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FLEXYFORCE™ TERMS OF SERVICE

THESE TERMS OF SERVICE ARE EFFECTIVE AS OF: 1 OCTOBER 2018.

READ THESE TERMS CAREFULLY BEFORE USING THE FLEXYFORCE PLATFORM. ANY PARTY’S CONTINUED USE OF THE FLEXYFORCE PLATFORM INDICATES THAT SUCH PARTY HAS BOTH READ AND ACCEPTS THESE TERMS. NO PARTY MAY USE THE FLEXYFORCE PLATFORM UNLESS ALL THESE TERMS ARE ACCEPTED.  ALL SECTIONS OF THESE TERMS ARE APPLICABLE TO THE PARTIES UNLESS A SECTION EXPRESSLY STATES OTHERWISE.

WELCOME TO FLEXYFORCE™ 🙂

Welcome to Flexyforce™. We’re excited to show You how We work.

This is a legal document, but We intend to make your journey through it as simple as possible. The purpose of this Agreement is to specify the relationship between the Enterprise (“You”) and Flexyforce™. The relationship between You and a Supplier (“Supplier”) through the Flexyforce Platform will be subject to the Booking Specific Terms that are agreed to  between yourselves each time a Booking is made.

  1. YOUR AGREEMENT TO THESE TERMS
    1. This Agreement governs Your use of Flexyforce’s Services and the Flexyforce Platform as an Enterprise and is entered into between You and Next Platforms (Pty) Ltd t/a Flexyforce.
    2. By accepting this Agreement, You represent that You have the authority to do so, and You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a Company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to this Agreement, in which case the term “You” or “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with the terms of this Agreement, You must not accept this Agreement and may not use the Service.
    3. To the extent permitted by applicable law, We may modify this Agreement with prospective effect when notified to You, and after you have consented thereto, and any revisions thereto, will take effect when posted on the Flexyforce Platform, unless a later date is otherwise stated in the revised Agreement. Your continued use of the Flexyforce Platform and/or Services will be construed as Your consent to the amended / updated Agreement and will be conditional upon the Agreement in force at the time of Your use. Please check the Flexyforce Platform often for updates to the terms and other documents which may have a bearing on Your use of the Flexyforce Platform.
  2. DEFINITIONS
    1. “Agreement” means these terms and conditions and any other terms annexures, addenda or schedules hereto, as well as any other documents incorporated by reference herein;
    2. Best Industry Practice” means the exercise of such skill, diligence, prudence, foresight and/or good judgment which would be expected from a highly skilled, experienced and reputed person in ensuring the protection of Confidential Information at a world-class level;
    3. “Booking” means the engagement as entered into between an Enterprise and a Supplier as evidenced by the Booking Specific Terms, in terms of which, the Skills are rendered;
    4. “Booking Resolution Process” shall mean the process as set out in clause 10 below;
    5. “Booking Specific Terms” shall mean the terms presented to the Supplier by the Enterprise, which shall be agreed upon between the Enterprise and the Supplier prior to the Skills being rendered in terms of a Booking, which terms shall inter alia record the necessary Skills required for the Booking, the Supplier Booking Fee, the nature of the Booking, as well as the terms governing the cancellation of the Booking Specific Terms as contained therein.  Should there be any other custom requirements not catered for herein, these too shall be included in the Booking Specific Terms;
    6. Cancellation Fee” means a percentage of the Supplier Booking Fee, which cancellation fee is determined in accordance with the selected cancellation policy as set out in clause 17 below;
    7. “Confidential Information” means the contents of this Agreement and any information or document in whatever form or format, belonging to, in the possession of, under the control of, in the knowledge of, or howsoever related to a Party, which has been disclosed or made available by the applicable party, directly or indirectly, in any manner which is (i) confidential or proprietary in nature, or (ii) which has been designated as confidential by a Party, or (iii) the unauthorised disclosure of which would, or would be likely to, prejudice the interests of such Party, and this includes all Intellectual Property Rights, trade secrets, know-how, all personal and sensitive data and all discussions, negotiations and Services provided or to be provided relating wholly or partly to subject matter of this Agreement;
    8. Effective Date” shall mean the date upon which You accept the terms of this Agreement;
    9. “Enterprise/s” means an individual, company or other legal entity with an Enterprise account on the Flexyforce Platform, which Enterprise may, if it chooses, invite a Supplier to join their flexible workforce, and which uses the Flexyforce Platform and Services to book, contract and pay their Suppliers for Skills rendered in terms of a Booking;
    10. “Flexyforce”, “We”, “Us” means Next Platforms (Pty) Ltd t/a Flexyforce, bearing registration number 2015/134958/07, and includes our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, companies, service providers and suppliers;
    11. Flexyforce Discovery Fee” shall mean the $150.00 (One Hundred and Fifty United States Dollars) fee paid by an Enterprise to Flexyforce when hiring a Supplier by utilising Flexyforce in certain instances, as more fully canvassed in clause 7 below;
    12. Flexyforce Discovery Network” means the network of Suppliers as appears on the Flexyforce Platform, and in terms of which, the Enterprise did not introduce its own Supplier to;
    13. “Flexyforce Platform” means the web application found at www.flexyforce.com and beta.flexyforce.com, and is made available and owned by Flexyforce;
    14. Flexyforce Credits” shall mean an amount purchased upfront by an Enterprise, and which amount shall be redeemable for the Flexyforce Discovery Fee, Payout Fee, Flexyforce Subscription Fee, and/or the Supplier Booking Fee in respect of a Booking or multiple Bookings, as and when the Enterprise wishes to do so;
    15. “Intellectual Property” includes patents, rights to inventions, copyright and related rights, all other rights of copyright, trademarks, trade names and domain names, business names, logos, service marks, moral rights, know-how, business methods and trade secrets, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, database rights and any other Intellectual Property Rights, (including but not limited to moral rights), in each case whether registered or unregistered and including all applications (and right to apply) for, and renewals, extensions or revivals of, such and all similar or equivalent rights to forms of protection which subsist or will subsist now or in the future and in any part of the world (and “Intellectual Property Rights” means any ownership, license or associated rights relating to Intellectual Property);  
    16. “Party” means You or Flexyforce, as the case may be, and “Parties” means You and Flexyforce collectively;
    17. “Payout Fee” means the fee that is paid to Flexyforce by an Enterprise for the provision of the Services over and above the Subscription Fee, and which is a percentage of the Supplier Booking Fee as determine in accordance with the subscription package chosen by the Enterprise, which packages may be viewed here https://flexyforce.com/pricing/.
    18. “Personal Information” means Personal Information that can identify You or is capable of identifying You and is defined in the Protection of Personal Information Act 4 of 2013. By Personal Information We don’t mean general, statistical, aggregated or anonymised information;
    19. Service” means the service of Flexyforce making provision for the Skills of Suppliers to the Enterprise in conjunction with making the Flexyforce Platform available for use by Enterprises and Suppliers;
    20. Skills” shall mean the individual skill set of the Supplier appointed by the Enterprise as more fully described in the Booking Specific Terms coupled with the Supplier’s Profile;
    21. “Subscription Fees” shall mean fees as payable by an Enterprise to Flexyforce on a monthly basis irrespective of whether a Booking is made by the Enterprise as more fully set out in clause 6.1 below;
    22. “Supplier” means an independent contractor, expert, consultant or freelancer, as the case may be, which is introduced to the Enterprise via Flexyforce, or invited to join the Flexyforce Platform by an Enterprise, and  thereby join that Enterprise’s flexible workforce. 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;
    23. Supplier Booking Fee” shall refer to the fees as charged by the Supplier to the Enterprise, via the Flexyforce Platform, determined in accordance with the Supplier Booking Rate, and paid by Flexyforce to the Supplier;
    24. Supplier Booking Rate” means the rate charged by the Supplier to an Enterprise, as displayed on their Supplier Profile, which shall in accumulation on a specific Booking amount to the Supplier Booking Fee;
    25. Supplier Profile” means the Supplier’s profile on the Flexyforce Platform, through which a Booking may be made;
    26. “You”, “Your” and “Yours” means any person who uses the Flexyforce Platform as an Enterprise.
  3. FLEXYFORCE SERVICES
    1. The Flexyforce Platform consists of cloud-based software for contracting and paying an on-demand and flexible workforce. The Flexyforce Platform works as a real-time booking engine that automates contracting and payouts, making contracting between an Enterprise and a Supplier fast, efficient and secure. Suppliers can use the Flexyforce Platform to join an Enterprise’s flexible workforce or invite their existing Enterprises to contract and pay them through the Flexyforce Platform.
  4. EXCLUSIVITY OF SKILLS RENDERED
    1. Suppliers do not, by default, have to work exclusively through Flexyforce, but if this is a requirement of the Enterprise, an agreement to this effect will need to be reached between Enterprise and Supplier.
  5. TERM AND TERMINATION
    1. Term. This Agreement commences on the Effective Date and continues until termination by either Party in accordance with this Agreement.
    2. Either Party may terminate this Agreement with immediate effect in the event that the other Party:
      1. becomes the subject of a proceedings pertaining to its liquidation, business rescue, insolvency, receivership, or assignment for the benefit of creditors;
      2. is found guilty, of a crime involving dishonesty, by a competent court;
      3. agrees to such termination.
    3. Flexyforce may terminate this Agreement with immediate effect and in its sole discretion, where:
      1. in Flexyforce’s sole discretion, the Enterprise failed to perform in terms of its obligations as set out in any applicable Booking and/or Booking Specific Terms entered into with a Supplier;
      2. where the Enterprise has circumvented this Agreement in contravention of clause 19 (Non-Circumvention) hereof.
    4. Either Party may terminate this Agreement for convenience and without cause, on 30 (thirty) days written notice to the other. In this regard, and should the Enterprise elect to terminate this Agreement, it shall still be required to follow any process set out in the Booking Specific Terms pertaining to termination, and shall still be obliged to adhere to any obligations in terms of a Booking which arose prior to such termination.
    5. Where this Agreement is terminated in accordance with this clause 5 or for any reason whatsoever, and any amounts are due and owing to Flexyforce or a Supplier, the Enterprise undertakes to make payment to Flexyforce of the said amounts, as provided for in clause 6 which arose prior to such termination.
  6. FEES, PAYMENT TERMS AND TAXES
    1. Subscription Fees and other fees owing to Flexyforce
      1. Flexyforce makes available to the Enterprise number of different subscription packages for selection by the Enterprise upon signing up on the Flexyforce Platform, or which may be changed from time to time by the Enterprise. The latest subscription packages along with the Subscription Fees associated therewith may be viewed at the following page: www.flexyforce.com/pricing.
      2. All subscription packages include a free 30 (thirty) day trial, and unlimited team members.
    2. Payment Terms
      1. All fees, including the Supplier Booking Fee and the Payout Fee, but excluding the Subscription Fee, charged in terms of this Agreement and/or a Booking, will be invoiced upon the conclusion of the applicable Booking (unless terminated earlier), and will be payable on the date as provided for on the face of the invoice, into Flexyforce’s nominated bank account without any exchange, bank charges, deduction or set-off.
      2. Subscription Fees shall be billed monthly to the Enterprise and payable on or before the 7th day of each calendar month.
      3. Payment terms differ between agreements:
        1. Flexyforce offers a variety of Booking options for an Enterprise to book a Supplier, which options include:
          1. Fixed price, which shall be in respect of a fixed deliverable to be provided by the Supplier;
          2. Time and Materials, which shall be comprised of a fixed time to be spent and materials to be utilised from the commencement of the Booking until the termination date of the Booking;
          3. Monthly Retainer, which shall commence on the effective date of the Booking and continue by agreement between the Parties until terminated in accordance with this Agreement or the Booking Specific Terms.
      4. All invoices to the Enterprise will be addressed to the address set forth in the citation of the applicable Party, or otherwise the address recorded by the Enterprise when signing up to the Flexyforce Plaform. The Enterprise agrees that presentation of the invoice by way of email will be sufficient for the Enterprise to process payment.
      5. Unless otherwise agreed between the Parties in writing, upon the conclusion of the Agreement, Flexyforce will be onboarded onto the Enterprise’s vendor list and will deal with the finance department (to the extent that one exists) in this regard.
      6. In the event that Flexyforce issues its invoice to the Enterprise in any currency which is not in South African Rand, the exchange rate applicable to such invoice will be the exchange rate indicated in or at the time of the applicable Booking being made.
      7. Unless otherwise agreed to by Flexyforce, once an Enterprise has chosen a suitable Supplier, in order for the provision of Skills to commence, an Enterprise is required to effect payment of the Supplier Booking Fee and the Flexyforce Discovery Fee (if applicable) immediately upon receipt of an invoice from Flexyforce in order for the provision of the Skills to commence.
      8. All invoices shall be payable by the Company to Flexyforce within 7 (seven) days of issuance.
      9. In regard to the Subscription Fees, and monthly retainer contracts, an Enterprise shall be invoiced on the 1st (first) day of each month, with payment to have been effected and received by Flexyforce within 7 (seven) calendar days of the rendering of such invoice.
      10. Failure to make payment of an invoice as set out herein shall at the discretion of Flexyforce result in the cancellation of the respective Booking.    
      11. Enterprises may request custom payout terms which do not place a greater burden on Flexyforce, which are to be stipulated and agreed in the Booking Specific Terms. Once a Booking has been accepted by a Supplier, such payout terms will apply and can be anything from a percentage up front, to installments or payout on the day.
    3. Payment Methods
      1. An Enterprise may elect to utilise one of the following payment methods, as indicated in the “Enterprise Settings” page of the Flexyforce Platform:
        1. Payment by electronic funds transfer;
        2. Online payment by credit or debit card;
        3. Payment by utilising pre-bought Flexyforce Credits to facilitate instant Bookings, which shall allow for the Enterprise to instantly confirm and commence with the Booking.
    4. Taxes and Nature of Engagement
      1. This Agreement constitutes a contract for the provision of the Skills of self-employed, independent Suppliers and accordingly neither Flexyforce, nor the Enterprise, shall be responsible for withholding taxes with respect to fees paid to Suppliers.
      2. In no way will Flexyforce, or the Enterprise, be viewed as providing any payroll services to Suppliers.  Suppliers will be fully responsible for all such deductions and matters relating to personal taxation.  
      3. An Enterprise shall not be responsible for payments to Flexyforce or the Suppliers in respect of paid annual leave, paid sick leave, retirement benefits, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits or any other benefit or remuneration related to a conventional employment relationship whatsoever
      4. Without limiting the generality of the aforegoing, neither Flexyforce nor the Enterprise, will withhold or be responsible for any PAYE or other tax obligations on behalf of or in respect of an Enterprise, unless an Enterprise requests that all their Suppliers have PAYE deducted, or a Supplier selects that PAYE shall be deducted in their Supplier Profile. This Service is currently only available for South African Enterprises and Suppliers.
  7. FLEXYFORCE DISCOVERY FEE
    1. Should an Enterprise book a Supplier through the Flexyforce Discovery Network for the first time, the once off Flexyforce Discovery Fee of R1,500.00 (one thousand five hundred Rand) shall be invoiced to the Enterprise by Flexyforce in respect of such Supplier, and paid in accordance with clause 6.2 above. The Flexyforce Discovery Fee shall be applicable in respect of each new Supplier booked for the first time by an Enterprise through the Flexyforce Discovery Network.
    2. Should the Supplier and the Enterprise have had an existing working relationship prior to any introduction being made by Flexyforce or through the Flexyforce Platform, but have not worked together on the Flexyforce Platform, the Flexyforce Discovery Fee will automatically apply in respect of the first time Booking made between the Supplier and the Enterprise, unless the Enterprise notifies Flexyforce in writing in advance of the Booking, and provided that it is able to produce proof of an existing relationship, in which event the Enterprise shall not be liable for payment of the Flexyforce Discovery Fee.
    3. Should the Enterprise and/or the Supplier be deemed, in the reasonable discretion of Flexyforce, to have circumvented the Flexyforce Discovery Fee, then the guilty Party, alternatively both Parties, as the case may be, will be removed from the Flexyforce Platform and their profiles deactivated.
  8. BOOKING SPECIFIC TERMS
    1. In the event that the Booking Specific Terms may differ from this Agreement in any manner, then and in that event, the Booking Specific Terms shall override this Agreement to the extent that such inconsistencies do not result in an increased burden being placed on Flexyforce.  In the event of such an increased burden being placed on Flexyforce, then this Agreement shall supersede the Booking Specific Terms to the extent of such inconsistency.
    2. Apart from the Payout Fees, the Subscriptions Fees, or any other fees payable to Flexyforce, You have the freedom to negotiate among others the Supplier Booking Fee, nature of the Booking, cancellation policy and the like with the Supplier in the Booking Specific Terms.
  9. ENTERPRISE’S TERMS AND CONDITIONS
    1. Should an Enterprise desiring to utilise our Services, wish to use its own agreement (“the Enterprise’s Agreement”) setting forth terms and conditions in addition to this Agreement, then Flexyforce shall permit same to the extent that the Enterprise’s Agreement does not result in an increased burden being placed on Flexyforce.  In the event of such an increased burden being placed on Flexyforce, then this Agreement shall supersede the Enterprise’s Agreement to the extent of such inconsistency.
  10. BOOKING RESOLUTION PROCESS
    1. You acknowledge that by using the Flexyforce Platform, You agree to engage in an informal dispute resolution process known as the Booking Resolution Process (“the Booking Resolution Process”) as set out in clause 10.3 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 Supplier and the Enterprise.
    2. The Enterprise and/the Supplier may initiate a Booking Resolution Process in instances of a dispute where, for example, but not limited to:
      1. Continued delivery of the Skills will amount to a conflict of interest;
      2. The Supplier is seriously incompatible with the culture of the Enterprise’s business; or
      3. Inability of the Supplier to perform Services that have been agreed to in the Booking;
      4. The Enterprise consistently requires the Supplier to provide Services not provided for in the Booking;
      5. After notice in writing, the Supplier willfully neglects to provide or fails to remedy any default in providing the Skills according to the terms of the Booking;
      6. the Supplier disobeys or fails to carry out any reasonable instruction or direction given by the Enterprise;
      7. The Supplier fails to disclose relevant Personal Information, or discloses materially incorrect, intentionally vague or false Personal Information during the negotiation of the Booking Specific Terms or when signing up to the Flexyforce Platform;
      8. In the event of any breach of the Supplier of its obligations with Flexyforce which may affect the Enterprise;
      9. By reason of an event of Force Majeure, the Supplier is unable to perform or delays in performing its obligations hereunder for a period of 10 (ten) business days from the date of such event of Force Majeure in circumstances where it could have prevented the failure or delay by taking reasonable precautions or measures;
      10. The Enterprise is unable to perform any of its obligations in terms of a particular Booking;
      11. The Enterprise does not wish to continue with the Booking.
    3. The Booking Resolution Process shall be conducted as follows:
      1. Should an Enterprise or Supplier wish to raise a dispute against the other, as the case may be, which it has already been engaged with in respect of a Booking on the Flexyforce Platform (a “Booking Dispute”), such Booking Dispute may be raised by sending an email to Flexyforce 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 Flexyforce to investigate the Booking Dispute;
      2. The other Party to the Booking Dispute shall then be invited to respond to the Dispute Notice with a brief description of his/her/its version of the Booking Dispute. Flexyforce will then assess the merits of the Booking Dispute and attempt to informally resolve (which may involve meetings with the parties etc.) the Booking Dispute within 30 (thirty) days from the date of delivery of such Dispute Notice to Flexyforce, which, if successful, will avoid the need for further action;
      3. Possible outcomes of the process contemplated above may include, but not limited to:
        1. The Enterprise only making payment of the actual hours utilised to render the Skills as opposed to the full price of the full Supplier Booking Fee;
        2. Flexyforce providing the Enterprise with an alternative selection of Suppliers;
        3. The Booking being cancelled and the monies refunded to the Enterprise;
        4. The Enterprise and/or Supplier being obliged to continue with the Booking; or
        5. Amended Booking and associated Supplier Booking Fee.
      4. Should the Booking Resolution Process be unsuccessful in resolving the Booking Dispute, then in such case, clause 23 below shall apply.
  11. ACCRUED RIGHTS
    1. Termination of this Agreement, for any reason, shall not affect the accrued rights of the Parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other, the confidentiality and non-circumvention rights, and all provisions which are expressed to survive this Agreement shall remain in force and effect.
  12. THE RELATIONSHIP BETWEEN THE PARTIES
    1. This Agreement shall not render Flexyforce, its affiliates and/or contracting parties as an employee, employer or partner of the Enterprise. Furthermore, nothing in this Agreement shall be construed as constituting a temporary employment service as contemplated in Section 198 of the Labour Relations Act 66 of 1995.
    2. Flexyforce hereby indemnifies the Enterprise and its affiliates, and holds the Enterprise, the affiliates and their respective personnel, shareholders or other holders of an ownership interest, as the case may be, harmless from and against any liability arising out of or in connection with any breach of this clause 12.
    3. Flexyforce does not supervise, control or determine the price for which Suppliers sell Skills, or the location from which Skills are rendered but acts as an agent to facilitate the Skills rendered. The Enterprise may add special conditions to each Booking if they wish to do so in the Booking Specific Terms, provided that such terms do not further encumber Flexyforce.
    4. Neither Party shall have the authority to bind any other Party to any agreement, unless specifically authorised to do so, in writing.
  13. FLEXYFORCE’S RIGHTS AND RESPONSIBILITIES
    1. Flexyforce reserves the right to, and will, use the information which Suppliers provide it, together with reviews received from Enterprises, to determine whether a Supplier’s Skills are a match for an Enterprise’s Booking.
    2. Flexyforce cannot guarantee that it will be able to provide Enterprises with Suppliers, nor that the Supplier will be a perfect match for the Enterprise’s requirement, nor can it warrant the quality of the Skills possessed by a Supplier.
    3. Flexyforce does not make any representation or warranty of any kind, whether express, implied, statutory or otherwise of the Services or Skills to be provided, and Flexyforce specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by law. Flexyforce and ancillary Services are provided “as is”, exclusive of any warranty whatsoever. Flexyforce disclaims all liability and indemnification obligations for any harm or damages caused by any third party and/or ancillary service provider.
  14. FLEXYFORCE’S BOOKING PROCESS
    1. Flexyforce’s Booking process is as follows:
      1. The Enterprise may create an Enterprise account on the Flexyforce Platform wherefrom the Enterprise may invite employees and other contractors to become Suppliers.
      2. The Enterprise will be able to view all of its Suppliers under the Flexyforce section of the Flexyforce Platform, from where an Enterprise can manage and book and pay selected Suppliers.
      3. The Enterprise can also browse and find new talent (Suppliers) via the Flexyforce Discovery Network, shortlist favourites and chat directly to Suppliers through the Flexyforce Platform.
      4. When engaging with a Supplier for the purpose of entering into a Booking, the Enterprise can create certain Booking Specific Terms as more fully set out in clause 8 below, regulating the service of the Skills to be provided, which will be included in a real-time Booking request to the selected Supplier.
      5. The Supplier shall thereafter have the option to either accept or decline the Booking request and associated Booking Specific Terms within the selected time period as indicated on the Booking request, before such request expires.
      6. Upon acceptance of the Booking Specific Terms, the Booking will be considered as effective between the parties and will commence on the start date indicated by the Booking.
    2. Where a Booking is terminated by a Supplier due to unforeseen circumstances prior to the commencement of any Skills, the selected cancellation policy will apply.
    3. Should an Enterprise terminate the Booking prior to the commencement date of any Skills, the selected cancellation policy as per clause 17 will apply.
  15. BOOKING UPDATES, EXTENSION AND VARIATIONS TO BOOKINGS
    1. Should wither Party require a variation in the Skills, time spent or other component of a Booking, and should the other Party be amendable to such variation, then and in that event, the Enterprise may update the Booking on the Flexyforce Platform accordingly.
    2. Should the other Party accept the changes to the Booking, Flexyforce will invoice the Enterprise accordingly in respect of variation for payment by the Enterprise within 7 (seven) days of the invoice being issued. Only upon receipt of payment of the invoice by the Enterprise shall the Supplier be required to provide further Skills to the Enterprise.
    3. Where a variation request pertain to time, and in the event that the Supplier does not accept the proposed change to a Booking, where possible or desired by the Supplier, alternative times will be provided to the Enterprise, which the Enterprise may accept or refuse at its own discretion.
    4. Flexyforce cannot guarantee that any request by the Enterprise, for changes to a Booking which require extra time or a variation of the project, can or will be met by the Supplier, and any request for an extension of time or variation of the project, shall be made prior to the termination date of a Booking.
    5. Should certain hours in respect of a Booking remain unutilised by a Supplier as at the termination date of the Booking, such hours shall be regarded as having been lost, and no refund shall be made to the Enterprise by Flexyforce or the Supplier.
  16. BOOKING TIME TRACKING
    1. For Bookings which are dependent on the time being recorded in respect of Skills rendered, the Enterprise and Supplier and not Flexyforce shall bear the responsibility of ensuring correct time tracking of the Skills provided by the Supplier, and in this regard, Flexyforce would suggest the implementation and use of Harvest and/or Bonzai as a third-party time tracking tool.
    2. No dispute resolution in respect of Bookings which require the recordal of time spent will be investigated unless such time spent has been recorded in an online time tracking tool, to the satisfaction of Flexyforce.
  17. CANCELLATION POLICIES
    1. In order to effect cancellation of a Booking, should the need arise, Flexyforce provides for 3 (three) types of cancellation policies that both the Enterprise and Supplier shall agree to in the Booking Specific Terms prior to the Booking commencing:
      1. Strict:
        1. If the Enterprise cancels, the Enterprise shall be liable to make payment to the Supplier of the full Supplier Booking Fee irrespective of whether the Skills have commenced;
        2. If the Supplier cancels, a 25% (twenty five percent) Cancellation Fee shall apply, which Cancellation Fee shall be payable to Flexyforce and which shall be deducted from the Supplier Booking Fee of the next Booking to be attended to by the Supplier.
      2. Moderate:
        1. If the Enterprise cancels, 50% (fifty percent) of the Supplier Booking Fee will be paid to the Supplier, irrespective of whether the Skills have commenced;
        2. If the Supplier cancels, a 10% (ten percent) Cancellation Fee shall apply, which Cancellation Fee shall be payable to Flexyforce and which shall be deducted from the Supplier Booking Fee of the next Booking to be attended to by the Supplier.
      3. Flexible:
        1. This type of Booking shall operate on a flexible basis, and if same is cancelled either by the Enterprise or the Supplier, the Supplier shall then receive payment for the time spent on the Skills up until the date of cancellation.
        2. In respect of all monthly retainer Bookings, such Bookings may be terminated by either Party on 2 (two) calendar months’ notice to the other. However, in the event that the Enterprise and/or the Supplier failing to inform Flexyforce of this decision, Flexyforce shall continue to invoice the Enterprise the Supplier Booking Fee.
    2. All cancellations shall only be effected once selected on the Flexyforce Platform as such.  
    3. In the event of cancellation by either Party once payment of any Supplier Booking Fees has been effected:
      1. the Enterprise may contact Flexyforce in order that Flexyforce may assist the Enterprise in finding a suitable replacement Supplier in the most expeditious manner.  In the event that the Enterprise elects not to utilise the services of a replacement Supplier, any Supplier Booking Fees shall be refunded, if applicable, in accordance with the applicable cancellation policy in clause 17.1 above;
      2. either Party may dispute a cancellation on the Flexyforce Platform within 7 (seven) days of such cancellation being actioned.
  18. WARRANTIES, UNDERTAKINGS AND REPRESENTATIONS
    1. Each Party hereby warrants, represents and undertakes to and in favour of the other Party that:
      1. it has the legal right and full power and authority to enter into, execute and deliver this Agreement and to perform the obligations under it, and all other documents or agreements to be entered into by it in connection with this Agreement;
      2. that it understands its rights and obligations under this Agreement and that it is executing this Agreement voluntarily;
      3. there is no insolvency, bankruptcy, business rescue or analogous proceedings pending or in progress or, to the best of that Party’s knowledge threatened against that Party before any court, administrative agency or tribunal; and
      4. to the best of the Parties’ knowledge, the execution of this Agreement and the performance of its obligations hereunder does not and shall not:
        1. contravene any law or regulation to which that Party is subject;
        2. contravene any provision of that Party’s constitutional documents; or
        3. conflict with, or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it.
    2. Each of the warranties, representations and undertakings given in this clause shall:
      1. be a separate warranty, representation and undertaking and shall in no way be limited to or restricted by reference to or by inference from the terms of any other warranty, representation or undertaking, or by any words of this Agreement;
      2. continue and remain in force, notwithstanding the completion of any or all the transactions contemplated in this Agreement; and
      3. be a material representation inducing the other Party to enter into this Agreement.
  19. NON-CIRCUMVENTION
    1. Should a Supplier and the Enterprise have an existing working relationship prior to any introduction being made by Flexyforce or through the Flexyforce Platform, the Enterprise shall be exempt from the non-circumvention provisions below, provided that the Enterprise is able to produce proof thereof. As such, the provisions of this clause shall only apply to Suppliers and Enterprise’s which were introduced through the Flexyforce Discovery Network. For the purposes of clarity, should an Enterprise be introduced to a Supplier, whether expressly or otherwise, by Flexyforce or through the Flexyforce Platform, the following will apply:
      1. In consideration for making the Flexyforce Platform available to Enterprises and Suppliers, for a period of no less than 12 (twelve) months from the termination date of the last Booking with a Supplier or an Enterprise , a Supplier may not work (on a freelance basis, part-time or permanently) for the applicable if such working relationship is not administered and paid for through the Flexyforce Platform.
      2. In the event that a Supplier and the Enterprise circumvent the Flexyforce Platform to provide and receive part-time services within the 12 (twelve) month period referred to above, Flexyforce may at its sole discretion terminate this Agreement with immediate effect and retract all Flexyforce Platform access.
      3. Where an Enterprise expresses the desire to employ a Supplier, on a permanent basis, within 12 (twelve) months of the termination date of Freelance Supplier’s last Booking with the applicable Enterprise, and the Supplier wishes to accept such offer of employment, the Supplier is free to do so, provided that the Supplier and the Enterprise notify Flexyforce thereof immediately upon Supplier’s acceptance of such offer of employment. In this case a Supplier’s Booking Fee equal to 15% of the total annual cost to Enterprise remuneration offered to the Supplier in light of the employment, will be charged to the Enterprise by Flexyforce, for which payment will be due before the employment contract takes effect.
      4. The Enterprise undertakes that it will not circumvent the methods of payment offered by Flexyforce.
      5. The Enterprise agrees to notify Flexyforce immediately upon gaining knowledge, or a suspicion, that another person improperly attempts or suggests soliciting payments outside of the Flexyforce Platform. All such communication shall be kept confidential.
      6. Should it be discovered by Flexyforce that the Enterprise has utilised the Supplier in breach of the provisions of this clause 19 or the payment provisions hereof, it shall be entitled to claim from the Enterprise R1,500.00 (one thousand five hundred Rand) and 9% (nine percent) of the value of the Supplier’s Booking Fee preceding such breach. This in no way limits any claim that Flexyforce may have elsewhere in law as against the Enterprise.
    2. This Non-Circumvention clause is severable from the balance of this Agreement and shall, notwithstanding the termination or cancellation of this Agreement, remain in full force and effect.
    3. The Supplier undertakes to immediately notify Flexyforce at [email protected] upon gaining knowledge, or a suspicion, that another person improperly contacts them or suggests soliciting payments outside the payment methods prescribed by Flexyforce. The contents of such communication shall be kept confidential.
  20. CONFIDENTIALITY
    1. Save as set out below, each Party agrees to keep strictly confidential and not to disclose to any person any Confidential Information of the other Party, unless such Party (“the Disclosing Party”) has received the prior written consent of the other Party.
    2. This clause shall not prevent the Parties from disclosing Confidential Information to their directors, officers, shareholders, employees, consultants and professional advisors who:
      1. have an absolute need to know (and then only to the extent that each such person has a need to know);
      2. are aware that the Confidential Information should be kept confidential;
      3. are aware of the Disclosing Party’s undertaking in relation to such information in terms of this Agreement; and
      4. have been directed to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential by signing appropriate confidentiality and non-disclosure agreements.
    3. Each Party shall, immediately upon demand by the other Party, deliver or destroy (and certify the proper destruction of) any materials comprising or containing any Confidential Information which is in that Party’s possession or control (or in the possession or control of any of its directors, shareholders, employee/s and professional advisors).
    4. Each Party undertakes that if it becomes aware that there has been, as a result of or in the course of the performance of this Agreement, unauthorised disclosure, potential disclosure or use of the Confidential Information of the other Party, it shall promptly bring the matter to the attention of the other Party.
    5. Each Party undertakes to implement security measures, policies and technology in accordance with Best Industry Practice to maintain the confidentiality and security of the Confidential Information of the other Party and to prevent the unauthorised or unlawful access of the Confidential Information by any person.
    6. The provisions of this clause 20 shall survive the termination or expiration of this Agreement.
  21. INTELLECTUAL PROPERTY
    1. Flexyforce retains all right, title and interest in and to its Intellectual Property, and the Intellectual Property comprising the Flexyforce Platform.
    2. The Enterprise retains all right, title and interest in and to its Intellectual Property that is used or created in connection with this Agreement and the contemplated Skills to be rendered in terms hereof. In this regard, and to the extent required by law, Flexyforce shall ensure that the Supplier has agreed to a transfer, cession and assignment of any Intellectual Property rights created under any Booking with the Enterprise in the rendering of the Skills by the Supplier, in addition to the waiving of any moral rights attaching thereto. In particular, the Enterprise retains or will take cession of all right, title and interest in all Intellectual Property Rights in and to, without limitation, work products, deliverables, documentation, reports, designs, formulae, methodologies, software, proposals, specifications, feasibility reports and systems, which are developed or created pursuant to or as part of the performance of the Skills by the Supplier in terms of a Booking.
    3. Flexyforce acknowledges that it will acquire no right, title or interest in or to any information technology infrastructure, systems, components, computer hardware, software, designs, data material or Intellectual Property made available to it by the Enterprise or produced by the Supplier in terms of this Agreement.
  22. PERSONAL INFORMATION AND DATA PROTECTION
    1. In providing the Skills to the Enterprise, Flexyforce acknowledges that it (Flexyforce and its contractors and/or employees) may be exposed to certain Personal Information (as defined under Protection of Personal Information Act) of the Enterprise’s personnel and clients.  
    2. The Parties specifically record that all Personal Information provided by the Enterprise to Flexyforce, or to which Flexyforce may be exposed, shall constitute Confidential Information and where applicable, Intellectual Property belonging to the Enterprise.
    3. Flexyforce undertakes to comply with all its obligations under the Protection of Personal Information Act 4 of 2013 (“POPI”) and/or any other applicable privacy and data protection laws governing Personal Information, and in this regard Flexyforce shall endeavour to ensure compliance with the provisions of POPI by the Supplier.
    4. Flexyforce shall use its best endeavours to ensure that all processing in respect of Personal Information will not place the Enterprise in breach of the provisions of POPI and/or any applicable privacy and data protection laws.
    5. Flexyforce undertakes to implement commercially reasonable measures to detect and/or prevent unauthorised access to its information technology systems and particularly in respect of protecting the integrity of and preventing unauthorised access to Personal Information that Flexyforce has in its possession or under its control.
    6. Flexyforce undertakes to obtain the Enterprise’s consent in the event of Flexyforce having to forward the Personal Information to a third party in pursuance of its obligations under this Agreement. Flexyforce shall in any event ensure that any such third party shall be bound by the security measures imposed on Flexyforce in terms of clause 20.5.
    7. Flexyforce hereby warrants and undertakes that it shall not, at any time, copy, compile, collect, collate, process, mine, store, transfer, alter, delete, interfere with or in any other manner use Personal Information for any purpose other than with the express prior written consent of the Enterprise, and to the extent necessary to provide the Service contemplated herein to the Enterprise.
    8. Flexyforce warrants that it shall immediately inform the Enterprise, should any Personal Information it has access to, be compromised in any manner or form. Flexyforce further undertakes to also immediately inform the Enterprise as to how it will manage such compromise and what steps will be taken to rectify the situation to the Enterprise’s reasonable satisfaction.
    9. Flexyforce further warrants that it shall ensure that all its systems and operations which it uses to facilitate the rendering of the Services, including all systems, such as, but not limited to the Flexyforce Platform, on which Personal Information is copied, compiled, collated, processed, transmitted, stored, collected, mined, altered or deleted or otherwise used as part of providing the Services, shall at all times be of a minimum standard required by law and be of a standard no less than the standards which are in compliance with Industry Best Practice for the protection, control and use of Personal Information.
  23. DISPUTE RESOLUTION
    1. The Parties agree to first and foremost attempt to negotiate in good faith a settlement or dispute informally, within 10 (ten) days of such dispute arising.
    2. Should a dispute fail to be resolved informally, or should the Booking Resolution Process as contemplated above in clause 1 fail, then within thirty (30) days of a written request the matter may be referred to arbitration under the Rules of Arbitration Foundation of Southern Africa (“the AFSA Rules”).
    3. The AFSA Rules are deemed to be incorporated by reference into this Agreement. The Party first requesting Arbitration proceedings (“Initiating Party”) may provide the other Party with a list of five (5) independent arbitrators.
    4. The other Party may then choose an arbitrator from the Initiating Party’s list of arbitrators, who will then be the arbitrator agreed to between the Parties for the purposes of the arbitration of the dispute referred by the Initiating Party.
    5. The seat (legal place) of arbitration will be Cape Town, South Africa and the laws that will govern this Agreement and any dispute or claim arising or in connection with it or its subject matter will be the laws of South Africa, irrespective of place of acceptance thereof.
    6. Notwithstanding any of the foregoing, the Parties may seek from a court of competent jurisdiction, being the courts of South Africa, any interim or provisional relief that may be necessary to protect the rights of property of that Party, pending resolution of the dispute in accordance with the procedure set forth in clause 23.
  24. LIMITATION OF LIABILITY
    1. The Party’s liability to each other in terms of this Agreement shall be limited to direct damages, and neither Party shall be liable for any indirect, consequential or incidental damages for any matter arising as a result of the existence of this Agreement.
  25. INDEMNITY
    1. The Parties shall notify each other in writing of a third-party claim which relates to this Agreement, the Skills or any part thereof and infringes the Intellectual Property Rights of such third party. Subject to the provisions of clause 23 above, the Party against whom the claim is made shall defend such claim at its expense and shall pay any costs or damages that may be finally awarded against the other Party.
    2. Flexyforce indemnifies the Enterprise against any claims from Suppliers in relation to non-payment for Skills provided to the Enterprise, where the Enterprise has paid Flexyforce in terms of clause 6. This indemnification extends itself to the legal fees that the Enterprise may have to incur for the claim of non-payment, provided that the moment which the Enterprise becomes aware of such claim, it immediately informs Flexyforce thereof and consults with Flexyforce in all stages of the litigation.
  26. GENERAL
    1. Waiver. No indulgence, failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that, or any other right, under this Agreement.
    2. Variation. No variation or modification of the Agreement is of any force or effect unless reduced to writing and signed by hand by both Parties. Writing shall not include email correspondence signed by email signature.
    3. Assignment. Neither Party may cede, assign or otherwise dispose of any part of its rights and obligations in terms of this Agreement without the other Party’s written consent, which consent may not be withheld unreasonably.
    4. Severability. Each clause, or part thereof, of this Agreement is separate and is severable from the rest of the Agreement, unless severing would render the Agreement unlawful. Should any clause or part thereof be unenforceable, it will not affect the enforceability of the rest of the Agreement.
    5. Whole Agreement. This Agreement, together with any other annexure, addenda, policies or schedules thereto contains the whole Agreement between the Parties. Neither Party will have any rights or remedy arising from any undertaking, warranty or representation not included in this Agreement.
    6. Force Majeure. A Party’s obligations under this Agreement shall be suspended during the period of an event of Force Majeure, and to the extent that such Party is prevented or hindered from performing such obligations by any cause beyond its control including without limitation, economic forces, strikes, lock-outs, acts of God, war, riot, civil commotion, accident, fire, flood, storm. In the event that the cause continues for 10 (ten) consecutive days (or 10 days in any period of 30 days) the unaffected Party shall be entitled to terminate this Agreement with immediate effect on written notice to the other Party.
    7. Counterparts. This Agreement may be executed in any number of counterparts, each of which is an original and all of which taken together form one single document. For the purposes of this Agreement, execute includes accepting the terms of this Agreement by clicking the button “I accept Terms and Conditions”.

That is it from us for now. If you have any questions do not hesitate to ping us on Slack or drop us an email on [email protected]. HAPPY WORKING 🙂

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