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BOOKING TERMS AND CONDITIONS

ENTERED INTO BY AND BETWEEN

NEXT PLATFORMS (PTY) LTD T/A FLEXYFORCE

AND

THE COMPANY

(as defined on the Flexyforce Software)

AND

THE SUPPLIER

(as defined in the Flexyforce Software)

  • INTERPRETATION
    • In this Agreement:
      • clause headings are for the convenience and are not to be used in its interpretation;
      • unless the context indicates a contrary intention, an expression which denotes:
      • any gender includes the other gender;
      • a natural person includes a juristic person and vice versa;
      • the singular includes the plural and vice versa.
    • Capitalised terms not defined herein shall bear the same meaning as the appropriate agreement and/or terms and conditions in which such terms have already been defined.
    • The following expressions bear the meanings assigned to them below and cognate expression bear corresponding meanings:
      • “Agreement” means these Booking Specific Terms and Conditions Agreement, which Agreement is to be read together with and operate in addition to all other terms and conditions as contained in the Flexyforce Software  from time to time;
      • Booking” means the booking specifications and requirements that a Company requires to be adhered to by the Supplier, and which the Company may elect when appointing the Supplier using the “My Booking” portion of the Flexyforce Software;
      • Cancellation Fee” means a percentage of the Booking Fee which is determined in accordance with the selected cancellation policy;
      • Company” means a user of the Flexyforce Software, which elects to appoint a Supplier to provide certain Services to the Company;
      • Effective Date” shall mean the date upon which the Supplier, by way of clicking the “Request to Book” button on the relevant Supplier’s  Profile on the Flexyforce Software, signifying their consent to the terms and conditions of this Agreement;
      • Supplier” means an independent contractor, consultant, freelancer, consultant, sole proprietor, small to medium size business (SME) or any legal entity rendering services for hire as the case may be, which is invited to join the a Company’s Supplier Network. The Suppliers include, but are not limited to, creative and technology freelancers, independent professional service providers, management consultants, subject matter experts, public speakers, facilitators, coaches and trainers in any type of trading format;
      • Supplier Booking Rate” means the rate charged by the Supplier to a Company, as displayed on their Supplier Profile, which shall in accumulation on a specific Booking, amount to the Supplier Booking Fee;
      • Supplier Booking Fee” shall refer to the fees as charged by Supplier to the Company, determined in accordance with the Supplier Booking Rate, and paid to the Supplier in accordance with clause 8 hereof;
      • Flexyforce” means Next Platforms (Pty) Ltd t/a Flexyforce, bearing registration number 2015/134958/07, and includes employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, clients, service providers and suppliers;
      • Credits” shall mean an amount purchased upfront by a Company, and which amount shall be redeemable for the Subscription Fee, Payment Fee, and/or the Supplier Booking Fee in respect of a Booking or multiple Bookings, as and when the Company wishes to do so.
      • Supplier Network” means the Suppliers which a Company has engaged with, and/or continues to engage with, for the rendering of Services, through the Flexyforce Software;
      • Payment Fee” means the payment made by the Company to Flexyforce for the use of the Flexyforce Software,  which shall range between 3% (three percent) to 9% (nine percent) of the Supplier Booking Fee depending on the appropriate subscription package, along with the relevant monthly recurring subscription fee and / or settlement fees, as chosen by a Company in accordance with clause 13 hereof,
      • Flexyforce Software” means the website found at, www.flexyforce.com, which is made available, operated and owned by Flexyforce;
      • Supplier Profile” means the Supplier’s profile on the Flexyforce Software, through which a Booking may be made;
      • “Subscription Fee“ means a Software as a Service (SaaS) fee which the Company pays to Flexyforce on a monthly and recurring basis, and which shall vary from Company to Company, dependant on the elected package as offered by Flexyforce, as canvassed more fully in clause 13 hereof;
      • “Party” means the “Company”, “Flexyforce” or the “Supplier”, as the case may be, and “Parties” means “Company”, “Flexyforce” and “Supplier” collectively;
      • Services” shall mean the Services of the Supplier appointed by the Company as more fully described in the Booking section of the Flexyforce Software relating specifically to such Supplier;
      • Signup Terms” shall mean the Supplier Terms and Conditions and the Company Terms and Conditions in respect of the Flexyforce Software required to be agreed to by the respective Parties, prior to the Effective Date;
      • Termination Date” shall mean the date of completion of the Services provided to the Company by the Supplier, or as otherwise terminated by any Party hereto.
  • INTRODUCTION
    • It is recorded that –
      • this Agreement is to be read together with and operate in addition to all other terms and conditions as contained on the Flexyforce website from time to time;
      • this Agreement constitutes a tri-partite agreement, as reached between the Company, the Supplier and Flexyforce, in terms of which, Services shall be provided by the Supplier to the Company, as facilitated by Flexyforce;
      • this Agreement shall be of no force and effect unless and until both the Supplier and the Company have accepted the Signup Terms.
  • BOOKINGS
    • Flexyforce offers a variety of booking options for a Company to book an Supplier, which options include:
      • Fixed Price, which shall be in respect of a fixed deliverable to be provided by the Supplier, also known as a Fit Budget;
      • Time and Materials, which shall comprise of a fixed time to be spent and materials to be utilised from the Effective Date until the Termination Date;
      • Monthly Retainer, which shall commence on the Effective Date and continue by agreement between the Parties until terminated in accordance with this Agreement.
  • BOOKING UPDATES AND EXTENSION OF BOOKINGS
    • Should the Company require, and should the Supplier be in a position to expend more time on a Booking than was originally anticipated, then and in that event, the Company may update the Booking on the Flexyforce Software:
      • In the event that the Supplier does not accept the proposed change to a Booking, where possible or desired but the Supplier, alternative times will be provided to the Company, which the Company may accept or refuse at its own discretion.
    • Flexyforce cannot guarantee that any request by the Company, for changes to a Booking which require extra time, can or will be met by the Supplier, and any request for an extension of time, shall be made prior to the Termination Date.

Should certain hours in respect of a Booking remain unutilised by an Supplier as at Termination Date, such hours shall be regarded as having been lost, and no refund shall be made.

  • BOOKING TIME TRACKING

For Bookings which are dependant in time to be recorded in respect of Services rendered, the Company shall bear the responsibility of ensuring correct time tracking on the Services provided by the Supplier.

  • FEES TO BE PAID TO AND COSTS INCURRED BY SUPPLIERS
    • There is no cost levied on the Supplier to create their Supplier Profile in order to make their Services available.
    • Subject to clause 12 hereof, Flexyforce shall not levy any charges to the Supplier in respect of receiving and/or accepting a Booking.
    • Payment to the Supplier in respect of their Services rendered to a Company shall be as determined by the Supplier in accordance with their Supplier Booking Rate.
  • SUPPLIER BOOKING RATE

The Supplier shall determine its own Supplier Booking Rate at all times, and in this regard, the onus shall lie with the Supplier to access its profile in order to update the Supplier Booking Rate as and when they wish to do so.

  • FEES TO FLEXYFORCE
    • Unless otherwise agreed to by Flexyforce, once a Company has chosen a suitable Supplier, in order for the provision of Services to commence:
      • a Company is required to effect payment of the Supplier Booking Fee, the  Subscription Fee and the Payment fee immediately upon receipt of an invoice from Flexyforce in order for the provisions of the Services to commence; alternatively
      • at the sole discretion of Flexyforce, a purchase order pertaining to the Supplier Booking Fee, Subscription Fee and Payment Fee are presented by the Company to Flexyforce.
    • In the event of monthly retainer contracts, a Company shall be invoiced on the 1st (first) day of each month, with payment to have been effected within 7 (seven) calendar days of the generation of such invoice.
    • Failure to make payment of an invoice as set out in clause 8.2 above shall result in the cancellation of the respective Booking.    
  • PAYMENTS BY FLEXYFORCE TO THE SUPPLIER
    • Unless otherwise agreed in writing between the Supplier and the Company, Flexyforce shall maintain a 7 (seven) working day pay out policy in respect of Supplier Booking Fees.  As such, each Supplier shall receive payment of their respective Supplier Bookings Fees 7 (seven) working days after the Termination Date of a Booking, alternatively on or before the last day of each calendar month in the event of a monthly retainer Bookings.
    • Pay out deductions of Supplier Booking Fees may only be done in accordance with deductions attributable to cancellation policies as per clause 12 hereof.
  • PAYMENT METHOD
    • A Company may elect to utilise one of the following payment methods, as indicated in the “Company Settings” page of the Flexyforce Software:
      • Payment upon receipt of an invoice by electronic funds transfer;
      • Online payment by credit or debit card;
      • Payment by utilising pre-bought Credits to facilitate instant bookings, which shall allow for the Company to instantly confirm and commence with the Booking.
  • CANCELLATION POLICIES
    • In order to effect cancellation of a Booking, should the need arise, Flexyforce Software provides for 3 (three) types of cancellation policies that both Company and Supplier shall reach agree to prior to the Booking commencing:
      • Strict:
        • If the Company cancels, the Company shall be liable to make payment to the Supplier of the full Booking Fee irrespective of whether the Services have commenced;
        • If the Supplier cancels, a 25% (twenty five percent) Cancellation Fee shall apply, and which shall be deducted from the Supplier Booking Fee of the next Booking to be attended to by the Supplier.
      • Moderate:
        • If the Company cancels, 50% (fifty percent) of the Supplier Booking Fee will be paid to the Supplier;
        • If the Supplier cancels, a 10% (ten percent) Cancellation Fee shall apply and which shall be deducted from the Supplier Booking Fee of the next Booking to be attended to by the Supplier.
      • Flexible:
        • This type of Booking shall operate on a flexible basis, and if same is cancelled either by the Company or the Supplier, the Supplier shall then receive payment for the time spent on the Services up until the date of cancellation.
    • In respect of all monthly retainer Bookings, such Bookings may be terminated by either Party on 2 (two) calendar months’ notice to the other.
    • All cancellations shall only be effected once selected on the Flexyforce Software as such.
    • In the event of cancellation by either Party once payment of any Supplier Booking Fees have been effected:
      • either Party may dispute a cancellation for resolution on the Flexyforce Software within 7 (seven) days of such cancellation being actioned.
  • SUBSCRIPTION FEES
    • Flexyforce makes available to the Company the following subscription packages, which the Company at its own discretion may elect:
      • Free 30 Day Trial, which is available to all Companies which sign up on the Flexyforce Software;
      • Free Package, which is available to all Companies who sign up on the Flexyforce Software;
      • $50 per Month Package, which is available to all Companies who have signed up on the Flexyforce Software and wants to upgrade from the Free Trial and / or Free Package;
      • Bespoke Package, which shall be customised according to a Company’s specific needs and requirements.
  • DISPUTE RESOLUTIONS AND DEADLOCK PROCEDURES
    • The parties acknowledge that by using the Flexyforce Software, they agree to engage in an informal dispute resolution process known as the Booking Resolution Process as set out in clause 14.3 hereunder, in accordance with the terms set forth herein, in an attempt to resolve any dispute as cost effectively and as expeditiously as possible vis-à-vis the Flexyforce, the Supplier and/or the Company.
    • The Company and / or Supplier may initiate a Booking Resolution Process in instances of a dispute where, for example, but not limited to:
      • Continued delivery of the Services will amount to a conflict of interest;
      • The Supplier is incompatible with the nature of the Company’s business; or
      • Inability of the Supplier to perform Services that have been agreed to in the Booking;
      • The Company consistently requires the Supplier to provide services not provided for in the Booking;
      • After notice in writing, the Supplier wilfully neglects to provide or fails to remedy any default in providing the Services according to the terms of the Booking;
      • The Supplier disobeys or fails to carry out any reasonable instruction or direction given by the Company;
      • The Supplier fails to disclose material  information, or discloses it incorrect, intentionally vague or false information during the negotiation of the Booking;
      • In the event of any breach of the Supplier of their obligations with Flexyforce which may affect the Company;
      • By reason of an event of Force Majeure, the Supplier is unable to perform or delays in performing its obligations in terms of a Booking for a period of 10 (ten) business days from the date of such event of Force Majeure in circumstances where they could have prevented the failure or delay by taking reasonable precautions or measures;
      • The Supplier is unable to perform its obligations in terms of a Booking due to an unforeseen circumstance, through no fault of the Supplier but renders the Supplier incapable of performing in terms of a Booking;
      • The Company is unable to perform any of its obligations in terms of a particular booking;
      • The Company does not wish to continue with the Booking.
    • The Booking Resolution Process shall be conducted as follows:
      • Should a Company or Supplier wish to raise a dispute, including without limitation, due to the instances described in clause 14.2 above, against the other, as the case may be, which it has already been engaged with in respect of a Booking on the Flexyforce Software (a “Booking Dispute”), such dispute may be raised by sending an email to Flexy at [email protected] (the “Dispute Notice”). The Dispute Notice shall provide a brief description of the nature of dispute and should include all information necessary to enable Flexy to investigate the Booking Dispute;
      • The other party to the Booking Dispute shall, upon written notice by Flexyforce, then be invited to respond to the Dispute Notice with a brief description of their version of the Booking Dispute. Flexyforce will then assess the merits of the Booking Dispute and attempt to informally resolve the Booking Dispute within 20 (twenty) business days from the date of delivery of such Dispute Notice to Flexyforce, which, if successful, will avoid the need for further action;
      • Possible outcomes of the process contemplated above are (but not limited to):
        • The Company only making payment of the actual hours utilised to render the Services as opposed to the full Supplier Booking Fee;
        • The Booking being cancelled and the monies refunded;
        • The Company and / or Supplier being obliged to continue with the Booking; or
        • Amended Booking and associated Supplier Booking Fee.
      • Should the Booking Resolution Process be unsuccessful in resolving the dispute, then in such circumstances, clause 14below shall apply.
  • DISPUTE RESOLUTIONS AND DEADLOCK PROCEDURES
    • Save as otherwise contained herein, should any dispute arise between the Parties in connection with this agreement, the Company and the Supplier shall attempt on the basis of good faith to settle such dispute by way of negotiation.
    • If any Party provides written notification to the other that such attempt has failed, then the Parties shall attempt to agree upon the appointment of a suitably qualified mediator, within 10 (ten) business days of such dispute being referred.
    • If agreement is not reached as to the appointment of such mediator within 10 (ten) business days after a Party has in writing called for the appointment of a mediator, or where an appointment has been agreed upon and such mediator is not able to mediate a resolution of such dispute within 30 (thirty) business days after such appointment, then any Party may give written notice to the other Party referring the dispute to arbitration in accordance with the provisions of this clause 14 (“Arbitration Notice”).
    • The arbitration shall be:
      • held in the jurisdiction of the Party against who the arbitration is initiated, unless otherwise agreed between the Parties in writing;
      • conducted in the English language;
      • held before a single arbitrator;
      • subject to the provisions of this clause 14, conducted in accordance with the Arbitration Foundation of Southern Africa (AFSA) Rules; and
      • held, as soon as reasonably practicable in the circumstances and with a, view to it being completed within 30 (thirty) business days of the date of the Arbitration Notice.
    • The arbitrator shall be an attorney or advocate of at least 10 (ten) years standing as such, agreed upon between the Parties, provided that should the Parties fail to agree on an arbitrator within 3 (three) business days of the date of the Arbitration Notice, the arbitrator shall, at the written request of any Party, be appointed by the President for the time being of AFSA or its successor.
    • The arbitrator shall determine which Party shall pay the costs of and incidental to the arbitration or, if more than 1 (one) Party is to contribute, the ratio of their respective contributions, and the scale on which such costs are to be paid.
    • Subject to each Party’s rights of appeal in accordance with the AFSA Rules, the Parties irrevocably agree that the decision of the arbitrator shall be final and binding on them, shall be carried into effect, and shall be capable of being made an order of any court of competent jurisdiction.
    • This clause shall be severable from the rest of this agreement and therefore shall remain effective between the Parties after this agreement has terminated.

  

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