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FLEXYFORCE FREELANCE SUPPLIER TERMS OF SERVICE

THESE FREELANCE SUPPLIER TERMS OF SERVICE ARE EFFECTIVE AS OF: 1 OCTOBER 2018 “EFFECTIVE DATE”

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 ACCEPT THESE TERMS. NO PARTY MAY USE THE FLEXYFORCE PLATFORM UNLESS ALL THESE TERMS ARE ACCEPTED.  ALL SECTIONS OF THESE TERMS ARE APPLICABLE TO YOU UNLESS THE 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 Freelance Supplier (“You”) and Flexyforce™. The relationship between the Freelance Supplier and a Company (“Company”) will be subject to the Booking Specific Terms that is agreed between the parties each time a Booking is made.

  1. YOUR AGREEMENT TO THESE
    1. This Agreement governs Your use of Flexyforce’s Services and the Flexyforce Platform 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. “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;
    3. “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;
    4. Cancellation Fee” means a percentage of the Freelance Supplier Booking Fee, which cancellation fee is determined in accordance with the selected cancellation policy in stipulated in clause 15;
    5. “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;
    6. “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 unauthorized 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;
    7. Effective Date” shall mean the date upon which You accept the terms of this Agreement;
    8. “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;
    9. Freelance Supplier Profile” means the Freelance Supplier’s profile on the Flexyforce Platform, through which a Booking may be made;
    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 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;
    12. “Flexyforce Platform” means the web application found at www.flexyforce.com and beta.flexyforce.com, and is made available and owned by Flexyforce;
    13. Freelance Supplier Booking Fee” shall refer to the fees as charged by the Freelance Supplier to the Company, determined in accordance with the Freelance Supplier Booking Rate, and paid by Flexyforce to the Freelance Supplier;
    14. Freelance Supplier Booking Rate” 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;
    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 and any Company with a company account collectively;
    17. “Personal Information” means personal information that can identify you as an individual or is capable of identifying you and as defined in the Protection of Personal Information Act 4 of 2013. By personal information we don’t mean general, statistical, aggregated or anonymized information;
    18. 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;
    19. Service Fee” means the fee that is paid to Flexyforce by a Freelance Supplier for the provision of the Services in instances where the Freelance Supplier invites an existing Company of theirs to join the Flexyforce Platform, and which is a percentage of the Freelance Supplier Booking Fee as set out in clause 10.2 below;
    20. 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;
    21. “You”, “Your” and “Yours” means any person who uses the Flexyforce Platform as a Freelance Supplier.
  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 Skills provision 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. TERM AND TERMINATION
    1. You or Flexyforce can terminate this Agreement at any time, for the reasons as listed below. You may not however terminate this Agreement while You are in the process of providing Skills during a Booking with any Company.
    2. Term. This Agreement commences on the Effective Date and shall continue in force until termination by either Party in accordance with this Agreement.
    3. 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.
    4. Flexyforce may terminate this Agreement with immediate effect and in its sole discretion, where:
      1. in Flexyforce’s sole discretion, You have failed to perform in terms of Your obligations as set out in any applicable Booking and/or Booking Specific Terms entered into with a Company;
      2. where You have circumvented this Agreement in contravention of clause  21 (Non-Circumvention) hereof;
      3. the Company has indicated to Flexyforce that You are in breach of Your obligations in terms of a Booking or Booking Specific Terms with such Company, and Flexyforce, in its sole discretion, is of the opinion that You are indeed in breach of the Booking Specific Terms;
      4. In the sole discretion of Flexyforce, Your average reviews received from Companies or mentors are adverse.
    5. These rights of termination by Flexyforce will not detract from any claim, right or remedy afforded to Flexyforce in terms of this Agreement or elsewhere.
    6. Either Party may terminate this Agreement for convenience and without cause, on 30 (thirty) days written notice to the other, provided that You are not obliged to perform any Skills under any Booking with a Company within the aforesaid 30 (thirty) days, unless such Skills had commenced on the date on which the termination notification was sent;
    7. Where You are obliged to perform Skills to a Company(s) in terms of a Booking, Your right of termination of this Agreement is subject to Your compliance with the process for termination set forth in the applicable Booking Specific Terms (if any).
    8. Where this Agreement is terminated in accordance with this clause 4, and any amount is due and owing to You by Flexyforce in terms of this Agreement, Flexyforce undertakes to make payment to You of the said amount (pro-rated, if applicable), as provided for in clause 10 (Fees and Payout Terms), irrespective of date of termination.
    9. Should You terminate this Agreement, or any Booking, in a manner which contravenes this clause 4, or the termination clause in any applicable Booking Specific Terms, Flexyforce reserves the right to withhold any outstanding payments due to You insofar as to satisfy all expenses and/or damages incurred as a result of such rogue termination.
  5. 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.
  6. TERMS OF ENGAGEMENT
    1. You shall have no authority (and shall not hold Yourself out as having authority) to bind Flexyforce or the Company, unless specifically authorised to do so, in writing.
    2. Upon signup to the Flexyforce Platform you will be able to set Your Freelance Supplier Booking Rate and availability on Your Freelance Supplier Profile, which settings can be amended at any time by logging into your Freelance Supplier Profile.
  7. FLEXYFORCE’S BOOKING PROCESS
    1. Flexyforce’s Booking process is as follows:
      1. The Company will invite a Freelance Supplier to join the Company’s flexible workforce, either via email or while discovering new talent from the Flexyforce Discovery Network.
      2. Companies can shortlist a Freelance Supplier, get in contact via the chat function or set up face-to-face interviews before inviting a Freelance Supplier to join the Company’s flexible workforce.
      3. Once a Freelance Supplier joins a Company’s flexible workforce, the Company may request to book the Freelance Supplier through the Flexyforce Platform, and thereby propose Booking Specific Terms in respect of such Booking.
      4. If requested by a Company, a Freelance Supplier may accept or decline such Booking Specific Terms.
      5. Upon acceptance of the Booking Specific Terms by both parties, the Booking will be considered as effective between the parties.
  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.
  9. 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 this clause, 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. Inability of the Freelance Supplier to perform Services that have been agreed to in the Booking;
      3. The Company consistently requires the Freelance Supplier to provide Services not provided for in the Booking;
      4. 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;
      5. the Freelance Supplier disobeys or fails to carry out any reasonable instruction or direction given by the Company;
      6. 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;
      7. In the event of any breach of the Freelance Supplier of its obligations with Flexyforce which may affect the Company;
      8. 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;
      9. The Company is unable to perform any of its obligations in terms of a particular Booking;
      10. 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 20 below shall apply.
  10. FEES & PAYOUT TERMS
    1. Flexyforce is free for all Freelance Suppliers and therefore no fees are payable by the Freelance Supplier when a Freelance Supplier is invited by a Company to join their flexible workforce.
    2. Where a Freelance Supplier creates their own account on the Flexyforce Platform without having been invited by one of their existing Companies, You are subject to a 5% Service Fee which will be deducted from their Freelance Supplier Booking Fee when paid out to You.
    3. This payout fee is a tax-deductible expense and a tax invoice will be provided from Flexyforce to the Freelance Supplier.
    4. Booking Types
      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.
    5. Unless otherwise agreed in the Booking Specific Terms:
      1. Payment of all Freelance Supplier Bookings by Flexyforce are to be effected in the manner chosen by the Freelance Supplier as their selected preference within 7 business days after a Booking’s completion date, unless otherwise agreed to with the Company.
      2. For monthly retainer Bookings, monthly payouts are done on or before the 26th of each month by Flexyforce, unless otherwise agreed to with the Company
  11. TAX IMPLICATIONS
    1. This Agreement constitutes a contract for the provision of the Skills of self-employed, independent Freelance Suppliers, and accordingly, Freelance Suppliers are fully responsible for their own taxation. This means Flexyforce will not withhold any PAYE or other tax liabilities, unless specified in Settings on your Freelance Supplier Profile, or otherwise where a Company requests that all their Flexyforce Suppliers have PAYE deducted. This service is currently only available for South African Freelancer Suppliers.
    2. At Flexyforce we encourage all Freelance Suppliers to set up their own entity or limited liability company or to operate as a sole proprietor if they are serious about building their Freelance Business, however this does depend on the Freelance Supplier’s unique circumstances. Flexyforce will put any Freelance Suppliers who need advice in touch with Flexyforce’s tax partners.
    3. As an ancillary service, Flexyforce will provide You with access to a tax adviser and administrator, who can help You to simplify the filing of Your tax returns. This service is free, yet not compulsory, for all Freelance Suppliers.
  12. EMPLOYMENT STATUS
    1. You hereby acknowledge and agree that You are engaged by Flexyforce as a self-employed and independent Freelance Supplier, and nothing in this Agreement and in no event or under any circumstance will You be (or be deemed to be) an employee, worker, agent or partner of Flexyforce or a Company and You shall not hold yourself out as such.
    2. Flexyforce shall not be responsible for payments to the Freelance Provider 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.
    3. In no way will Flexyforce, or a Company, be viewed as providing any payroll services to Freelance Suppliers.
    4. You are not entitled to enforce any rights that an employee has against an employer, against Flexyforce, or any Company on the Flexyforce Platform.
    5. You do not have to work exclusively through the Flexyforce platform.
    6. Neither a Company nor Flexyforce shall 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.
    7. During the term of this Agreement You will make use of Your own laptop, software licenses, stationary, motor vehicle and mobile phone in fulfilling Your obligations in terms of this Agreement and any specific Booking, the cost of which will be for Your own account.
  13. 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. 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.
  14. 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 on 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.
  15. 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, either party may dispute a cancellation on the Flexyforce Platform within 7 (seven) days of such cancellation being actioned.
  16.  FLEXYFORCE’S RIGHTS AND RESPONSIBILITIES
    1. The Flexyforce Platform will host a Freelance Supplier’s Profile  which will aid Company’s in contracting, Booking, paying and finding freelance suppliers.
    2. 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.
    3. If the Company so requires, Flexyforce will facilitate, with Your cooperation, an interview, either via internet based video conferencing or in person with a Company.
    4. It is Flexyforce’s responsibility to ensure that all monies owed to a Freelance Supplier are paid on the payout date as per the terms hereof read together with the Booking Specific Terms, provided however, that such Booking Specific Terms do not place a higher burden on Flexyforce.
  17. FREELANCE SUPPLIER’S RIGHTS AND RESPONSIBILITIES
    1. You undertake to provide in your Freelance Supplier Profile all information reasonably required by Flexyforce in order to create a Freelance Supplier account, which will be used by Companies to contract, book and release money to your selected bank account or as per your payout preferences.
    2. You reserve the right to, at any time, amend your availability, Freelance Supplier Booking Rate, Skills offered and any other information on Your Freelance Supplier Profile.
    3. You reserve the right to accept or decline any Booking requests on the Bookings management tool provided on the Flexyforce Platform.
    4. You reserve the right to keep your Freelance Supplier Profile private, or set it to public in order to be discovered by various Company’s via the Flexyforce Discovery Network.
    5. Should You fail to accept or decline a Booking within the period afforded in the booking request, the Booking will expire and You will be deemed not to have accepted same.
    6. You agree and undertake to subject Yourself to an interview with a Company in circumstances where a Company requires You to do so, failing which, You will forfeit the opportunity to be added to the Company’s flexible workforce.
  18. FLEXYFORCE’S WARRANTIES AND REPRESENTATIONS
    1. Flexyforce does not make any representation or warranty of any kind, whether express, implied, statutory or otherwise of the Services or the needs of a Company in relation thereto, 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.
    2. 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.
    3. 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. FREELANCE SUPPLIER’S FURTHER WARRANTIES AND REPRESENTATIONS
    1. You undertake, warrant and represent that:
      1. the information with which You provide to Flexyforce is true and correct and that You undertake to keep Flexyforce up to date with any changes of this information;
      2. that You have complied with all the applicable legal requirements, as the case may be, in order that You may lawfully render Your Skills to Companies;
      3. that You are lawfully entitled to work from the location where You will be rendering Your Skills from;
      4. You will immediately inform Flexyforce of any conflict of interest that You are aware of and which may occur should you perform work or Skills for a new Company;
      5. where You elect to make use of any of the ancillary services Flexyforce offers You, where applicable, You will enter into an agreement, separate to this one, to regulate Your relationship with the third party rendering such ancillary services to You;
      6. where You are permanently employed and elect to sign up as a Freelance Supplier on the Flexyforce Platform, there is nothing in Your permanent employment agreement which prohibits You from doing part-time work for Companies and you hereby indemnify and hold Flexyforce harmless against any claims that may arise from Your permanent employer.
  20. 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 8 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 this clause 20.
  21. 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 Freelance Supplier shall be exempt from the non-circumvention provisions below, provided that the Freelance Supplier 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 Freelance Supplier be introduced to a Company, 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 Freelance Supplier undertakes that it will not circumvent the methods of payment offered by Flexyforce.
      5. The Freelance Supplier 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 20 or the payment provisions hereof, the Freelance Supplier shall be removed from the Flexyforce Platform. This in no way limits any claim that Flexyforce may have elsewhere in law as against the Freelance Supplier.
    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.
  22. 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 2222 shall survive the termination or expiration of this Agreement.
  23. 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. You agree and undertake that all Intellectual Property created by You pursuant to and in terms of any Booking, shall vest in the applicable Company and no right under such Intellectual Property shall vest in You, save as specifically granted by such Company to You in writing.
    3. Where applicable, and to the extent required, You agree and undertake to assign all Intellectual Property Rights created by You pursuant to a Booking, to the applicable Company, and further, waive any moral rights in respect thereof. You agree and undertake to sign all necessary documentation which is required to give effect to such assignment.
  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.
    2. You indemnify Flexyforce, and agree to keep us indemnified, from and against any claim, loss, damage, cost or expense, however so arising, that we may suffer or incur as a result of or in connection with the Services and Skills rendered, including any breach by You or a Company of these terms or any applicable law or licensing requirements.
    3. To the extent that our liability cannot be excluded by law, our maximum liability, whether in contract, equity, statute or tort (including negligence), to You will be limited to the minimum amount imposed by such law.
  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 20 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.
  26. GENERAL PROVISIONS
    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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