HIRER AGREEMENT BETWEEN
(1) FLEXY CORPORATION LIMITED “FCL” (Company Number 09524785); and
(2) YOU, “the Hirer"
(A) FCL owns and operates the business of supplying workers as set out in this Agreement.
(B) The Hirer wishes to engage FCL to provide workers through the use of FCL’s website and App in accordance with the terms of this Agreement.
(C) FCL and the Hirer have agreed to enter into this Agreement to record the terms on which the services will be provided.
1. Appointment and Term
1.1 These terms set out the agreement between FCL and the Hirer for the supply of resources and personnel (“Resources”) with use of FCL’s website and App (the “Services”).
1.2 Subject to Clause 11, this Agreement will commence on the date that the Hirer’s account is activated and continue until it is terminated at any time on either party giving to the other not less than 2 weeks notice.
2. The Services
2.1 The Services shall include:
a. Providing a website www.ﬂexy.com in which the Hirer will post a relevant Job Advert detailing the Hirer’s requirements for a Resource.
b. Posting the relevant Job Advert on FCL’s App so that a Resource can obtain more information about the Job Advert and “accept” or “refuse” the Job Advert.
c. Ensuring that a Resource submits a completed time-sheet to FCL in respect of the hours worked.
2.2 The Resources will be under the absolute direction of FCL, and not the Hirer, at all times.
3. Job Advert
3.1 The Hirer will make available full written information (including descriptions of relevant jobs and descriptions, hiring parameters, wage, location, time and reporting line) (the “Job Advert”) in order for the Services to be performed by the Resources.
3.2 The Hirer will post the Job Advert to FCL’s website in order for FCL to provide this information to the Resources via the Resources use of the App.
3.3 When the Job Advert has been posted, a Resource will then “accept” the Job Advert, and perform the work and tasks at the agreed time and date as described in the Job Advert.
3.4 Upon completion of the work and tasks, the Resource will then submit a time-sheet in accordance with the terms of the Job Advert to FCL. FCL will then process this time-sheet in order to submit an invoice to the Hirer for payment as described in Clause 4 below.
4. Fees, Pricing Structure and Performance Incentive Fee
4.1 The Hirer agrees to pay FCL
a. A payment in respect of the number of hours that the Resource has worked in respect of the Job Advert, and as submitted on a time-sheet;
b. The rate of applicable holiday pay in respect of (i) above
c. Commission at the rate of 20%; and
d. Employment costs at the rate of 8.5%
4.2 The Hirer agrees to make the payments to FCL referred to at clause 3.1 within 7 days of notiﬁcation to the Hirer that the Resource has submitted his/her time-sheet.
4.3 If a Hirer disagrees with a time-sheet and wishes to dispute the entries on a time-sheet, it must inform FCL in writing as soon as it becomes aware of the potential disagreement and/or dispute and at the latest 48 hours following submission of the time-sheet in question.
4.4 In the event that any sums due are unpaid by the Hirer, the Hirer shall pay FCL interest at the rate of three percent (3%) above the base lending rate of the Bank of England from time to time in respect of any sums due but unpaid from the due date until the date of actual payment, calculated on a daily basis.
4.5 If the Hirer engages a Resource on a permanent basis, known as temp-to-perm transition, the Hirer shall pay FCL a pre-agreed fee one week after the permanent contract commencement date. This clause does not apply if the permanent contract date commences 8 weeks from the end of any set temporary assignment date.
5. Place of Work and Equipment
5.1 The Hirer shall provide the location and all necessary equipment for the Services to be carried out by a Resource, with such information being provided in the Job Advert.
5.2 The Hirer shall also provide any necessary training to the Resources in order for the Services to be carried out, at no additional expense to either the Resource or FCL.
6. Hirer’s Warranties
6.1 The Hirer warrants to the FCL as follows:
a. The Hirer has obtained all necessary approvals and permissions for the executive of, in the performance of its obligation under, this Agreement; and
b. The Hirer will at all times comply with all applicable binding laws, rules and regulations currently in force or subsequently enacted throughout the term of this Agreement, including without limitation, any such provisions of the DPA in connection with the provision of the Services, and any of the rights and obligations contained herein.
6.2 The Hirer will indemnify FCL on demand against all costs and losses suffered by FCL as a result of any breach of the warranties set out in this Clause 6.
7. FCL’s Warranties
7.1 FCL warrants to the Hirer as follows:
a. FCL has obtained all necessary approvals and permissions for the execution of, in the performance of its obligation under, this Agreement
b. FCL will at all times comply with all binding laws, rules and regulations relating to data protection in connection with the provision of the Services and in particular, all laws, rules and regulations applicable to a “data controller” as that term is deﬁned in the DPA.
c. FCL has ensured that each Resource has the necessary requirements in order to perform the Services in the United Kingdom.
7.2 FCL will indemnify the Hirer on demand against all costs and losses suffered by the Hirer as a result of any breach of the warranties set out in this Clause 7.
8. Limits on Liability
8.1 This Clause 8 sets out the entire ﬁnancial liability of the parties to each other in respect of any breach of contract, and any representation, statement or tortious act or omission (including negligence) arising under this Agreement.
8.2 Subject to clause 8.3 and 8.4, neither party shall be responsible to the other for:
a. breach of contract
b. loss of use;
c. depletion of goodwill; and
d. any special, indirect or consequential losses.
8.3 The maximum liability of either party to the other under this Agreement shall be £1,000,000 in respect of any claim or related series of claims.
8.4 FCL shall not be liable for any loss or damage that the Hirer suffers as a result of FCL or the Resources acting in accordance with any Job Advert.
8.5 For the duration of this Agreement, the Hirer shall maintain in force professional indemnity insurance with a limit of at least £1,000,000 to cover its potential liabilities in connection with this Agreement.
8.6 Nothing in this Clause 8 shall serve to limit or exclude the liability of the parties to this Agreement for death or personal injury caused by negligence, fraud or fraudulent misrepresentation.
9.1 There shall be no liability on the Hirer or FCL for any travel and lodging expenses incurred by any Resource in respect of the Services.
9.2 The Hirer shall be fully and solely responsible for any travel expenses reasonably and necessarily incurred by any Resource during the course of any Job Advert.
10. Rating System and Resources
10.1 FCL shall provide a “rating system” available on the website www.ﬂexy.com for the Hirer to provide a rating to the Resource once it has completed his/her tasks and duties as detailed in the relevant Job Advert.
10.2 The Hirer warrants and undertakes to ensure that each rating provided for a Resource complies with FCL’s Rating Guidelines, is a fair and accurate reﬂection on the work carried out by the Resources and will not contain any illegal, defamatory or unfairly critical comments of the Resource.
10.3 The Hirer shall notify FCL immediately if it believes that any Resource is unsuitable for a Job Advert or becomes aware of any matter that indicates that a Resource may be unsuitable for a Job Advert or is inconsistent with any information previously provided.
10.4 If the Hirer decides that a Resource is unsuitable to perform a Job Advert, then the notiﬁcation as described in Clause 10.1 must be in accordance with the terms of FCL’s “rating system” available on the website www.ﬂexy.com
10.5 If a Resource does not turn up for work in accordance with the terms set out in the Job Advert, then the Hirer should immediately inform FCL of the fact and re-post the Job
10.6 Nothing in this Agreement shall be deemed to create a contract of employment or engagement between the Hirer and any Resource. FCL shall be solely liable and responsible for all matters in relation to the Resources, including, but not limited to:
a. payments of all and any remuneration, national insurance contributions, income tax and other statutory charges in respect of such personnel; and
b. the taking of any action in respect of any conduct or any other complaints in respect of the Resources.
11. Early Termination
11.1 Without affecting any other right or remedy available to it, each party may terminate this agreement with immediate effect by giving written notice to the other if:
a. the other party commits a material breach of any term of this agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of receipt of notice in writing to do so;
b. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
c. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 within the meaning of section 268 of the Insolvency Act 1986;
d. the other party suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business.
11.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
11.3 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
12.1 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
13.1 During this Agreement, the Hirer agrees to protect, indemnify, defend and hold harmless FCL, and to the extent required from time to time by FCL, (or their successors) its ofﬁcers, agents, and employees, from and against any and all expenses, damages, claims (whether valid or invalid and whether deemed alleged or upheld), suits, losses, actions, judgments, liabilities, and costs whatsoever (including legal fees on a full indemnity basis) arising out of, connected with, or resulting from, the Hirer’s breach of any obligation to be performed by the Hirer under this Agreement.
13.2The provisions of this clause 13 shall survive termination of this agreement.
14.1 Each party undertakes that it shall not at any time during this agreement, disclose to any person any conﬁdential information concerning the business, affairs, customers, Hirers or suppliers of the other party, or any person placed at the Hirer, except as permitted by clause
14.2 Each party may disclose the other party’s conﬁdential information: a. to its employees, ofﬁcers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall ensure that its employees, ofﬁcers, representatives or advisers to whom it discloses the other party’s conﬁdential information comply with this clause 14; and b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 No party shall use any other party’s conﬁdential information for any purpose other than to perform its obligations under this agreement.
15.1 All IPR in the Materials belongs to and shall irrevocably belong to the Hirer.
15.2 Subject to Clause 16.3, where any IPR is created in the provision of the Services, such IPR belongs to and shall irrevocably belong to FCL and the Hirer hereby assigns to the FCL all such IPR (including in the Documents) and hereby agrees that any IPR therein that come into existence after the date hereof shall vest absolutely FCL immediately upon guarantee for all purposes, applications and ﬁelds of use (including by way of present assignment of future rights in relation to rights not yet created) and free from all third party rights, all right, title and interest in and to the foregoing to FCL absolutely. The Hirer agrees to do all acts and execute all documents necessary to give effect to the provisions of this clause 16.2. The Hirer hereby unconditionally and irrevocably waives all moral rights in relation to the Documents.
15.3 The data that FCL collects shall belong to FCL provided that FCL shall licence the rights in this data back to the Hirer on a royalty free, perpetual basis.
15.4 The Hirer shall, on completion of this Agreement, deliver to FCL all Documents whether supplied by FCL or prepared by or on behalf of the Hirer in connection with this Agreement.
15.5 The Hirer agrees at the request of FCL to execute such formal documentation and/or perform such acts as may be necessary or desirable to record or effect ownership of the IPR.
15.6 The Hirer will indemnify fully and keep FCL fully indemniﬁed against any of the following:
a. all actions, proceedings, liabilities, claims, ﬁnes and demands;
b. all losses or damages;
c. all reasonable out-goings, reasonable costs, reasonable expenses (including legal expenses); awarded against, paid by, taken incurred by or issued against FCL as a result of any breach by the Hirer of the provisions of this Clause 15, subject always to the proviso that FCL shall provide the Hirer will full information and documentation in respect of any action, proceedings, liabilities, claims, ﬁnes and/or demands in respect of this Clause 15 and allow the Hirer the reasonable opportunity to defend and/or respond to any such action at its own expense. For the avoidance of doubt, FCL conﬁrms that no payment under this indemnity shall be made without giving the Hirer the reasonable opportunity to defend any such action, proceedings, liabilities, claims, ﬁnes and demands.
16. Data Protection
16.1 Within this Clause 16, “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data” and “Processing” shall have the same meanings as in the DPA and “Processed” and “Process” shall be construed in accordance with the deﬁnition of Processing.
16.2 Where Personal Data relating to an Resource is Processed by FCL (for the purpose of this Clause deﬁned as the “Data Processor”) or its agents, sub-contractors or staff under or in connection with this Agreement as a Data Processor on the Hirer’s behalf (for the purpose of this Clause the Hirer is deﬁned as the “Data Controller”), FCL shall procure that its agents, sub-contractors and staff shall:
a. only Process the Personal Data in accordance with the Data Controller’s instructions, which may be speciﬁc instructions or instructions of a general nature as set out in this Agreement or as otherwise notiﬁed by the Data Controller to the Data Processor from time to time;
b. implement appropriate technical and organisational measures to protect Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from unauthorised or unlawful Processing or accidental loss, destruction or damage to Personal Data and to the nature of the Personal Data which is to be protected;
c. Process the Personal Data in accordance with the DPA and not do or permit anything to be done which might cause the Data Controller in any way to be in breach of the DPA;
d. cooperate as reasonably requested by Data Controller to enable Data Controller to comply with any exercise of rights by a Data Subject under the DPA in respect of Personal Data processed by the Data Processor under this Agreement or comply with any assessment, enquiry, notice or investigation under the DPA which shall include the provision of all data requested by Data Controller within the timescale speciﬁed by Data Controller in each case;
e. not process the Personal Data in any country outside the European Economic Area without the prior consent of the Data Controller; and
f. cease Processing the Personal Data immediately upon the termination or expiry of this Agreement and as soon as possible thereafter, at the Data Controller’s option, either return, or delete from its systems, the Personal Data and any copies of it or of the information it contains and the Data Processor shall conﬁrm in writing that this Clause has been complied with in full.
16.3 Each party undertakes to inform the other in the event that a Resource withdraws, modiﬁes or alters its consent (whether express or implied) relative to the collection, processing or disclosure of personal data relating to that Resource.
17. Assignment and Other Dealings
17.1 Subject to clause 17.2, neither party shall assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), save in respect of a holding
17.2 FCL shall be entitled to sub-contract or delegate its obligations under this agreement to any holding and/or subsidiary company of FCL. The Hirer agrees that it shall not sub-contract or delegate its obligations under this agreement to any other third party or agent without the prior written consent of FCL. It shall be a condition of such consent that the sub-contractor signs and observes an agreement containing terms at least as onerous as those contained in this agreement. Without prejudice to this clause, the Hirer shall in all cases retain sole responsibility for the performance of the tasks assigned to it under this agreement, regardless of the use of authorised or unauthorised sub-contractors and the Hirer shall be liable for the acts and omissions of any sub-contractor (of any tier and authorised and unauthorised) or any intermediaries whatsoever as if they were the acts and omissions of the Hirer itself.
18. No Partnership or Agency
18.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
18.2 Each party conﬁrms it is acting on its own behalf and not for the beneﬁt of any other person.
19. Entire Agreement
19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
19.4 Nothing in this clause shall limit or exclude any liability for fraud.
20. Third Party Rights
20.1 No one other than a party to this agreement shall have any right to enforce any of its terms.
21.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
a. delivered by hand or by pre-paid ﬁrst-class post or other next working day delivery service at its registered ofﬁce (if a company) or its principal place of business (in any other case); or
b. sent by email with a “Read Receipt” to hello@ﬂexy.com, or any other email address as notiﬁed to the Hirer from time to time.
21.2 Any notice shall be deemed to have been received:
a. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
b. if sent by pre-paid ﬁrst-class post or other next working day delivery service, at 9.00 am on the second business day after posting [or at the time recorded by the delivery service; or
c. if sent by email, the date on which the “Read Receipt” is shown as being accepted.
21.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution
22. Governing Law and Jurisdiction
22.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
22.2 Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
23.1 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
23.2 A reference to a holding company or a subsidiary means a holding
company or a subsidiary (as the case may be) as deﬁned in section 1159 of the Companies Act 2006. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
24.1 In this Agreement the following words and expressions shall have the following meanings: “Documents/Documentation” means any documentation supplied by the Hirer to FCL in connection with this Agreement or developed or provided by FCL to the Hirer in connection with this Agreement (as the case may be require), in hard copy or electronic form; “DPA” means the Data Protection Act 1998 as amended or replaced; “IPR” means all intellectual property rights of whatever nature including, all patents, utility models and other rights in inventions; all copyright and database rights; all design right, registered design right and other rights in designs; all trade names and logos and other rights in the nature of trade marks; all goodwill and all equivalent or similar rights arising anywhere in the world, whether registered, unregistered or the subject matter of an application for registration; and “Materials” means any materials made available by the Hirer to FCL in connection with this Agreement, including any Documentation (together with any modiﬁcations, alterations, adaptations or changes to the Documentation); This agreement has been entered into on the date the Hirer’s account was activated.