YOUR USE OF THIS SITE CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT WISH TO BE BOUND BY THE THESE TERMS OF SERVICE, PLEASE EXIT THE SITE NOW. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THIS SITE, OR ANY PRODUCTS, SERVICES, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THIS SITE, IS TO STOP USING THE SITE AND/OR THOSE PARTICULAR PRODUCTS OR SERVICES. YOUR AGREEMENT WITH US REGARDING COMPLIANCE WITH THESE TERMS OF SERVICE BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THIS SITE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE MAY MODIFY THIS AGREEMENT WITH PROSPECTIVE EFFECT WITHOUT PRIOR NOTICE TO YOU, AND ANY REVISIONS THERETO, WILL TAKE EFFECT WHEN POSTED ON THE FLEXY PLATFORM, UNLESS A LATER DATE IS OTHERWISE STATED IN THE REVISED AGREEMENT. YOUR CONTINUED USE OF THE FLEXY 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 FLEXY PLATFORM OFTEN FOR UPDATES TO THE TERMS AND OTHER DOCUMENTS WHICH MAY HAVE A BEARING ON YOUR USE OF THE FLEXY PLATFORM.
This agreement was last updated on 4 April 2016 and is effective between You and Flexy as of the date of You accepting this agreement.
“Client” means an individual, company or other legal entity which uses the Flexy Platform to purchase skills from Skills Providers;
“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;
“Flexy”, “We”, “Us” means Next Platforms (Pty) Ltd t/a Flexy, bearing registration number 2015/134958/07, and includes our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, clients, Flexys and suppliers;
“Flexy Platform” means both the website found at www.flexyskills.com and the platform accessed by Clients and Skills Providers by logging into the website found at www.flexyskills.com, and is made available and owned by Flexy;
“Skills Provider” means a User who has been accepted to sell skills to Clients through the Flexy Platform.
“Party” means You or Flexy, as the case may be, and “Parties” means You and Flexy collectively;
“User”, “You” or “Your” means any person who visits www.flexyskills.com, including those who sign up to the Flexy Platform.
2.1 This document sets out the terms and conditions ("Terms") of Next Platforms (Pty) Ltd t/a Flexy, bearing registration number 2015/134958/07 ("Flexy") pertaining to the access and use of the information, products, services and functions provided on www.flexyskills.com (“Platform").
2.2 Should You disagree with any of the Terms, you must refrain from accessing the Platform and/or using our services.
2.3 If you are under the age of 18, you must obtain your parents' or legal guardians' advance authorization, permission and consent to be bound by these Terms before signing up to the Platform.
2.4 If there is anything in these Terms that you do not understand then please contact us at [email protected] as soon as possible.
3.1 Flexy is an online platform which curates skills and connects pre-approved Skills Providers with Clients in order for Skills Providers to sell skills to Clients. The platform has been created to offer Skills Providers the opportunity to work on innovative projects as independent contractors; and Clients are provided with a network of verified Skills Providers to choose from to provide them with services skills they require.
3.2 Users who sign up to the Platform will be screened by Flexy and if a User meets a pre-requisite criteria, the User will be added as a user to the Flexy Platform, subject to payment of the applicable fees on the terms set out in the applicable Terms of Service. The Flexy Platform is therefore a convenient platform for Skills Providers and Clients to connect.
4.2 If a You sign up and/or are approved to be a Skills Provider or Client on the Flexy Platform, You will enter into further Terms of Service with Flexy pertaining to the services sold to You, or by You, through the Platform. Such Terms of Service shall be effective from the date You agree thereto, until Your use of the service and Flexy Platform is permanently discontinued or suspended or cancelled, save for the rights and obligations therein which by their nature are intended to survive termination of access to the particular service.
5.1 Flexy reserves the right to make improvements, to change or to discontinue, without notice, any aspect or feature of the Platform and any information or content on the Platform.
5.2 Flexy reserves the right to change and amend the products and rates, where applicable, quoted on this Platform from time to time without notice.
5.3 Flexy makes no representations or warranties, whether express or implied, as to the accuracy, completeness or reliability of any information, data and/or content on the Platform, including without limitation:
5.3.1 Flexy does not warrant that the Platform or information or downloads shall be error-free or that they shall meet any particular criteria of performance or quality. Flexy expressly disclaims all implied warranties, including without limitation, warranties of merchantability, fit-ness for a particular purpose, non-infringement, compatibility, security and accuracy;
5.3.2 whilst Flexy has taken reasonable measures to ensure the integrity of the Platform and its contents, no warranty, whether express or implied, is given that any files, downloads or applications available via this Platform are free of viruses, or any other data or code which has the ability to corrupt, damage or affect the operation of the user's system; and
5.3.3 Flexy disclaims any responsibility for the verification of any claims. Information published on this Platform may be done so in the format in which Flexy receives it and statements from external parties are accepted as fact.
6.1 Flexy may provide links to third party websites on the Platform including (without limitation) social media platforms, payment gateways, appointment scheduling and/or live chat platforms (“Third Party Websites”). These links are provided to the You for convenience purposes only and Flexy does not endorse, nor does the inclusion of any link imply Flexy's endorsement of, such websites, their owners, licensees or administrators or such websites' content or security practices and operations.
6.2 If you link to any Third Party Websites or make use of any third party ancillary services, you may be subject to that third party’s and/or those Third Party Websites’ terms and conditions and/or other policies, which are not under the control nor responsibility of Flexy. Flexy does not permit copyright infringing activities and infringement of intellectual property rights on the Flexy Platform, and We may, at our sole and absolute discretion, remove any infringing content if we are of the view that such content infringes on another’s Intellectual Property Rights or our own.
6.3 While Flexy tries to provide links only to reputable websites or online partners, Flexy cannot accept responsibility or liability for the information provided on other websites. Linked websites or pages are not under, nor subject to, the control of Flexy. Flexy is not responsible for and gives no warranties or makes any representations in respect of the privacy policies or practices of linked or any third party websites on the Platform.
6.4 You agree that Flexy shall not be held liable, directly or indirectly, in any way for the content, the use or inability to use or access any linked website or any link(s) contained in a linked website, nor for any loss or damage of any sort incurred as a result of any dealings with, or as the result of the presence of such third party linked websites on the Platform. Any dealings that you may have with any linked websites, including advertisers (if applicable), found on the Platform, are solely between you and the third party website.
You hereby agree that You will not, nor through a third party:
a) copy (other than for backup, archival or disaster recovery purposes), reproduce, translate, adapt, vary, modify, lease, licence, sub-licence, encumber or in any other way deal with any part of the Platform for any reason and in any manner, unless it is consistent with the intent and purpose of these Terms;
b) decompile, disassemble or reverse engineer any portion of the Platform;
c) write and/or develop any derivative of the Platform or any other software program based on the Platform;
d) modify or enhance the Platform. In the event of a user effecting any modifications or enhancements to the Platform in breach of this clause, such modifications and enhancements shall be the property of Flexy;
e) without Flexy's prior written consent, provide, disclose, divulge or make available to or permit the use of or give access to the Platform by persons other;
f) remove any identification, trademark, copyright or other notices from the Platform;
g) post or transmit, by means of reviews, comments, suggestions, ideas, questions or other information through the Platform, any content which is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, ob-scene, sexually-explicit, profane or hateful, or racially, ethnically or otherwise objectionable content of any kind; and/or
h) notwithstanding anything contained to the contrary in these Terms, use the Platform for any purpose other than being matching Skills Providers with Clients, personal and information purposes.
8.1 In order to ensure the security and reliable operation of the services to all Flexy's Users, Flexy hereby reserves the right to take whatever action it may deem necessary to preserve the security, integrity and reliability of its network and back-office applications.
8.2 You may not utilise the Platform in any manner which may compromise the security of Flexy's networks or tamper with the Platform in any manner whatsoever, which shall include without limitation, gaining or attempting to gain unauthorised access to the Platform, or delivering or attempting to deliver any unauthorised, damaging or malicious code to the Platform, all of which is expressly prohibited. Any person or entity which does so, or attempts to do so, shall be held criminally liable. Further, should Flexy suffer any damage or loss, civil damages shall be claimed by Flexy against the user.
8.3 Any user who commits any of the offences detailed in Chapter 13 of the Electronic Communications and Transactions Act 25 of 2002 ("ECTA") (specifically sections 85 to 88 (inclusive)) shall, notwithstanding criminal prosecution, be liable for all resulting liability, loss or damages suffered and/or incurred by Flexy and its affiliates, agents and/or partners.
9.1 It is recorded, and You agree, that all of the rights in and to all and any Intellectual Property in the Platform or forming part of Flexy’s Services, whether registered or not, vests in Flexy and nothing contained or implied in this Agreement will derogate from Flexy’s Intellectual Property Rights in any way whatsoever.
9.2 For the purpose of this clause, the following words shall have the following meanings ascribed to them:
9.2.1 “Intellectual Property” means intellectual property of any nature whatsoever owned and/or controlled directly or under licence by Flexy, now or in the future, including without limitation, Flexy's rights, title and interest in and to the Flexy Platform, the software and systems relating to the Platform, and includes all technology, source code/s, patents, rights to inventions, copyright and related rights, all other rights of copyright, trademarks, trade names trade secrets and domain names, business names, logos, service marks, moral rights, know-how, systems, business methods and trade secrets, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, styles, 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.
9.2.2. “Intellectual Property Rights” means any ownership, license or associated rights relating to Intellectual Property which may subsist in any part of the world, whether registered or not.
9.3 All copyright and other Intellectual Property Rights in Intellectual Property and material, including databases, text, graphics, icons, hyperlinks, confidential information, agreements, and multimedia works, published on or via the Platform ("proprietary material"), are the property of, or are licensed to, Flexy and as such are protected from infringement by local and international legislation and treaties.
9.4 You grant Flexy a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Flexy’s Platform and services any suggestion, enhancement request, recommendation, correction or other feedback provided by You relating to the operation of the Flexy Platform and/or services.
9.5 All rights not expressly granted are reserved and no right, title or interest in any proprietary material or information contained in this Platform is granted to you.
9.6 Except with Flexy's express written permission, no proprietary material from this Platform may be copied or retransmitted.
9.7 Irrespective of the existence of copyright, You acknowledge that Flexy is the proprietor of all material on the Platform (except where a third party is indicated as the proprietor), whether it constitutes confidential information or not, and that You have no right, title or interest in any such material.
9.8 Flexy authorises you only to view, copy, temporarily download to a local drive and to print the content of this Platform, or any part thereof, provided that such content is used for personal purposes and for information purposes only.
10.1 The user's use of this Platform and the information contained on the Platform is entirely at the user's own risk and the user assumes full responsibility and risk of loss resulting from the use thereof.
10.2 The transmission of information via the internet, including without limitation e-mail, is susceptible to monitoring and interception. The user bears all risk of transmitting information in this manner. Under no circumstances shall Flexy be liable for any loss, harm, or damage suffered by the user as a result thereof. Flexy reserves the right to request independent verification of any information transmitted via e-mail and the user consents to such verification should Flexy deem it necessary.
10.3 To the extent permissible by law:
10.3.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND IN NO EVENT OR CIRCUMSTANCES SHALL THE AGGREGATE LIABILITY OF FLEXY, TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR DELICT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS TOWARDS FLEXY.
10.3.2 IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR DELICT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.3.3 IN NO EVENT WILL FLEXY BE LIABLE TO ANY EXTENT, FOR ANY CLAIM ARISING OUT OF YOUR RELATIONSHIP AND/OR DEALINGS WITH A CLIENT AND/OR THIRD PARTY SERVICE PROVIDERS.
10.3.4 Clauses 10.3.1 and 10.3.2 above shall not operate to exclude liability of a Party arising as a result of that Party’s fraudulent conduct or in respect of any death or personal injury caused by that Party’s negligence.
10.4 You hereby unconditionally and irrevocably indemnify Flexy and agree to hold Flexy free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by Flexy or instituted against Flexy, by You or a third party, as a direct or indirect result of:
11.2 You understand, acknowledge, agree and consent thereto that:
13.1 Flexy is entitled without notice, in addition to any other remedy available to it at law or under these Terms, including obtaining an interdict, to cancel these Terms, limit or deny such user use of the Platform and services, or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to Flexy's right to claim damages, should any user:
13.1.1 breach any of these Terms;
13.1.2 in the sole discretion of Flexy, use the Platform in an unauthorised manner; or
13.1.3 infringe any statute, regulation, ordinance or law.
13.2 Breach of these Terms entitles Flexy to take legal action without prior notice to the user and the user agrees to reimburse the costs associated with such legal action to Flexy on an attorney and own client scale.
You shall comply with all applicable laws, statutes, ordinances and regulations pertaining to your use of and access to this Platform.
All notices related to this Agreement will be in writing, sent via email to [email protected] and will be effective upon the day thereof, save for notices of termination or Legal Notices, which shall clearly be identifiable as Legal Notices and delivered to the address referred to in clause 17.14 below, unless otherwise agreed between the Parties.
16.1 The Parties agree to first and foremost attempt to negotiate in good faith a settlement of any claim or dispute between or among them arising out of, relating to or in connection with this Agreement or the subject matter thereof, including any question regarding its existence, validity or termination. If such claim or dispute is not resolved by negotiation within thirty (30) days of a written request for negotiation from a Party, then either Party may refer the matter to arbitration under the Rules of Arbitration of the International Chamber of Commerce (“the ICC Rules”). The ICC Rules are deemed to be incorporated by reference into this Agreement. 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.
16.2 Notwithstanding any of the aforegoing, 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 16.1.
17.2 This Platform is controlled, operated and administered by Flexy from its offices within the Republic of South Africa. Access to the Platform from territories or countries where the content of the Platform is illegal is prohibited. Users may not use this Platform in violation of South African export laws and regulations. If the user accesses this Platform from locations outside of South Africa, that user is responsible for compliance with all local laws.
17.3 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.
17.4 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.
17.5 Assignment. You may not cede, assign or otherwise dispose of any part of Your rights and obligations in term of this Agreement without the prior written consent of Flexy. Flexy reserves the right to assign this Agreement in part, or its entirety (together with all Service Level Agreements) without Your consent thereto. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and Flexy’s successors and/or permitted assigns.
17.6 Severability. Each clause, or part thereof, of this Agreement is separate and 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.
17.9 Relationship. This Agreement will not operate so as to create an employment relationship, partnership or a joint venture or any such relationship of any kind between the parties. Nothing contained in this Agreement will be construed so as to constitute either Party to be the agent of the other. Neither party will have any authority to make any commitments on the other Party’s behalf.
17.10 Notices. All notices related to this Agreement will be in writing, sent via email to [email protected] and will be effective upon the day thereof, save for notices of termination or Legal Notices, which shall clearly be identifiable as Legal Notices and delivered to the address referred to in clause 17.3 below, unless otherwise agreed between the Parties.
17.11 Interpretation. In this Agreement,
All rights reserved.