THE PARTIES AGREE
Definitions and interpretation
Definitions
The following definitions will apply for the purpose of this agreement:
Agreement means this labour hire agreement.
Fees means the fees set out in schedule 1.
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affect (including, but not limited to failures of or problems with the internet or a part of the internet, hacker attacks, virus, or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
Related Body Corporate has the meaning given to this term under the Corporations Act 2001 (Cth).
Services means the services set out in schedule 1.
Site means any place at which the Company requests the provision of services.
Term means the time from the commencement date specified in schedule 1 to the termination of this agreement in accordance with clause 11.
Work means the type of work specified in schedule 1.
Worker means any person who is an employee, agent or contractor of TalentGateway and whose services are provided by TalentGateway to the Company.
Interpretation
Headings are for convenience only and do not affect the interpretation of this agreement.
Supply of Workers
From time to time, the Company may request that TalentGateway supply a specified number of Workers, each of whom are suitable for performing the Work (Company Request).
The Company may request any amount of workers at any one time.
TalentGateway agrees that all Workers will be suitable for carrying out the Work.
Replacement of Workers
If not satisfied with the services provided by a particular Worker, the Company will notify TalentGateway as soon as possible. If requested, TalentGateway must replace that Worker with another Worker as soon as possible.
Relationship between the parties
The Company engages TalentGateway to provide the Services as an independent contractor.
Neither TalentGateway, nor any worker, is the Company's employee, partner, legal representative, agent, joint venturer or franchisee.
Neither TalentGateway, nor any Worker, has any right or authority to:
bind the Company;
assume or create any obligations for, or on behalf of, the Company; or
make any representations or warranties for, or on behalf of, the Company.
No contractual relationship will exist between the Company and the Workers.
The Workers are not entitled to any benefit from the Company that is usually attributable to an employee.
TalentGateway agrees to exercise sufficient control over the services performed by the Workers to ensure that those services comply with lawful and reasonable directions issued to the Workers by the Company.
The Company agrees to not directly engage for employment or contractual services any workers supplied by TalentGateway. Any breach of this will incur immediate termination as per clause 14.3. In this instance the Company will still be liable for a pro-rata payment of fees for the services so far provided.
Insurances
TalentGateway must obtain and maintain at all times during the Term of this agreement:
Professional indemnity insurance to provide cover during the duration of the contract
any other insurance that TalentGateway considers necessary to ensure that the interests of TalentGateway, the Company and any Related Bodies Corporate of the Company are protected against any liability incurred through the performance of this Agreement.
All policies of insurance required to be obtained and maintained by TalentGateway to clause 4(a) must be taken out with an insurance office approved to undertake insurance business in Australia under the Insurance Act 1973 (Cth).
TalentGateway must provide to the Company copies of the certificates of currency for each insurance policy referred to in clause 4(a) within 21 days of a request made by the Company.
TalentGateway's specific obligations
TalentGateway will be solely responsible, and will solely bear the liability, for:
the payment of remuneration to the Workers, including salaries and wages, superannuation, annual leave, sick leave, long service leave and other benefits to which workers may be entitled under any contract of service or under any rule, statute, common law or industrial instrument (as defined in relevant legislation);
the payment of all taxes and duties in respect of such remuneration and benefits;
compliance, and the cost of compliance, with all statutory, award or other legal or contractual requirements with respect to employees, agents, servants and contractors;
the maintenance, and the cost, of obtaining appropriate workers' compensation policies to provide coverage for the Workers.
Neither the Company, nor any Related Bodies Corporate of the Company, will have any responsibility for:
the payment of salary or wages to any Worker;
the payment of any payroll tax, PAYG tax instalments or superannuation guarantee charge associated with the employment of any Worker;
annual leave, personal/carers leave or long service leave which may accrue to any Worker; or
any other benefits to which any Worker may otherwise become entitled under any industrial instrument, statute or common law.
Fees
In consideration for TalentGateway providing the Services, the Company must pay TalentGateway the Fees.
GST and invoicing
For the purpose of this clause:
GST means a goods and services tax, or similar value added tax, levied or imposed under the GST Law; and
GST Law means the same as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
TalentGateway will issue an invoice to the Company on a fortnightly basis. The invoice must:
state the rate being charged by TalentGateway and the basis on which it has been calculated;
state the total amount payable by the Company;
comply with the GST Law; and
comply with other laws, including state or territory laws or regulations specifically applicable to the provision of the Services and any other requirements reasonably required by the Company.
The Fees (plus applicable GST) must be paid by the Company within 7 days after receiving the invoice.
Payroll tax
Legislation may provide that, as a client of TalentGateway, the Company is liable for any payroll tax payable when it uses a Worker. TalentGateway is authorised to collect and pay payroll tax on behalf of the Company if, under any applicable payroll tax legislation, that liability falls on the Company. This clause applies even if no employment relationship arises between the Company and any Worker.
The Fee is inclusive of any payroll tax whether it is paid by the Company or TalentGateway. If the Company is required to pay payroll tax, the Fee will be adjusted accordingly.
Payroll tax is not subject to GST. Accordingly should the Company elect for TalentGateway to collect and remit payroll tax on its behalf, the amount of payroll tax will be itemised separately on all documentation including the invoices.
Documentations
TalentGateway agrees to provide the Company with documentation showing:
the number of Workers supplied by TalentGateway to the Company (Supplied Workers);
the dates on which the Supplied Workers were supplied to the Company; and
the total number of hours worked by the Supplied Workers on each of the dates on which their services were supplied to the Company;
TalentGateway agrees to provide all documentation reasonably requested by the Company, in order to enable the Company to verify any information contained in an invoice.
If TalentGateway fails to provide the Company with any documentation required or requested pursuant to this clause, TalentGateway agrees that the Company may withhold any disputed payment until the documentation is provided.
Work health and safety
The Company and TalentGateway must:
make all reasonable attempts to ensure that all work carried out pursuant to this agreement complies with all work health and safety requirements of the state or territory in which the Work is carried out;
ensure that the Workers are not exposed to risks to their health or safety or to hazards arising from the provision of Work;
ensure that any equipment or facilities provided for use in the provision of Work are safe and without risks to health and safety when properly used;
ensure that systems of work and the working environment are safe and without risks to health; and
provide such information, instruction, training and supervision as necessary to ensure that the Work is provided without hazards or risks to health and safety.
TalentGateway must ensure that all of the Workers supplied:
fully comply with the appropriate regulations, standards and legislation;
fully comply with all relevant workplace health and safety procedures of the Company while performing Work;
exercise reasonable and necessary precautions which are appropriate to the nature of the Work and the conditions under which the Work is carried out;
receive adequate training to ensure tasks are undertaken in a manner that minimises the risk to the Workers’ health and safety and the health and safety of others; and
will not undertake any tasks for which they have not received adequate training.
Confidentiality
TalentGateway must maintain the confidentiality of, and not disclose, any trade secret, confidential information or commercially sensitive information about the Company or any of its Related Bodies Corporate obtained while providing services to the Company, other than when required by law or when the information falls into the public domain.
TalentGateway must ensure that each of the Workers maintains the confidentiality of, and does not disclose, any trade secret, confidential information or commercially sensitive information about the Company or any of its Related Bodies Corporate obtained while providing services to the Company, other than when required by law or when the information falls into the public domain.
This clause will survive termination of this agreement
Intellectual property rights
All intellectual property rights in materials developed or created by TalentGateway or Workers while they are providing Work, on the Company's time, or using the Company's resources (including its confidential information), whether such materials were created during business hours or not, will vest in the Company, and neither TalentGateway nor the Workers will have any claim to or interest of any nature in such intellectual property rights. TalentGateway will do, and will ensure that all Workers do, whatever is necessary and sign any document required by the Company to ensure that such intellectual property rights are vested in the Company.
The assignment to the Company of all present and future intellectual property rights under this agreement is without restriction as to use or territory, is in perpetuity and is effective without any further payment to the Company or the Workers, whether by way of royalty or otherwise, in consideration for the assignment.
The Company must ensure that each of the Workers supplied to the Company agree to the terms of this clause before those Workers are supplied to the Company.
Non-competition and non-solicitation
TalentGateway agrees and undertakes that it will not directly engage in any way in promoting, processing, or otherwise dealing with identified or existing customers of the Company
TalentGateway will not, directly or indirectly, in any manner, other than for the benefit of the Company, call upon, solicit, divert, take away, accept, or conduct any business from or with any of the existing clients of the Company or any of its suppliers, and/or solicit, entice, attempt to persuade any other employee or consultant of the Company to leave the Company for any reason or otherwise participate in or facilitate the hire of any person who is employed by the Company.
Warranties and indemnities
Both parties warrant and agree that:
they have the right, power and authority to enter into and perform their respective obligations in accordance with this agreement;
all corporate and other necessary action has been taken by each of them to authorise the signing and performance of this agreement; and
this agreement is valid and legally binding on them in accordance with the terms of this agreement.
TalentGateway warrants and agrees that it:
has the requisite skills, experience, resources and infrastructure to provide and perform the Services;
holds and will continue to hold during the Term, all relevant authorisations required by law to provide the Services; and
will comply with any applicable industrial awards or agreements that apply in respect of its employment, or contracting, of the Workers.
whilst TalentGateway will ensure it takes all necessary action to minimise disruption, TalentGateway holds no liability for any losses financial or physical incurred by TalentGateway or Workers while they are providing work.
For the purposes of clause 10(c), the Company has entered into this agreement as principal and also as agent for each of its Related Bodies Corporate. The terms and conditions of clause 10(c) will also extend to protect the Company's Related Bodies Corporate.
This clause will survive termination of this agreement.
Limitations and exclusions of liability
Nothing in the agreement will limit or exclude the liability of a party for death or personal injury resulting from a party’s gross negligence, fraud, and other liabilities which cannot lawfully be excluded or limited.
Neither party will be liable in respect of any loss of profits, income, revenue, use, production, or anticipated savings.
Neither party will be liable for any loss of business, contracts, or commercial opportunities, except in the case of intentional harm to the other party.
Neither party will be liable for any loss of or damage to goodwill or reputation, except in the case of intentional harm to the other party.
Neither party will be liable in respect of any special, indirect, incidental, punitive, or consequential loss or damage.
Neither party will be liable for any losses arising out of a Force Majeure Event.
Force Majeure Event
Where a Force Majeure arises after the Effective Date, and gives rise to a failure or delay in either party performing its obligations under this Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event, and no party shall be considered to be in breach of this Agreement to the extent that performance of its respective obligations (other than obligations to make payment) is prevent by such Force Majeure Event.
A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:
Forthwith notify the other; and
Will inform the other of the period for which it is estimated that such failure or delay will continue.
The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event, and shall endeavour to continue to perform its obligations under this Agreement so far as reasonably practicable and in accordance with good operating practices.
Irrespective of any extension of time, if a Force Majeure Event occurs and its effect continues for a period of 60 days, either the Customer or the Supplier may give to the other a written notice of termination, which shall take effect 30 days after the giving of such notice. If, at the end of such 30-day period, the effect of the Force Majeure Event continues, this Agreement shall be deemed to have been terminated in accordance with Clause 14.2.
Termination
The Company may terminate this agreement immediately and without the payment of any compensation if:
TalentGateway engages in misconduct or gross negligence;
any Worker engages in misconduct or gross negligence during the time in which the Worker’s services have been supplied by TalentGateway to the Company;
TalentGateway or any Worker commits any action or inaction which damages the reputation, or has the potential to damage the reputation, of the Company;
TalentGateway goes into receivership or liquidation; or
TalentGateway or any Worker is found guilty of an offence resulting in conviction or suspension of a drivers licence, or a criminal offence which in the reasonable opinion of the Company warrants the termination of this agreement.
Either party may terminate this agreement at any time by giving 14 days' notice in writing to the other.
Either party may terminate this agreement at any time immediately if any breach of this agreement has occurred.
Assignment
TalentGateway may not assign this agreement or any of its obligations under this agreement or otherwise transfer the benefit of this agreement or a right or remedy under it, without the prior written consent of the Company.
Miscellaneous
This agreement may only be amended in writing.
This agreement is governed by the laws of Australia
This agreement constitutes the entire agreement between the parties as to the subject matters.