FREEELY Marketplace Terms
Unless terms are specifically defined in these Marketplace Terms they will have the meaning given to them in the Client Platform Terms & Professional Platform Terms, as applicable.
1. Effective Date
1.1 With effect from the point the Platform records the agreed SOW, Client and Professional agree to be bound by these Marketplace Terms, and a single Marketplace Contract is formed directly between Client and Professional for the Project set out in the SOW.
1.2 The term of the Marketplace Contract is the period of the Project as set out in the SOW, subject to any extensions or early termination in accordance with this Marketplace Contract.
2. Services
2.1 Professional shall deliver to Client: (a) the services set out in SOW; and (b) all other obligations of Professional set out in these Marketplace Terms (Project Services), and any amendments and/or additions to the Project Services that may be agreed between Client and Professional and recorded in the Platform.
2.2 Each Party shall comply with the Off-Payroll Working Rules insofar as they apply to the Client/Professional and Project Services.
2.3 In performing obligations under this Marketplace Contract, Professional shall at all times: (a) apply such time, attention and skill as may be necessary for the due and proper performance of the Project Services to the standard to be expected of a professionally experienced supplier of services similar to the Project Services; (b) ensure that, when providing the Project Services, it does not interfere with the activities of Client, its employees, agents, suppliers or customers except as reasonably necessary to carry out the Project Services, and co-operates with any other suppliers of products and services which may need to interface with, or be used in conjunction with, the Project Services; (c) ensure that all written information and materials given by Professional to Client are or were accurate when given; and (d) comply with all Applicable Laws and Client policies and procedures from time to time insofar as they are relevant to the Project Services and have been provided to Professional, including all relevant security and code of conduct policies.
2.4 Professional has the unfettered right to substitute/sub-contract to any other person in relation to the delivery of the Project Services. Professional shall ensure such person possesses the necessary skills, qualifications and experience necessary to deliver the Project Services.
2.5 Professional shall remain liable for all acts and omissions of substitutes/sub-contractors (including ensuring compliance with Client policies) and be responsible for payment of their charges, compensation, benefits and/or expenses (as applicable).
2.6 Either Client or Professional may end Professional’s delivery of the Project Services by giving the notice for convenience set out in the SOW (and this Marketplace Contract shall terminate at the end of the notice period).
3. Professional Fees
3.1 Subject to Professional’s compliance with the Marketplace Contract, Client shall pay Professional the Professional Fees via the Platform as set out in the SOW.
3.2 The Professional Fees do not include applicable VAT, which Client shall pay, in addition to the Professional Fees, at the rate prevailing on the date that the relevant Project Services were supplied, and in the manner prescribed by Applicable Laws.
3.3 Save where withheld under the Off-Payroll Working Rules, Professional shall be solely responsible for all other taxes, national insurance or other withholdings or contributions which may be payable out of, or as a result of the receipt of any Professional Fees.
3.4 Professional Fees are paid to Professional by Client via payment partner as set out in the SOW.
3.5 If Client is subject to the Off-Payroll Working Rules, Client shall comply with the applicable obligations under the Off- Payroll Working Rules using reasonable care as set out at https://www.gov.uk/hmrc-internal-manuals/employment- status-manual/esm10014, including in: (a) carrying out a status assessment on the Professional and providing the Status Determination Statement to Professional as a pdf before agreeing the SOW; and (b) having in place and correctly following a Client Led Disagreement Process.
3.6 If Professional meets the conditions of liability under the Off-Payroll Working Rules (PSC Professional) and the Client also subject to the Off-Payroll Working Rules: (a) if the Project/PSC Professional is assessed by Client as Inside IR35, then Client will account to HMRC in accordance with the Off-Payroll Working Rules; or (b) if the Project/PSC Professional is Outside IR35, then the PSC Professional will be paid without any withholding for National Insurance, income tax or other liability to taxation.
3.7 If Client is not subject to the Off-Payroll Working Rules, PSC Professional shall also self-assess under the Off-Payroll Working Rules where required to do so an account to HMRC at year end where required.
3.8 Professional is the supplier of record for the Project Services, but Client pays payment partner for the Project Services. Client’s obligation to pay for the Project Services is satisfied when Client properly pays the applicable Professional Fee via the payment partner. Because FREEELY concludes the SOW on behalf of the Professional, and Client’s payment to payment partner satisfies Client’s obligation to pay for the Project Services, FREEELY’s name may appear on invoices/card statements (which may also display Specialist’s name). Client may only pay for Project Services via the payment partner and the Professional shall not invoice Client outside of the Platform. Except as otherwise expressly provided in this Marketplace Contract, FREEELY is not the agent, intermediary or other representative of the Professional.
4. Intellectual Property Rights
4.1 Intellectual Property Rights means all vested and future rights of copyright and related rights, design rights, database rights, patents, rights to inventions, trade marks and get-up (and goodwill attaching to those trade marks and that get up), domain names, social media assets, applications for and the right to apply for any of the above, moral rights, goodwill (and the right to sue for passing off and unfair competition), rights in know-how, rights in confidential information, rights in computer software, and any other intellectual or industrial property rights or equivalent forms of protection, whether or not registered or capable of registration, and all renewals and extensions of such rights, whether now known or in future subsisting in any part of the world.
4.2 Professional hereby: (a) assigns to Client all Intellectual Property Rights in any original works created specifically for Client as part of the Project Services; and (b) grants to Client a non-exclusive, worldwide, perpetual and irrevocable licence to copy, store, distribute, publish, adapt, edit and otherwise use any deliverables not assigned under 4.2 for any and all purposes whatsoever.
4.3 Unless otherwise agreed in writing by Client, Professional shall ensure that any third-party materials are licensed to Client in accordance with the relevant licensor's standard licensing terms and such terms are made available to Client. Before using any third-party materials Professional shall seek approval from Client.
4.4 To the maximum extent permitted by applicable laws, Professional shall procure that any individuals involved in the provision of the Services have irrevocably and unconditionally waived all moral rights (including rights of paternity and rights of integrity) in respect of any deliverables.
4.5 Professional must use reasonable endeavours to do or procure the doing of all acts, and execute or procure the execution of all documents that Client may reasonably request from time to time in order to perfect or confirm Client's ownership of the rights assigned by this Marketplace Contract.
4.6 Client grants to Professional a non-exclusive, worldwide, perpetual and irrevocable licence to copy, store, adapt, edit and otherwise use any materials provided by or on behalf of Client as necessary to carry out the Project Services.
5. Data Protection
5.1 Data Protection Laws means the GDPR, the Data Protection Act 2018, the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and any other UK Laws relating to personal data.
5.2 GDPR means (a) the European Union General Data Protection Regulation (EU) 2016/679 on data protection and privacy for all individuals within the European Union (EU) and the European Economic Area; (b) the GDPR as incorporated into United Kingdom (UK) law by the Data Protection Act 2018 and amended by the Data Protection, Privacy and Electronic Communications (Amendments, etc.) (EU Exit) Regulations 2019 (each as amended, superseded, or replaced); and (c) any other data protection laws or regulations modelled on GDPR under Applicable Laws.
5.3 Professional warrants and represents that: (a) Professional (if required by Data Protection Laws) has paid the data protection fee at https://ico.org.uk/for-organisations/data-protection-fee/; (b) Professional has assessed their level of obligations under Data Protection Laws (which as a minimum has involved the assessment at https://ico.org.uk/for- organisations/data-protection-self-assessment/assessment-for-small-business-owners-and-sole-traders/ or an equivalent assessment) and is compliant with the requirements under Data Protection Laws (or any Local Law equivalent); and (c) has in place the necessary measures to ensure ongoing compliance with Data Protection Laws (and any Local Law equivalent).
5.4 Professional acknowledges that for the purposes of the Data Protection Laws, Client is the controller and Professional is a processor. To the extent Professional processes personal data on behalf of Client, the subject matter and the duration of the processing are as set out in the SOW. The nature and purpose of the processing are as set out in the SOW. The type of personal data being processed is as set out in the SOW or otherwise determined by Client, and which may include, but is not limited to, the following categories of data subjects: prospects, customers, business partners and vendors of Client (who are natural persons); employees or contacts of Client’s prospects, customers, business partners and vendors; employees, agents, advisers and freelancers of Client (who are natural persons). The rights and obligations Client in connection with the data processing activities are as set out in the SOW and this Marketplace Contract.
5.5 Professional shall, in relation to any personal data processed in relation to the Project Services (Project Personal Data): (a) process that Project Personal Data only on written instructions of Client; (b) keep Project Personal Data confidential; (c) comply with Client's reasonable instructions with respect to processing Project Personal Data; (d) not transfer any Project Personal Data outside of the UK without Client's prior written consent (and Client consents to any transfers based on a mechanism approved by the GDPR unless more stringent requirements are set out in its relevant security policy); (e) assist Client at Client's cost in responding to any data subject access request and to ensure compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities; (f) notify Client without undue delay on becoming aware of a Project Personal Data breach or communication which relates to Client's compliance with the Data Protection Laws; (g) at the written request of Client, delete or return Project Personal Data and any copies on expiry or termination of the Marketplace Contract unless required by the Data Protection Laws to retain the Project Personal Data; and (FREEELY) maintain complete and accurate records and information to demonstrate compliance with this clause 5.5 and allow for audits by Client or Client's designated auditor.
5.6 Professional shall ensure that it has in place appropriate technical or organisational measures, which may be reviewed and approved by Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
6. Confidential Information
6.1 Confidential Information means all confidential or proprietary information (however recorded or preserved) that is disclosed or made available in any manner (in writing, orally or by access to computer systems or making available data files or in metadata) whether before or after the entry into the Marketplace Contract, directly or indirectly, by or on behalf of the Client to the Professional. Confidential Information shall include: (a) details of relationships or arrangements or requirements of Client, including terms of business and pricing/purchasing arrangements in force or under discussion; (b) content of Client intranet (including policies, internal business materials, proposals, training materials and contact databases); (c) details of the Client’s business methods and methodology, finances, prices or pricing strategy, marketing or development plans or strategies or forecasts, research and development information; (d) information divulged to Client by any third party in confidence; (e) the identity of any prospective client of Client and details of any discussions with prospective clients (including any proposals); (f) personal information about any of Client’s directors, employees and other staff; (g) personal information about directors, employees or other staff any of Client’s clients or prospective clients; (FREEELY) trade secrets and other information or knowledge which a reasonable person would believe to be of a confidential or secretive nature; (i) ideas and concepts whether patentable or not; (j) software, software development tools, source code, engineering information and hardware; and (k) deliverables produced by Professional.
6.2 In consideration of Client making available the Confidential Information to the Professional, the Professional undertakes to the Client that it shall: (a) keep the Confidential Information secret and confidential; (b) not use or exploit the Confidential Information in any way, except for or in connection with, the Project; (c) establish and maintain reasonable security measures to provide for the safe custody of, and to prevent unauthorised access to, the Confidential Information disclosed to it at least to the standards that it would adopt for its own Confidential Information; and (d) only make disclosure of the Confidential Information in accordance with clause 6.3 below. Any other disclosure can only be made with the Client's prior written consent.
6.3 The Professional may disclose the Confidential Information to the minimum extent required by any order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or taxation authority of competent jurisdiction under Applicable Laws.
6.4 The obligations set out in clause 6.2 shall not apply, or shall stop applying, to Confidential Information which the Professional can show to the Client's reasonable satisfaction: (a) that it is, or has become generally available to the public other than as a direct or indirect result of the information being disclosed by the Professional in breach of the Marketplace Contract; (b) was already lawfully known to the Professional before it was disclosed by the Client; (c) has been received by the Professional from a third party source that is not connected with the Client and that such source was not under any obligation of confidence in respect of that information; or (d) was independently developed by it without access to or use of any of the Confidential Information (whether in unaided retained memory or otherwise).
6.5 Nothing in this Marketplace Contract shall prevent any person from reporting any reportable offence to the relevant authorities.
6.6 If requested by the Client at any time, the Professional shall immediately destroy or return to the Client all documents and other records of the Confidential Information that have been supplied to or generated by the Professional. If the Confidential Information is stored in electronic form, the Professional shall erase all such Confidential Information from its computer and communications systems and devices used by it (to the extent reasonably technically practicable).
6.7 Without prejudice to any other rights or remedies that Client may have, Professional acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this clause 6. Accordingly, each Client shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this clause 6.
6.8 The Professional shall be responsible for any unauthorised disclosure or use by its Representatives of the Client’s Confidential Information, other than if such unauthorised disclosure or use was beyond its reasonable control.
7. Warranties and indemnities
7.1 Each Party represents, warrants and undertakes that it has the power and authority to enter into and perform this Marketplace Contract, which constitutes valid and binding obligations on it in accordance with its terms.
7.2 Professional represents, warrants and undertakes that: (a) the provision of the Services by or on behalf of Professional to Client shall not infringe the Intellectual Property Rights, confidentiality or privacy and data protection rights of any third party; (b) in performing its obligations under this Marketplace Contract it shall comply with all Applicable Laws; and (c) it has sufficient insurance cover in place to meet any liabilities to Client under this Marketplace Agreement.
7.3 Professional shall on demand indemnify Client from and against all Losses incurred by Client arising out of or in connection with any breach this Marketplace Contract.
7.4 The restrictions on liability in this clause 7 apply to every liability arising under or in connection with the Marketplace Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.5 Nothing in the Marketplace Contract limits any liability: (a) for death or personal injury caused by negligence; (b) for fraud or fraudulent misrepresentation; (c) Client’s obligation to pay the Professional Fees; or (d) anything else which cannot be limited or excluded under Applicable Laws.
7.6 Subject to clause 7.5, the following types of loss are excluded: (a) indirect and consequential loss; (b) loss of profits, sales or business, agreements or contracts (c) anticipated savings; and (d) wasted expenditure.
7.7 Any claims under the Marketplace Contract by Client must be brought within one year of Client or Client’s Representatives becoming aware of the claim.
8. Termination
8.1 Either Party may terminate the Marketplace Contract and Specialist’s services for the Project at any time for convenience by giving notice to the other Party as set out in the SOW.
8.2 Either Party may terminate the terminate the Marketplace Contract and Professional’s services for the Project, with immediate effect, by giving written notice to the other Party if: (a) the other Party commits a material breach of the Marketplace Contract which is not capable of remedy (or is capable of remedy, but which the other Party fails to remedy within 30 days of receiving notice specifying the breach and requiring the breach to be remedied); or (b) the other Party repeatedly breaches any of the Marketplace Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the agreement between the Parties.
8.3 Either Party may terminate the Marketplace Contract and Professional’s services for the Project, with immediate effect, by giving the other Party notice if: (a) such other Party becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA) or obtains a moratorium under Part A1 of the IA; (b) such other Party ceases or threatens to cease to carry on the whole or a substantial part of its business; (c) any distress or execution shall be levied upon such other Party’s property or assets; (d) such other Party shall make or offer to make any voluntary arrangement or composition with its creditors; (e) any resolution to wind up such other Party (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency) shall be passed, any petition to wind up such other Party shall be presented and not withdrawn or dismissed within seven days or an order is made for the winding up of such other Party; (g) such other Party is the subject of a notice of intention to appoint an administrator, is the subject of a notice of appointment of an administrator, is the subject of an administration application, becomes subject to an administration order, or has an administrator appointed over it; (FREEELY) a receiver or administrative receiver is appointed over all or any of such other Party’s undertaking property or assets; (i) any bankruptcy petition is presented, or a bankruptcy order is made, against such other Party; (j) an application is made for a debt relief order, or a debt relief order is made in relation to such other Party; (k) such other Party is dissolved or otherwise ceases to exist; or (l) the equivalent of any of these events occurs in relation to such other Party under Applicable Laws.
8.4 A breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all material respects other than as to the time of performance.
8.5 Termination or expiry of the Marketplace Contract (howsoever occurring) shall not affect either of the Parties’ accrued rights or liabilities, or the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination or expiry.
9. Anti-bribery & corruption
9.1 Professional agrees to: (a) comply with Applicable Laws relating to anti-bribery and anti-corruption including the Bribery Act 2010 (Bribery Act); (b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act (as amended) if such activity, practice or conduct had been carried out in the United Kingdom; and (c) promptly report to Client any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of the Project Services.
10. Anti-facilitation of tax evasion
10.1 Professional shall: (a) not engage in any activity, practice or conduct which would constitute a tax evasion facilitation offence under the Criminal Finances Act 2017; and (b) promptly report to Client any relevant request or demand to facilitate the evasion of tax in connection with the performance of the Project.
11. General
11.1 Headings shall not affect the interpretation.
11.2 Interpretation of general words shall not be restricted by words indicating a particular class or particular examples.
11.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
11.4 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
11.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
11.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
11.7 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
11.8 Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
11.9 No variation of the Marketplace Contract shall be effective unless it is in writing and signed by or on behalf of each Party.
11.10 Client may assign, transfer, grant any security interest over or hold on trust any of its rights or obligations under the Marketplace Contract or any interest in them. Nothing in the Marketplace Contract shall prevent Client from entering into any agreement or arrangement in relation to any fundraising or public offering.
11.11 Client shall not, without the written consent of FREEELY (which shall not be unreasonably withheld or delayed) assign or transfer any of its rights or obligations under the Marketplace Contract to any third party which is not a Group Company.
11.12 The Marketplace Contract is the entire agreement between the Parties, and replace all previous agreements and understandings between them, relating to its subject matter.
11.13 Nothing in the Marketplace Contract is intended to or shall operate to create a partnership or joint venture of any kind between the Parties. Neither Party shall have the authority to bind the other Party or to contract in the name of, or create a liability against, the other Party in any way or for any purpose.
11.14 The Parties do intend FREEELY to have the right to enforce any provision of the Marketplace Contract under the Contracts (Rights of Third Parties) Act 1999.
11.15 Notices to terminate shall be in writing and delivered by hand or sent by recorded delivery post to the relevant Party at its registered/usual business address. Without evidence of earlier receipt, notices are deemed received: (a) if delivered by hand, at the time of delivery; (b) if sent by recorded delivery, at 9.00 am on the second Business Day after posting; and (c) in the case of post, it shall be sufficient to prove that the notice was properly addressed and posted.
11.16 Any other notices and communications under the Marketplace Contract may be delivered in writing and/or by email, but not by messaging platforms (for example, WhatsApp, Slack, Zoom, Teams, etc).
11.17 If any provision or part-provision of the Marketplace Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Marketplace Contract. If any provision or part-provision of the Marketplace Contract is deemed deleted, FREEELY may replace it with a provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.18 No failure or delay by a Party to exercise any right or remedy provided under the Marketplace Contract or by Applicable Laws 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.
11.19 The rights and remedies expressly conferred by the Marketplace Contract are cumulative and additional to any other rights or remedies a Party may have.
11.20 Expiry or termination of the Marketplace Contract (howsoever occurring) shall not affect either of the Parties’ accrued rights or liabilities, or the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination or expiry.
11.21 The Marketplace Contract and any non-contractual obligations arising in connection with them are governed by and construed in accordance with English law, and the courts of England and Wales shall have exclusive jurisdiction to determine any dispute arising in connection with the Marketplace Contract, including disputes relating to any non- contractual obligations.
FREEELY Marketplace Terms V1. 11-19-24
