FlexClub Terms Of Service

Last update: 12 February 2023

Workshop 17 The Bank 24 Cradock Avenue Rosebank Gauteng 2196

These Terms of Service create a binding agreement (this “Agreement”) between you and FlexiiDrive B.V., a private limited liability company established in The Netherlands, having its offices at Kon. Wilhelminaplein 1, Amsterdam, 1062 HG The Netherlands, registered at the Amsterdam Chamber of Commerce under number 69954283 (“FlexClub”). This Agreement governs your use of the FlexClub services, and those of FlexClub Affiliates, through the online platform at www.flex.club and www.flexclub.co.za, and/or such other addresses and via such other digital channels, apps and media as FlexClub shall publish from time to time (the “FlexClub Platform”), as well as any associated services provided by FlexClub, and the FlexClub website (collectively, the “Services”). 

By using the Services, including by visiting the FlexClub Platform and registering an account, you accept and agree to be bound by this Agreement and you acknowledge that you have reviewed the FlexClub Privacy Policy, as amended and updated from time to time. Nothing contained in this Agreement should be regarded as an offer, and FlexClub has complete discretion to accept or reject your registration to use the Services. 

These Terms of Service contain the following Sections, with terms that apply to specific relationships:

Section 1 – General terms that apply to all agreements, visitors to the Platform and users of the Services;
Section 2 – Specific provisions that apply to Members; and 
Section 3 – Specific provisions that apply to Merchants.

  1. Scope of FlexClub Service

    1. Overview. FlexClub provides an online platform and service that enables users (the “Members”) to make payments to and manage bills with companies that are in the business of renting assets (the “Merchants”) to customers for personal or business use.
    2. FlexClub’s Role and Services. You acknowledge and agree that FlexClub and FlexClub Affiliates are technology providers that do not themselves buy, rent, lease or sublease assets. When Members rent a specific asset from a Merchant, they are entering into a contract directly with each other, which will require the execution of a Rental Agreement. FlexClub is not and does not become a party to such Rental Agreement. Where appointed as such by the Merchant, FlexClub shall act as a fully authorised agent on behalf of a Merchant with respect to all rental management services, including verification of Member eligibility and payment collections, as detailed in this Agreement. FlexClub does not, and will not be deemed to, direct or control Members or Merchants generally or in their performance under this Agreement specifically.
    3. Affiliates. This Agreement refers to certain “FlexClub Affiliates”, that are used by FlexClub in the performance of the Services, that may be operating in the metro area in which you are eligible and registered with FlexClub to use the Services (“Territory”). A FlexClub Affiliate includes any entity that directly or indirectly controls, is under the control of, or is under common control with, FlexClub.
    4. Your Responsibilities. You acknowledge and agree that: (a) you are solely responsible for determining the most effective and cost-effective manner to enter into any rental relationship; (b) except for the Services, you will provide all necessary devices, data plans, and other materials, at your own expense, necessary to use and benefit from this Agreement.  
    5. Third-Party Services and Links. The Services may contain links to third party content and integrations with third party platforms, including financial platforms and data gathering services. FlexClub does not accept responsibility for any loss or damage that may arise from your use of such third party content and integrations.
    6. Credentials. You agree to maintain the email and password associated with your user profile in confidence, and that you will not share these credentials with any third party. You will immediately notify FlexClub of any actual or suspected breach or improper use or disclosure of your credentials.
  2. Eligibility 

    1. Eligibility. By using the Services, you affirm that you: (a) are an individual 18 years of age or over or a duly organised, validly existing business, organisation or other legal entity in good standing under the laws of the country you are established; (b) are able to enter into legally binding contracts; (c) have not previously been terminated, removed, or suspended from the Services; and (d) have not previously entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement.
    2. Specific requirements. Sections 2 and 3 contain additional provisions with respect to eligibility to enter into this Agreement for Members and Merchants respectively.
  3. Use of the Services

    1. License Grant. Subject to the terms and conditions of this Agreement, FlexClub hereby grants you a non-exclusive, royalty-free, non-transferrable, non-sublicensable, non-assignable licence, during the term of this Agreement, to use the Services solely for the purpose of obtaining rental services from the Merchant as a Member. All rights not expressly granted to you in this Agreement are reserved by FlexClub and its respective licensors.
    2. Your Obligations. You shall always use the Services in compliance with the terms of this Agreement and any other policies and standards incorporated herein. You warrant that your use of the Services will always comply with applicable laws and shall not infringe the rights of any other person. You further warrant that you will only use the Services and Rental Assets for the specific purposes for which they are intended and according to what you have selected and agreed with FlexClub and/or the Merchant (e.g. for personal purposes or for business purposes)
  4. Rental Asset

    1. Commencement of Rental Period. To rent an asset, the Member and the Merchant will be required to complete a Rental Agreement, that contains a description of the asset that is made available to the Member (the “Rental Asset”). Collection of the Rental Asset will occur at an appropriate location designated for such purpose by the Merchant, which may incur additional charges. At the time of collection, the Merchant will inspect and document the condition of the Rental Asset. The rental period will start on the date that the Rental Agreement is signed by both the Member and the Merchant (the “Rental Period”).
    2. Asset Return. At the end of the Rental Period, the Rental Asset must be returned to the Merchant. Merchant personnel will inspect the Rental Asset and document the condition of the Rental Asset. The Member will be liable for any damage to the Rental Asset that occurs during the Rental Period, as recorded during this inspection.
  1. Disclaimer of Warranties; No Service Guarantee

    1. Disclaimer of Warranties. You expressly agree that your use of the Services is at your own risk. FlexClub provides, and you accept, the Services on an “as is” and “as available” basis, to the fullest extent permitted by law. Without limiting the foregoing, and except as expressly provided in this Agreement, FlexClub does not warrant that the services will be uninterrupted, free of viruses and other harmful components, accurate, error free, or reliable, or that any defects or errors will be corrected, or does it make any warranties or representations as to the accuracy, currency, or completeness of any information made available through the Services, whether provided in text, audio, video, graphical, or other form. FlexClub is not responsible or liable for any decisions you may make in reliance on the Services, or for any defects or errors that may result from your provision of incomplete or inaccurate information to FlexClub. No advice or information obtained by you from FlexClub will create any warranty. Notwithstanding FlexClub's appointment as the limited payment collection agent for the purpose of accepting payment from Members on behalf of Merchants, FlexClub shall not be liable for any act or omission of the Merchant, the Member, or other third party.
    2. No Service Guarantee. FlexClub does not guarantee the availability or uptime of the Services. You acknowledge and agree that the Services may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and FlexClub is not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
    3. 3 rd -Party Open Banking API's. You expressly understand and agree that:

      1. Your use of each service provided by an API Provider through or in connection with the FlexClub Platform (“API Service”) and all information, products and other content (including that of third parties) included in or accessible from the API Service is at your sole risk. Each API Service is provided on an "as is" and "as available" basis. FlexClub and the API Providers expressly disclaim all warranties of any kind as to the API Services and all information, products and other content (including that of third parties) included in or accessible from the API Provider Services, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
      2. FlexClub and the API Providers make no warranty that (i) the API Services will meet the requirements we need to properly facilitate your full enjoyment of and benefit from the Services, (ii) the API Services will be uninterrupted, timely, secure, or error-free, (iii) the information that may be obtained from the use of the API Services will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by us through the API Services will meet our expectations, or (v) any errors in the technology will be corrected.
  2. Limits of Liability

    1. Generally. FlexClub and its affiliates shall not be liable under or related to this Agreement for any of the following, whether based on contract, tort or any other legal theory, even if a party has been advised of the possibility of such damages: (i) any consequential damages of any type or kind; or (ii) your or any third party’s property damage, or loss or inaccuracy of data, or loss of business, revenue, profits, use or other economic advantage. Nothing in this clause 6 purports to limit or exclude liability that cannot be limited or excluded by applicable law.
    2. In no event shall the liability of FlexClub or its Affiliates under this Agreement exceed two hundred United States dollars.
    3. FlexClub, API Providers and their respective affiliates and account providers shall not be liable for any losses or harms, which lawyers and courts often call direct, indirect, incidental, special, consequential or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses, even if we or the relevant API Provider have been advised of the possibility of such losses or damages, resulting from: (i) the use or the inability to use the API Services; (ii) the cost of getting substitute goods and services; (iii) any products, data, information or services purchased or obtained or messages received or transactions entered into, through or from the API Services; (iv) unauthorised access to or alteration of your transmissions or data; (v) statements or conduct of anyone on the API Services; (vi) the use, inability to use, unauthorised use, performance or non-performance of any third party account provider site, even if the provider has been advised previously of the possibility of such damages; or (vii) any other matter relating to the API Services
  1. Force Majeure 

    1. With Respect to FlexClub. FlexClub will be excused from performance under this Agreement for any period when it is prevented from or delayed in performing any obligations under this Agreement, in whole or in part, due to circumstances beyond its reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemic, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, telecommunications, network, computer, server or Internet downtime, unauthorized access to FlexClub’s information technology systems by third parties, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (“Force Majeure”).
    2. With Respect to Members. If you, as Member, are prevented from complying with any of your obligations set forth in this Agreement for any period as a result of Force Majeure then you shall immediately provide notice thereof to FlexClub: (a) specifying the cause and anticipated duration of the force majeure; and (b) promptly upon termination of the Force Majeure, stating that such Force Majeure has terminated. Compliance with any obligations set forth in this Agreement shall be suspended from the date on which notice is given of force majeure until the date on which notice is given of termination of force majeure. You shall not be liable for any delay or failure to comply with any obligation hereunder, or loss or damage due to or resulting from the Force Majeure, provided that you use and continue to use your best efforts to comply with such obligation(s).
    3. Termination. If a Force Majeure event continues for more than sixty (60) days, the affected counterparty may terminate this Agreement. The terminating party will not be entitled to claim damages as a result of the other party’s delay or failure to comply with any obligations due to the Force Majeure event.
  2. Indemnification

    1. Generally. You shall indemnify, defend (at FlexClub’s option) and hold harmless FlexClub and the FlexClub Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, statutory contributions and taxes arising out of or related to: (a) your breach of your obligations, warranties, representations and/or other undertakings under this Agreement; or (b) a claim by a third party user (including regulators and governmental authorities) directly or indirectly related to your use of the Services.
    2. Members. The Member shall always be and remain liable for any loss or damage, including consequential loss, caused to FlexClub, the Merchant, the Rental Asset, any third party, and/or to the property of any third party, during the Rental Period, regardless of whether such loss or damage is caused by a wilful or negligent act or not, and/or regardless of whether the Rental Asset is being used by you or not at the time that such loss or damage was sustained.
  3. Taxes

    1. Taxes. You acknowledge and agree that you are responsible for taxes arising from any rental and/or related use of the Services or Rental Assets for any purpose. You acknowledge and agree that you are required to complete all applicable tax registration obligations and calculate and remit all tax liabilities as required by the applicable law. Notwithstanding anything to the contrary in this Agreement, FlexClub may in its reasonable discretion based on the applicable tax and regulatory considerations, collect and provide any of the relevant tax information you provide directly to the applicable governmental tax authorities on your behalf or otherwise.
    2. Other tax and labor obligations. You acknowledge and agree that you are solely responsible for any labour and tax obligation you may have, as well as any obligation derived from the applicable laws.
  1. Term and Termination

    1. Term. This Agreement shall commence on the date that you execute it (by registering an Account on the FlexClub Platform and indicating your acceptance of this Agreement in the prescribed means) and shall continue until terminated as set forth herein.

    2. Termination of Agreement 

      1. By Either Party. Either you or FlexClub may terminate this Agreement: i) without cause at any time upon fourteen (14) days prior notice to the other party; ii)immediately, without notice, for the other party's material breach of this Agreement; iii)immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party's filing or submission of request for suspension of payment (or similar action or event) against the terminating party.

        If this Agreement is terminated pursuant to this provision, your user profile will be deactivated and, unless FlexClub in its sole discretion determines otherwise in writing, any outstanding Rental Agreements will be terminated.

      2. By FlexClub. FlexClub may terminate this Agreement or deactivate you immediately, without notice, if you: i) violate or commit a breach of this Agreement or of any Rental Agreement; ii)no longer qualify, under applicable law or the standards and policies of FlexClub to use the Rental Asset, or as otherwise set forth in this Agreement; iii) disparage FlexClub or any FlexClub Affiliate(s); iv) commit an act or omission that causes harm to FlexClub’s or any FlexClub Affiliate(s)' brand, reputation or business as determined by FlexClub in its sole discretion.

        FlexClub may also terminate this Agreement or deactivate you immediately, without notice, for any other reason at the sole and reasonable discretion of FlexClub. If this Agreement is terminated pursuant to this provision, your user profile will be deactivated and, unless FlexClub in its sole discretion determines otherwise in writing, any outstanding Rental Agreements will be terminated.

    3. Termination of Rental Agreements

      1. Termination by FlexClub. FlexClub may terminate a Rental Agreement on behalf of a Merchant in the event that the Member commits a breach of the Rental Agreement or should FlexClub receive instruction from the Merchant to terminate. FlexClub will provide at least ten (10) days’ notice of termination, or such shorter period as FlexClub may in its sole discretion determine necessary should it believe a more immediate termination be needed to protect the interests of FlexClub, any FlexClub Affiliate(s) and/or the Merchant.

      2. The Member may terminate a Rental Agreement (unless otherwise provided in such agreement) at any time on written notice to FlexClub and the Merchant. Following any such termination, the Member will still be expected and required, amongst other things, to make payment in full of all fees and amounts which were due by them up to and including the date of termination, including without limitation the full Rental Price for the month in which they terminate, and they shall not be entitled to any refunds, credits, payments and/or reductions in respect of any fees or amounts paid or payable by them. 

      3. Other than a termination on written notice in accordance with (b) above, should the Member terminate, repudiate or commit any breach of the Rental Agreement or these Terms of Service, or commit any other act which creates the reasonable impression that they no longer consider themselves to be bound by the Rental Agreement, or attempt to do any of these things, they will be liable to pay a penalty equal to 30 (thirty) days’ Rental Price, and the Member hereby irrevocably authorises FlexClub to recover any such shortage directly from their bank account or any other payment method registered on their FlexClub and/or their Merchant account.

      4. Termination for Payment Default. If you are a Member and unable to cover your Rental Price in any given week, FlexClub will give you and the Merchant notice of the arrears. From that date, you will have seven (7) days to make up the arrears (the “Notice Period”). If you are unable to do so, the Rental Agreement will terminate at the end of the Notice Period.

    4. Effect of Termination. Upon termination of the Agreement, you shall immediately cease all use of the Services. The Member must return the Rental Asset to the Merchant as soon as possible (and no later than 24 hours after receiving notice of termination of this Agreement and/or your Rental Agreement). 

  1. Data and Privacy

    1. Data. Through your use of the Services, FlexClub collects data and information about you and your access to and use of the Services (“FlexClub Data”), personal data from you (such as information from your user profile), as well as data and information about third party users made available to you as a Merchant or Member in connection with any other services (“Third Party Information”). FlexClub processes personal data in accordance with its Privacy Policy. Privacy Policy .
    2. Privacy. Subject to all applicable laws, FlexClub may provide to a third party any information (including personal data and any FlexClub Data) about you, as a Member or Merchant, provided hereunder if: (a) there is a complaint, dispute or conflict howsoever arising between a Member and an end-user involving the Member’s commercial use of a Rental Asset or related services; (b) it is necessary to enforce the terms of the Agreement; (c) it is required, in FlexClub’s sole discretion, by applicable law or regulation; (d) it is necessary, in FlexClub’s sole discretion, to (1) protect the safety, rights, property or security of FlexClub, the Services or any third party, (2) detect, prevent or otherwise address fraud, security or technical issues, and/or (3) prevent or stop activity which FlexClub, in its sole discretion, considers to be, or to pose a risk of being, illegal, unethical or legally actionable; or (e) it is required or necessary, in FlexClub’s sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Services. You understand and agree that FlexClub may retain your personal data for legal, regulatory, safety, and other necessary purposes after this Agreement is terminated.
    3. Location Based Services. You consent to FlexClub recording geo-location information from your device and/or any installed sensors in the Rental Asset. You consent to having the geo-location of the Rental Asset monitored throughout the Rental Period. In addition, FlexClub may share and use Members’ geo­-location information for safety, security, technical, marketing and commercial purposes, including to provide and improve the Services.

  2. 3 rd -party APIs

    1. In providing some of the Services, we make use of API Providers.
    2. Provide Accurate Information. You agree to provide true, accurate, current and complete information about yourself, and you agree to not misrepresent your identity or your account information. You agree to keep your bank account information up to date and accurate.
    3. Internet Banking Terms. You warrant that your use of the Services, insofar as they include API Services, complies with the terms and conditions of your own Internet Banking services.

    4. Content You Provide. You are licensing to FlexClub and each API Provider, any transaction data or other information (collectively, “ Content ”) that you provide through or to each API Service. FlexClub and each API Provider may use, modify, display, distribute and create new material using such Content only to provide the API Services or our Services. By submitting Content, you automatically agree, or promise that the owner of such Content has expressly agreed that, without any particular time limit, and without the payment of any fees, FlexClub and each API Provider may use the Content for the purposes set out above.
    5. Third Party Accounts . By using each API Service, you authorise us and the API Providers to access third party sites designated by you, on your behalf, to retrieve information that we require to facilitate and make available the Services to you. For all purposes hereof, you hereby grant us and each API Provider a limited power of attorney, and you hereby appoint us and the Third Party Provider as your true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for you and in your name, place and stead, in any and all capacities, to access third party Internet sites, servers or documents, retrieve information, and use your information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as you might or could do in person, only as required to provide you the Services. You acknowledge and agree that when we or an API Provider accesses and retrieves information from third party sites, we and the API Provider are acting as your agent, and not the agent or on behalf of the third party. You agree that third party account providers shall be entitled to rely on the foregoing authorisation, agency and power of attorney granted by you. you understand and agree that no API Service is endorsed or sponsored by any third-party account providers accessible through the API Service.
    6. Third Party Beneficiary . You agree that the API Provider is a third-party beneficiary of the above provisions, with all rights to enforce such provisions as if the API Provider were a party to this Agreement.
  1. Intellectual Property 

    1. Ownership. The Services and FlexClub Data, including all intellectual property rights therein and in any and all content published on the FlexClub Platform or on other authorised FlexClub channels and media, are and shall remain the property of FlexClub, FlexClub Affiliates and their respective licensors.
    2. FlexClub Marks and Names. You acknowledge FlexClub’s rights in its FLEXCLUB family of trademarks and names, including FLEXIIDRIVE, and FLEXCLUB, alone and in combination with other letters, punctuation, words, symbols and/or designs, the FlexClub Logo (“FlexClub Marks and Names”). You agree that you will not try to register or otherwise claim ownership in any of the FLEXIIDRIVE or FLEXCLUB Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark or name.
  2. Confidentiality

    1. Confidential Information. You and FlexClub both acknowledge and agree that in the performance of this Agreement each may have access to or may be exposed to, directly or indirectly, confidential information of the other party (“Confidential Information”). You acknowledge and agree that in the performance of this Agreement, you may have access to or may be exposed to, directly or indirectly, confidential information that the disclosing party designates as being proprietary or confidential or of which the receiving party should reasonably know that it should be treated as confidential.
    2. Restrictions. You and FlexClub each acknowledge and agree that: (a) all Confidential Information shall remain the exclusive property of the disclosing party (whether it be FlexClub, Merchants, or Members); (b) no party shall use the Confidential Information of FlexClub, Merchants, or Members for any purpose except in furtherance of this Agreement; (c) no party shall disclose the Confidential Information of FlexClub, Merchants, or Members to any third party, except to its employees, officers, contractors, agents and service providers as necessary to perform under this Agreement, provided such persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) each party shall return or destroy all Confidential Information of the disclosing party (whether it be of FlexClub, Merchants, or Members) upon the termination of this Agreement or at the request of the disclosing party (subject to applicable law and, with respect to FlexClub, its internal record-keeping requirements).
    3. Data Security. You and FlexClub shall undertake all reasonable security measures, digital or otherwise, to protect the Confidential Information supplied to them. If you learn of a breach in your systems or other unauthorised leak of Confidential Information, you must immediately notify FlexClub (no later than 24 hours after you learn of the incident), and provide the following information: (a) the Confidential Information that was breached, leaked, or otherwise compromised; (b) when the incident occurred; and (c) any other information requested by FlexClub to assist in remedial efforts.
    4. Excluded Items. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
  3. Amendment of the Agreement

    1. Amendments to Terms. FlexClub reserves the right to modify this Agreement at any time. Please check these Terms of Service and/or this Agreement periodically so that you are aware of any changes. We will notify you by e-mail to the address provided in your user profile and/or by posting a notice on the FlexClub Platform of any changes to this Agreement. Any modifications will be effective upon your receipt of the modified terms, or upon your continued use of the Services after we post a notice of the changes, whichever is earlier.
    2. Supplemental Terms. Supplemental terms may apply to your use of the Services, such as use policies or terms related to certain features and functionality (“Supplemental Terms”), which may be modified from time to time. You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
    3. Linked Documents. FlexClub reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. Such changes will be effective immediately upon publication.
    4. Termination. If you do not agree with any amendment made to this Agreement, you must cancel your registration and stop accessing the FlexClub Platform or using the Services. In the event that you do not agree with an amendment, any outstanding rental or Rental Agreement you have through FlexClub will be terminated.
  1. Governing Law; Dispute Resolution

    1. Types of Disputes. This clause 16 applies to: (a) any claim, dispute, action or proceeding arising from or related to your use of the Services or this Agreement (“FlexClub Dispute”); and (b) any claim, dispute, action or proceeding between an Merchant and a Member arising from or related to or regarding a specific rental (“Rental Dispute”). Together, these will be referred to as “Disputes."
    2. Governing Law. Except as otherwise set forth in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of The Netherlands, excluding its rules on conflicts of laws. The Vienna Convention on the International Sale of Goods of 1980 (CISG) shall not apply.
    3. Notice of Dispute. In the event of a Dispute, the complaining party must give the other a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and a proposed solution, including any relief sought (“Notice of Dispute”). This can be sent via e-mail to the e-mail address of the other party or via the online portal accessible on the FlexClub Platform.ny Notice of Dispute must be received by the relevant party within twelve (12) months of the first occurrence of the events giving rise to the Dispute. If a Notice of Dispute is not received within twelve (12) months, the Dispute is barred.
    4. Initiation of Arbitration. A Dispute can be referred to and shall in that case be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”). The ICC Rules' Emergency Arbitrator provisions are excluded.
    5. Details. The Dispute shall be resolved by one (1) arbitrator to be appointed in accordance with the ICC Rules. The place of arbitration shall be Amsterdam, The Netherlands. The language of the arbitration shall be English.
    6. Confidentiality. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the ICC, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless (i) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings, and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.
  2. Miscellaneous Terms

    1. No Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and FlexClub as a result of this Agreement or your access to and use of the Services. You are not authorised to make any commitments on behalf of FlexClub and FlexClub will not make commitments on your behalf, except as is required for the effective performance of the Services or as expressly stated in this Agreement. If you enter into this Agreement, you acknowledge that the relationship is solely that of a user of the Services.
    2. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the remainder of this Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of this Agreement.
    3. Assignment. You may not assign or transfer this Agreement or any of your rights or obligations hereunder, in whole or in part, without prior written request to FlexClub. FlexClub may assign or transfer this Agreement or any or all of its rights, benefits or obligations hereunder, in whole or in part, under this Agreement from time to time without your consent.
    4. Waiver. FlexClub’s failure to enforce any provisions of this Agreement or respond to a violation by any party does not waive FlexClub’s right to later enforce any terms or conditions of the Terms or respond to any violations.
    5. Entire Agreement. This Agreement, including all Supplemental Terms, the FlexClub Privacy Policy , and any Linked Documents, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter.
    6. No Third Party Beneficiaries. Save where this Agreement expressly confer rights on FlexClub Affiliates, the parties acknowledge that there are no third party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third party beneficiary claims.
    7. Notices. Any notice delivered to you by FlexClub under this Agreement will be delivered by email to the e-mail address associated with your account or by posting on the online portal available to you on the FlexClub Platform. Any notice delivered by you to FlexClub under this Agreement will be delivered by contacting FlexClub at legal@flex.club. Additional Territory-specific notices may be required from time to time.
  1. The member's eligibility to use the services

    1. Eligibility. To be eligible to use the Services as a Member, you must at all times: (a) hold and maintain (i) a valid licence with the appropriate level of certification to use and operate the Rental Asset (if and where applicable), and (ii) to the extent that you are using the Services in part or in full in connection with commercial activities, all licences, permits, approvals and authority that are necessary to provide such commercial services to third parties in the Territory and (b) to the extent that you are using the Services in part or in full in connection with commercial services, possess the appropriate and current level of training, expertise and experience to provide such services in a professional manner with due skill, care and diligence. You hereby represent and warrant that you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all permits, licences, registrations and other governmental authorizations necessary to provide (i) any commercial services using the Rental Asset pursuant to the Rental Agreement, and (ii) other services to third parties in the Territory generally.
    2. FlexClub Verification of Members. You acknowledge and agree that FlexClub shall take reasonable measures and exercise complete discretion to ensure that each Member shall at all times comply with its obligations pursuant to this Agreement or the Rental Agreement. In order to check your credit record, history and creditworthiness, you hereby give your consent to and permit FlexClub, the relevant FlexClub Affiliate and/or our respective agents (a) contacting, requesting and obtaining information from any credit or service provider (or potential credit or service provider) or registered credit bureau relevant, or via an API Provider or other third-party integrated credit assessment applications, to an assessment of your behaviour, profile, payment patterns, indebtedness, whereabouts, and creditworthiness, and using this information to assess your eligibility to, amongst other things, register and maintain a FlexClub account, and to subscribe for or rent a Rental Asset; and (b) furnish information concerning your behaviour, profile, payment, indebtedness, whereabouts, and creditworthiness to the Merchant, any registered credit bureau or to any credit or service provider (or potential credit or service provider) seeking a trade reference regarding your dealings with us.
    3. Documentation. To ensure the Member’s compliance with all requirements set forth above, and to allow FlexClub to comply with any regulatory requirements, the Member must provide FlexClub with written copies of any relevant licences, permits, approvals, authority, registrations, certifications and any other documentation or information which FlexClub may from time to time and in its sole discretion stipulate (collectively, “Documentation”) prior to entering into a Rental Agreement, and throughout the Rental Period as that Documentation is renewed. Failure to provide or maintain such Documentation shall constitute a material breach of this Agreement. As a Member, you consent to FlexClub’s review and verification of any Documentation provided.
    4. Member Account Registration. When you register for the Services, you will be asked to create a user profile by providing your name, a valid and current email address, your mobile number, and a password. You will be asked to create a user profile using, amongst other things, account credentials from third-party services, banking account details and banking credentials. FlexClub will verify any information provided, and may reject your registration if any of the conditions are not met, or for any other reason, in its sole discretion.
    5. Member Responsibilities. Further to all other duties and obligations of Members under this Agreement, you further acknowledge and agree that, except to the extent specifically provided in this Agreement or in the Rental Agreement:
      1. you will provide all necessary devices, data plans, and other materials, at your own expense and risk, necessary to use and benefit from the Services and the Rental Asset to the Merc;
      2. on expiry or termination of the Rental Agreement, you shall return the Rental Asset to the Merchant
    6. FlexClub does not make any warranties or guarantees as to your financial or other potential benefits or performance relating to your use of the Services or the FlexClub Platform. FlexClub functions as an online platform offering rental management and related billing services only and makes no guarantees as to the actions or inactions of third parties, including without limitation any end-users who make use of or benefit from any products or services that you provide that in turn make use of the Rental Asset.
  1. Use of the Rental asset

    1. Rental Agreement. You shall at all times comply with the provisions of the Rental Agreement, and at the very least you shall ensure the following:
      1. Only you or a specifically designated and Merchant-approved additional users may make use of the Rental Asset.
      2. You may not use the Rental Asset: (1) in contravention of any requirements or criteria stipulated by the Merchant in the Rental Agreement; (2) in any illegal manner; (3) in any high risk activity; (4) outside any stipulated territorial boundaries (where applicable) or beyond the borders of the country in which you are renting the Rental Asset, unless authorised by the Merchant in writing; or (5) in any area where there is or may be a risk or incidents of civil unrest, political disturbance or riot or any activity associated with any of the mentioned.
      3. In the event - and to the extent - of any conflict between any of the provisions above and a provision of the relevant Rental Agreement, the Rental Agreement shall prevail.
    2. Costs. You are solely responsible for day-to-day usage costs for the Rental Asset. Neither FlexClub nor FlexClub Affiliates are responsible for the acquisition, cost or maintenance of any devices, rentals and/or services required in order for the Member to use the Rental Asset
    3. Coordination with FlexClub. You shall coordinate and work closely with FlexClub to ensure that the Merchant can access the Rental Asser to perform periodic licensing administration (if applicable) and regular servicing or maintenance.
    4. Asset Inspections and Maintenance. Members may be required to deliver the Rental Asset for regular inspection to a Merchant-approved location and conduct other remote and/or digital inspections at prescribed intervals and periods (including without limitation a video or image submission every thirty (30) days from the commencement of the Rental Period). FlexClub reserves the right to request an inspection of the Rental Asset on behalf of the Merchant at any time and at any reasonable location by giving three (3) days' notice to the Member. Merchants shall manage any maintenance needs that arise during the Rental Period.
    5. Incident Reporting. Members must immediately report any incident or damage involving a Rental Asset to support@flex.club and complete any forms required by the Merchant, if there has been an accident, damage to or theft of the Rental Asset, to the nearest police station as well. You will need to use all reasonable efforts to secure evidence from any available witnesses and to provide FlexClub with photographic evidence and a written description of the incident and any other information the Merchant may request, including identity, contact details and insurance information of any parties involved in the incident. You are also required to cooperate in any loss investigation conducted by the Merchant's claims administrators, or insurers. After an incident, you may not continue to use the Rental Asset unless you have the explicit permission of the Merchant. Failure to timeously report an incident may reduce or invalidate any insurance cover provided by the Merchant of the Rental Asset.
    6. Recovery of Rental Asset. The Member acknowledges that failure to return the Rental Asset in accordance with the terms of this Agreement or the relevant Rental Agreement, or in compliance with any written request from FlexClub on behalf of the Merchant to do so at any time following any breach by the Member of this Agreement or the relevant Rental Agreement, shall constitute unlawful possession by him/her, and FlexClub may give instruction to the Merchant to repossess the Rental Asset wherever it may be found and from whomsoever is in possession thereof. Any costs incurred in recovering the Asset (including without limitation any asset recovery fees as set out in any Rental Agreement or as published or communicated by FlexClub from time to time) as well as the cost of any additional rental days, will be for the account of the Member.
  1. Rental price and deposits

    1. Joining Fee. Members must pay a one-time, non-refundable joining fee (the “Joining Fee”) to FlexClub upon registering their account and/or subscribing for their first Rental Asset. The Joining Fee amount will be determined by the FlexClub in its sole discretion. The Member will not be permitted to take possession of a Rental Asset until the Joining Fee is paid.
    2. Payments. The Member is responsible for paying all fees and amounts when they come due in connection with their use of the Services and/or pursuant to each Rental Agreement. You authorise FlexClub to deduct the Rental Price in respect of each Rental Agreement from your bank account via DebiCheck, debit card, credit card or any other permitted digital wallet or payment account on a weekly, monthly or any other basis, as the case may be, depending on the nature and terms of your Rental Agreement. Any and all debit order mandates authorised by you after 1 January 2023 shall further comply with the DebiCheck terms and conditions. You also authorise FlexClub to deduct any amounts owed, including without limitation your Joining Fee or any shortfall therein, any fines and penalties (including for parking, traffic, and other violations), repossession or collection costs, legal or administrative fees, deductibles and damages, and any other third-party fees or other disbursements that may be identified from time to time. You agree to complete a Payment Authorization Form during your registration that will allow FlexClub to make the above deductions from your bank account, debit card, credit card or other permitted digital wallet or payment account. If the bank account or wallet balances are not sufficient to cover any costs for which you are liable, you agree to make payment of any arrears amount to FlexClub within seven (7) days of receiving notice of the amount due. You may at any time make a cash payment following the instructions provided by FlexClub.
    3. Rental Price changes: in addition to any right of the Merchant to change or increase the Rental Price as contained in the Rental Agreement, FlexClub further reserves the right to change or increase the Rental Price at any time provided that FlexClub provides at least 30 days advance written notice to the Member of such change or increase. The Member’s continued use of the Rental Asset after the expiry of the 30 day period shall constitute the Member’s agreement to the change or increase.
    4. Taxable Person. Where you indicate that you will be using a Rental Asset for commercial purposes, You expressly acknowledge and agree that by agreeing to this Agreement, you intend to provide products or services making use of the Rental Asset in a non-incidental manner and, as such, FlexClub will consider you to be a taxable person in accordance with all applicable VAT and indirect tax legislation.