Labour Hire Services Agreement (Australia)
Lend Me A Hand Pty Ltd ABN 33 154 916 917 trading as Sidekicker (“Sidekicker”) operates an online platform enabling its clients to obtain and manage temporary workers through the Sidekicker Platform.
This Agreement applies to any party using the Sidekicker Platform that processes a Job Brief (the “Client”), unless there is another written and signed agreement between Sidekicker and the Client that sets out the terms and conditions relating to Sidekicker providing the Services to the Client, and that agreement has not expired or been terminated as at the date the Job Brief is created.
Each of Sidekicker and the Client are referred to as a “Party” and collectively, the “Parties”.]
a. Sidekicker provides staff on a labour hire basis.
b. The Client wishes to engage Sidekicker to provide labour as outlined in a Job Brief.
c. This Agreement sets out the terms and conditions upon which Sidekicker will provide the Services to the Client.
d. By processing a Job Brief, the Client confirms that it agrees to be bound by this Agreement and any amended term of this Agreement that is subsequently changed in accordance with the terms of this Agreement.
IT IS AGREED
1. Definitions and Interpretation
In this Agreement:
Agreement means this agreement including any Schedules to it and any document signed by both of the Parties that varies or supplements it in accordance with its terms;
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Award has the same meaning as Modern Award, as that term is used by the Australian Government Fair Work Ombudsman;
Business Day means any day which is not a Saturday, Sunday or designated public holiday or bank holiday in Victoria, Australia;
Confidential Information means any information of a confidential nature provided by or made available by a Party, or otherwise obtained by a Party, whether before or after execution of the Agreement, in connection with the Party, the Services or this Agreement, including:
a. all confidential business information, documents, records, financial information, reports, technical information and forecasts which relate to the Party or the Party’s business;
b. the Party’s Intellectual Property; or
c. any information created under or arising out of the provision of Services under this Agreement;
but does not include information which:
a. is in or becomes part of the public domain, other than through a breach of this Agreement or an obligation of confidence owed to the Party or any of its Representatives;
b. was known to Party at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence; or
c. was independently acquired by a Party or developed without breaching any of the obligations set out in this Agreement;
Corporations Act means the Corporations Act 2001 (Cth) and any regulations made under it;
Developed IP means Intellectual Property that is developed or created by Sidekicker (including by a Sidekick) during, in the course of and for the purposes of providing the Services to the Client, but excludes any pre-existing Intellectual Property of Sidekicker or the Sidekick;
Force Majeure Event means any event which (i) is unforeseen and beyond the control of a Party, (ii) occurs without fault or negligence of a Party, and (iii) prevents or delays a Party from performing all or a portion of its Services or obligations under the Agreement or under a Job Brief. Such events may include, but is not limited to one or more of the following:
a. acts of God, earthquake, fire, flood, storm;
b. war, riot, insurrection, vandalism or sabotage;
c. strikes, stoppages, labour disputes and other forms of industrial disturbance;
e. power shortage, breakdown of plant, machinery or equipment;
f. any matters related to pandemic or epidemic; or
g. any measures taken by the State or Commonwealth governments;
GST has the meaning given to the term in A New Tax System (Goods & Services Tax) Act 1999 (Cth), related legislation and any delegated legislation made pursuant to such legislation;
Insolvency Event in relation to a Party means anything that reasonably indicates that there is a significant risk that that Party is or will become unable to pay its debts as they fall due. This includes:
a. the suspension or cessation of its business activities;
b. its liquidation or insolvency or a step being taken to make the Party bankrupt or to wind the Party up;
c. a meeting of the Party’s creditors being called or held;
d. the Party entering into any type of arrangement with, or assignment for the benefit of all or any of its creditors;
e. the Party being made subject to a deed of company arrangement;
f. the appointment of a controller or administrator as defined in section 9 of the Corporations Act;
g. a step being taken to have a receiver, receiver and manager, liquidator or provisional liquidator appointed to the person or any of its assets; or
h. any other act which shows or tends to show that it is insolvent;
Intellectual Property means all present and future rights conferred under statute, common law or equity in and to inventions, know-how, confidential information, trade secrets, patents, patent applications, registered and unregistered trade-marks, registered and unregistered designs, copyright, circuit layouts and all other rights protected by law resulting from intellectual activity in, but not limited to, the industrial, scientific, literary or artistic fields;
Job Brief means a request for the provision of labour hire services posted by the Client at the Sidekicker Platform or in writing via another method as agreed by the Parties;
Loss means any claim, damage, loss, cost, charge, expense (including legal costs), outgoing, payment or liability of any kind, including any claims by third parties;
Party means Sidekicker or the Client as the context requires;
Rate means the sum set out in Clause 8.1 as payment by the Client to Sidekicker under a Job Brief;
Related Entity has the same meaning as under the Corporations Act;
Reporting Requirements means any statutory or other obligation (including an obligation imposed as a condition of Sidekicker’s holding any license or certification) that Sidekicker has to make reports, or submit to audit, about the provision of Sidekicker’s Services or supply chains;
Representative means any director, officer, employee, agent, contractor, subcontractor, adviser or a Related Entity of a Party, and for the avoidance of doubt, when referring to Sidekicker, includes its Sidekicks;
Services means the provision by Sidekicker of labour hire services to the Client in response to a Job Brief;
Sidekick means an employee of Sidekicker who is selected to provide the Work to the Client in accordance with a Job Brief;
Sidekicker Platform means any system, website or platform provided by Sidekicker (including the Sidekicker Sites) to facilitate the engagement of Sidekicks by hirers via Sidekicker, and includes any other sites and services owned or controlled by Sidekicker;
Sidekicker Sites means the websites at www.sidekicker.com and https://app.sidekicker.com/account/login;
Term means the period from which this Agreement first becomes effective until the date on which it is terminated;
Work means services performed or provided by a Sidekick at the Work Site in response to a Job Brief;
Work Site means any location, premises or building at which a Sidekick is, will or has worked for the purposes of providing the Work.
In this Agreement, except where the context otherwise requires:
a. the singular includes the plural and vice versa, and a gender includes other genders;
b. another grammatical form of a defined word or expression has a corresponding meaning;
c. a monetary reference is to Australian currency;
d. a reference to time is to Australian Eastern Standard Time or Australian Eastern Daylight Time (as the case may be);
e. a reference to a Party includes the Party’s executors, administrators, successors and permitted assigns and substitutes;
f. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
g. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
h. the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
i. headings are for ease of reference only and do not affect interpretation;
j. if a Party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly;
k. an obligation, representation or warranty in favour of more than one person is for the benefit of them jointly and collectively;
l. any agreement, representation, warranty or indemnity in favour of two or more Parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
m. a rule of construction does not apply to the disadvantage of a Party because the Party was responsible for the preparation of this Agreement or any part of it; and
n. if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
This Agreement will remain in force for the Term unless terminated earlier or extended in accordance with this Agreement.
3.1 Provision of the Services and use of Sidekicker Platform
3.1.1 Sidekicker will provide the Services to the Client on the terms set out in this Agreement.
3.1.2 These terms constitute the master agreement between Sidekicker and the Client for the supply of Sidekicks through the Client’s use of the Sidekicker Platform.
3.1.3. For the avoidance of doubt, the Client does not have to accept Sidekicker’s terms, and should feel free to negotiate the terms with Sidekicker. However, once the Client has accepted the terms, they will govern all future Job Briefs and Services provided unless they have been varied or terminated according to the terms of this Agreement.
3.2 Non-exclusive appointment
The appointment of Sidekicker is non-exclusive and this Agreement does not purport to restrict Sidekicker’s right to perform any services itself or contract with third parties for the performance of services similar to the Services provided by Sidekicker to the Client.
3.3 No guarantee of being able to supply a Sidekick
3.3.1 Sidekicker does not guarantee that it has a suitable or available Sidekick for any given Job Brief posted by the Client.
3.3.2 The Client accepts the risk that a Sidekick who has accepted a shift under a Job Brief may withdraw from the shift at any time and for any reason. Sidekicker will use reasonable endeavour to assist the Client to get a replacement of Sidekick(s) when it is reasonably practicable to do so, but the Client acknowledges that Sidekicker cannot guarantee that it will have suitable and available Sidekicks to fulfill the Job Brief. Sidekicker shall not be liable for any Loss suffered by the Client associated with such withdrawal.
3.4 Smart Hire Fee
All interactions between a Client and a Sidekick initiated through Sidekicker must be arranged through the Sidekicker Platform. If following the provision of the Services (and within 6 months since a Sidekick was last engaged by the Client), the Client wishes to directly employ a Sidekick, it may do so if it has first advised Sidekicker of this intention in writing. In such cases, unless otherwise agreed by the Parties, the Client must pay Sidekicker the Base Fee, as set out in the table below, for each Sidekick it employs. If the Client employs a Sidekick directly but does not advise Sidekicker of this in writing prior to the first day of that employment arrangement commencing, the Client must pay Sidekicker, at Sidekicker’s discretion, the Breach Fee instead of the Base Fee, as set out in the table below, for each Sidekick it employs. The applicable Base Fee or Breach Fee (as the case may be) must be paid to Sidekicker in full within the period as set out in Clause 8.8 once Sidekicker issues a tax invoice to the Client for such fee, or as otherwise agreed by the Parties in writing.
For the avoidance of doubt, the Base Fee and Breach Fee will not apply if a Sidekick responds (unsolicited) to a general advertisement and bona fide recruitment campaign of the Client that is not targeted at the Sidekick(s).
SMART HIRE FEE
(depending on the number of hours that a Sidekick has worked for the Client)
up to 500 Hours
> 1,000 Hours
General Assistant, Pickpacker, Forklift, horticultural worker
Hospitality and events staff, chefs, cooks
Call centre staff, office assistants, inbound sales staff
4.1 Employment of Sidekicks
Sidekicker will employ its staff under the most appropriate employment contract type in accordance with relevant employment frameworks.
4.2 Terminating or changing work patterns of Identified Sidekicks
The Client acknowledges that, from time to time, the employment status of a Sidekick might change due to statutory provisions, legal compliance, and other reasons (including but not limited to, casual conversion). Sidekicker will notify the Client if it identifies any Sidekick(s) engaged by the Client is subject to such possible change of employment status.
Upon receiving such notification from Sidekicker, if the Client decides to continue to engage the identified Sidekick(s) in any Job Briefs, the Client agrees that:
a. It will comply with the required termination notice period as notified by Sidekicker, and will provide adequate notice of any intended changes to the Work arrangement of the identified Sidekicks in advance;
b. It will pay any revised Rates and other entitlements of that identified Sidekick(s) as notified by Sidekicker;
c. Sidekicker may withdraw one or more of the identified Sidekick(s) from continuing to perform Work for the Client at its sole discretion.
4.3 Warranties in relation to Sidekicks
Sidekicker warrants that, in connection with each Sidekick provided to the Client:
a. it has complied with all applicable laws and regulations, including but not limited to any occupational health and safety, workers compensation, superannuation, employment, discrimination and migration laws;
b. it will be responsible for each Sidekick’s statutory or Award entitlements, including but not limited to wages, overtime, annual leave, personal leave, long service leave, workers compensation and notice payments;
c. it will pay all necessary taxes (including fringe benefits tax, income tax and payroll tax) and superannuation in relation to the Sidekick and provide the Sidekick with group tax certificates; and
d. it will keep all necessary employment records of the Sidekick.
4.4 Standard of behaviour
Sidekicker will take reasonable steps to require its Sidekicks to:
a. comply with the Client’s relevant policies and procedures relating to occupational health and safety which have been provided to Sidekicker in writing not less than 10 Business days prior to the commencement of Work by the Sidekick(s) at the Work Site;
b. comply with lawful and reasonable directions of the Client and its Representatives;
c. keep the Client’s Confidential Information confidential;
d. wear such clothing (including personal protective clothing) provided by Client, and use such equipment while at the Client’s facility as is reasonably appropriate or otherwise reasonably required by the Client;
e. comply with any conditions of entry or other site specific requirements as notified by Sidekicker and/or the Client from time to time; and
f. not use any property of the Client for any purpose other than to perform the Work required by the Client and will return any such property of the Client used in the provision of the Work to the Client.
4.5 Nature of the relationship between the Client and Sidekick
Nothing in this Agreement creates a relationship between the Client and any Sidekick of employer and employee.
5. Other obligations of Sidekicker
Sidekicker will take reasonable steps to verify that the Sidekicks hold the relevant qualifications or certifications as specified by Sidekicker in the Sidekicker Platform, but does not warrant the Sidekicks’ ability to carry out any specific tasks by holding such documentation. It is the responsibility of the Client to ensure that the Work requested in the Job Brief is performed with due consideration and assessment of the skill level, competence and experience of the Sidekicks.
Because the Sidekicks are under the Client’s supervision, direction and instruction, Sidekicker makes no representation or guarantee that it or any of its Sidekick will achieve a certain level of performance, achieve a certain outcome, solve a particular problem, or attain a specific goal.
6. Obligations of the Client
6.1 General obligations
The Client must:
a. provide Sidekicker with full and accurate information about the Services requirements relevant to the Job Brief, and all other information and assistance reasonably necessary to enable Sidekicker to provide Services and Sidekicks to perform their Work;
b. not allocate tasks or responsibilities to the Sidekicks or require the Sidekicks to perform or participate in work other than in accordance with the relevant Job Brief;
c. Immediately advise Sidekicker in writing once it is aware that the work, role, responsibilities or work conditions the Client sets for a Sidekick at the time when the Work is being performed do not match the role classification that the Client selected when creating the Job Brief;
d. not on-hire, second, or lend the Sidekicks to any other person or organisation without Sidekicker’s express permission;
e. ensure that Sidekicks will be covered by the following insurance policies, or other suitable and permissible statutory indemnity or self-insurance arrangements, whilst performing their Work at the Work Site: (i) public liability, professional indemnity, if relevant to the type of Work to be performed; (ii) compulsory third party motor vehicle insurance, and fully comprehensive motor vehicle insurance (including third party personal injury, own damage, third party property damage liability and third party personal injury gap) for any vehicles operated by a Sidekick; (iii) workers’ compensation under applicable legislation in the relevant jurisdiction; but only if the legislation casts that responsibility on the Client;
f. report to Sidekicker any adverse conduct or performance issues that arise in relation to the Sidekicks; and
g. not, without Sidekicker’s consent, require the Sidekicks to perform any work beyond the skill level and classification or description pertaining to the Work or of a type different to that which Sidekicker agrees they are to perform.
6.2 Documents and information to be provided
The Client agrees to:
a. provide Sidekicker (if requested) with copies of all its induction, training and safe work procedures prior to any Sidekick commencing Work;
b. Establish, maintain and provide Sidekicker with copies of policies and procedures (including occupational, health and safety policies and procedures, and any updates of them) that are relevant to the provision of Services by Sidekicker and safety of the Work Site; and
c. keep Sidekicker fully informed about all aspects of the Client’s use of the Services by Sidekicker, including providing, in a timely manner, any information which Sidekicker may reasonably require in order to meet any Reporting Requirements of Sidekicker.
6.3 Other obligations on occupational, health & safety
The Client will:
a. allow Sidekicker, its agents, and Sidekicks to access the Work Site to enable Sidekicker:
(i) to assess the safety of the Work Site
(ii) to conduct any inquiries following an incident; and
(iii) to provide Services and Sidekicks to perform the Work.
b. ensure the health and safety of Sidekicks at all times whilst they are under the Client’s management and control and/ or working at a Work Site;
c. inform the Sidekicks and Sidekicker promptly of any unusual workplace risk or practice or of any change in site or safety conditions that may present hazard to our Sidekicks;
d. promptly notify Sidekicker of any event or circumstances (including any injury or illness) that may give rise to a claim which relates to the Sidekicks (or the Work they perform), whether such policy, indemnity or arrangement is held or established by Sidekicker or by the Client;
e. not to request Sidekicks to perform or participate in any work or use any equipment with which the Sidekicks are unfamiliar or in respect of which they are unqualified or have not received adequate training;
f. adequately supervise, instruct and direct the Sidekicks properly at all times whilst they are at the Work Site or during performance of Work;
g. provide induction (including site and safety induction), training, skill assessment of Sidekicks and safety consumables to the Sidekicks as appropriate and reasonably necessary for the Work to be performed, at the Client’s costs;
h. make all reasonable adjustments that may be required by any applicable anti-discrimination laws; and
i. consult, co-operate and co-ordinate activities, in good faith, with Sidekicker and any other person who has a duty in relation to the work health and safety or welfare of the Sidekicks in accordance with the requirements of the applicable Work Health & Safety Laws or any other law relating to health and safety in the workplace, including those of any relevant work health & safety code of practice or interpretative guideline that is promulgated under legislative authority and, so far as they may be applicable, in accordance with the provisions of Sidekicker safety management system (should Sidekicker has one) current from time to time.
6.4 Suspension or termination of Services due to occupational, health & safety concerns
6.4.1 If it reasonably appears to Sidekicker that the Work Site is or has become unsafe for any reason, (including if the Client has not established safe work procedures, not complying with safety standards, not maintaining plant and equipment, or not complying with any health and safety legislation or regulations), Sidekicker may (i) suspend the Services and supply of Sidekicks to the Work Site and for the Client; and / or (ii) terminate this Agreement immediately pursuant to Clause 14.1.
6.4.2 The Client agrees to indemnify Sidekicker and its Sidekicks for any Loss suffered or incurred to the extent arising out of or in connection with any breach or non-compliance by the Client with its obligations set out in Clauses 6.1 to 6.3.
6.5 No duty to review
6.5.1 Sidekicker does not assume or owe any duty of care to the Client to review any documentation (including without limitation the policies and documents provided under clause 6.2) provided by the Client, or any other documentation for errors, omissions or compliance with any laws or this Agreement.
6.5.2 No review, comment, changes requested, approval, or failure to review by Sidekicker of that documentation referred to in Clause 6.5.1 will:
a. relieve the Client from, or alter or affect, the Client’s liabilities or responsibilities whether under this Agreement or otherwise according to law; or
b. prejudice Sidekicker’s rights and remedies against the Client whether under this Agreement or otherwise according to law.
6.6 Authorised Users
It is the Client’s sole responsibility to keep and maintain an accurate list of its current authorised users of the Sidekicker Platform. The Client agrees that the Client is responsible for any requests made (including Job Brief submitted) and all actions by its authorised users, including payment of any associated Rates, costs or liabilities related to such request or action, regardless of whether or not the request or action was actually authorised by the Client.
7. Cancellation of Job Brief by Client
7.1 The Client may (i) cancel a Job Brief or any part of it, or (ii) make any amendment to the Job Brief which causes the shift of one or more Sidekick(s) to be cancelled, without any liability at any time, provided that such cancellation or amendment is done using the Sidekicker Platform 4 hours prior to the expected commencement time of the affected shift(s) by a Sidekick(s) under the Job Brief (“Acceptable Cancellation Period”).
7.2 Sidekicker may, at its discretion, charge the Client the applicable Rates up to full 4 hours of the affected Work expected to be performed by the relevant Sidekick(s) under a cancelled or amended Job Brief, if the cancellation or amendment is done by the Client after the Acceptable Cancellation Period.
Example: If 5 Sidekicks are scheduled to attend work from 11 am to 5 pm, and the Client intends to cancel the shifts of 4 Sidekicks, such cancellation must be submitted through the Sidekicker Platform before 7 am on the same day (4 hours prior notice). If the cancellation is done after 7 am, Sidekicker may charge the applicable full Rate of the Work to be performed by the 4 affected Sidekicks from 11 am to 3 pm (4 hours) even though that Work is no longer needed and not being performed by the Sidekicks.
8.1.1 Unless otherwise agreed in writing between the parties, the Client will pay Sidekicker the equivalent of the sum comprising the components set out in (a) to (c) below with respect to each of the Job Brief:
a. the total gross wage costs paid to the Sidekicks before tax deductions, including but not limited to overtime and penalty rates, and employee entitlements (if any); and
b. on-costs (being the equivalent costs apply to Sidekicker as employer of the Sidekicks) which include but not limited to the following costs:
i. superannuation guarantee costs;
ii. worker’s compensation insurance costs;
iii. payroll tax costs;
iv. a levy for the cost of other insurances, equivalent to 0.25% of the sum of the total gross wage amount paid to Sidekicks before tax deductions plus the superannuation guarantee costs;
v. other relevant costs added and presented to the Client as part of the “on-costs” after the Client has filled out the relevant information of a Job Brief (but before posting it via the Sidekicker Platform for processing).
c. a service fee calculated in accordance with Clause 8.1.2 (the “Service Fee”);
(the total sum payable by the Client under a Job Brief as set out in (a) to (c) above is collectively known as the “Rate”).
8.1.2 The Service Fee will be calculated by multiplying the sum of all components from Clause 8.1.1(a) and (b) by 20%, unless agreed otherwise in writing by Sidekicker.
8.1.3 The Client will be shown an estimated Rate applicable to the Job Brief (including the total of estimated gross wage costs, on-costs, and service fee per hour) after it has filled out the relevant information of a Job Brief (but prior to posting the Job Brief via the Sidekicker Platform for processing). The Client may request for further information from Sidekicker regarding the estimated Rate (including its breakdown or calculation) by contacting Sidekicker and choose not to proceed with the posting of the Job Brief if it does not agree with the estimated Rate. The Client accepts that the estimated Rate is an approximation based on the information provided by the Client at the time when the Job Brief is filled out and/ or posted. The actual Rate payable by the Client will be confirmed after the Services and Work by the Sidekicks are performed, and / or after timesheet is submitted and verified pursuant to Clause 8.5, and is subject to variation under Clauses 8.2.1 and 8.2.2.
8.1.4 For the avoidance of doubt, currently the statutory methodology for calculating the costs at clauses 8.1.1(b)(ii) and (iii) is multiplying the sum of the total gross wage costs paid to workers before tax deductions plus the superannuation guarantee costs, by the rate charged to Sidekicker based on statute for each of workers compensation insurance and payroll tax respectively. Should the statutory methodology for calculating these costs change from time to time then the amended methodology will apply from the date such change becomes law.
8.1.5 For the avoidance of doubt, the Rate does not include any additional checks or verifications of Sidekicks not stated in the Sidekicker Platform (website link can be provided on request) and any additional recruitment of Sidekicks required by the Client outside of the Sidekicker Platform. Charges of such additional services will be provided upon request by the Client.
8.2 Variation of Rate
8.2.1 The Client acknowledges that the total gross wage and on-costs components referred to in Clause 8.1.1 (a) and (b) are subject to change from to time as a result of, amongst other things, changes to on-costs imposed by third parties (including statutory on-costs), Award provisions and market dynamics. The Client agrees that such changes shall become effective and apply to the Rate from the date the changes come into force at Sidekicker. With respect to any existing or outstanding Job Brief that have already been accepted by both Parties, Sidekicker will use its best endeavours to notify the Client of any such expected changes with reasonable notice. The Client agrees to pay Sidekicker the increased Rate from the applicable effective date, including any proportional change to the amount of Service Fee as a result of such changes.
8.2.2 Subject to and without affecting Sidekicker’s rights under Clause 8.2.1, Sidekicker may, at any time during the Agreement, vary the Rate of any existing or outstanding Job Brief previously accepted by both parties, in any other way (including varying the calculation mechanism set out in Clause 8.1 or the applicable percentage of the Service Fee) by giving the Client 28 days written notice of such variation.
8.2.3 The Parties acknowledge and agree that the period set out in Clause 8.2.2 above provides reasonable time for them to consider their options, obtain advice, conduct negotiations, cancel a Job Brief and terminate this Agreement, without penalty, should they wish to do so.
8.2.4 If the Client does not agree with the variation of Rate and the Parties cannot achieve an agreement on that, the Client may cancel any existing or outstanding Job Brief in accordance with Clause 7, cease posting any new Job Brief using the Sidekicker Platform, or terminate this Agreement without cause pursuant to Clause 14.2.
8.3 Workers Compensation Insurance
8.3.1 If requested by Sidekicker, the Client must provide to Sidekicker, within seven (7) days, a copy of the current workers compensation insurance certificate of currency (the “Certificate of Currency”) for each State and Territory of Australia in which the Client operates. The insurance Certificate of Currency must show the WorkCover industry classification code(s) that apply to the Client’s business for the location(s) at which the Services are to be provided, as determined by the Client’s workers compensation insurer.
8.3.2 If the Client fails to provide any of the workers compensation insurance Certificates of Currency pursuant to Clause 8.3.1 and proceeds to process a Job Brief, Sidekicker may make an assumption, acting reasonably, about which WorkCover premium rate should apply for the States and Territories for which no Certificate of Currency was provided (the “Assumed WorkCover Rate”), and the Client agrees that the Assumed WorkCover Rate will apply for the purpose of calculating the costs relating to Clause 8.1.1(b)(ii). If the Client subsequently provides the workers compensation insurance Certificate of Currency, Sidekicker will rely on the listed WorkCover industry classification code(s) from such certificate(s) for calculating the costs for the purpose of Clause 8.1.1(b)(ii) for subsequent Job Briefs.
8.4 Sidekicks to be paid based on the correct Award and Award Classification
8.4.1 The Client acknowledges that the pay rate ordinarily used when calculating a Sidekick’s gross wages is determined by reference to the Award and the Award classification based on the job category and job sub-category selected by the Client when the Client creates a Job Brief. If it is found that the work, role, responsibilities or work conditions the Client sets for a Sidekick at the time the Services are provided/ Work are performed do not match those for the job category and / or the job sub-category that the Client selected when creating the Job Brief, and if that would result in the Sidekick being paid at a lower rate than that to which the Sidekick is entitled and would ordinarily be paid by Sidekicker under the correct Award for the Work provided, Sidekicker will adjust the job category and / or the job sub-category to match the gross wages that Sidekicker ordinarily paid to its Sidekick under that correct Award and Award classification. If this is not identified until after the Client has already been invoiced for the Services and Work performed, a further adjusting invoice will be issued to the Client for the additional Rate relating to the Services provided (the “Adjustment Invoice”) and the Client agrees that it will be liable to pay Sidekicker for the Adjustment Invoice in accordance with Clause 8.8 of this Agreement.
8.4.2 The Client must familiarise itself with the provisions of the applicable Award (including any minimum hours per shift under the Award) and supervise the Sidekicks in such a manner as to ensure that they receive their proper entitlements including breaks and rest periods.
8.5 Timesheets Approval
8.5.1 Unless otherwise agreed in writing by the Parties, the Sidekicks will use the Sidekicker Platform to track their time worked for the Client for a Job Brief, and will submit a timesheet for Client’s approval via the Sidekicker Platform.
8.5.2 The Client shall verify and approve a timesheet within 2 Business Days once a timesheet is submitted through the Sidekicker Platform (“Timesheet Approval Period”).
8.5.3 For Client who use the “Custom Term” payment method (for more information, see Clause 8.8.2),if the Client does not dispute the timesheet within the Timesheet Approval Period, Sidekicker will make its own estimate of the time worked by the Sidekicks and invoice the Client accordingly.
8.6 Sidekicks are employees of Sidekicker
It is expressly agreed between Sidekicker and the Client that notwithstanding any wording in this Agreement that might possibly suggest or be interpreted otherwise, nothing in this Agreement is intended to deem any Sidekick an employee or contractor of the Client while they are providing the Work. Sidekicks are the employees of Sidekicker at all times while providing the Work and Sidekicker is responsible for the payment of all wages and related on-costs for the Sidekicks.
8.7.1 The Rate is exclusive of GST.
8.7.2 In addition to the Rate, the Client will pay Sidekicker any GST payable in respect of the Services, on the same date on which payment for the relevant Services are due and payable.
8.8 Invoices and payment
8.8.1 All invoices properly issued by Sidekicker must be paid and settled by the Client within 14 days from the date the invoice is issued (through an agreed payment method pursuant to Clause 8.8.2) where:
a. the invoice is a tax invoice within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
b. the rates claimed in the invoice are due for payment under this Agreement; and
c. the invoice is addressed to the Client.
8.8.2 The Client is required to provide payment information through the Sidekicker Platform during registration, and make any changes or updates to its preferred payment method prior to the commencement of a Job Brief. Further information about the different payment methods (including the default payment method), and their associated payment terms and conditions (including the date of invoice, and the date when payment would be charged and deducted) are set out at https://help.sidekicker.com/en/articles/4953708-how-do-payments-work.
8.9 Interest on overdue balances owing to Sidekicker
8.9.1 Any amount not paid by the Client to Sidekicker on time as set out in Clause 8.8.1 will accrue interest payable to Sidekicker at a daily rate of 2.5% per annum above the base rate of Commonwealth Bank of Australia, calculated daily from the first day it becomes overdue.
8.9.2 Without prejudice to any other rights or remedies of Sidekicker under this Agreement, Sidekicker may suspend its Services to the Client with immediate effect if the Client fails to make payments for any invoice(s) pursuant to Clause 8.8.1 of this Agreement.
8.10 Recovery costs
The Client will pay (on a full indemnity basis) all Loss, including costs and expenses of Sidekicker, its legal advisers, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of this Agreement by the Client.
Each Party represents and warrants to the other Party:
a. it has full corporate power to enter into and give effect to this Agreement and the transactions contemplated by this Agreement;
b. it has taken all necessary action to authorise the execution, delivery and performance of this Agreement;
c. the execution, delivery and performance of this Agreement does not contravene any contractual, legal or other obligations that apply to it; and
d. the obligations under the Agreement will be valid, binding and enforceable.
10. Limitation of liability and exclusions
10.1 Limit of liability
To the maximum extent permitted by law and subject to Clause 10.2, Sidekicker’s liability to the Client for any liability under or in connection with the Agreement (whether under any Job Brief, in contract, tort, under statute or otherwise) shall be limited to the Rate(s) actually paid by the Client to Sidekicker in the three (3) months period immediately preceding the event giving rise to such claim.
10.2 Exclusions of Liability
10.2.1 Neither Party shall in any circumstances be liable in contract, in tort, under statute or otherwise for any loss of investment, loss of contract, loss of production, loss of profits, loss of time or loss of use or any consequential or indirect loss sustained by the other Party.
10.2.2 The Client acknowledges that Sidekicker does not hold motor vehicle or any other relevant insurance for vehicles that are registered or required at law to be registered and which are not owned by Sidekicker. Sidekicker shall not be held liable, and the Client shall indemnify Sidekicker and its Sidekicks against, any Loss (including liability under any indemnity or claims by third parties) related to a Job Brief, to the extent that the Loss (i) is arising out of or in connection with driving or operating any motor or commercial vehicle(s) by the Sidekick(s) in the course of their Work (forklift excluded); or (ii) would ordinarily and commonly be covered by a motor vehicle insurance policy or any such equivalent or relevant insurances (including those listed in Clause 6.1(e)(ii)).
10.2.3 The Client acknowledges that the Sidekicks will be working under the Client’s supervision, control, direction, and instruction at the Work Site. Due to this reason, the Client agrees that Sidekicker will not be liable to the Client for, and the Client will indemnify Sidekicker against, any Loss of whatsoever nature or kind, however caused by one or more of the Sidekicks (including by their negligence) whilst they are working for the Client under a Job Brief.
10.2.4 Nothing in this Agreement excludes, restricts or modifies any guarantee, term, condition, warranty, or any right or remedy, implied or imposed by any statutory provisions (including the Australian Consumer Law) which cannot lawfully be excluded, restricted or modified, or cannot be done so except to a limited extent. If those statutory provisions apply, then to the extent to which Sidekicker may do so, Sidekicker’s liability for any breach of those provisions will be limited to its option to the supply of Services again or payment of the cost of having the Services supplied again.
11. Intellectual Property
11.1 Sidekicker acknowledges and agrees that all Intellectual Property and other information that the Client provides or makes available to Sidekicker remains the property of the Client or its licensors. Sidekicker must not and must procure that a Sidekick does not use or reproduce such Intellectual Property or information for any purpose other than for the purpose of performing its obligations under this Agreement.
11.2 The Client acknowledges and agrees that Sidekicker continues to own all of its own Intellectual Property existing at the date of this Agreement or coming into existence during the Term of this Agreement (including any improvement to such Intellectual Property developed during the Term of the Agreement). Sidekicker grants the Client a limited, revocable right to access and use the Sidekicker Platform for the purpose and to the extent as allowed under this Agreement during the Term.
11.3 All Developed IP will be owned by Sidekicker without the need for further formality.
12.1. Obligations of Confidence
12.1.1 Where either Party receives Confidential Information from the other under this Agreement, each must:
a. keep the Confidential Information confidential;
b. not use, disclose or reproduce the Confidential Information for any purpose other than the purposes of this Agreement;
c. not, without the other’s written consent, disclose Confidential Information to any person other than its Representatives who need the information for the purposes of this Agreement; and
d. establish and maintain effective security measures to safeguard the Confidential Information from unauthorised access, use, copying or disclosure.
12.1.2 Notwithstanding any other terms in this Agreement, the Client agrees and acknowledges that all information regarding the Sidekicks is provided to the Client confidentially and solely for the purpose of supplying the Services as requested under the Job Brief. The Client agrees not to use or disclose the information for any other purpose without Sidekicker’s consent, even if it is otherwise in the public domain.
12.2 Further permitted use and disclosure
12.2.1 Notwithstanding Clause12.1, either Party may use or disclose Confidential Information to the extent necessary to:
a. comply with any law or binding directive of a regulator or a court order;
b. comply with the listing rules of any stock exchange on which its securities are listed; or
c. obtain professional advice in relation to matters arising under or in connection with this Agreement.
12.3 Return of Confidential Information
12.3.1 The Client must immediately on demand, or on completion or termination of this Agreement, return to Sidekicker, or destroy if requested, any documents in its possession, power or control containing Sidekicker Confidential Information, including any information about the Sidekicks, unless it is required by law to retain a copy of such Confidential Information.
12.3.2 For the avoidance of doubt, the return or destruction of Confidential Information in accordance with this Clause 12.3 does not relieve the Client from any of its confidentiality and privacy obligations under this Agreement.
12.4 Obligations to continue after Agreement ends
All obligations of confidence set out in this Agreement capable of surviving termination or expiry of this Agreement shall continue in full force and effect after this Agreement ends.
13. Privacy obligations
13.1 Each Party agrees to comply with the Privacy Act 1988 (Cth) and such other data protection laws as may be in force from time to time which regulate the collection, storage, use and disclosure of personal information, as if it were regulated by these laws (whether or not regulated).
13.2 In particular, the Client agrees to preserve the privacy of personal information concerning any of the Sidekicks, whose personal information has been provided to the Client or accessed by the Client, to a standard not less than that prescribed by any applicable privacy and personal data protection laws referred to in Clause 13.1.
14.1 Immediate Termination
14.1.1 Either Party may immediately terminate this Agreement by written notice to the other if any of the following occurs:
a. The other Party breaches a term of this Agreement and such breach is not remedied within 7 days of the aggrieved Party so requesting it to be remedied or the breach is of such a nature that it cannot be remedied;
b. the other Party is the subject of an Insolvency Event;
c. the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
d. the other Party or any of their Representatives are found to be guilty of fraud, dishonesty or any other serious misconduct; or
e. any warranty given in Clause 9 is found to be untrue or misleading.
14.1.2 In addition and without prejudice to Clause 14.1.1, Sidekicker may immediately terminate this Agreement by written notice to the Client if it reasonably appears to Sidekicker that the Work Site is or has become unsafe for any reason, including due to the reasons as set out in Clause 6.4.
14.2 Termination Without Cause
Either Party may terminate this Agreement at any time without having to ascribe any cause by providing 14 days prior written notice of termination.
14.3. Consequences of Termination and Continuing Obligations
14.3.1 The termination or expiration of this Agreement does not affect accrued rights or remedies, including but not limited to each Party retaining its rights in respect of any breach by the other Party and the Client must pay Sidekicker for any Services provided, in accordance with Clause 8.8. For the avoidance of doubt, Clause 8.9 of this Agreement will survive the expiration or termination of this Agreement until such time as all amounts owed to Sidekicker by the Client have been paid in full.
14.3.2 Unless otherwise agreed in writing between the parties, all Services and / or Work requested under the existing or outstanding Job Briefs that have not been performed will be deemed to have been cancelled on the effective termination or expiration date of this Agreement.
14.3 Notwithstanding Clause 14.3.2, if after the effective date of the termination or the expiration of the Agreement, there remains any Services and / or Work under any existing or outstanding Job Briefs that have not been performed and the Parties agree to continue with the Services and / or Works of the Job Briefs, this Agreement will continue to apply in respect of those existing and outstanding Job Briefs until the obligations under the Job Brief have been performed by both Parties.
15. Marketing & Publicity
15. The Client agrees to grant to Sidekicker the right to use the Client’s name and logo in Sidekicker’s website, marketing materials or other oral, electronic, or written promotions, which shall include naming the Client as a client of Sidekicker and a brief scope of services provided. The Client may opt-out from this clause by contacting [email protected] .
16. Force Majeure
16.1 If a Party is prevented from or delayed in performing an obligation under this Agreement (including under any Job Brief, other than an obligation to pay invoices pursuant to Clause 8.8) by a Force Majeure Event, then the obligation is suspended during, but for no longer than, the period the Force Majeure Event continues and such further period as reasonable in the circumstances. Neither Party shall be liable for any such suspension, delay or disruption to the performance of any obligations as a result of such Force Majeure Event.
16.2 The Party that is prevented from or delayed in performing the obligation must as soon as reasonably possible, notify the other Party of its inability to perform the obligation due to the Force Majeure Event. The Client must also comply with the obligations to cancel a Job Brief in accordance with Clause 7 in such circumstances.
17.1 All notices to be given under this Agreement are to be given in writing.
17.2 Notices must be forwarded to the other Party by either prepaid post / registered mail or email to the contact details set out in this clause, or otherwise as updated and notified in writing to the other Party from time to time:
Head of Legal, Sidekicker
Level 13, 50 Queen St
Melbourne VIC 3000
(Email): [email protected]
Client: (Address & Email): As provided through the Sidekicker Platform during registration or as updated and notified in writing by the Client to Sidekicker
17.3 All notices served under this Agreement will be considered to have been received three Business Days after posting, unless sent by email in which case the notice will be deemed to have been received on the date shown on the sender’s transmission report.
17.4 The Client is responsible for providing Sidekicker with the most current email address. In the event if the last email address the Client provided to Sidekicker is not valid, or for any reason is not capable of delivery to the Client any notice required or permitted by this Agreement, Sidekicker’s dispatch of the email containing such notice will nonetheless constitute effective notice.
Nothing contained or implied in this Agreement constitutes a Party the partner, agent or legal representative of the other Party for any purpose, or creates any partnership, employment, agency or trust. Neither Party has the authority to bind the other Party in any way.
If any part of this Agreement is held to be invalid, unlawful or unenforceable in any way, that part will be deemed as severed from the Agreement and the remaining provisions will not be affected and will remain in full force for the Term.
The Client may not assign its rights or obligations under this Agreement without the prior written consent of Sidekicker.
21. No Waiver
21.1 A Party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
21.2 The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
21.3 A waiver is not effective unless it is in writing.
21.4 Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
22. Governing Law
This Agreement will be governed by the laws of the State of Victoria, Australia and the Parties irrevocably submit to the non-exclusive jurisdiction of the courts in that jurisdiction.
23. Entire Agreement
This Agreement constitutes the entire agreement between the Parties in respect of the Services and each Parties rights and obligations, and supersedes all other agreements, representations, negotiations and correspondence.
24. General – No Warranty
24.1 Except as provided herein and to the extent allowed by law, the Service is provided on an “as is” basis, and without any warranty or condition, express or implied. To the extent permitted by law, Sidekicker and its suppliers specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.
24.2 Where Sidekicker provides a report of any sort to the Client produced or provided to Sidekicker by a third party provider (including but not limited to letters of reference, star ratings submitted by other clients, police reports, medical test reports and drug and/or alcohol test reports), or when Sidekicker obtains such report and it summarizes, makes a conclusion, and / or represents the results or information to the Client, Sidekicker does not warrant the accuracy of those reports and the Client agrees that Sidekicker will not be held responsible should it be found that any such report or its information was inaccurate.
24.3 Sidekicker does not warrant that: (i) the Sidekicker Platform will meet the Client’s specific requirements, or (ii) the use of Sidekicker platform will be uninterrupted, timely, secure or error-free.
25. Dispute Resolution
25.1 Notice of Dispute
If a difference or dispute between the parties arises in connection with the subject matter of this Agreement, then either party shall give the other party a written notice adequately identifying and providing details of the dispute (“Notice of Dispute”).
Within 5 Business Days after receiving a Notice of dispute the parties shall confer at least once to resolve the dispute or to agree on methods of doing so. At every such conference each party shall be represented by a person having authority to agree to such resolution or methods. All aspects of every such conference except the fact of occurrence shall be privileged.
If the parties are unable to resolve the dispute via conference, either party may refer any dispute to mediation by a mediator agreed by the parties or, failing agreement, by a mediator appointed by the President of the Law Institute or Law Society in the jurisdiction referred to in Clause 22 of this Agreement. Upon referral to mediation the parties will use their best endeavours to resolve the dispute.
25.4 No Court Proceedings
A Party may not start court proceedings in relation to a dispute until it has exhausted the procedures in Clauses 25.1 to 25.3. However, neither party is prevented from applying to a court at any stage for urgent injunctive or other interlocutory relief.
26. Changes to this Agreement
26.1 Sidekicker reserves the right to modify the terms of this Agreement or its policies relating to the Sidekicker Platform at any time, effective upon posting of an updated version of this Agreement on the Sidekicker website. However, if any change to the terms of this Agreement will materially disadvantage a Client, or materially impact the availability of Sidekicker Service, Sidekicker will provide 30 days’ notice to the email address provided by the Client.
26.2 If Sidekicker does make changes to the terms of this Agreement and the Client determines the changes could adversely affect the Client, the Client may cancel any existing or outstanding Job Brief according to Clause 7 or terminate this Agreement without cause pursuant to Clause 14.2.
26.3 The Client can obtain a copy of the current version of this Agreement at any time from the Sidekicker website at https://sidekicker.com/au/ or request a copy from Sidekicker.
26.4 By continuing to use the Sidekicker Platform or receiving Services from Sidekicker (including continuing with an existing or outstanding Job Brief), the Client confirms that it agrees to be bound by this Agreement and any amended terms of this Agreement.