Terms and Conditions
In the United States of America, the Indeed Flex+ Service is operated by Indeed Flex, Inc. 6433 Champion Grandview Way, Austin, Texas 78750 and in the United Kingdom, the Indeed Flex+ Service is operated by Syft Online Limited of One Smart’s Place, 1st Floor, London, WC2B 5LW, UK (company registration number: 09372516), each shall be referred to as “Indeed Flex”, “we”, “our”, “us” and the “Company”.
Your use of the Service constitutes your acceptance of and agreement to all of the terms and conditions defined herein.
Indeed Flex reserves the right, from time to time, with or without notice, to change these Terms and Conditions at its sole discretion, and the latest version will appear on the Service with the date that it was last updated. By using the Service after any changes have been posted, you agree to the new terms. If Indeed Flex makes any significant changes to these Terms of Conditions, it will notify Clients by email (to the email address registered with Indeed Flex) in advance.
(a) Indeed Flex operates a temporary staffing application which connects companies with staff in the hospitality and industrial sectors.
(b) The Client may require Flexers to assist with events or work activities.
(c) Indeed Flex has agreed to make available to the Client its white-label Indeed Flex+ Service that will enable the Client, among other things, to manage Client’s Workers and directly engage Flexers on an ad-hoc basis for Client shifts and events.
The following definitions and rules of interpretation apply in this Agreement.
“Agreement” means this agreement, which consists of the recitals, these Terms and Conditions and Schedules.
“Business Day” means a day, other than a Saturday, Sunday or public holiday, on which banks are generally open for business.
“Client” means a business that has agreed to use Indeed Flex’s commercial services.
“Client Brand Guidelines” means the Client’s brand guidelines, as provided to Indeed Flex from time to time.
“Client Content” means any materials delivered to Indeed Flex for use in connection with the Service, the Indeed Flex+ App and/or the Indeed Flex+ Platform (whether existing prior to the Effective Date or created or coming into being during the Term of this Agreement) including the Client Marks, Confidential Information of the Client and any other property of any kind owned or controlled by or licensed by a third party to the Client.
“Community Guidelines” means the agreement between Indeed Flex and Flexers in the United Kingdom.
“Confidential Information” means confidential commercial, financial, marketing or technical information, know-how, trade secrets, User Personal Data and other confidential information relating to either Indeed Flex or the Client (including the terms of this Agreement) in any form or medium whether disclosed orally or in writing before or after the date of this Agreement, together with any reproductions of such information in any form or medium or any part of this information. Notwithstanding anything to the contrary herein, Confidential Information of the Client does not include any content contained in job advertisements provided by the Client for the purpose of posting to Indeed Flex’s website or any data derived therefrom, or information collected by Indeed Flex through Indeed Flex’s website, Indeed Flex+ App and/or the Indeed Flex+ Platform, including without limitation user activity, employee information, click-through rates, and analytics data generated by Indeed Flex.
“Documentation” means any documents made available to the Client by Indeed Flex which set out a description of the Indeed Flex+ App and/or the Indeed Flex+ Platform, the on-boarding information and the user instructions for the same.
“Effective Date” means the Effective Date as defined in the Service Level Agreement.
“Employment Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended, consolidated, re-enacted or replaced from time to time.
“Flexer Terms and Conditions” means the agreement between Indeed Flex and Flexers in the United States of America.
“Indeed Flex App” means Indeed Flex’s proprietary application through which Users and Clients may access and use the Indeed Flex Platform.
“Indeed Flex Materials” means all materials delivered or made available to the Client for use in connection with the Service, the Indeed Flex+ App and/or the Indeed Flex+ Platform including on-boarding and marketing information, Indeed Flex Documentation, Indeed Flex Marks, Confidential Information of Indeed Flex and any other property of any kind owned or controlled by or licensed by a third party to Indeed Flex.
“Indeed Flex+ API” means the application programming interface and associated technology, software and materials supplied and amended by Indeed Flex from time to time.
“Indeed Flex+ App” means a customised, ‘white-labelled’ version of the Indeed Flex App, branded with Client Marks, through which Users may access the Indeed Flex+ Platform as further described in Schedule 1.
“Indeed Flex+ Guidelines” means the set of guidelines which refer to the terms and conditions that govern a Workers’ access to the Indeed Flex+ Platform.
“Indeed Flex+ Platform” means a customised, ‘white-labelled’ version of the Indeed Flex Platform, branded with Client Marks, accessed via the Indeed Flex+ App, through which Workers may be sourced for engagements for Client events, and also provides access to Indeed Flex’s external temporary staff pool.
“Indeed Flex+ Shift-Credits” means a nominal credit(s) that can be earned by booking external staff from Indeed Flex to fill shifts and can be used to offset Indeed Flex+ License costs, as detailed in the Service Level Agreement.
“Indeed Flex Platform” means the platform owned and operated by Indeed Flex, accessed via the Indeed Flex App through which Flexers may be paired with and sourced by subscribing businesses and organisations.
“Intellectual Property Rights” means all intellectual property rights including patents, registered designs, trademarks and service marks (whether registered or not), copyright, database rights, design rights and all similar property rights including those subsisting (in any part of the world) in inventions, designs, drawings, performances, computer programs, semi-conductor topographies, Confidential Information, business names, goodwill and the style and presentation of goods or services and applications for protection of any of the above rights.
“Losses” means losses, damages, liabilities (including any liability to taxation), claims, costs (including dismissal costs) and expenses including fines, penalties, legal and other professional fees and expenses.
“Marks” means the trademarks, service marks, logos and other distinctive brand features of a Party.
“Pilot Term” means a period of three (3) months from the Effective Date.
“Service” means the provision and maintenance of the Indeed Flex+ App and the Indeed Flex+ Platform, together with any other services from time to time offered by Indeed Flex and which, by express written agreement, the Parties agree to include within the scope of this Agreement.“Service Levels” means the service levels as set out in Schedule 2.
“Service Fee Spend” means the proportion of the fees charged by Indeed Flex for managing the provision of temporary staff.
“Service Level Agreement” means Indeed Flex’s standard service level agreement executed by the Parties, where applicable.
“Term” means a period as the Effective Date set out in the Service Level Agreement.
“Terms of Service” means Indeed Flex’s standard terms and conditions applicable to all Indeed Flex client businesses, as made available at https://indeedflex.com/client-terms/ (in the United States of America) and https://indeedflex.co.uk/client-terms/ (in the United Kingdom), and as updated from time to time.
“Terms and Conditions” means the terms and conditions applicable to the Indeed Flex+ service.
“User” means any Worker, employee of, or anyone engaged by the Client who accesses or uses the Indeed Flex+ App and/or the Indeed Flex+ Platform pursuant to Client’s request and provision of login credentials.
“Worker” means an individual (non-Flexer) who is employed directly by the Client to perform work.
1.2 In this Agreement headings are for convenience only and do not affect interpretation.
1.3 If there is any inconsistency between a term in the body of this Agreement and a term in any of the Schedules or other documents referred to or otherwise incorporated into this Agreement, the term in the body of this Agreement will take precedence.
1.4 Unless the context indicates a contrary intention:(a)words importing the singular include the plural and vice versa, any gender includes the other genders, if a word or phrase is defined, cognate words and phrases have corresponding definitions; (b) the words “other”, “includes”, “including” and “in particular” do not limit the generality of any preceding words and any words which follow them shall not be construed as being limited in scope to the same class as the preceding words where a wider construction is possible; and (c) any reference in this Agreement to Indeed Flex’s right to exploit or exercise any right shall be deemed to include a right to license, permit or authorise others to undertake such activity.
Indeed Flex OBLIGATIONS
2.1 As between the Parties, Indeed Flex shall:(a) provide the Client with the Service as described in Schedule 1, and in accordance with the terms of this Agreement; (b) load and ingest the Client Content into Indeed Flex’s servers for use in the Indeed Flex+ App and the Indeed Flex+ Platform; (c) maintain the Indeed Flex+ App, the Indeed Flex+ Platform and provide technical assistance to the Client as set out in the Schedule 2; (d) from time to time report to the Client (such details as agreed between the Parties) on the User’s usage of/interactions with the Indeed Flex+ App and/or the Indeed Flex+ Platform in such frequency, detail and format as Indeed Flex generally makes available to other Indeed Flex+ customers and in accordance with Applicable Data Protection Law; (e) as part of the Services and at no additional cost to the Client, provide the Client with Indeed Flex’s standard customer support services during normal business hours on Business Days; (f) take reasonable precautions to preserve the integrity of any data which it processes and to prevent any corruption or loss of such data; (g) use its reasonable commercial endeavours to comply with any time-frames as agreed between the parties; and (h) comply with the Client Brand Guidelines (as and if supplied by the Client).
THE CLIENT OBLIGATIONS
3.1 As between the Parties, the Client shall:
(a) be solely responsible for ensuring that it has all the necessary rights, permissions and consents to upload Client Content to the Indeed Flex+ App and/or the Indeed Flex+ Platform;
(b) have sole responsibility for direct Worker management and shall have a direct contractual relationship with Workers;
(c) be responsible for the provision of support to Workers;
(d) provide such co-operation as Indeed Flex may reasonably require in all matters relating to the Services;
(e) promptly deliver to Indeed Flex the Client Content, Client Marks and all other content and information as Indeed Flex may reasonably require in order to perform the Services and make available the Indeed Flex+ App and/or the Indeed Flex+ Platform in such formats as Indeed Flex may specify. The Client agrees that its failure to provide such content and information may result in a delay in Indeed Flex providing the Services in respect of which Indeed Flex shall not be responsible;
(f) employ, implement and maintain security measures and procedures to ensure that no unauthorised person may gain access to the Indeed Flex+ App, the Indeed Flex+ Platform and the Indeed Flex+ API;
(g) be solely responsible for all activity occurring under Workers’ accounts and shall abide by all applicable law in connection with its and its Workers’ use of the Indeed Flex+ App and the Indeed Flex+ Platform, including those related to data privacy, and shall notify Indeed Flex immediately if any unauthorised use of any password or account or of any other known or suspected breach of security;
3.2 In connection with Client’s engagement of Workers through the Indeed Flex+ App, Client shall (i) comply with the Terms of Service, which are hereby incorporated into this Agreement; and (ii) procure that, prior to accessing the Indeed Flex+ App, Workers expressly accept the Indeed Flex+ Guidelines and procure Workers compliance with the same.
3.3 Client agrees to and is responsible for performing the following with respect to its Workers:
(i) Confirm Worker identity;
(ii) Onboard and register Workers with the Service;
(iii) Pay Workers for their work as required by applicable law and make any necessary deductions for tax and National Insurance or Social Security contributions and, if applicable, be responsible for withholding federal, state, and local income taxes, and paying unemployment insurance in an amount and under such terms as required by applicable state law;
(iv) Ensure timesheets are correct prior to processing payroll; and
(v) Resolve any disputes with Workers; and
(vi) If Client is notified by Indeed Flex of any significant changes to the Indeed Flex+ Guidelines or Flexer Terms and Conditions as applicable, notify Workers of the changes.
3.3 Clients may require a Worker to submit timesheets for certain Shifts and/or Engagements, by making use of the Indeed Flex+ online platform. Where Client has made such a request, Clients should instruct Workers to:
(a) at the beginning of each Shift, “clock in” using the mobile application to register the Worker’s start time by ensuring that the Client scans the QR code found on the Worker’s booking;
(b) at the end of each Shift, “clock out” using the mobile application to register the Worker’s finishing time by ensuring that the Client scans the QR code found on the Worker’s booking;
(c) Contact the Client staffing team immediately if the Client supervisor is unable or unwilling to scan the Worker’s QR Code at the beginning of a Shift; and,
(d) Contact the Client staffing team contact if the Worker disagrees with a timesheet.
SCOPE OF THE LICENCE
4.1 Subject to, and conditional upon compliance with, the terms and conditions of this Agreement, Indeed Flex hereby grants to the Client a limited, non-exclusive and non-transferable licence (without the right to grant sub-licences) during the Term, to use (i) the Indeed Flex+ API; (ii) the Indeed Flex Materials; and (iii) the front-end of the Indeed Flex+ App and the Indeed Flex+ Platform in accordance with their intended functionalities, and in accordance with this Agreement.
4.2 Except as otherwise expressly permitted by Indeed Flex, the Client is not authorised under this Agreement to:
(a) license, sub-license, sell, resell, transfer, assign, rent, lease, export, import, act as an intermediary or provider, distribute or otherwise commercially exploit or make available to any third party the Indeed Flex+ API, the Indeed Flex+ App, the Indeed Flex+ Platform or Indeed Flex Materials in any way;
(b) modify or make derivative works based upon the Indeed Flex+ API, the Indeed Flex+ App, the Indeed Flex+ Platform or the Indeed Flex Materials; or
(c) reverse engineer or access the Indeed Flex+ App or the Indeed Flex+ Platform in order to:
(a) build a competitive product or service;
(b) build a product using similar ideas, features, functions or graphics of the Indeed Flex+ App and/or the Indeed Flex+ Platform; or
(c) copy any ideas, features, functions or graphics of the Indeed Flex+ App and/or the Indeed Flex+ Platform.
4.3 The Client must not use the Indeed Flex+ App or the Indeed Flex+ Platform in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
5.1 In consideration of the rights granted and Services provided to the Client under this Agreement by Indeed Flex, the Client shall enter a Service Level Agreement with Indeed Flex for the provision of external temporary staffing services.
6.1 Neither Party grants any rights in its respective Marks or other Intellectual Property Rights other than those expressly granted in this Agreement. There are no implied licences granted under this Agreement and any rights not expressly granted by the Client or Indeed Flex to each other (whether further to this Agreement or otherwise) are hereby fully and expressly reserved to, respectively, Client or Indeed Flex, as the case may be.
6.2 As between the Parties:
(a) Indeed Flex retains and owns all right, title and interest in and to the Indeed Flex App, the Indeed Flex+ App, the Indeed Flex Platform, the Indeed Flex+ Platform, the Indeed Flex Materials, the Indeed Flex Marks, and all derivatives, enhancements and modifications thereof and all Intellectual Property Rights subsisting therein; and
(b) The Client retains and owns all right, title and interest in and to the Client Content, the Client Marks and all derivatives, enhancements and modifications thereof and all Intellectual Property Rights subsisting therein.
6.3 The Client shall only access the Indeed Flex+ App and the Indeed Flex+ Platform in the manner permitted by Indeed Flex and shall not attempt at any time to circumvent system security or access the source code or object code to the Indeed Flex+ App, the Indeed Flex+ Platform or compiled code.
6.4 Save only for any Client Content and Client Marks incorporated therein, all Intellectual Property Rights in and to the Indeed Flex+ App and the Indeed Flex+ Platform (including all source code and any developments and customisations to them) shall remain the absolute property of Indeed Flex and/or its third-party licensors.
6.5 The Client hereby grants to Indeed Flex and its nominees a non-exclusive, right and licence to host, transmit, store, copy, modify, distribute, perform, display, reformat and otherwise use the Client Content and Client Marks in order to:
(a) develop, host and support the Indeed Flex+ App and the Indeed Flex+ Platform and make the same available to Users;
(b) host the Client Content and Client Marks on servers owned or controlled by or on behalf of Indeed Flex;
(c) display, communicate to the public and distribute the Client Content and Client Marks, in whole or in part, in and through the Indeed Flex+ App and the Indeed Flex+ Platform; and
(d) otherwise perform its obligations hereunder
APPOINTMENT OF REPRESENTATIVES
7.1 Each Party shall appoint an authorised representative who shall coordinate his/her Party’s respective activities under this Agreement and provide a focal point of contact on all matters concerning the day-to-day provision of the Services.
8.1 Indeed Flex may be requested by the Client to provide a variety of additional services that are over and above the Services provided under this Agreement or the Service Level Agreement. Any such additional services shall be provided pursuant to a separate agreement with remuneration, conditions, costs and other material terms to be negotiated between the Parties.
8.2 Indeed Flex, in its sole discretion, reserves the right to add, remove, or modify features or functions, or to provide fixes, updates and upgrades, to the Indeed Flex+ App and the Indeed Flex+ Platform.
9.1 Each Party represents and warrants to the other Party that:
(a) it has the full power and authority to enter into and to perform this Agreement and that the person executing this Agreement on behalf of the Party is authorised to do so;
(b) the execution and performance of the obligations and duties of this Agreement by either Party will not violate any agreement to which the other Party is a party or by which it is otherwise bound; and,
(c) any and all activities undertaken by it in connection with this Agreement will be performed in compliance with all applicable laws, rules, and regulations.
9.2 The Client hereby further warrants and represents that:
(a) it has and will maintain throughout the Term all rights, authorisations and licences that are required in order for:
(i) it to fully perform its obligations hereunder;
(ii) it to grant the rights and licences granted herein; and
(iii) Indeed Flex to use the Client Content and Client Marks, as permitted herein;
(b) it shall be solely responsible for Workers’ use of and access to the Indeed Flex+ App and the Indeed Flex+ Platform, and the Client shall operate the same and deal with Users in accordance with all applicable laws ;
(c) it shall be solely responsible for any resulting employment or engagement by the Client or its affiliates of any Worker, including such Workers’ health and security, the payment of any salaries/fees, operating PAYE and any other employment-related responsibilities; and(d)it shall comply with the Terms of Service;
(d) it shall perform all its obligations in the Agreement with due care, skill, promptness and diligence;
(e) Client Content will not violate or infringe the rights of any third party, including without limitation the Intellectual Property Rights or rights of privacy;
(f) its Marks will not violate or infringe the rights of any third party, including without limitation the Intellectual Property Rights or rights of privacy;
(g) it shall not use the Indeed Flex Materials other than as expressly permitted herein; and
(h)it shall comply with its obligations under the Service Level Agreement, if applicable.
(i) it shall comply with its obligations under section 13.
9.3 INDEED FLEX EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY REGARDING PERFORMANCE OF THE SERVICES OR LACK THEREOF, ENGAGEMENT OF FlexerS OR WORKERS VIA THE SERVICES OR AVAILABILITY OF THE SERVICE. INDEED FLEX’S PROVISION OF THE APP, THE PLATFORM AND THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITH RESPECT TO THE PROGRAM AND YOUR USE THEREOF, Indeed Flex AND ITS AFFILIATES, AND ITS AND THEIR THIRD-PARTY LICENSORS, ALL OTHER WARRANTIES INCLUDING WITHOUT LIMITATION NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. FLEXERS AND WORKERS PERFORM UNDER THE DIRECTION OF THE CLIENT AND INDEED FLEX DISCLAIMS ALL WARRANTIES RELATED TO THE SERVICES PROVIDED BY THEM OR ANY INTERACTION BETWEEN THEM AND THE CLIENT.
INDEMNITY AND LIABILITY
10.1 Each Party (“Indemnitor”) will indemnify and hold the other Party (“Indemnitee”), its parent, subsidiary and affiliated companies and entities and its officers, directors, employees and agents (collectively, “Indemnitee Indemnified Parties”) harmless from and against any and all liabilities, costs, expenses, damages and losses (excluding any indirect or consequential losses including, without limitation, loss of profit, loss of reputation) and/or all interest, penalties and reasonable bona-fide third party legal costs and all other third party, reasonable professional costs and expenses actually suffered or incurred by the Indemnitee Indemnified Parties arising directly out of or in connection with any third-party claims or actions brought against the Indemnitee Indemnified Parties to the extent they are based upon a claim that, if true, would:
(a) In the case of Indeed Flex, be an infringement of a third party’s Intellectual Property Rights arising out of or in connection with the authorised use of the Indeed Flex+ App or receipt of the benefit of any of the Services;
(b) In the case of the Client, be a breach of any of its representations or warranties in clause 9 of this Agreement;
(c) In the case of each Party, be in breach of clause 15 of this Agreement,
(d) In the case of the Client any claims made by Client Workers with respect claims relating to Employment, Payment for Services rendered or any other related Dispute; and
(e) in case of the Client for any claim arising out of the use of the Indeed Flex+ Platform, App or Site or breach of this Agreement;
(points (a) – (e) collectively, “Indemnified Claims”).
10.2 If any third party makes an Indemnified Claim, or notifies an intention to make an Indemnified Claim, against the Indemnitor which may reasonably be considered likely to give rise to a liability under this indemnity, the Indemnitee shall:
(a) as soon as reasonably practicable, give written notice of the Indemnified Claim to the Indemnitor, specifying the nature of the Indemnified Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Indemnified Claim without the prior written consent of the Indemnitor (such consent not to be unreasonably withheld or delayed);
(c) allow the Indemnitor sole control and conduct of any action, litigation, settlement, negotiations or other proceedings in respect of the Indemnified Claim at the Indemnitor’s sole expense and any settlement shall be solely within the Indemnitor’s control, provided that the Indemnitee shall have the right but not the obligation to participate in the defence of any such claim and to be represented by counsel of its choice, at the Indemnitee’s sole expense, and provided further that the Indemnitee Indemnified Parties will not settle any such Indemnified Claim without the prior written consent of the Indemnitor. Such consent shall not be unreasonably withheld or delayed, provided that nothing in the foregoing shall require either Party to consent to a settlement that admits liability or imposes any ongoing obligations on such Party.
10.3 Where any Indemnified Claim is made by a third party against the Indemnitee alleging the Indemnitee (in exercising its rights and/or fulfilling its obligations hereunder) is infringing the Intellectual Property Rights of such third party (“Infringing Material”), the indemnity set out in this Agreement shall be subject to the Indemnitor first being entitled (at its cost) either to:
(a) procure for the Indemnitee the right to continue using the Infringing Material;
(b) modify or amend the Infringing Material so that the same becomes non-infringing (but still substantially as envisaged in this Agreement); or
(c) replace the Infringing Material so that, in each case, no further infringement continues.
10.4 Without prejudice to any other rights or remedies, a Party shall not be liable for any delay or failure to perform its obligations or to provide accurate information under this Agreement provided such failure is directly and identifiably attributable to the acts and omissions of the other Party.
10.5 If Indeed Flex’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Indeed Flex shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
10.6 Nothing in this Agreement excludes the liability of either Party for any liability which cannot be limited under applicable law.
10.7 EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER OR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Indeed Flex’S AGGREGATE LIABILITY TO THE CLIENT IS LIMITED TO AMOUNTS PAID OR PAYABLE TO Indeed Flex BY YOU FOR THE SERVICES GIVING RISE TO THE CLAIM.
COMMENCEMENT AND DURATION
11.1 This Agreement shall commence on the Effective Date and shall continue for the Term (as set out in the Service Level Agreement), unless terminated by either Party at any time during the Pilot Term (a period of three (3) months from the Effective Date) by providing the other Party with no less than fourteen (14) days’ prior written notice prior to the expiry of the Pilot Term.
11.2 This Agreement shall terminate immediately upon the expiry or termination of the Service Level Agreement.
12.1 Indeed Flex shall be entitled at any time and for any reason to terminate the Service (in whole or in part) by giving the Client at least thirty (30) days’ written notice (or such other notice period as may be specified in the Service Level Agreement).
12.2 Indeed Flex may terminate the Agreement with immediate effect by written notice to Client in the event that:
(a) Client is in material breach of the Agreement; or (b) Client becomes insolvent or admits its inability to pay its debts generally as they become due .
Client breaches clauses 3 (Client Obligations), 15 (Confidentiality), or 13(Data Protection).
12.4 On termination of the Agreement, both Parties shall pay to the other all amounts properly due under the Service Level Agreement for the Services performed up to the date of termination in accordance with that Agreement;
12.5 On the expiry or earlier termination of the Service Indeed Flex shall reasonably cooperate with Client at the Clients expense to assist an orderly migration of Services to a replacement supplier as the Client may direct.
12.6 Termination or expiry of the Service (however it occurs) does not affect the accrued rights and liabilities of the parties or the enforceability of any other provisions of the Service Level Agreement that are intended to remain in force after its termination or expiry.
CONSEQUENCES OF TERMINATION
12.7.1 On expiry or termination of the Term or the Pilot Term of this Agreement:
(a) each Party shall, return any and all of the other Party’s equipment, materials and deliverables then in its possession. Should such Party fail to do so, then the other Party may enter the defaulting Party’s premises and take possession of them;
(b) all rights and licences granted hereunder shall cease at the date of expiry or termination of this Agreement;
(c) subject always to Clause 13, each Party shall within thirty (30) days of the date of expiry or termination of this Agreement return to the other all of the other Party’s Confidential Information together with any copies made thereof, including copies in all forms, partial and incomplete, on any types of media and in any computer memory, and (if requested in writing) certify to the other Party in writing that it has strictly complied with this obligation and has not retained any copies of the other Party’s Confidential Information;
(d) except as specifically provided for in this Agreement, each Party’s further rights and obligations shall cease immediately on termination of this Agreement and the Parties shall make any reassignments necessary to achieve this, but termination does not affect either Party’s accrued rights and obligations as at the date of termination; and
(e) Clauses which by their terms or intent are to survive termination of this Agreement will do so.
13.1 Processing Instructions: Client acknowledges and agrees that Client is the Data Controller of all User Personal Data for the purpose of the Flex+ service and has engaged Indeed Flex as a Data Processor to Process User Personal Data for the purposes (a) set forth in this Agreement and any other written agreement between the Parties, (b) directed, actioned, or otherwise specified to Indeed Flex through Client’s use of any services subject to this Agreement, and (c) instructed by Client in any other documented instructions to Indeed Flex. In all cases, irrespective of whether Applicable Data Protection Law applies to User Personal Data, Indeed Flex will process User Personal Data only on Client’s documented instructions and not for any other purpose, unless specifically instructed by Client in writing or otherwise required or authorised by Applicable Data Protection Law.
13.1.1 For the purpose of this Agreement:
- The subject matter of Indeed’ Flex’s processing shall be for the purpose of providing the Indeed Flex+ service.
- The duration of Indeed Flex’s processing shall be the applicable term of this Agreement.
- The nature and purpose of the processing are limited to the Services Indeed Flex performs under this Agreement.
- The categories of Personal Data include any User Personal Data uploaded, provided or otherwise made available to Indeed Flex through Client’s use of Indeed Flex+.
- The Data Subjects are the Workers of Indeed Flex+.
13.2 Indeed Flex Obligations as Processor;
13.2.1 Confidentiality: Indeed Flex will ensure that its employees, agents and sub-processors authorised to process User Personal Data have committed themselves to confidentiality.
13.2.2 Data Subject Requests. Taking into account the nature of the processing and the availability of information to it, Indeed Flex shall provide commercially reasonable assistance to Client for the fulfilment of Client’s obligation to respond to a request from a User to exercise such individual’s rights under Applicable Data Protection Law.
13.2.3 DPIAs and Prior Consultation. Taking into account the nature of the processing and the availability of information to it, Indeed Flex shall provide commercially reasonable assistance to Client for the fulfilment of Client’s obligation to carry out a Data Protection Impact Assessment and Prior Consultation requests in accordance with Applicable Data Protection Law.
13.2.4 Security: Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Indeed Flex will implement appropriate technical and organisational security measures to safeguard User Personal Data. Indeed Flex shall notify Client without undue delay after becoming aware of a Personal Data Breach and taking into account the nature of processing and the information available to Indeed Flex, provide commercially reasonable assistance to Client in connection with any obligation Client may have to notify and communicate with individuals, regulators, or other third-parties under Applicable Data Protection Law.
13.2.5 Subprocessors. Client hereby grants general authority to authorise Indeed Flex to engage its Affiliates and any third-parties approved by Indeed Flex to act as Subprocessors to Indeed Flex under this Agreement (the “Subprocessors”), including as to new or replacement Subprocessors. Notwithstanding this general authorisation, Indeed Flex will notify Client of any intended changes to its Subprocessors and give Client a reasonable opportunity, which shall not exceed ten (10) days, to object on commercially reasonable grounds to any such changes. Indeed Flex agrees that it will enter into a written contract with each such Subprocessor that includes terms equivalent to those set out in this Agreement, and remains fully liable to Client for the performance of each such Subprocessor’s obligations thereunder.
13.2.6 Transfers. To the extent that Applicable Data Protection Law applies to the processing of User Personal Data, Indeed Flex agrees that it will not transfer User Personal Data out of the EEA, or the United Kingdom, to a country that has not been identified by the European Commission or a Supervisory Authority under Data Protection Law as a country that provides an adequate level of data protection except where Indeed Flex has ensured appropriate safeguards are in place, such as the Standard Contractual Clauses approved by the European Commission unless otherwise required by applicable law.
13.2.7 Compliance. Indeed Flex shall make available to Client information reasonably necessary to demonstrate compliance with the obligations in this Clause 13. Upon reasonable notice and no more than once per calendar year Indeed Flex shall allow for an audit to be carried out by an independent auditor appointed by the Client to confirm Indeed Flex’s compliance with section 13 of this Agreement, the terms of such audit to be agreed between the parties. Under no circumstances shall the audit reveal trade secrets or confidential information of Indeed Flex to the Client and shall not disrupt the business activities of Indeed Flex. For the avoidance of doubt the costs of this audit shall be borne entirely by the Client.
13.2.8 Notice. In the event that Indeed Flex is required by Applicable Data Protection Law to process User Personal Data for any other purpose or in any other manner, Indeed Flex shall notify Client of that legal requirement before undertaking such processing, unless that law prohibits such notification on important grounds of public interest. Indeed Flex also agrees to notify Client without undue delay if, in Indeed’s opinion, an instruction infringes Applicable Data Protection Law.
13.2.9 Termination. On termination or expiry of the Primary Agreement, Indeed shall destroy all copies of User Personal Data received and/or processed by it under the Agreement unless otherwise required by applicable law.
13.2.10 Costs. Client shall be responsible for any and all reasonable costs arising from Indeed Flex’s provision of assistance in accordance with sections 13.2.2, 13.2.3 and 13.2.7 of this Agreement.
13.2.11 Survival. Indeed Flex acknowledges and agrees that its obligations under this Agreement, for whatever reason, shall continue until such time as Indeed Flex returns or destroys all copies of User Personal Data in accordance with this Agreement.
13.2.12 Conflict. In the event of an express conflict between the terms of Clause 13 and the terms of the Agreement or any other written Agreement between the Parties, the terms of Clause 13 shall govern solely to the extent of the conflict as necessary to comply with Applicable Data Protection Law.
13.3 California Consumer Privacy Act. To the extent that Client Personal Data includes Personal Data of Consumers and is subject to the CCPA, the following additional terms apply to Indeed Flex’s Processing of such Client Personal Data:
- Service Provider: The Parties acknowledge and agree that Client is a Business and Indeed Flex is acting as a Service Provider to Client for purposes of all Processing of such Client Personal Data.
- Restrictions: Indeed Flex further acknowledges and agrees that it shall not (a) Sell such Client Personal Data, or (b) retain, use, or disclose such Client Personal Data (i) for any purpose other than for the specific Business Purpose of performing the Services or (ii) outside of the direct business relationship established by the Primary Agreement, except in all cases as otherwise required by applicable law or permitted by the CCPA.
- Certification: Indeed Flex certifies that it understands and will comply with this section 13.3.
The following definitions apply to all Parts of this Primary Agreement unless otherwise specified herein.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Indeed. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Applicable Data Protection Law” means EU Data Protection Law as applicable, UK Data Protection Law and other privacy and data protection laws applicable to the processing of User Personal Data and the CCPA as applicable.
ATS Provider means any company with which you have contracted for an applicant tracking system.
“Business”, “Business Purpose”, “Consumer”, “Personal Information”, “Sell”, and “Service Provider” have the meanings given to them in the CCPA.
“CCPA” means the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq., including implementing regulations.
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK Data Protection Act 2018; the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and any other applicable legislation relating to Personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal data (including the privacy and security of electronic communications);.
“Data Controller”, “Data Protection Impact Assessment”, “Prior Consultation”, “Process”, “Data Processor”, and “Supervisory Authority” have the meanings given to them in the Applicable Data Protection Law.
“Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. The Parties acknowledge and Agree that this definition shall adjust as necessary to include data defined as “Personal Information,” “Personally Identifiable Information,” and similar terms under applicable Data Protection Laws.
“Personal Data Breach” means an actual, confirmed breach of Indeed Flex’s technical and organization measures used to protect privacy and security of Client Personal Data that results in the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to such Client Personal Data transmitted, stored or otherwise processed by Indeed Flex under the terms of the Agreement.
“Processing” means any operation or set of operations that is performed in relation to Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, restriction, erasure or destruction; and “process” and “processed” shall be construed accordingly.
“User Personal Data” Personal data of Users which is processed by the Client as Data Controller.
14.1 The Client and Indeed Flex confirm their understanding that because the Service is for the supply of goods (namely technology) for the Client’s use, the Employment Regulations will not apply pursuant to regulation 3(3)(b) of the Employment Regulations. Accordingly neither the provision of the Service, Indeed Flex entering into this Agreement, nor Indeed Flex’s performance of any of its obligations here under shall result in:
(a) the contract of employment of any person having effect as if originally made between that person and Indeed Flex; or
(b) Indeed Flex being responsible for any liabilities arising under a contract of employment or its termination, in each case, pursuant to the Employment Regulations.
14.2 If notwithstanding clause 14.1:
(a) the contract of employment (or alleged contract of employment) of any person is found or alleged to have effect as if originally made between that person and Indeed Flex; or
(b) Indeed Flex is found or alleged to be responsible for any liabilities (or alleged liabilities) arising under a contract of employment (or alleged contract of employment) or its termination (or alleged termination), in each case, pursuant to the Employment Regulations, then Indeed Flex shall be entitled to terminate such employment contract forthwith and the Client shall indemnify Indeed Flex against any and all Losses arising from or related to:
(i) such termination (or purported termination) of employment;
(ii) the costs of employing the relevant person from the date of transfer or alleged transfer to the date on which his or her employment terminates;
(iii) any claim by the relevant person in respect of any fact or matter to the extent that such claim concerns or arises from employment with the Client or the termination of that employment;
(iv) any claim by the relevant person in respect of which Indeed Flex incurs liability as a result of the actual or alleged operation of the Employment Regulations; and
(v) any claim relating to the failure by any person to comply with information and consultation obligations under the Employment Regulations.
15.1 The Parties both warrant and represent that they will keep confidential all Confidential Information disclosed to them by the other Party, in particular any Indeed Flex Materials disclosed to Client and any Client Content provided by the Client to Indeed Flex.
The Party receiving Confidential Information (a “Recipient”) will only have a duty to protect Confidential Information disclosed to it by the other Party (“Discloser”): (a) if it is clearly and conspicuously marked as “confidential” or with a similar designation; (b) if it is identified by the Discloser as confidential and/or proprietary before, during, or promptly after presentation or communication; (c) if it is designated confidential by the Terms of Service.
15.2 The obligations of confidentiality in this clause 15 will not apply to any matter that:
(a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under this Agreement or any other obligations of confidentiality;
(b) was independently disclosed to the Recipient by a third party entitled to disclose the same;
(c) was already known to the Recipient before receipt from the Disclosing Party, provided always that the aforementioned exclusions shall not apply to the extent that the Confidential Information comprises Personal Data;
(d) is independently developed by the Recipient without a breach of this Agreement;
(e) is disclosed by the Recipient with the Discloser’s prior written approval; or
(f) is required to be disclosed by operation of law, court order or other governmental demand (“Process”); provided that, to the extent permitted by law, (i) the Recipient shall promptly notify the Discloser of such Process; and (ii) the Recipient shall not produce or disclose Confidential Information in response to the Process unless the Discloser has: (a) requested protection from the legal or governmental authority requiring the Process and such request has been denied, (b) consented in writing to the production or disclosure of the Confidential Information in response to the Process, or (c) taken no action to protect its interest in the Confidential Information within fourteen (14) business days after receipt of notice from the Recipient of its obligation to produce or disclose Confidential Information in response to the Process.
15.3 EACH DISCLOSER WARRANTS THAT IT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL INFORMATION. NO OTHER WARRANTIES ARE MADE. ALL CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER IS PROVIDED “AS IS”.
15.4Both Parties must establish and maintain such security measures and procedures as are reasonably practicable to provide for the safe custody of the Confidential Information.
15.5 Either Party will only store, copy or use the other’s Confidential Information to the extent necessary to perform its obligations under this Agreement.
15.6 Each recipient may disclose Confidential Information as may be required by law, regulation or order of a competent authority to be disclosed, or as reasonably required to be disclosed to a professional adviser of the recipient, provided that, to the extent practicable in the circumstances, the disclosing Party is in each case given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same to the owner of such Confidential Information.
15.7 Each Party will return to the other Party on demand any and all Confidential Information disclosed and/or made available to the receiving Party or destroy the same and shall at the disclosing Party’s request certify that all such Confidential Information has been returned or destroyed as requested. Upon the expiry or termination of this Agreement, each Party will return to the other Party, or destroy (and confirm such destruction in writing), all Confidential Information disclosed to the other Party further to this Agreement (as applicable).
16.1 Any notice given to a Party under or in connection with this Agreement shall be in writing and in English and shall be delivered by hand or by pre-paid first-class post to the following addresses:
(a) to Indeed Flex in the United Kingdom at: Syft Online Limited of One Smart’s Place, 1st Floor, London, WC2B 5LW. To Indeed Flex in the United States of America at: Indeed Flex, Inc. of 6433 Champion Grandview Way, Austin, Texas 78750.
(b) to the Client at the address provided as the main contact point on the platform.
16.2 Any notice shall be deemed to have been delivered:
(a) if sent by hand, when delivered;
(b) if by first class post, five (5) days after posting; and
(c) if by e-mail, as soon as the e-mail was sent, unless the Party sending the notice knows or ought reasonably to suspect that the e-mail was not delivered to the receiving Party’s e-mail address.
GOVERNANCE AND ESCALATION
17.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (“Dispute”), then, except as expressly provided in this clause, the Parties shall follow the procedure set out in this clause.
17.2 Either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the representatives of each Party shall attempt in good faith to resolve the Dispute in accordance with the following timeframes:
Escalation level; Level 1) Timeframe for Resolution; 7 days from the date of the Dispute Notice.
Escalation level; Level 2) Timeframe for Resolution; 14 days from the date of escalation to Level 2 (following a failure to resolve the dispute at Level 1)
17.3 If the Parties are unable to resolve the Dispute in accordance with the above, then the Dispute shall be resolved finally by the appropriate court in accordance with clause 18.10.
17.4 Notwithstanding the above, either Party may at any time issue proceedings or seek remedies before any court or tribunal of competent jurisdiction:
(a) for interim or interlocutory remedies, either in relation to this Agreement or infringement by the other Party of that party’s Intellectual Property Rights;
(b) where compliance with the procedure set out above may leave insufficient time for that Party to commence proceedings before the expiry of the limitation period; and/or
(c) where that Party’s rights may otherwise be seriously prejudiced by a delay in commencing proceedings.
18.1 Nothing in this Agreement is intended to, or shall be deemed to, establish an exclusive relationship, 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 No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
18.3 Neither Party shall assign its rights under this Agreement either in whole or in part without the prior written consent of the other Party, save that Indeed Flex may be entitled to assign this Agreement to any affiliate or group company or in connection with a merger or business sale of its assets.
18.4 No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.5 This Agreement, together with the documents referred to in it (such as the Service Level Agreement and Terms of Service) contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing.
18.6 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
18.7 Except as expressly provided in this Agreement, a person who is not a Party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
18.8 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
18.9 These Indeed Flex+ Terms and Conditions and any dispute arising out of or in connection with these Indeed Flex+ Terms and Conditions or related in any way to the Service (“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of the State of Texas, United States of America, if you are located in the United States, or if you are located in the United Kingdom, in accordance with English law and the the courts of England, without giving effect to conflicts of law principles thereof. .
18.10 The Parties agree that, if you are located in the United Kingdom, the courts of England will have exclusive jurisdiction to decide any matter relating to the enforcement or construction of this Agreement; or, if you are located in the United States of America, the laws of Texas, United States of America, will have exclusive jurisdiction . Your use of the Service constitutes your acceptance of and agreement to all of the terms and conditions defined herein.
SERVICE DESCRIPTION Indeed Flex+
Indeed Flex+ is an online internal worker resource-sharing platform with a supporting mobile app(s)* that enables organisations to effectively manage Users. The platform offers the ability to:
- Schedule activities, by area, by venue
- Offer jobs to all (or selected) Workers by specific area or to the whole venue
- Post jobs by position / job title
- Set pay rates
- Show Worker roles and skills
- Message workers/receive messages from workers
- Scan workers in and out using QR codes
- Produce timesheets
- Rate workers
- Track costs
- Post jobs externally to Indeed Flex*OS and Android versions
Indeed Flex shall use its reasonable commercial endeavours to ensure that the Indeed Flex+ App and the Indeed Flex+ Platform shall, except for maintenance work as provided below, be available to the Users.
Monday – Friday: 7am –10pm
Saturday: 7am –9pm
Sunday: 8am –6pm
Indeed Flex may also undertake emergency maintenance on the Indeed Flex+ App and/or the Indeed Flex+ Platform during operational hours in the event Indeed Flex is experiencing issues which cause of loss, unavailability or restriction of its functionality or other reasonable situations. Such emergency maintenance may be undertaken at any time without notice to the Client.
Indeed Flex shall respond to the Client in respect of any Incident within a reasonable time frame of being notified of such Incident by the Client in writing during operational hours set out above. Once notified of an Incident in accordance with the notification procedure above, Indeed Flex shall use its reasonable commercial endeavours to remedy any such Incident as soon as reasonably practicable having due regard to the severity of the applicable Incident.
As used in this Schedule, “Incidents” may include a major failure, fault, bug, error, malfunction, virus or Trojan, unauthorised systems access, functionality or process degradation and any other major incidents for which Indeed Flex has a responsibility in accordance with this Agreement and which materially affect the Client’s or Users’ use of the Indeed Flex+ App or the Indeed Flex+ Platform.