the Verified Consultant User will receive his/her portion of the collected amount, minus any reasonable UpCounsel out-of-pocket collection expenses, pursuant to 12.e above.
c. In the event that the Verified Consultant User does submit a Limited Payment Guarantee Request within the Verified Consultant User Claim Submission Period, and such request contains the information set forth in clause 14.b. above, UpCounsel will attempt in good faith to work with the Legal Client and Verified Consultant User for a period of up to seven (7) calendar days from the date of the Limited Payment Guarantee Request (such period, the “Payment-Related Disputed Matter Mediation Period”) to resolve the matter which is the subject of the Limited Payment Guarantee Request (the “Payment-Related Disputed Matter”). In the event that the Payment-Related Disputed Matter is successfully resolved within the Payment-Related Disputed Matter Mediation Period, each of the Legal Client, Verified Consultant User and, if relevant, UpCounsel will take the agreed upon steps to execute the agreed-upon resolution.
d. In the event that the Payment-Related Disputed Matter remains unresolved at the conclusion of the Payment-Related Disputed Matter Mediation Period, by no later than the seventh (7th) calendar day after the end of the Payment-Related Disputed Matter Mediation Period (the date such determination is communicated in writing to the Legal Client and Verified User Consultant, the “UpCounsel Disputed-Amount Determination Date”), UpCounsel shall make a determination in its sole and absolute discretion (the “UpCounsel Disputed Matter Decision”), based upon the information theretofore provided by Verified Consultant User and, if provided, the Legal Client, as to whether the nature and quality of the legal services rendered in connection with the related Job are consistent with industry standards, the provisions of the related Bid and these Terms and Conditions. Should UpCounsel decide the Payment-Related Disputed Matter in favor of the Verified Consultant User, UpCounsel shall remit the Unpaid Invoiced Amount to the Verified Consultant User within seven (7) calendar days after the UpCounsel Disputed-Amount Determination Date, and the Verified Consultant User shall be deemed to have assigned all of his or her rights with respect to the Payment-Related Disputed Matter to UpCounsel. Notwithstanding anything stated herein or otherwise to the contrary, the dollar amount sought under this Section 14 shall not exceed the amount initially contracted between Legal Client and Verified Consultant User in relation to the Job or an amount subsequently agreed to in a signed engagement letter or other written agreement between the parties, and in any event shall never exceed $5,000 in aggregate across all unpaid invoices sent by the Verified Consultant User to the Legal Client.
e. Should UpCounsel decide the Payment-Related Disputed Matter in favor of the Legal Client, the Legal Client shall no longer be obligated to make payment of the Unpaid Invoiced Amount to the Verified Consultant User and shall be deemed to have assigned all of his or her rights with respect to the Payment-Related Disputed Matter to UpCounsel as of the UpCounsel Disputed-Amount Determination Date. In such event, the Verified Consultant User shall (i) be deemed to have waived his or her rights to seek such amounts from the Legal Client, and (ii) have the right to initiate binding arbitration proceedings with respect to the Unpaid Invoiced Amount against UpCounsel which are equivalent to those proceedings set forth in Section 21.d. hereof (Arbitration) by providing UpCounsel with written notice of his or her exercise of such right within ten (10) calendar days after the end of the UpCounsel Disputed-Amount Determination Date (such period, the “Payment-Dispute Arbitration Election Time Period”). In the event that the Verified Consultant User does not exercise his or her right to initiate arbitration proceedings during the Payment Dispute Arbitration Election Time Period, he or she shall be deemed to have permanently waived his or her right to payment of the Unpaid Invoiced Amount.
f. Should UpCounsel become aware that a Legal Client’s on-file credit card, PayPal account, or other approved methods of payment are no longer valid, or should UpCounsel become aware that a Legal Client is, without valid cause, either unwilling or unable to make payment for the Job, or any other Job or Unpaid Invoice on UpCounsel, UpCounsel will notify that Legal Client’s Verified Consultant User/Users of the potential issue related to payment (herein “the Notification”). All services performed by the Verified Consultant User prior to the Notification are subject to the “Limited Payment Guarantee,” though all services performed by the Verified Consultant User subsequent to the Notification will not be subject to the “Limited Payment Guarantee.” Should the Verified Consultant User submit an invoice to the Legal Client for services performed subsequent to the Notification, UpCounsel will still make efforts to collect payment for those services performed by the Verified Consultant User.
15. Legal Client-Verified Consultant User Dispute Resolution Procedures. In the event that a Legal Client has a good faith belief that the nature or quality of the legal services rendered by a Verified Consultant User in connection with the relevant Job are not consistent with industry standards or the provisions of the related Bid or these Terms and Conditions, or the amounts invoiced for the legal services provided by such Consultant User are not consistent with such Bid (such matter, a “Services-Related Disputed Matter”), he or she shall be permitted to withhold payment of any disputed amounts which are the subject of such matter (the “Withheld Payment Amounts”), subject to the following terms and conditions (the “Withheld Payment Amount Conditions”):
b. In the event that the Legal Client does submit a Services-Related Dispute Notice within the Legal Client Dispute Notice Period, and such request contains the information set forth in clause 15.a. above, UpCounsel will attempt in good faith to work with the Legal Client and Verified Consultant User for a period of up to fifteen (15) calendar days from the date of the Services-Related Dispute Notice (such period, the “Services-Related Disputed Matter Mediation Period”) to resolve the Services-Related Disputed Matter. In the event that the Services-Related Disputed Matter is successfully resolved within the Services-Related Disputed Matter Mediation Period, each of the Legal Client, Verified Consultant User and, if relevant, UpCounsel will take the agreed upon steps to execute the agreed-upon resolution.
c. In the event that the Services-Related Disputed Matter remains unresolved at the conclusion of the Services-Related Disputed Matter Mediation Period, by no later than the fourteenth (14th) calendar day after the end of the Services-Related Disputed Matter Mediation Period, UpCounsel shall make a determination in its sole and absolute discretion (the “UpCounsel Services-Related Disputed Matter Decision”), and based upon the information theretofore provided by the Legal Client and Verified Consultant User, as to whether the nature and quality of the legal services rendered in connection with the Job which is the subject of the Services-Related Disputed Matter were consistent with industry standards, the provisions of the related Bid and these Terms and Conditions. Should UpCounsel decide the Services-Related Disputed Matter in favor of the Verified Consultant User, the Legal Client shall be obligated to make payment of the Withheld Payment Amounts to such Consultant User within the seven (7) calendar day period after the date on which such Legal Client is notified in writing of the UpCounsel Services-Related Disputed Matter Decision (the “UpCounsel Services-Related Disputed Matter Decision Notice”). In the event that the Legal Client fails to make timely payment, UpCounsel will remit the Withheld Payment Amounts to the Verified Consultant User who will assign his or her rights to reimbursement for such amounts to UpCounsel which may, in its sole discretion, process payment pursuant to Section 13.d and/or elect to pursue its rights and remedies against the Legal Client.
d. Should UpCounsel decide the Services-Related Disputed Matter in favor of the Legal Client, the Legal Client shall no longer be obligated to make payment of the Withheld Payment Amounts to the Verified Consultant User and shall be deemed to have assigned all of his or her rights with respect to the Services-Related Disputed Matter to UpCounsel. In such event, the Verified Consultant User shall (i) be deemed to have waived his or her rights to seek such amounts from the Legal Client, and (ii) have the right to initiate binding arbitration proceedings with respect to the Withheld Payment Amounts against UpCounsel which are equivalent to those proceedings set forth in Section 21.d. hereof (Arbitration) by providing UpCounsel with written notice of his or her exercise of such right within ten (10) calendar days after the date of the Services-Related Disputed Matter Decision Notice (such period, the “Services-Related Arbitration Election Time Period”). In the event that the Verified Consultant User does not exercise his or her right to initiate arbitration proceedings during the Services-Related Arbitration Election Time Period, he or she shall be deemed to have permanently waived his or her right to payment of the Withheld Payment Amounts.
In the event that the Verified Consultant User and Legal Client have both timely availed themselves of the rights set forth in Section 14 and Section 15, the procedures set forth in Section 15 shall take precedent over the proceedings set forth in Section 14 and the Verified User Consultant agrees to permanently waive his or her right to pursue his or her rights set forth in Section 13 with respect to the facts and circumstances underlying the Payment-Related Disputed Matter.The procedures set forth in this Section 15 shall be referred to herein as the “Alternative Dispute Resolution Procedures”.
16. Disclaimer of Warranties. We provide our service as is, and we make no promises or guarantees about this service. Please read this section carefully; you should understand what to expect.
a. UpCounsel provides the Website and the Service “as is,” without warranty of any kind. Without limiting the foregoing, UpCounsel expressly disclaims all warranties, whether express, implied or statutory, regarding the Website and the Service including, without limitation, any warranty of merchantability, fitness for a particular purpose, title, security, accuracy and non-infringement.
b. Specifically, UpCounsel makes no representation or warranty that the information we provide or that is provided through the Service is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, that the Service will function in an uninterrupted manner or be secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. You assume full responsibility and risk of loss resulting from your use of information, content or other material obtained from the Service. Some jurisdictions limit or do not permit disclaimers of warranty, so this provision may not apply to you.
17. Limitation of Liability. We will not be liable for damages or losses arising from your use of the service or arising under this Agreement. Please read this section carefully; it limits our obligations to you.
a. To the extent permitted by applicable law, in no event will UpCounsel be liable to you for any loss of profits, use, or data, or for any incidental, indirect, special, consequential or exemplary damages, however arising, that result from (i) the use, disclosure, or display of your User-Generated Content; (ii) your use or inability to use the Service; (iii) the Service generally or the software or systems that make the Service available; or (iv) any other interactions with UpCounsel or any other User of the Service, whether based on warranty, contract, tort (including negligence) or any other legal theory, and whether or not UpCounsel has been informed of the possibility of such damage, and even if a remedy set forth in this Agreement is found to have failed of its essential purpose. UpCounsel will have no liability for any failure or delay due to matters beyond our reasonable control. Some jurisdictions limit or do not permit disclaimers of liability, so this provision may not apply to you.
19. Release and Indemnification.
a. You agree to indemnify and hold harmless UpCounsel from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website and the Service, including but not limited to your violation of this Agreement.
b. If you have a dispute with one or more Users, you release UpCounsel from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
a. Governing Law. Except to the extent applicable law provides otherwise, this Agreement between you and UpCounsel and any access to or use of the Website or the Service are governed by the federal laws of the United States of America and the laws of the State of California, without regard to conflict of law provisions. You and UpCounsel agree to submit to the exclusive jurisdiction and venue of the courts located in the City and County of San Francisco, California, except as provided below in this Agreement.
b. Severability. If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed to reflect the parties’ original intent. The remaining portions will remain in full force and effect. Any failure on the part of UpCounsel to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
c. Limitation of Term of Action. You agree that any cause of action related to or arising out of your relationship with UpCounsel must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
d. Arbitration. Should a dispute arise between you and UpCounsel, we would like to provide you with a neutral and cost-effective means of resolving the dispute quickly. Therefore, for any claim (except for claims for injunctive or equitable relief or claims regarding intellectual property rights) under this Agreement , either party may elect to resolve any dispute arising under this Agreement through binding non-appearance-based arbitration. The party electing arbitration must initiate it through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration will be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
f. Section Headings and Summaries Non-Binding. Throughout this Agreement, each section includes titles and brief summaries of the following terms and conditions. These section titles and brief summaries are not legally binding.
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