Terms & Conditions Consultant
These general terms and conditions govern the activity of a consultant (“Consultant”) on behalf of Flextribe A/S, registered in Copenhagen (“Flextribe”) for the respective client (“Client”). The general terms and conditions are supplemented by the individual project-related conditions in the Work Agreement. In case of contradictory content, conditions in the work agreement have priority.
As of 1.04.2019
The Consultant is an independent contractor fully responsible for the provision of his/her (“His” to mean his or her throughout) services. He may perform his contractually agreed duties at places and times of his own choosing, and is not bound by instructions in this regard. The Consultant must protect himself against risk with a professional liability insurance policy.
It is the responsibility of the Consultant to register his business, obtaining any necessary permits or licenses and pay dues to the tax authorities and social security carriers, even if his profession is classified as that of an employee-like self-employed person. The Parties agree that the consultant is self-employed and does not have an employment relationship with Flextribe or with Flextribe’s client.
B. Consulting & Roles
The consultant are fully responsible for the consultant service delivery. There will for each individual assignment/project be a work agreement with the concrete conditions.
During the course of the project/assignment, the Consultant shall:
If the Consultant is unable to provide his services due to illness or injury, he will promptly inform the Client and Flextribe of this fact. Insofar as no project work is carried out, no fee is payable.
When on a work agreement the consultant can provide services to other clients and partners if he chooses, but these other clients can’t be direct competitors to the client he works for
C. Conclusion of Contract
When the Client have an assignment or have a need for a consultants they searches for suitable consultants based on the consultant profiles, and requests interviews that Flextirbe will organize. Flextribe may also reach out to consultants on behalf of the Clients - in this case consultant can submit an application on the specific project. In such an application, the Consultant authorizes Flextribe to negotiate a consultancy contract with the client. Flextribe requires the following information and specifications to be updated on the profile:
Flextribe then submits or offer a work agreement to the Client in compliance with these specifications. The consultant’s service fee are calculated as an hourly rate determined and agreed by the consultant, Flextribe and the client at the conclusion of a contract. Consultants hourly fee will get Flextribe’s fee on top when Flextribe signs a work agreement with the client and subsequently invoices the client.
Flextribe’s requires an agency fee of approximately 12% calculated of total daily rate (excluding VAT). For separately marked projects where Flextribe provides an entire team, the commission may differ from the above-mentioned standards.
The Client may, if necessary, after a personal conversation (by phone or in person) with the Consultant, within a five-day period, accept vis-à-vis Flextribe’s offer and thereby conclude a Consulting contract, provided that the Consultant agrees to the offer within this period of five days after the conversation. If the client makes a counter-offer vis-à-vis Flextribe, Flextribe checks it for the requirements or confers with the Consultant. A consultancy contract is concluded when Flextribe accepts the counter-offer within a five-day period, again with the consent of the Consultant within this five-day period. The consent of the Consultant is legally binding. Should the Consultant withdraw his consent to the project after the initial consent of all Parties (including verbal) and in compliance with all parameters of the service offer (e.g. start date, consultant rate or content), Flextribe reserves the right to claim damages in the amount of lost project revenue.
D. Anti-circumvention Provision
As soon as the consultant has been nominated or invited to interview by Flextribe to the Client for a specific project/assignment, and for a period of up to 18 months after the end of the project (as specified in paragraph J), the Consultant may not accept a request or offer from a Client directly or indirectly in circumvention to his account or to the commission of Flextribe or use such a request or offer as an occasion for further negotiations for the provision of services to or acceptance of a permanent position with the Client or with the Client’s customers (however we offer possibility for employment as a separate agreement see paragraf F). If the Consultant violates this provision, he is obliged to pay Flextribe a contractual penalty in the amount of twice the usual total fee of the respective project/permanent position (plus VAT if applicable); Flextribe reserves the right to assert further claims for damages.
For the period of the consulting engagement and for up to 18 months after the end of the contract, the Consultant is obliged to inform Flextribe of all prospective and all concluded contracts directly or indirectly attributable to his user account or the assignment from Flextribe. This includes the compensation details of contract offers and financial statements for all initial, repeat and end-to-end consultancies, as well as for permanent employment as an employee of Flextribe’s clients or customers of such clients involved in mediating the engagement.
In the event of a circumvention situation, Flextribe reserves the right to exclude the Consultant from the Flextribe service, in parallel with pursuing their financial claims.
E. Fees and Invoicing
Flextribe owes the Consultant a consulting fee for his services: this fee comprises the Consultant’s remuneration and any expenses of the Consultant (in the case of a daily rate excluding travel costs, specified in the relevant work agreement). The consulting fee is determined by calculating the number of days of consulting services provided, and the agreed daily rates. Once Flextribe has received the remuneration from the Client, Flextribe pays the fee (if applicable and as far as agreed including travel expenses) to the Consultant in accordance with the terms specified in the following paragraph. If the Client rightfully draws a discount, this discount is also applied to the payment to the Consultant (and this is also stated accordingly in the Work agreement). In order to record the consulting days, the Consultant shall enter them into time record sheets provided by the client or Flextribe. The Client has seven days to review the times claimed. If the Client does not object to the claims within this period, the times claims are considered to have been accepted. Flextribe shall invoice the resulting amount to the Client on a monthly basis. Flextribe shall receive any complaints by the Client concerning the Consultant.
Flextribe will pay the consultant only once the corresponding invoiced amount has been paid by the Client, whereby payment of the remuneration or agreed fees to the consultant is due within 7 banking days of receipt of the Client’s payment by Flextribe.
Flextribe demands open claims for the Consultant. If the client does not pay until 3 months (or 90 days) after the due date, the Consultant can assert the claim in the amount of the consultancy costs without Flextribe by writing directly to the Client. The default risk is borne by the Consultant.
F. Permanent Employment
If the Client wishes to permanently employ a Consultant, formerly represented by Flextribe, in the protection phase, the client must pay Flextribea commission equal to 15% of the gross annual salary of the consultant within 28 days of the beginning of the Consultant’s permanent employment (plus VAT, if applicable). In the case of a variable salary component, the target bonus of the first year is added to the gross annual salary of the Consultant in the commission calculation.
G. Liability and Indemnity
The Consultant undertakes to indemnify Flextribe and hold it harmless from any claims made by third parties vis-à-vis Flextribe for the consulting services rendered by the Consultant. The Consultant is responsible for all reasonable costs incurred by Flextribe, including the reimbursement of any necessary legal costs of representation.
Whether Flextribe, the Client and the Consultant enter into an employment relationship subject to social insurance shall depend on the actual circumstances of the activity. Flextribe is therefore not responsible for the consequences under civil, public and criminal consequences of such an engagement.
Flextribe and its legal representatives and vicarious agents are not liable for damages caused by or in connection with the performance of obligations under this contract. This limitation of liability does not apply to damages resulting from injury to life, body or health, which are based on an intentional or negligent breach of duty or otherwise on the deliberate or negligent conduct of Flextribe or one of its legal representatives or agents;
a) Which are based on an intentional or grossly negligent breach of duty or otherwise on intentional or grossly negligent conduct by Flextribe or one of its legal representatives or vicarious agents;
b) Which are based on a breach of duty by Flextribe or one of its legal representatives and vicarious agents regarding essential contractual rights and obligations which are essential for the proper performance of the contract and which endanger the achievement of the purpose of the contract (cardinal obligations).
The liability of Flextribe and its legal representatives and vicarious agents under the Product Liability Act remains unaffected by the limitation of liability.
The Consultant grants Flextribe in its entirety all existing and future intellectual property rights and materials developed during the course of the project transferable to the Client.
The Consultant guarantees Flextribe that:
He neither has nor shall in the future transfer the rights of the work product created during the project to third parties;
The work product is his own creation, and has not been copied from third parties;
Insofar as is known to him, the use of the work does not violate the rights of any third parties
No additional fees or other compensation shall be payable for the complete transfer of rights except as set forth in this Agreement.
The Consultant acknowledges that he will have access to "Confidential Information" in the course of the projects/assignments.
For the purposes of this arrangement, "Confidential Information" shall mean any information provided to the Consultant by Flextribe or the Client (whether orally, electronically, in writing or in any other form). Confidential information includes, but is not limited to, information about the project (such as project content, objectives, approach), project briefing, tasks the Consultant should perform, the content of the Consultant-Client relationship, the strategies of the Client or the Client’s clients, methodologies, processes, analysis and all information on recruitment, payment and integration of external employees. Further, confidential information includes the identity of the Client and its clients, and any other information about the Client and client of the Client, unless that information is publicly available. Especially confidential is the fact that the Client is seeking consultants, and that Flextribe was commissioned by the Client.
If the Consultant is unsure which information is not counted as "Confidential Information" within the terms of this Agreement, he must contact the Client and obtain its binding opinion.
Under no circumstances may the Consultant disclose confidential information to third parties, either during or after the completion of the project. In addition, at any time during the project, the Consultant will, at the request of the Client or Flextribe, return all materials with confidential information in his possession to the Client.
In addition, the Consultant agrees to obtain the prior written consent of the Client before accepting work; during the course of, and within the first 12 months after completing a project, either personally or through third parties; on the client's immediate business for a client competitor or even to compete with the Client.
Flextribe may provide unaudited reviews of the Consultant for its performance by former clients for future clients.
J. Duration and Termination
The project begins on the starting date as agreed in the service offer. The project continues until the earlier occurrence of one of the following events:
The agreed ending date (including any amended ending date that may be or has been adjusted by agreement of all involved Parties by email or telephone call (i.e., the respective Client, Consultant and Flextribe).
Termination by the Client in writing without specification of reason and with a notice period of 2 weeks. In this case, non-cancellable travel bookings or cancellation costs are to be borne by the Client on evidence of the Consultant
In addition, the Parties may terminate this agreement in writing with immediate effect in the event of material breach of duty by the other Party. This includes any and all behaviour that could negatively affect a Party’s reputation, and in particular if:
A Party seriously violates the terms of the contract, or continues in such a violation;
A Party is prosecuted or convicted of a criminal offense;
The Consultant does not meet the minimum requirements for the professional service provision.
After completion of a Project/assignment, the Consultant is obligated to promptly:
Hand over all relevant property and all confidential information of the Client to the Client, and irretrievably delete or destroy all information related to the exact contents of the project (whether in writing, or on magnetic or optical storage media).
K. Applicable Law & Jurisdiction
This agreement is governed by Danish law.
In case of disagreement between the parties as to the performance of this Agreement, the parties undertake to keep a conciliation meeting at eight days’ notice where the parties’ advisors, if any, will participate; the purpose of the meeting is to open negotiations with a view to solving the dispute. If that is not possible disputes or disagreements will be settled with the Copenhagen Arbitration.
Any disagreement or dispute between the parties as to the interpretation and scope of this Agreement is to be settled in Danish court in accordance with the general Danish rules of law.
L. Contractual Amendments and Collateral Agreements
These terms, including their Annexes, comprise the complete agreement between the Parties, and replace any and all previous written and oral designs, agreements, and arrangements between them.
Flextribe reserves the right to amend these terms. By continued use of Flextribe’s services, the Consultant agrees to such amendments. Insofar as an amendment is a material amendment with significant effects, Flextribe must provide reasonable advance notice of the change.
M. Severability Clause
Should any of the above provisions be found to be legally invalid, this shall not result in the invalidity of the remaining provisions. Rather, the invalid provision shall be replaced by a valid provision reflecting the economic intent of the invalid provision.