FlexiWork - Terms and Conditions - Customers
MOOVUP - FLEXIWORK'S TERMS AND CONDITIONS OF USE AND SERVICES
Employment Agency Licence No.: 63880
Terms and Conditions (FlexiWork – Customers)
These Terms apply to the use by the entity or person (“you”, “your” or “Customer”) of the Moovup Platform, as well as to all information, recommendations and/or Services provided to you by means of your use of the Moovup Platform.
Moovup Platform is powered and provided by moovup (HK) Limited, a Hong Kong limited liability company (“we”, “us” or “our”).
1. Definitions and Interpretation
(a) In these Terms, the following definitions and rules of interpretation apply unless otherwise defined or the context requires otherwise:
“Accepted Request” has the meaning as given in clause 3(a);
“Advertisement” means any promotion messages and information that may appear on your computer, mobile device or otherwise during the operation of the Moovup Platform;
“Appointment” has the meaning as given in clause 3(b);
“Cancellation Fee” has the meaning as given in clause 3(d);
“Charges” has the meaning as given in clause 4(a);
“Contractors” means the independent contractors whose services are offered and may be requested through the use of the Moovup Platform;
“Customer Content” means any and all information or content which you have or will provide to us;
“Hong Kong” means Hong Kong Special Administrative Region of the People’s Republic of China;
“Introduction Fee” has the meaning as given in clause 4(b);
“Moovup Platform” means the web platform and any other related Moovup online and offline platform, service, tool or application supplied by us and accessed and/or used by you through which you may obtain the Services;
“Request” has the meaning as given in clause 3(a);
“Service Agreement” has the meaning as given in clause 3(b);
“Services” means any and all services provided by us to you by means of your use of the Moovup Platform, including but not limited to the services described in clause 3(a);
“Terms” means these terms and conditions, which may be amended and supplemented by us from time to time in accordance with clause 10; and
“User Account” has the meaning as given in clause 5(a).
(b) Headings are for convenience only and do not affect interpretation. The singular includes the plural and the masculine shall include the feminine and neuter and vice versa.
(c) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
2. License of the Moovup Platform
(a) Subject to your compliance with these Terms, we grant you a non-exclusive and non-transferrable licence to access and/or use the Moovup Platform on your computer and/or mobile device or otherwise.
(b) Your use of the Moovup Platform grants you no rights in relation to our intellectual property rights (including, without limitation, copyright, trade marks, logos, graphics, photographs, animations, videos and text or rights in the Moovup Platform) or the intellectual property rights of our retail or advertising partners, other than the non-transferable personal right to use and receive the Services in accordance with these Terms.
(c) You must not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Moovup Platform in any way; (ii) modify or make derivative works based upon the Services or the Moovup Platform; (iii) create Internet “links” to the Moovup Platform or “frame” or “mirror” any other server or wireless or Internet-based device; (iv) reverse engineer or access the Moovup Platform in order to (1) design or build a competitive product or service, (2) design or build a product using similar ideas, features, functions or graphics of the Services or the Moovup Platform, or (3) copy any ideas, features, functions or graphics of the Services or the Moovup Platform; or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Services or the Moovup Platform.
(a) Moovup Platform and Your Request for Service. We offer a technology platform to provide information and a means for you to obtain services from Contractors through the use of the Moovup Platform. The Moovup Platform enables you to send a work request (a “Request”), which allows you to request services for a period which may start on any day but must end by the last day of the same calendar month, to Contractors and invite them to accept such Request, and each relevant Contractor has the sole discretion to apply for or reject each such Request. If a Contractor accepts the invitation to apply for the work specified in your Request, the Moovup Platform will notify you and provide you with information about the Contractor such as the resume/CV, other profile information and rating (if any). Without prejudice to clause 3(b)(i), if you accept and agree to the Contractor’s application for the Request, a contractual agreement (an “Accepted Request”) is formed directly between you and such Contractor.
(b) Content and Requirements of Request. Each Request made by you must:
- be for a minimum of four (4) consecutive hours for each Appointment; and
- include a description of the work to be performed, the date(s) and start and end time(s), the compensation metrics for the job, and any other specific requirements for the job.
(i) Each Request can cover a single day or multiple days; each day is separately referred to as an “Appointment”. An Accepted Request that contains multiple Appointments which fall on or before and after the 14th day of a calendar month are automatically split into two (2) separate contractual agreements between you and the relevant Contractor(s) (each a “Service Agreement”): the first agreement covering Appointment(s) that fall between the first (1st) and fourteenth (14th) day of a calendar month, and the second agreement covering Appointment(s) that fall between the fifteenth (15th) and last day of a calendar month.
(ii) You acknowledge and agree that the information that you provide in a Request will be sent to the Contractors who will need this information to determine whether to apply for, and perform, the Appointment. By submitting the Request, you expressly consent to have details and content of the Request sent to the Contractors, and you further represent and agree that any information contained in a Request is accurate, current and truthful, and you are authorized to use any logos or other intellectual property that may be contained in your Request.
(c) Tracking Time. Contractors will use a mobile application or other Moovup technology to track their time worked for you. On a daily basis, you must review and approve completion of the applicable job and the time worked. If you do not dispute completion of the jobs or the time worked by each applicable Contractor within six (6) hours from the time of completion on each Appointment, you are deemed to accept the Appointment as worked and the Contractor’s time records as accurate for purposes of computing any charges or fees owed under the Request and these Terms. You must not reject or modify any Contractor time entries in an inaccurate manner. We would facilitate the payment of compensation of such Contractors at such rate(s) specified in the Request pursuant to clause 4(c).
(d) Removal of Contractor(s). You have the right to, for lawful reason (including failure by Contractor to perform services as set out in the Accepted Request): (i) reject any Contractor from performing services, or (ii) request us to remove any or all of the Contractors that have Accepted Requests with you. In such event, your liability to us with respect to any lawfully removed Contractors shall be the greater of: (1) the Charges for the time actually worked by such Contractors prior to your request for removal and (2) an amount equal to fifty percent (50%) of the Charges anticipated under the applicable Accepted Request or Appointment (as applicable), including both the Contractor Service Fee and the Moovup Fee (the “Cancellation Fee”).
Notwithstanding the foregoing, if your request to remove or reject the Contractor occurs during the first Appointment of your first Accepted Request with such Contractor via the Moovup Platform, you only have to pay for the Charges in respect of the time actually worked by such Contractor prior to your request for the rejection or removal of such Contractor.
During the first Appointment of your first Accepted Request with the Contractor via the Moovup Platform, such Contractor has the right to terminate the remaining uncompleted portion of the Accepted Request for any reason. In that case, you have to pay for the Charges in respect of the time actually worked by such Contractor prior to his or her exercise of the termination right.
(e) Accepted Request Termination or Change. If you cancel or substantially modifies an Accepted Request or one or more Appointments less than twenty-four (24) hours before performance of the services is scheduled to begin, you must pay to us the Cancellation Fee. To avoid imposition of any Cancellation Fee, any cancellation or modification request from you must be in writing and delivered to us via email at firstname.lastname@example.org and the email address of your designated Moovup account manager (if any) or such other channels as may be agreed by us before the 24-hour cancellation/modification window closes. You agree that the Cancellation Fee is not a penalty, but is a reasonable pre-estimate of loss to us and the Contractors.
(f) Feedback and Reviews. You acknowledge that you transfer copyright of any feedback, reputation or reviews you leave consisting of comments and any rating(s) together with any composite rating by us. You acknowledge that such feedback, reputation and reviews belong solely to us, notwithstanding that we permit you to use it on the Moovup Platform while you have a User Account. You may not do (or omit to do) anything that may undermine the integrity of the Contractor feedback system. We are entitled to suspend or terminate your User Account at any time if we, in our sole and absolute discretion, are concerned by any feedback about you, or your feedback rating, where we believe our feedback system may be subverted. Our feedback ratings belong to us and may not be used for any purpose other than facilitating the provision of the Services and the Contractors’ services via the Moovup Platform. You may not use your feedback (including, but not limited to, marketing or exporting your any or all of your composite rating(s) or feedback comments) in any real or virtual venue other than those operated by us or our related entities, without our written permission.
(g) Independent Contractors. You intend to engage Contractors as independent contractors and is offering work that qualified Contractors can accept as independent contractors. You understand and agree that: (i) the Contractors are not our employees or subcontractors; (ii) we are not required to provide you or any Contractor with workers’ compensation insurance or other similar insurance coverage; (iii) we do not, in any way, supervise, direct, or control the Contractors’ work or services performed for you in any manner, nor do we set such Contractors’ work hours and location of work or the type or manner compensation to be paid pursuant to any Accepted Request; (iv) we do not provide the Contractors with any training nor any equipment, labour or materials needed for any Request; and (v) we will not deduct any amount from Contractor compensation for withholding or other taxes or levies. You are also responsible for fulfilling any applicable tax reporting obligations that may apply to you in relation to your engagement of the Contractors for services.
(h) You acknowledge and agree that we only act as an intermediary between you and the Contractor(s) and we are not your agent or the agent of the Contractor(s). We are not responsible for the behaviour, negligence, conduct, actions or inactions on the part of the Contractor(s) whose services you may use (through the Moovup Platform or otherwise). Any contract for the provision of services is between you and the Contractor(s) and not us. Save and except that we provide periodic settlement of payment arrangement services (please refer to clause 4(c) for details) between you and the Contractor(s), we are never and shall never be a party to any agreement (to be) entered into between you and any Contractor. If you have any complaint in relation to the service provided by the Contractor(s), then that dispute must be taken up with the respective Contractor(s) directly.
(i) You must keep secure and confidential and not disclose to any third party any username or password that we may provide to you in relation to access to the Moovup Platform and the Services.
(j) We shall assume that any person using your mobile device, your username and password is you or a person authorized by you.
4. Charges, Fees and Payment
(a) Charges. In exchange for the services under these Terms, you agree to pay us the following amounts (collectively, the “Charges”):
(i) an amount equal to the service fee payable by you to the Contractor(s) under the Service Agreement(s) (“Contractor Service Fee”);
(ii) service fee to us of a percentage of the Contractor Service Fee (“Moovup Fee”), which percentage amount is as may be expressly agreed between us and the Customer in writing from time to time;
(iii) any Cancellation Fee as set forth in clause 3(d); and
(iv) any Introduction Fee as set forth in clause 4(b).
You are responsible for paying any taxes, including any goods and services or value added taxes, which may be applicable to the Charges.
(b) Introduction Fee. In this section, “Hire” means the retention of a Contractor as an employee, independent contractor, agent, intern or otherwise, for any period of time where the Contractor is compensated outside the Services (including the Moovup Platform) in the year following your last contact with the Contractor via the Service or Moovup Platform by any of your officer, employee or anyone retained by any of them. If you Hire a Contractor, you must promptly notify us. For each Hire, you will pay us the following fee (“Introduction Fee”): HK$15,000. You must pay us any Introduction Fee owed on the same schedule as the payment of all other fees or invoices to us. If you do not notify us within thirty (30) days that you have Hired a Contractor, the Introduction Fee shall be two (2) times the Introduction Fee otherwise owed for each such Contractor you have Hired.
(c) Invoice and Payment. We shall issue you with an invoice for Charges at the end of each service period under the relevant Service Agreement. You understand and agree that any and all Charges shall be settled via us (and not directly between you and the Contractor(s)). You irrevocably appoint us as your paying agent to pay any such Contractor Service Fee to the Contractor(s) on your behalf. You understand and agree to make full payment of the relevant Charges not later than five (5) business days from the invoice date. You further understand and agree that in the event of late or default settlement of any invoice(s), we shall be entitled to: (i) charge you interest regarding any such late or default settlement of any such invoice(s); and/or (ii) terminate or suspend your User Account. For avoidance of doubt, any Charges paid to us and/or the Contractor(s) are final and non-refundable, unless otherwise determined by us.
5. Your use of the Moovup Platform and the Services
(a) Your use and access to the Moovup Platform and the Services is conditional upon you (i) having registered as a user of the Moovup Platform and having been provided by us with an account (“User Account”).
(b) You agree:
(i) and warrant that all information and details provided by you to us (including through the Moovup Platform or otherwise) are true, accurate, complete and up-to-date in all respects and at all times;
(ii) to only post Requests that can be lawfully performed in accordance with applicable laws, regulations and ordinances; and warrant that you have all necessary rights, authorizations, permissions and licences which you are required to have to allow each Contractor subject to an Accepted Request to perform their services for you;
(iii) and warrant that you own or has sufficient rights to the Customer Content, and that neither the Customer Content nor the use and/or provision of it to others will infringe, misappropriate or violate any third party’s intellectual property rights or privacy or any applicable law or regulation;
(iv) that you will not use the Moovup Platform and/or the Services: for any unlawful purpose, including but not limited to, in any way that interrupts, damages, impairs or renders the Moovup Platform or the Services less efficient (including but not limited to abusing the multiple request function of the Moovup Platform by making more than the necessary requests to Contractors and subsequently cancelling any unnecessary requests); to access or attempt to access the User Account(s) of other user(s) or to penetrate or attempt to penetrate any security measures; or to advertise or promote third party or your own product(s) and/or service(s);
(v) to comply with all applicable laws while using the Moovup Platform and/or the Services;
(vi) to respect the privacy of the Contractors and unless required by applicable law, not to disclose their personal details (including contact name and number) to any other third party without their prior consent;
(vii) that you will not use the Moovup Platform and/or the Services to cause nuisance, annoyance or inconvenience;
(viii) to refrain from doing anything which we reasonably believe to be disreputable or capable of damaging our reputation;
(ix) to provide us with any know-your-customer (KYC) information and supporting documents as we may reasonably request;
(x) to treat our staff and any Contractors introduced to you through the Moovup Platform with courtesy and respect, and not to engage in any unlawful, threatening, harassing, abusive behaviour or activity whilst using their services and/or the Services; and
(xi) to compensate and defend us fully against any claims or legal proceedings brought against us by any other person as a result of your breach of these Terms.
(c) You further acknowledge and agree that: (i) you may not require an exclusive relationship between you and any Contractor; (ii) Contractors are free at all times to perform Requests posted by other businesses, be employed by or otherwise engage with persons or businesses other than you, including any of your competitor; (iii) we cannot and do not exercise any control over the working conditions or the work sites at which any Contractor performs any services for a Customer; (iv) you assume all liability for proper classification of Contractors as independent contractors or employees based on applicable legal guidelines and regulations.
(d) We reserve the right to suspend, restrict or terminate your access to the Moovup Platform and/or the Services, and/or suspend and remove any Request(s) made by you, at any time without advance notice or liability on our part if we have reasonable grounds to believe you have breached any of these Terms or in our opinion you misuse or otherwise abuse the Moovup Platform or the Services. This shall not limit our right to take any other action against you that we consider appropriate to defend our rights or those of any other person.
We may from time to time offer promotions on the Moovup Platform. We reserve the right to amend, suspend, withdraw or terminate, whether in whole or part, any and all such promotions without prior notice and at our absolute discretion.
7. Links and Advertisements
The Moovup Platform may contain Advertisements and links to third party websites. We shall not be responsible for the contents and accuracy of any Advertisement. Any links to third party websites are provided solely for your convenience and not in any way as an endorsement by us of the contents on such third party websites. If you access any linked third party website or Advertisement, you do so entirely at your own risk. We shall not be responsible for any transactions between you and any advertisers or third party website operators.
By accepting these Terms and using the Moovup Platform and/or the Services, you agree that you shall defend, indemnify and hold us, our affiliates, our licensors, and each of our and their respective officers, directors, other users, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, including the Contractors introduced via the Moovup Platform; or (c) your use or misuse of the Moovup Platform and/or the Services.
(a) The Moovup Platform is provided to you on an “as is” basis. We do not guarantee that the Moovup Platform is compatible with your computer or mobile device or that (the contents of) the Moovup Platform and our website are free of errors, defects, malware and viruses or that the Moovup Platform and our website are correct, up to date and accurate.
(b) We do not warrant and accept no liability in connection with the availability of the Services, the availability of services from the Contractors through the use of the Services, the accuracy of the information or data provided as part of the Services or the quality, suitability and timeliness of the services of the Contractors. You agree that we have no liability for the action or inaction of any Contractor, and that we do not guarantee or warrant the Contractors’ performance of services for Customer pursuant to an Accepted Request or Appointment, the outcome or quality of the services provided under it, or that Contractors with skills or experience identified by Customer will accept any Request.
(c) Contractors registered with the Moovup Platform may use location and/or time tracking software or technology to facilitate and improve work tracking. You acknowledge and accept that the location and/or time tracking feature is not error-free and the information provided by it may not be accurate. Your use of any location and/or time tracking feature is solely at your own risk and we accept no responsibility or liability in connection with any such use of and/or reliance on such tracking information by you.
(d) The use of the Moovup Platform and/or the Services is at your sole risk. To the fullest extent permitted by applicable law, we shall not be liable for any damages resulting from or in connection with the use or inability to use the Moovup Platform and/or the Services (including any consequential, indirect or incidental damages or any loss of profit or damages to your computer or mobile device or otherwise).
10. Modification of Terms and the Services
We may, at our sole discretion, from time to time amend or otherwise modify or replace any of these Terms, or change, suspend or discontinue the Moovup Platform and/or the Services (including but not limited to the availability of any feature or content) by sending you notice through the Moovup Platform, by posting a notice on our website at www.moovup.com or by notifying you directly. Continued use of the Service, including the Moovup Platform after any such changes are made to these Terms shall constitute your consent to such changes. We may also impose limits on certain features and services or restrict your access to part or all of the Services without notice or liability.
11. Personal data and privacy
(a) You may not assign or transfer any of your rights or obligations under these Terms to any person without our prior written approval. We may assign and transfer any of our rights and obligations under these Terms to any person without your consent.
(b) We may give notice by means of a general notice on the Moovup Platform, or by electronic mail to your email address as last made known to us in your User Account, or by written communication sent by regular mail to your address as last made known to us in your User Account.
(c) If any provision under these Terms is rendered void, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected by it and shall continue to apply.
(d) The original text of these Terms is in English. In the event of any inconsistency between the English text and any foreign language translation, the English text shall prevail.
13. Written agreement shall supersede these Terms
These Terms are generally applicable to your use of the Moovup Platform and/or the Services. However, in the circumstances where we have entered into a separate written agreement with you or otherwise agreed such terms with you in writing, then in the event of discrepancies, terms in such written agreement or otherwise agreed in writing shall prevail when seeking to resolve any such discrepancy.
14. Governing law and jurisdiction
These Terms shall be governed by and construed in accordance with the laws of Hong Kong. Both you and us agree to submit to the exclusive jurisdiction of the courts of Hong Kong as regards any dispute or matter arising under these Terms.