20 December 2018

Wingup Terms and Conditions of Service

1. Background

Wingup is a web-based platform,which allows businesses to crowd-source creative solutions to their problems or receive constructive feedback to improve current product or operations.

Wingup’s aim is to create a market,where individuals are valued according to their skills, expertise,creative solutions in businesses, marketing and related areas. This provides businesses with understanding of alternative paths of improving their business model.

Consultants provide their creative ideas to businesses according to an agreed project specification, with freedom to choose when,how and where they do so, without any influence from the Client.

2. These Terms and Conditions of Service

These Terms and Conditions of Service, together with any and all other documents referred to are an agreement ("Agreement") between you and Wingup and govern access to and use of the website wingup.co.uk( “Site” or “Wingup Platform”) which is offered by Wingup Limited, a registered in England and Wales with company number 09783733.

Please read these Terms of Service carefully and ensure that you understand them before using this Site. You agree to accept and be bound by these Terms of Service and our Privacy Policy, when you use the Site or open an account. If you do not agree to comply with and be bound by these Terms of Service, you will not be able to open an account on this Site.

We may modify these Terms of Service, our Privacy Policy and our Cookies Policies from time to time. If we make material changes, we will provide you notice to provide you the opportunity to review the changes before they become effective.

Overview – how Wingup works

  • Only registered users may use the Wingup Platform.
  • Users will register as a Consultant or a Client.
  • Registration is free.
  • A Client posts a Project on the Site,which becomes visible for Consultants and the Project becomes live in the Site’s search engine
  • Consultants seeing a Project may pitch their skills and/or Clients can browse through Consultants’profiles and invite them to view a Project.
  • Once Consultants start applying, a Client discusses the Project specification with each Consultant individually including time frames and price.
  • Once an agreement has been made between a Client and a Consultant –a Project Agreement -the Client will pay the agreed Project Fee and Wingup’s Fee, which will be held pending completion of the Project.
  • Upon completing the Project, consultant submits the work to the Client via the Site.
  • Once the Client accepts the Project , the Project Fee is paid to the Consultant and Wingup’s Fee is paid to Wingup.

3. Definitions and interpretation

In these terms, unless the context otherwise requires, the following definitions shall apply:

Agreement means these Terms of Service, together with any and all other documents referred to herein.

Business Day means any day (other than Saturday or Sunday) on which clearing banks are open for business in London.

Client means the party posting a Project on the Wingup Platform.

Client's Group means the Client, anybody corporate of which the Client is a subsidiary (as defined in section 1159 of the Companies Act 2006), any other subsidiary of such body corporate and any subsidiary of the Client.

Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

Consultant means the individual providing skills to a Client.

Data Protection Legislation means the UK Data Protection Legislation and any other European Union 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, without limitation, the privacy of electronic communications.

Force Majeure means any cause preventing a party from performing any or all of its obligations arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party so affected.

Loss means any demand, contribution, claim, action, proceeding, liability, loss, damage, costs, expenses, tax, national insurance contributions (to the extent permitted by law) and charges and any related penalties, fines or interest whatsoever whether founded in statute, contract, tort or otherwise made or brought against or incurred (including without limitation all losses, liabilities and costs incurred as a result of defending or settling any claims).

Personal Data means all data supplied to the Client by or on behalf of Wingup pursuant to these terms which is defined as personal data under the Data Protection Laws.

PSC means the company through which the PSC Contractor operates.

PSC Contractor means an individual who controls and directs their own limited company through which they contract and offer their services on an independent business to business basis.

Project means a Consultant’s project with the Client subject to the terms of a Project Agreement. Each individual Project shall constitute a separate agreement

Project Agreement means an agreement between the Client and a Consultant for a Project.

Project Confirmation means a notification by the Client to the Consultant through the Wingup Platform to provide their skills.

Project Fee means the fee payable by the Client to the Consultant for a Project.

Project Template means the general requirements of a potential project posted by the Client on the Wingup Platform.

Services has the meaning set out in a Project Agreement.

Supplier means a consultant and (if applicable) an intermediary (including a PSC) to supply the services of the Consultant.

Wingup’s Standard Fee a sum payable by the Client calculated as a percentage of fees payable under each Project Agreement, currently 17% but subject to variation in accordance with clause 18.2.

Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of this Agreement) and all subordinate legislation made (before or after the date of this Agreement) under it from time to time.

Where the context permits, words denoting persons shall include bodies corporate and unincorporated associations of persons, the singular include the plural and vice versa and one gender shall include any gender.

These terms apply (and shall be deemed to be accepted) from the date on which the Client or a Consultant registers on the Wingup Platform and agree to these terms and conditions via a tick box on the Wingup Platform.

4. Obligations of Wingup

4.1

Wingup shall provide the Wingup Platform to facilitate the entering into of Project Agreements between Clients and Consultants.

4.2

Wingup will require the follow to be provided by Consultant before completing registration:

4.2.1

CV evidencing appropriate knowledge or experience

4.2.2

Identification documents

4.2.3

Proof of address

5. Obligations of Clients

5.1

The Client warrants, represents and undertakes that:

(a)

when completing a Project Template it will not breach or directly or indirectly cause Wingup to breach any anti-discrimination laws or provide any information or make any requests that may bring Wingup into disrepute;

(b)

all information provided by the Client when registering on the Wingup Platform will be true and accurate and up to date

5.2

The Client agrees that each Project Template will contain:

(a)

the identity of the Client and, if applicable, the nature of the Client's business;

(b)

the date on which the Client requires provision of the Services to commence and the duration or likely duration of provision of the Services;

(c)

all necessary information for Consultants to assess their suitability and express an interest in entering into a Project Agreement.

5.3

The Client shall not be involved in any way in the manner in which a Consultant provides their Services.

6. Payment of Fees

6.1

The Client shall pay the Project Fee and Wingup’s Standard Fee for each Project in advance by making payment in accordance with payment instructions on the Site.

6.2

Wingup shall cause to be issued to the Client an invoice or invoices for each of the Consultants’ Services and for Wingup’s fee.

6.3

Fees for each Project will be released and paid to the Consultant and to Wingup on completion of such Project.

6.4

The Client shall ensure that payment to the Consultant is made only as set out in this clause 7, any action that encourages or solicits complete or partial payment in any other way is a breach of these terms.

6.5

The Client shall immediately notify Wingup if a Consultant requests that the Client make a payment directly to it or through any channels other than those provided or specified by in this clause 7.

6.6

Wingup shall not be responsible for verifying Services or claims for payment submitted by or on behalf of a Consultant.

6.7

All amounts due under these terms (including any payments due to a Consultant) shall be paid in full to or via Wingup without any deduction or withholding other than as required by law. The Client shall not be entitled to assert any credit, set-off or counterclaim against Wingup in order to justify withholding payment of any such amount in whole or in part.

6.8

VAT, where applicable, shall be payable in addition to all other fees.

6.9

For the avoidance of doubt, Wingup shall only pay any invoices received from Consultants when it receives the necessary funds from the Client to do so. Any interest or claims made by a Consultant in relation to late payment resulting from late payment from the Client will be the Client's sole responsibility.

6.10

The Client shall report to Wingup any request by a Consultant for payment to the Supplier other than via Wingup.

7. Obligations of Consultant

7.1

To provide accurate information on their CV and Wingup profile.

7.2

To be honest and provide accurate information to Wingup and Clients when pitching services in relation to any Project.

7.3

To maintain a valid Paypal account for payment of Project Fees.

7.4

After pitching for a Client’s Project, not to contact that Client outside of the Wingup Platform in relation to such Project.

8. Feedback and reviews

8.1

All Consultants will be subject to feedback evaluations from Clients after completion of a Project.

8.2

Consultants understand that Wingup is not responsible for the feedback content that Clients post, or any harm done by such content. The Client who posts the feedback is directly responsible for its content, and the accuracy and legality of it.

8.3

All Users understand that any use of profanity, offensive, libellous behaviour, illegal activity, or any other form of abuse of the feedback function or any other part of the Site may be banned from further use and reported to the authorities, if applicable.

8.4

Wingup performs checks on feedback with to ensure that feedback is authentic, and will remove feedback that in Wingup’s sole discretion appears to be fake, but makes no claim or warranty of the accuracy or authenticity of any feedback.

8.5

Wingup may, at its sole discretion, also remove feedback at the request of the author.

9. Accuracy of Information

9.1

Although Wingup attempts to ensure that it is correct and accurate,Wingup cannot guarantee the accuracy of the information on this Site, and are not liable for any problems or losses arising from errors in the content.

9.2

In using the Site provided you acknowledge that Wingup is not acting as a contractor or agent and is not responsible for any work done. It is the responsibility of the Client to select a suitable Consultant and to negotiate the Project Agreement and Wingup will not be involved or held liable for any Project Agreement between a Client and a Consultant.

10. Content

10.1

You agree to use the Wingup Platform only for lawful purposes and in a way that does not infringe the rights of or restrict or inhibit anyone else's use and enjoyment of the Site. Messages, profiles, Project descriptions and other content must be civil and tasteful.

10.2

You understand that all postings, messages, text, files, images, photos, video, sounds, or other materials ("content") posted on, transmitted through, or linked from Wingup are the sole responsibility of the person from whom such content originated. You are entirely responsible for all content that you post, email or otherwise make available via the Site.

10.3

You understand that Wingup does not control, and is not responsible for content made available through the service. Furthermore, the Wingup Platform and content available through the Service may contain links to other websites, which are completely independent of Wingup. Wingup makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any such website.

10.4

Your linking to any other websites is at your own risk. You agree that you must evaluate, and bear all risks associated with, the use of any content, that you may not rely on said content, and that under no circumstances will Wingup be liable in any way for any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed or otherwise made available via the Site.

10.5

You acknowledge that Wingup does not pre-screen or approve all content, but that Wingup shall have the right (but not the obligation) in its sole discretion to remove or move any content that is available on the website for violating the letter or spirit of the terms or for any other reason.

11. Confidentiality

11.1

Subject to clause 11.2, each party agrees to keep secret and confidential and not to use disclose or divulge to any third party or to enable or cause any person to become aware of (except for the purposes of the party’s business) any Confidential Information received from any other party.

11.2

Each party shall be at liberty from time to time to make such disclosure:

(a)

to its partners, trustees, shareholders and other participants for the purposes of, but not limited to, reviewing Projects and;

(b)

as shall be required by law or by any regulatory authority to which the party is subject;

(c)

to the receiving party’s professional advisers; provided that the recipient is subject to an obligation to keep the disclosure confidential on the same basis as is required by the receiving party.

11.3

For the purposes of this clause, "Confidential Information" includes:

(a)

any information or know-how of a secret or confidential nature relating to a party, including any information regarding any Project;

(b)

any other information which it may reasonably be expected would be regarded by a person as confidential or commercially sensitive,but shall not include any information which:

(c)

is, or which becomes (other than through a breach of these terms) available in the public domain or otherwise available to the public generally without requiring a significant expenditure of labour, skill or money;

(d)

is, at the time of disclosure, already known to the receiving party without restriction on disclosure;

(e)

is, or subsequently comes, into the possession of the receiving party without violation of any obligation of confidentiality;

(f)

is independently developed by the receiving party without breach of this agreement;

(g)

is explicitly approved for release by the written consent of an authorised representative of the disclosing party; or

(h)

a party is required to disclose by law, by any regulatory or governmental or other authority with relevant powers to which such party is subject or submits, whether or not the requirement has the force of law, or by any court order.

12. Intellectual Property

12.1

Wingup owns all the intellectual property rights relating to the Site, including the designs, text, database, graphics and layouts, and you agree not use or copy any part thereof without our express permission.

12.2

The intellectual property rights on postings, messages, text, files, images, photos, video, sounds, or other materials ("content") Users upload to the Site are retained by the copyright owner, and these are added to the site by Users at their own risk. In doing so you are giving expressed and irrevocable permission for us to store, display and use the content.

13. Termination

13.1

You agree that Wingup in its sole discretion, has the right (but not the obligation) to deactivate your account, block your email address, or otherwise terminate or restrict your access to or use of the Site, immediately and without notice, for any reason, including, without limitation, if Wingup believes that you have acted inconsistently with the letter or spirit of the terms.

13.2

You agree that Wingup shall not be liable to you or any third-party for any termination or restriction of your access to the Site. Further, you agree not to attempt to use the Site after termination.

14. Acknowledgements and Liability

14.1

Nothing contained in these terms shall in any way constitute the Supplier as the employee(s) or worker(s) of Wingup or the Client

14.2

The Client acknowledges that neither the Client nor Wingup supervises and/or controls the actions of the Supplier and as such the Conduct Regulations do not apply.

14.3

The Client acknowledges that Wingup is not an employment agency for the purposes of the Conduct Regulations and is instead a medium through which Consultants find assignments for themselves.

14.4

Consultants are independent contractor and nothing in this Agreement shall render a Consultant an employee, worker, agent or partner of Wingup or a Client and Consultants shall not hold themselves out as such.

14.5

Consultants shall be fully responsible for and indemnify the Wingup against any liability, assessment or claim for taxation whatsoever arising from or made in connection with the performance of the Services, where such recovery is not prohibited by law.

14.6

Whilst every effort is made by Wingupto ensure a reasonable standard of skill, integrity and reliability from the Consultants, Wingup cannot accept responsibility for the quality of the Services provided by the Consultants or their activities.Accordingly Wingup’s liability is limited as set out in this clause 13.

14.7

Wingup does not accept responsibility for any risks relating to any Consultant not complying with any legal or tax requirements when acting as an intermediary. Wingup encourages the Client to carry out its own due diligence on any Consultant it uses.

14.8

The Client acknowledges that there is no contract between Wingup and a Consultant relating to the Services. Wingup takes no responsibility and shall have no involvement in any disputes between the Client and a Supplier.

14.9

The Client acknowledges that Wingup shall not be responsible for supervising, monitoring or directing the Consultant (s) whilst working on a Project and that accordingly, only the Client is in a position to assess and insure against risks in respect of or during or arising out of the period for which the Consultant is performing the Services.

14.10

Subject to clause 13.13, Wingup shall not be liable for any Losses or delay arising from:

(a)

any failure to provide the services of the Consultant, or

(b)

the negligent, wrongful, dishonest or fraudulent acts or omissions or misrepresentations of a Consultant , including, without limitation, any lack of skill of the Consultant; or

(c)

theft of any data or materials or the negligence of a Consultant.

14.11

Wingup shall not be liable for any Losses arising out of:

(a)

any act or omission or misrepresentation (whether before or after the date of this Agreement) of the Consultant;

(b)

any special, indirect or consequential damages or loss; or

(c)

any loss of profit, business, revenue, goodwill, anticipated savings and/or any claims made under third party contracts, arising out of any failure by Wingup to perform any obligations under these terms

14.12

Subject to clause 13.13 and without prejudice to the other provisions of this clause 13, Wingup’s liability in respect of any breach of these terms shall not exceed in respect of any Project a sum equivalent to three times the relevant fees paid (or which would have been payable)to Wingup for such Project.

14.13

Nothing in these terms shall operate to exclude or limit Wingup’s liability for:

(a)

death or personal injury caused by Wingup’s negligence;

(b)

its own fraudulent acts or omissions; or

(c)

any other liability which cannot by law be excluded

14.14

Any responsibility of the Client in respect of deductions for income tax and/or national insurance and accounting to HMRC for the same shall be discharged by the Client and the Client agrees to perform those responsibilities.

14.15

Nothing in this Agreement is intended to, or shall be deemed to, establish 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.

14.16

Each party confirms it is acting on its own behalf and not for the benefit of any other person.

15. Data Protection For individuals

15.1

Wingup will collect and process information relating to individuals in accordance with the privacy policy

15.2

In relation to any Project Wingup will share a Consultant’s personal data a Client or Clients to whom a Consultant pitches their service. Such Client will become a data controllers in relation to such shared data.

15.3

The Consultant shall comply with the data protection policy of both Wingup and the Client when handling personal data relating to any employee, worker, contractor, customer, client, supplier or agent of Wingup or a Client.

16. Data Protection for Clients

16.1

This link contains the framework for the sharing of personal data between Wingup and a Client as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) personal data to be shared between the parties under this agreement collected by the Data Discloser for the purposes of a operating the Site and the entering into and performance of Project Agreements.

16.2

Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation.

17. Anti-Bribery

17.1

party acknowledges and agrees that the others will not tolerate bribery in any form in connection with the conduct of their business.

17.2

Each party shall:

(a)

comply with all applicable laws, statutes, regulations, codes and guidance relating to anti-bribery and anti-corruption ("Anti-Bribery Laws"), including without limitation the Bribery Act 2010;

(b)

not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 if such activity, practice or conduct had been carried out in the United Kingdom;

(c)

not do, or omit to do, any act that will cause the other party to be in breach of the Anti-Bribery Laws; and

(d)

promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by the first party in connection with the performance of this Agreement.

17.3

Each party shall promptly notify the other party if, at any time its circumstances, knowledge or awareness changes such that it would not be able to repeat the warranties set out in clause 17.2

17.4

Breach of this clause shall be deemed a material breach of this Agreement.

18. General

18.1

This Agreement is personal to you and you shall not be entitled to assign or sub-contract obligations or rights under this Agreement to any third party without the prior written consent of Wingup. Wingup shall however be entitled to assign this Agreement and, upon such assignment, without prejudice to the assignor's rights in respect of matters arising prior to such assignment; all references to Wingup shall be deemed to refer to the assignee.

18.2

Wingup reserves the right to change or update these terms and conditions from time to time. As a User of the website, you are responsible for acknowledging any updates of these terms and conditions by visiting this section. Any significant changes in the terms and conditions will be followed by notification emails to all active Consultants and Clients.

18.3

Any notice required to be given under this Agreement shall be in writing signed by a person duly authorised by the sending party and delivered by hand, sent bye-mail or prepaid first class post to the recipient at its or address specified in this Agreement (or as otherwise notified from time to time to the sender by the recipient for the purposes of this Agreement).

18.4

This Agreement shall be governed by and construed in all respects in accordance with English law and the Courts of England and Wales shall have exclusive jurisdiction.

18.5

If any provision or any part of this Agreement is held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law:

(a)

such provision or part shall to that extent be deemed not to form part of this Agreement but the enforceability of the remainder of this Agreement shall not be affected

(b)

to the extent permitted by law, Wingup and the Client shall negotiate in good faith a replacement to any provision severed by a provision which is of similar effect but which is not illegal or unenforceable.

18.6

None of the provisions of this Agreement is intended to be for the benefit of, or enforceable by third parties (other than permitted assignees of Wingup who shall be entitled to enforce the provisions of this Agreement as if original parties to it) and the operation of the Contracts (Rights of Third Parties) Act 1999 is excluded.