General Terms and Conditions for Phil's Conversation GmbH
These Terms and Conditions (“GTC”) of Phil's Conversation GmbH, Zurich, Switzerland (hereinafter "PC") govern the legal relationship between (a) PC, and (b) each User (including Teachers and Students, all as defined below). These GTC apply to the exclusion of all other terms and conditions, except as may be expressly agreed by PC in writing. By using the Platform, the User accepts these GTC, or if not, the User must not use the Platform. PC reserves the right to change these GTC at any time. The current version of the GTC can be accessed at any time at [www.philsconversation.ch/gtc]. Any changes to these GTC must be notified to the Users in an appropriate manner. If a User continues to use the Platform after notification of the changes, he or she shall be deemed to have accepted the changes.
“Administrative Charge” means the charge described in Clause 5 below.
“Fee” means the amount due for Conversations as may be agreed between the Teacher and the Student in accordance with Section 5 below.
“Conversation” means the period of time during which the Teacher provides Services to a Student in one session.
“List of Teachers” means the list of Teachers on the Platform, which is visible to Students.
“Platform” means the website [www.philsconversation.ch] operated by PC.
“Profile” means the summary information completed by the Teacher or Student in his or her profile section of the Platform.
“Services” means the one-on-one provision of language conversation services or similar teaching services provided by a Teacher to a Student.
"Student" means any person registered on the Platform who wishes to obtain Services.
"Teacher" means any teacher who has established a Teacher Profile and has provided evidence to PC’s satisfaction of his or her professional qualification to teach English.
"User" means any person or legal entity accessing the Platform (including Students, Teachers and any third party).
2. Services of PC
The services of PC are limited to:
a. Operation of the Platform;
b. Publication of information related to PC’s activities; and
c. Administration of the Profiles of the Students and Teachers;
PC acts exclusively as an intermediary between Teachers and Students. Any contract for Services is separately concluded exclusively between the Teacher and the Student. PC is not a contracting party with either the Teacher or the Student regarding Services.
3. Sign-up Procedure; Profiles
Any User can sign up (a) as a Student after acceptance of these GTC; or (b) as a Teacher, after acceptance of these GTC and authorization from PC.
Students and Teachers who have signed up on the Platform must set up their own Profiles on the Platform.
Each Teacher and Student undertakes not to make false or misleading statements and is fully responsible for what they choose to publish on their own Profile. PC does not accept any liability for information provided by any Teacher or Student. PC may decline to publish or delete such information or part or all of a Profile at any time without having to provide a reason and without any liability.
Each Teacher’s Profile is included in the List of Teachers and is visible to all Users and PC.
A Student Profile only becomes visible to a Teacher with whom the Student has connected on the Platform, and is not visible to anyone else other than PC.
A Student or Teacher can terminate a connection with any other Student or Teacher at any time.
4. Teachers and Students; Connections; Services
A Student can request to connect with any Teacher who is on the List of Teachers. When a Teacher receives a connection request from a Student, the Teacher can accept or decline the connection. Once a connection has been made, the Teacher then provides the Student with the Teacher’s contact details after which both Student and Teacher arrange a first Conversation. A Teacher and Student are also free to use the “chat” function, text message or other means of communication to arrange arrangements for Conversations. The Teacher enters the agreed upon time, date, location, length and price of the conversation into the Platform’s calendar system and the Student must then confirm it. Once the Student confirms the time, date, location, length and price, such confirmation is binding.
A Student may arrange Conversations with more than one Teacher.
PC cannot guarantee that Teachers, or a particular Teacher, will be available on a certain date or in a certain area.
Each Teacher is free to accept or decline any request for Services without giving a reason.
A Student must cancel a scheduled Conversation at least 24 hours before the scheduled time for the Conversation using the Platform’s “chat” function or informs the Teacher directly; otherwise the Student will be invoiced for the corresponding Fee.
Each Teacher undertakes to provide his or her Services in a professional and timely manner.
5. Hourly Rates; Fees; Administrative Charges
The Teacher and Student freely agree the hourly rate (recommended hourly rates for different levels of Services are displayed on the Platform).
PC, on behalf of the Teacher, will send the Teacher’s invoice to the Student at the end of each calendar month for the Fee due for all Conversations scheduled (and which have not been timely cancelled) during such month. The Student must pay for invoiced Conversations to the Teacher within 10 days of the date of the invoice by ebanking, credit card or Paypal.
The Teacher is self-employed and solely responsible for the fulfilment of his or her social security or similar mandatory obligations and any income tax. PC may require the Teacher to deliver a certificate of the compensation fund evidencing such self-employed status, failing which PC will be entitled to invoice the Teacher for social insurance charges in addition to the Administrative Charge (defined below) or to terminate the Teacher’s access to the Platform.
At the end of each calendar month, PC will invoice the Teacher an administrative charge (“Administrative Charge”) amounting to 20% of the relevant Fee earned by the Teacher in such month. However, if the Student has been onboarded on to the Platform by a Teacher (and has not signed up at any time within the prior six months) the Administrative Charge is reduced to 15% of the Fee.
The Teacher and Student each undertake to keep all exchanges during Conversations (or any other information e.g. the existence and content of “chats”) confidential, unless otherwise agreed upon by both the Teacher and Student or required by mandatory law.
7. User Declarations
The User declares that he or she: (a) is 18 years or older and resides in Switzerland; (b) is entitled to enter into a contract; (c) has provided accurate and complete information which is not misleading; (d) will maintain User information up-to-date at all times.
In the case of persons under 18 years old, a parent or legal guardian must sign up and schedule Conversations on behalf of such person.
8. Data Protection
PC undertakes to process personal data of Users carefully and in accordance with the Swiss Data Protection Act and PC’s data protection policy. PC’s data protection policy is an integral part of these GTC and is available at the following link: [www.philsconversation.ch/privacy].
9. Proper use
Users are responsible for the legal and contractual use of the Platform and must always comply with applicable laws and regulations, including criminal law, the Federal Act on Data Protection including implementing provisions, intangible property rights and any applicable foreign law during use. Access to the full functionality of the Platform is only available to Teachers and Students who have signed up and created a Profile. Such access is personal to the relevant Teacher or Student and must not be shared with any other person. Each User is responsible for the confidential safeguarding of his or her login data and for all activities that are processed via his or her User account, and will prevent any third-party access. All entries made via a User account are attributable to the respective User. The User is fully liable for misuse of his or her User account. Each User undertakes not to publish any illegal, offensive, discriminatory or pornographic content or content which violates another individual’s personal integrity or the principles of good faith and public order.
No User will cause damage to PC’s IT systems or those of its providers or third parties including by introduction or dissemination of computer viruses. No User will seek to gain access to another User’s information in an unauthorized manner or to modify or manipulate the content provided by another User.
10. Intellectual property rights
The software developed by PC as well as the entire content of the Platform including graphical elements, source code, design, browsing structure, databases, images, trademarks and logos (except for User data) is protected by copyright or other applicable intellectual property rights and is the property of either PC or third parties. It may not be copied, edited, distributed or otherwise modified without the express written consent of PC or the relevant third party.
The Teacher must ensure that he or she has all necessary rights (as author or with permission from the author) to teaching documentation or other material (in any media including images, texts and videos) which he or she uploads to the Platform. The Teacher grants to PC a free-of-charge, worldwide, irrevocable and perpetual right to use such material (including the right to sub-license such use to Students and other Teachers) for the purposes of providing or receiving Services in connection with the Platform. The Teacher responsible for the upload shall be liable for any infringements of third-party intellectual property rights arising from any use of such material.
Teachers and Students agree that any material they upload to the Platform and other content (e.g. “chat” texts) may be maintained on the Platform after they terminate their use of the Platform, provided that, in the case of “chat” texts, PC will ensure that they are not accessible by any other User.
11. Limitation of Liability
The following limitations of liability apply to the extent permitted by law.
The Profiles and other content made available (either on the Platform or otherwise) by Teachers, Students or other Users do not originate from PC. PC does not control the content and therefore does not accept any liability for the accuracy, legality, quality or suitability for specific purposes of such content. Content provided by PC is intended exclusively for general information purposes and PC does not provide any guarantee regarding its accuracy or completeness.
The contract concerning any Services exists between the Teacher and the Student. PC acts exclusively as an intermediary between Teachers and Students and does not guarantee the competency, effectiveness or success of any Services provided by a Teacher. PC does not guarantee to Teachers a minimum number of Conversations. PC does not guarantee that the Student will pay for the Services.
If the Student is not satisfied with any matter relating to the Services, any claims must be made by the Student directly to the Teacher or by the Teacher directly to the Student, as the case may be. PC shall have no liability for such claims.
Although PC aims generally to maintain the operation of the Platform 24 hours a day, PC shall not be liable for the temporary unavailability of the Platform, the failure of any functionality on the Platform, or the non-delivery of requests or other communications.
PC reserves the right to amend, suspend or terminate all or part of its services at any time. PC shall inform Teachers and Students of this promptly. PC shall have no liability as a result of such amendment, suspension or termination.
PC takes reasonable measures to protect User data, but the transmission of data over the Internet is not completely secure. PC cannot guarantee the security of the data. Any transmission of data is therefore at the User’s own risk.
In any case, any liability of PC is limited to unlawful intent or gross negligence. Liability for indirect or consequential damages (including loss of revenue and loss of data) is excluded.
12. Severability clause
Should any provision of these GTC be or become invalid or void, this shall not affect the remaining provisions of these GTC. Invalid or void provisions shall be replaced by such which are valid and come closest to the economic purpose of the invalid or void provision.
The relationship between PC and any User shall be governed by substantive Swiss law excluding the conflict of law rules. The courts of Zurich, Switzerland, shall have exclusive jurisdiction to judge any dispute.
Website Owner and Editor
This Platform is owned and operated by:
Phil's Conversation GmbH
Phone: +41 43 558 43 53