Definitions and interpretation
Where commencing with a capital letter
- Client means the client identified on the Platform;
- Client Material means all material provided by the Client to the Freelancer for the purpose of this agreement;
- Commencement Date means the date specified in the Job Order and, if no date is specified, the date on which the Job Order is accepted;
- Contract Material means all material brought into existence for the purpose of providing the Services;
- Freelancer means the Freelancer identified on the Platform;
- Intellectual Property means all present and future rights in or in relation to patents, trade marks and designs (whether registered or not), copyright, know-how and trade secrets;
- Job Order has the meaning given to it in clause 2.1;
- Platform means the platform offered by Work for Impact of which Client and Freelancer are members;
- Freelancer Background means all material developed by the Freelancer other than Contract Material;
- Services means the services specified in the Job Order;
- Third Party Intellectual Property means any material provided by the Freelancer to the Client as part of the Services which are a third party’s Intellectual Property; and
- Work for Impact means Work for Impact Limited, 4th floor, 3 Pacific Place, 1 Queen's Road East, Hong Kong Business reg number 2837363.
Where a word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning.
Unless the context otherwise requires:
- a word that denotes the singular denotes the plural and vice versa;
- a reference to a person includes:
- an individual, a body corporate and a government; and
- the trustee, executor, administrator, successor in title and valid assign of that person;
- the word “including” and its other grammatical forms are not words of limitation; and
- a reference to legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation under it.
Prior to the commencement of the Services, the Client and the Freelancer will agree on a document which outlines:
- the Services;
- the timetable for delivery of the Services; and
- the fees, including whether the fees are fixed or on a per-hour basis, (Job Order).
Once agreed, the Job Order forms part of this agreement. To the extent of any inconsistency between these terms, a Job Order or any attachment to the Job Order, the first-mentioned document prevails.
Appointment of the Freelancer
This is an agreement between the Client and the Freelancer. The Client appoints the Freelancer to provide the Services in accordance with the timetable set out in the Job Order and on the terms set out in this agreement, and the Freelancer accepts the appointment.
Obligations of the Freelancer
The Freelancer must:
- liaise with the Client in providing the Services;
- provide the Client with such information and reports as the Client reasonably requests in connection with this agreement and the Services;
- comply with all reasonable and lawful directions of the Client concerning the Services;
- comply with all relevant laws when performing its obligations and exercising its rights under this agreement;
- if a Job Order indicates that the Freelancer must maintain insurance, at all times maintain those insurances set out in the Job Order and, on request by the Client, produce evidence of the currency of such insurance.
Where the Services are to be paid based on an hourly rate, the Freelancer must use the Platform to monitor and log the hours it has worked and acknowledges that the Client may request that Work for Impact audit the hours logged by the Freelancer on behalf of the Client.
The Client must pay the Freelancer for providing the Services the fees specified in the Job Order. The Job Order sets out all expenses, taxes, fees and other charges.
The Client must, subject to this clause 4.2, pay the fees referred to in clause 5.1 in the following manner:
- the Freelancer must at the time set out in the Job Order, provide to the Client an invoice on the platform setting out details of the Services provided, time worked and fees payable in that time period; and
- the Client must notify the Freelancer of its acceptance of the invoice or dispute it within seven days after it is posted on the Platform, otherwise the Client will be deemed to have accepted the invoice and the Services to which it relates
- on acceptance or deemed acceptance of an invoice, the Client must pay the amount shown to the Freelancer through the Platform and the Platform will automatically deduct the amount from the Client’s account.
Where the Services are being provided on a fixed-fee basis, the Freelancer will instruct the Platform to pre-authorise an amount equal to the fees on the Client’s nominated credit card.
Where Job Order specifies that payment security applies in respect of the Services, the Client agrees that the Freelancer will instruct the Platform to deduct the fees for the Services on the Commencement Date (Guaranteed Payment Amount). Once the Services, or the part of the services to which the Guaranteed Payment Amount relate are completed in accordance with the Job Order, that amount will be released to the Freelancer.
The Client and the Freelancer agree that they will use only the Platform to send and receive any payments in respect of this Agreement.
The Freelancer must not during or after the term of this agreement:
- except in the proper course of performance of this agreement, disclose the terms of this agreement or any Client Material or Contract Material to any person without the Client’s prior written consent; or
- use or attempt to use any Client Material or Contract Material in any manner that may cause injury or loss to the Client or in any manner other than that contemplated by this agreement.
The Freelancer must, during and after the term of this agreement, take all such reasonable precautions as are necessary to maintain the confidentiality of the Client Material and the Contract Material and must:
- prevent their disclosure to any person other than in accordance with this agreement; and
- prior to disclosure to any person of any Client Material or Contract Material in accordance with this agreement, obtain a written undertaking of confidentiality from that person with terms substantially the same as the terms of this clause 6.
Subject to the payment of all fees in respect of the Services, the Freelancer assigns all Intellectual Property in the Contract Material and arising out of the provision of the Services to the Client as and when it is created, whether existing as at the date of this agreement or created afterwards.
The Freelancer warrants that it has, prior to the Client accepting the Freelancer’s offer to provide the Services, notified the Client of all Freelancer Material and Third Party Intellectual Property that will be:
- incorporated in the Client Materials or any other material provided to the Client by the Freelancer; or
- required for the Client to enjoy the benefit of the services (other than commercially available software), and specified any restrictions on the Client’s use of any Third Party Intellectual Property.
Subject to the payment of all fees in respect of the Services, the Freelancer grants the Client a perpetual, irrevocable, royalty free licence (including the right of sublicense) to use, reproduce, adapt, modify and communicate to the public the Intellectual Property in any Freelancer Material:
- incorporated in the Client Materials or any other material provided to the Client by the Freelancer; or
- required for the Client to enjoy the benefit of the services.
The Client grants the Freelancer a royalty free licence to use the Intellectual Property in the Client Material for the purpose of enabling the Freelancer to provide the Services.
The Freelancer must obtain the consent of each author of works protected by copyright that are created in the course of providing the Services to the works being used in any manner (including electronically and without attribution) and for any purpose to further the Client’s business, including promoting the Client and its products. The Freelancer must ensure that the consent extends to the Client’s successors in title and any of its licensees or persons authorised by it and is freely given.
The Freelancer warrants that:
- the provision of the Services will not infringe any other person’s intellectual property rights and, subject to clause 7.2, that the Client will be entitled to use the Contract Material without the consent of any other person;
- it, its employees, and all agents and contractors have the necessary experience, skill and qualifications to properly provide the Services on the terms contained in this agreement;
- in delivering the Services it will exercise the standards of skill, care and diligence that would be expected of an expert professional Freelancer of the Services; and
- the Services will be provided in accordance with relevant industry best practice, industry standards and applicable laws and policies notified by the Client to the Freelancer.
The Client Material remains the property of the Client and, on termination of this agreement, the Freelancer must immediately return the Client Material and all copies of it to the Client.
On termination of this agreement, the Freelancer must immediately deliver the Contract Material and all copies of it to the Client.
The Freelancer is responsible for the safekeeping and maintenance of the Client Material and the Contract Material and must ensure that the Client Material and the Contract Material are used, copied, supplied or reproduced only for the purposes of this agreement.
Relationship of the parties
Nothing contained in this agreement creates an agency, partnership, joint venture or employment relationship between the Client and the Freelancer or any of their respective employees, agents or contractors.
Neither the Freelancer nor any person acting on behalf of the Freelancer may hold itself out as being entitled to contract or accept payment in the name of or on account of the Client.
The Client’s only liability is as expressly stated in this agreement. To the extent permitted by law, all other liability is excluded.
The Freelancer must not, without the Client’s prior written consent, engage agents or contractors to assist the Freelancer in providing the Services.
If the Freelancer engages an agent or a contractor to assist the Freelancer in providing the Services, the terms of engagement must be approved by the Client and must contain terms requiring the agent or contractor to:
- undertake obligations of confidentiality in terms substantially the same as the terms of clause 6;
- assign to the Freelancer all intellectual property created under the engagement; and
- maintain such insurance in such amounts as the Client may specify.
The parties may terminate this agreement by agreement with the other party.
If a party (Defaulting Party):
- goes into liquidation, has a receiver or receiver and manager appointed to it or any part of its assets, enters into a scheme of arrangement with creditors or suffers any other form of external administration
- fails, within 7 days after receipt of notice, to remedy any breach of its obligations under this agreement that are capable of remedy;
- breaches any of its obligations under this agreement that are not capable of remedy; or
- persistently breaches its obligations under this agreement,the other party may, by notice to the Defaulting Party, terminate this agreement. If the Freelancer terminates the agreement pursuant to this clause, all fees that have already accrued (where the fees are calculated on an hourly basis) or all fees (where the agreement is fixed-fee) become immediately due and payable by the Client.
Subject to clause 14.2, the parties must during and after the term of this agreement, without delay and in good faith, attempt to resolve any dispute that arises out of or in connection with this agreement within 30 days of providing the other party of a notice of dispute prior to commencing any proceedings, other than proceedings for urgent injunctive relief.
In the event of any dispute regarding fees calculated on an hourly basis where the Client has required the Freelancer to use the Monitoring Tools, the Client will notify the Freelancer of the dispute and the parties will instruct Work for Impact to undertake an audit of the Freelancer’s claim for payment by reviewing the information collected by the Monitoring Tools.
If, following an audit in clause 14.2, Work for Impact determines in its sole discretion that the Freelancer has charged the Client fees for any time during which the Freelancer was not performing the Services, the Freelancer must promptly re-pay any overpayment to the Client through the Platform.
The parties agree that Work for Impact’s determination under clause 1.1 is final.
The parties acknowledge that Work for Impact may decline to undertake an audit, in which case the parties must resolve their dispute in accordance with clause 14.1.
A notice under this agreement must be in writing and may be given to the addressee by:
A notice, other than a notice sent on the Platform, will be deemed to have been received by the addressee on receipt. A notice sent on the Platform will be deemed to have been received by the addressee on the earlier of the addressee responding to the notice and 48 hours from when the notice was sent.
This agreement may only be varied by the written agreement of the parties.
The Freelancer may only assign a right under this agreement with the Client’s prior written consent.
This agreement embodies the entire understanding and agreement between the parties as to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments in relation to, or in any way affecting, the subject matter of this agreement are merged in and superseded by this agreement.
Where the consent or approval of the Client is required under this agreement, the Client may, except as expressly stated, withhold its consent or approval or give it conditionally or unconditionally as it sees fit.
A waiver under this agreement is not binding on a party unless it is in writing and signed by the party. A waiver is not a waiver of any other right.
Each party must promptly sign all documents and do all things that the other party reasonably requests to effect, perfect or complete this agreement and all transactions incidental to it.
Each of the agreements of the parties under this agreement is severable from the others and the severance of one agreement does not affect the other agreements.
The parties must each pay their own legal and other expenses relating directly or indirectly to the negotiation, preparation and entry into of this agreement and all documents incidental to it.
This agreement is governed by and must be construed in accordance with the laws of Hong Kong. Each party:
- irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Hong Kong and all courts that have jurisdiction to hear appeals from those courts; and
- waives any right to object to proceedings being brought in those courts for any reason.