skip to Main Content
Flexy is now officially Flexyforce! Read more about our evolution here!

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 Company (“You”) and Flexyforce™. The relationship between You and a Freelance Supplier (“Freelance 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 a Company 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 a Company and a Freelance 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 Freelance Supplier by the Company, which shall be agreed upon between the Company and the Freelance 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 Freelance 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 Freelance Supplier Booking Fee, which cancellation fee is determined in accordance with the selected cancellation policy as set out in clause 17 below;
    7. “Company/ies” means an individual, company or other legal entity with a Company account on the Flexyforce Platform, which Company may, if it chooses, invite a Freelance Supplier to join their flexible workforce, and which uses the Flexyforce Platform and Services to book, contract and pay their Freelance Suppliers for Skills rendered in terms of a Booking;
    8. “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;
    9. Effective Date” shall mean the date upon which You accept the terms of this Agreement;
    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 a Company to Flexyforce when hiring a Freelance Supplier by utilising Flexyforce in certain instances, as more fully canvassed in clause 7 below;
    12. Flexyforce Discovery Network” means the network of Freelance Suppliers as appears on the Flexyforce Platform, and in terms of which, the Company did not introduce its own Freelance 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. “Freelance Supplier” means an independent contractor, expert, consultant or freelancer, as the case may be, which is introduced to the Company via Flexyforce, or invited to join the Flexyforce Platform by a Company, and  thereby join that Company’s flexible workforce. The Freelance 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;
    15. Freelance Supplier Booking Fee” shall refer to the fees as charged by the Freelance Supplier to the Company, via the Flexyforce Platform, determined in accordance with the Freelance Supplier Booking Rate, and paid by Flexyforce to the Freelance Supplier;
    16. Freelance Supplier Booking Rate” means the rate charged by the Freelance Supplier to a Company, as displayed on their Freelance Supplier Profile, which shall in accumulation on a specific Booking amount to the Freelance Supplier Booking Fee;
    17. Flexyforce Credits” shall mean an amount purchased upfront by a Company, and which amount shall be redeemable for the Flexyforce Discovery Fee, Payout Fee, Flexyforce Subscription Fee, and/or the Freelance Supplier Booking Fee in respect of a Booking or multiple Bookings, as and when the Company wishes to do so;
    18. Freelance Supplier Profile” means the Freelance Supplier’s profile on the Flexyforce Platform, through which a Booking may be made;
    19. “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);  
    20. “Party” means You or Flexyforce, as the case may be, and “Parties” means You and Flexyforce collectively;
    21. “Payout Fee” means the fee that is paid to Flexyforce by a Company for the provision of the Services over and above the Subscription Fee, and which is a percentage of the Freelance Supplier Booking Fee as determine in accordance with the subscription package chosen by the Company, which packages may be viewed here https://flexyforce.com/pricing/.
    22. “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;
    23. Service” means the service of Flexyforce making provision for the Skills of Freelance Suppliers to the Company in conjunction with making the Flexyforce Platform available for use by Companies and Freelance Suppliers;
    24. Skills” shall mean the individual skill set of the Freelance Supplier appointed by the Company as more fully described in the Booking Specific Terms coupled with the Freelance Supplier’s Profile;
    25. “Subscription Fees” shall mean fees as payable by a Company to Flexyforce on a monthly basis irrespective of whether a Booking is made by the Company as more fully set out in clause 6.1 below;
    26. “You”, “Your” and “Yours” means any person who uses the Flexyforce Platform as a Company.
  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 a Company and a Freelance Supplier fast, efficient and secure. Freelance Suppliers can use the Flexyforce Platform to join a Company’s flexible workforce or invite their existing Companies to contract and pay them through the Flexyforce Platform.
  4. EXCLUSIVITY OF SKILLS RENDERED
    1. Freelance Suppliers do not, by default, have to work exclusively through Flexyforce, but if this is a requirement of the Company, an agreement to this effect will need to be reached between Company and Freelance 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 Company failed to perform in terms of its obligations as set out in any applicable Booking and/or Booking Specific Terms entered into with a Freelance Supplier;
      2. where the Company 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 Company 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 Freelance Supplier, the Company 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 Company number of different subscription packages for selection by the Company upon signing up on the Flexyforce Platform, or which may be changed from time to time by the Company. 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 Freelance 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 Company 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 a Company to book a Freelance Supplier, which options include:
          1. Fixed price, which shall be in respect of a fixed deliverable to be provided by the Freelance 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 Company will be addressed to the address set forth in the citation of the applicable Party, or otherwise the address recorded by the Company when signing up to the Flexyforce Plaform. The Company agrees that presentation of the invoice by way of email will be sufficient for the Company to process payment.
      5. Unless otherwise agreed between the Parties in writing, upon the conclusion of the Agreement, Flexyforce will be onboarded onto the Company’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 Company 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 a Company has chosen a suitable Freelance Supplier, in order for the provision of Skills to commence, a Company is required to effect payment of the Freelance 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, a Company 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. Companies 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 Freelance 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. A Company may elect to utilise one of the following payment methods, as indicated in the “Company 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 Company 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 Freelance Suppliers and accordingly neither Flexyforce, nor the Company, shall be responsible for withholding taxes with respect to fees paid to Freelance Suppliers.
      2. In no way will Flexyforce, or the Company, be viewed as providing any payroll services to Freelance Suppliers.  Freelance Suppliers will be fully responsible for all such deductions and matters relating to personal taxation.  
      3. A Company shall not be responsible for payments to Flexyforce or the Freelance 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 Company, will withhold or be responsible for any PAYE or other tax obligations on behalf of or in respect of a Company, unless a Company requests that all their Freelance Suppliers have PAYE deducted, or a Freelance Supplier selects that PAYE shall be deducted in their Freelance Supplier Profile. This Service is currently only available for South African Companies and Freelancer Suppliers.
  7. FLEXYFORCE DISCOVERY FEE
    1. Should a Company book a Freelance 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 Company by Flexyforce in respect of such Freelance Supplier, and paid in accordance with clause 6.2 above. The Flexyforce Discovery Fee shall be applicable in respect of each new Freelance Supplier booked for the first time by a Company through the Flexyforce Discovery Network.
    2. Should the Freelance Supplier and the Company 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 Freelance Supplier and the Company, unless the Company 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 Company shall not be liable for payment of the Flexyforce Discovery Fee.
    3. Should the Company and/or the Freelance 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 Freelance Supplier Booking Fee, nature of the Booking, cancellation policy and the like with the Freelance Supplier in the Booking Specific Terms.
  9. COMPANY’S TERMS AND CONDITIONS
    1. Should a Company desiring to utilise our Services, wish to use its own agreement (“the Company’s Agreement”) setting forth terms and conditions in addition to this Agreement, then Flexyforce shall permit same to the extent that the Company’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 Company’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 Freelance Supplier and the Company.
    2. The Company and/the Freelance 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 Freelance Supplier is seriously incompatible with the culture of the Company’s business; or
      3. Inability of the Freelance Supplier to perform Services that have been agreed to in the Booking;
      4. The Company consistently requires the Freelance Supplier to provide Services not provided for in the Booking;
      5. After notice in writing, the Freelance Supplier willfully neglects to provide or fails to remedy any default in providing the Skills according to the terms of the Booking;
      6. the Freelance Supplier disobeys or fails to carry out any reasonable instruction or direction given by the Company;
      7. The Freelance 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 Freelance Supplier of its obligations with Flexyforce which may affect the Company;
      9. By reason of an event of Force Majeure, the Freelance 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 Company is unable to perform any of its obligations in terms of a particular Booking;
      11. The Company does not wish to continue with the Booking.
    3. The Booking Resolution Process shall be conducted as follows:
      1. Should a Company or Freelance 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 Company only making payment of the actual hours utilised to render the Skills as opposed to the full price of the full Freelance Supplier Booking Fee;
        2. Flexyforce providing the Company with an alternative selection of Freelance Suppliers;
        3. The Booking being cancelled and the monies refunded to the Company;
        4. The Company and/or Freelance Supplier being obliged to continue with the Booking; or
        5. Amended Booking and associated Freelance 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 Company. 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 Company and its affiliates, and holds the Company, 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 Freelance Suppliers sell Skills, or the location from which Skills are rendered but acts as an agent to facilitate the Skills rendered. The Company 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 Freelance Suppliers provide it, together with reviews received from Companies, to determine whether a Freelance Supplier’s Skills are a match for a Company’s Booking.
    2. Flexyforce cannot guarantee that it will be able to provide Companies with Freelance Suppliers, nor that the Freelance Supplier will be a perfect match for the Company’s requirement, nor can it warrant the quality of the Skills possessed by a Freelance 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 Company may create a Company account on the Flexyforce Platform wherefrom the Company may invite employees and other contractors to become Freelance Suppliers.
      2. The Company will be able to view all of its Freelance Suppliers under the Flexyforce section of the Flexyforce Platform, from where a Company can manage and book and pay selected Freelance Suppliers.
      3. The Company can also browse and find new talent (Freelance Suppliers) via the Flexyforce Discovery Network, shortlist favourites and chat directly to Freelance Suppliers through the Flexyforce Platform.
      4. When engaging with a Freelance Supplier for the purpose of entering into a Booking, the Company 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 Freelance Supplier.
      5. The Freelance 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 Freelance Supplier due to unforeseen circumstances prior to the commencement of any Skills, the selected cancellation policy will apply.
    3. Should a Company 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 Company may update the Booking on the Flexyforce Platform accordingly.
    2. Should the other Party accept the changes to the Booking, Flexyforce will invoice the Company accordingly in respect of variation for payment by the Company within 7 (seven) days of the invoice being issued. Only upon receipt of payment of the invoice by the Company shall the Freelance Supplier be required to provide further Skills to the Company.
    3. Where a variation request pertain to time, and in the event that the Freelance Supplier does not accept the proposed change to a Booking, where possible or desired by the Freelance Supplier, alternative times will be provided to the Company, which the Company may accept or refuse at its own discretion.
    4. Flexyforce cannot guarantee that any request by the Company, for changes to a Booking which require extra time or a variation of the project, can or will be met by the Freelance 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 Freelance 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 Company by Flexyforce or the Freelance Supplier.
  16. BOOKING TIME TRACKING
    1. For Bookings which are dependent on the time being recorded in respect of Skills rendered, the Company and Freelance Supplier and not Flexyforce shall bear the responsibility of ensuring correct time tracking of the Skills provided by the Freelance 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 Company and Freelance Supplier shall agree to in the Booking Specific Terms prior to the Booking commencing:
      1. Strict:
        1. If the Company cancels, the Company shall be liable to make payment to the Freelance Supplier of the full Freelance Supplier Booking Fee irrespective of whether the Skills have commenced;
        2. If the Freelance 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 Freelance Supplier Booking Fee of the next Booking to be attended to by the Freelance Supplier.
      2. Moderate:
        1. If the Company cancels, 50% (fifty percent) of the Freelance Supplier Booking Fee will be paid to the Freelance Supplier, irrespective of whether the Skills have commenced;
        2. If the Freelance 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 Freelance Supplier Booking Fee of the next Booking to be attended to by the Freelance Supplier.
      3. Flexible:
        1. This type of Booking shall operate on a flexible basis, and if same is cancelled either by the Company or the Freelance Supplier, the Freelance 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 Company and/or the Freelance Supplier failing to inform Flexyforce of this decision, Flexyforce shall continue to invoice the Company the Freelance 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 Freelance Supplier Booking Fees has been effected:
      1. the Company may contact Flexyforce in order that Flexyforce may assist the Company in finding a suitable replacement Freelance Supplier in the most expeditious manner.  In the event that the Company elects not to utilise the services of a replacement Freelance Supplier, any Freelance 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 Freelance Supplier and the Company have an existing working relationship prior to any introduction being made by Flexyforce or through the Flexyforce Platform, the Company shall be exempt from the non-circumvention provisions below, provided that the Company is able to produce proof thereof. As such, the provisions of this clause shall only apply to Freelance Suppliers and Company’s which were introduced through the Flexyforce Discovery Network. For the purposes of clarity, should a Company be introduced to a Freelance 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 Companies and Freelance Suppliers, for a period of no less than 12 (twelve) months from the termination date of the last Booking with a Freelance Supplier or a Company, a Freelance Supplier may not work (on a freelance basis, part-time or permanently) for the applicable Company if such working relationship is not administered and paid for through the Flexyforce Platform.
      2. In the event that a Freelance Supplier and the Company 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 a Company expresses the desire to employ a Freelance Supplier, on a permanent basis, within 12 (twelve) months of the termination date of Freelance Supplier’s last Booking with the applicable Company, and the Freelance Supplier wishes to accept such offer of employment, the Freelance Supplier is free to do so, provided that the Freelance Supplier and the Company notify Flexyforce thereof immediately upon Freelance Supplier’s acceptance of such offer of employment. In this case a Freelance Supplier’s Booking Fee equal to 15% of the total annual cost to Company remuneration offered to the Freelance Supplier in light of the employment, will be charged to the Company by Flexyforce, for which payment will be due before the employment contract takes effect.
      4. The Company undertakes that it will not circumvent the methods of payment offered by Flexyforce.
      5. The Company 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 Company has utilised the Freelance Supplier in breach of the provisions of this clause 19 or the payment provisions hereof, it shall be entitled to claim from the Company R1,500.00 (one thousand five hundred Rand) and 9% (nine percent) of the value of the Freelance Supplier’s Booking Fee preceding such breach. This in no way limits any claim that Flexyforce may have elsewhere in law as against the Company.
    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 Freelance 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 Company 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 Freelance Supplier has agreed to a transfer, cession and assignment of any Intellectual Property rights created under any Booking with the Company in the rendering of the Skills by the Freelance Supplier, in addition to the waiving of any moral rights attaching thereto. In particular, the Company 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 Freelance 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 Company or produced by the Freelance Supplier in terms of this Agreement.
  22. PERSONAL INFORMATION AND DATA PROTECTION
    1. In providing the Skills to the Company, 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 Company’s personnel and clients.  
    2. The Parties specifically record that all Personal Information provided by the Company to Flexyforce, or to which Flexyforce may be exposed, shall constitute Confidential Information and where applicable, Intellectual Property belonging to the Company.
    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 Freelance Supplier.
    4. Flexyforce shall use its best endeavours to ensure that all processing in respect of Personal Information will not place the Company 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 Company’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 Company, and to the extent necessary to provide the Service contemplated herein to the Company.
    8. Flexyforce warrants that it shall immediately inform the Company, should any Personal Information it has access to, be compromised in any manner or form. Flexyforce further undertakes to also immediately inform the Company as to how it will manage such compromise and what steps will be taken to rectify the situation to the Company’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 Company against any claims from Freelance Suppliers in relation to non-payment for Skills provided to the Company, where the Company has paid Flexyforce in terms of clause 6. This indemnification extends itself to the legal fees that the Company may have to incur for the claim of non-payment, provided that the moment which the Company 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 🙂

Back To Top