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 to its clients on a labour hire basis.
B. The Client wishes to engage Sidekicker to provide labour as outlined in a Job Brief.
C. 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.
D. This Agreement sets out the terms and conditions upon which Sidekicker will provide the Services to the Client.
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 or which has been changed pursuant to clause 23 of this Agreement;
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:
(d) 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;
(e) was known to Party at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence; or
(f) 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 of the following events which are unforeseen by, beyond the control and occurs without fault or negligence by the Party prevented from or delayed in performing the obligation:
(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;
(d) explosion; or
(e) power shortage, breakdown of plant, machinery or equipment,
and for the avoidance of doubt does not include any kind of industrial action;
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 loss including any liability, cost, expense (including legal costs on a full indemnity basis), claim proceeding, action, demand or damage; damages of compensation, loss of profits or any other consequential loss;
Party means Sidekicker or the Client as the context requires;
Related Entity has the same meaning as under the Corporations Act;
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 related services to the Client in response to a Job Brief;
Sidekick means an employee of Sidekicker who is selected to provide services to the Client in accordance with a Job Brief;
Sidekicks Undertaking Regular and Systematic Work means any Sidekick who Sidekicker determines would be considered by law as an employee undertaking regular and systematic work, as advised to the Client by Sidekicker from time to time;
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 www.getsidekicker.com; and
Term means the period from which this Agreement first becomes effective until the date on which it is terminated.
Work Site means any location, premises or building at which a Sidekick is, will or has worked for the purposes of providing the Services.
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.
3.1 Provision of the Services
Sidekicker will provide the Services to the Client on the terms set out in this Agreement.
3.2 Headhunting/Poaching Prohibited
3.2.1 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, 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, the Client must pay Sidekicker, at Sidekicker’s discretion, 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 so employs. The fee must be paid to Sidekicker in full within the period as set in clause 8.3 once Sidekicker issues a tax invoice to the Client for the fee, or as otherwise agreed by the Parties in writing.
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|Registered Nurse, being Individuals who are registered with the Nursing and Midwifery Board of Australia
3.2.2 Notwithstanding clause 3.2.1, the Client must not, and must make sure its Related Entities do not, solicit the employment of any employee (including without limitation, a Sidekick) or Representative currently employed or engaged by Sidekicker or its Related Entities or attempt to entice any such person to leave their employment or engagement with Sidekicker or its Related Entities. However, clause 3.2.1 does not restrict or prohibit the Client or its Related Entities from employing a person who:
(i) responds (unsolicited) to a general advertisement and bona fide recruitment campaign that is not targeted at the person; or
(ii) contacts the Client or its Related Entities on his or her own initiative without any solicitation from the Client or its Related Entities.
Regardless of whether sub clause 3.2.2 (i) or (ii) above applies, the Base Fee or the Breach Fee in clause 3.2.1 will apply and is payable to Sidekicker.
3.3 Non-exclusive appointment
The appointment of Sidekicker is non-exclusive and this Agreement does not purport to restrict the Client’s right to perform any services itself or contract with third parties for the performance of services similar to the Services or the Services provided by any Sidekick.
3.4 No guarantee of supplying a Sidekick
Until confirmed by Sidekicker otherwise, Sidekicker does not guarantee in any way that it will supply a Sidekick for any given Job Brief posted by the Client.
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 Sidekicks Undertaking Regular and Systematic Work
The Client acknowledges that in relation to Sidekicks Undertaking Regular and Systematic Work, Sidekicker has obligations to provide the Sidekick with notice of any change to the role they undertake in performing the Services or of termination of employment where the Client no longer wants or needs the Sidekick to be involved in providing the Services. The Client agrees to provide Sidekicker with adequate notice of any intended changes to the regular and systematic work in advance, as provided in Schedule 1.
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, regulations and procedures, 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 require that each Sidekick agrees to:
(a) be courteous and diligent at all times while engaged by the Client;
(b) comply with all of the Client’s policies and guidelines, including, without limitation, those relating to occupational health and safety;
(c) comply with all reasonable directions of the Client and its Representatives;
(d) keep the Client’s Confidential Information confidential;
(e) wear such clothing (including personal protective clothing) and use such equipment while at the Client’s facility as is reasonably appropriate or otherwise reasonably required by the Client;
(f) comply with any conditions of entry or other site specific requirements as notified by Sidekicker and/or the Client from time to time; and
(g) not use any property of the Client for any purpose other than to perform the work required by the Client and will return any property of the Client used in the provision of the Services to the Client in good, undamaged, clean, and usable condition.
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. Obligations of the Parties
5.1 Level of Performance
Sidekicker will seek to ensure that:
(a) the Services are provided promptly, carefully and in a professional manner;
(b) when providing the Services, the Sidekick exercises due care, skill and judgment;
(c) it allocates sufficient resources when carrying out the Services;
(d) it cooperates with the Client in all matters relating to the Services;
(e) the Services are provided to the Client’s reasonable satisfaction having regard to the Client’s requirements; and
(f) it complies with all reasonable instructions, directions, descriptions and specifications given by the Client.
5.2 Compliance with laws and policies
At all times during the Term, Sidekicker must exercise all reasonable and best endeavours to:
(a) comply with all requirements of any laws relating to the performance of the Services; and
(b) comply with any of the Client standards, operating policies or procedures that are in effect and the details of which have been provided to Sidekicker in writing not less than 10 business days prior to the Client issuing the Job Brief to Sidekicker.
5.3 Obligations of the Client
The Client must advise Sidekicker in writing:
(a) within 5 business days, with time being of the essence, of all incidents occurring and involving any Sidekick that may give rise to a claim against Sidekicker by the Sidekick, the Client or any third party; and
(b) on the day the Services are provided, if the work, role, responsibilities or work conditions the Client sets for a Sidekick at the time the Services are provided do not match those for the role classification that the Client selected when creating the Job Brief.
6. Occupational Health and Safety and Training
6.1 The Client must ensure the health and safety of Sidekicks at all times whilst they are under its management and control and / or working at a Work Site. Without limiting this requirement in anyway, the Client must ensure that:
6.1.1 Sidekicks have received any required and reasonably necessary training for the work to be performed; and
6.1.2 Sidekicks are provided with all safe work procedures relevant to the workplace.
6.1.3 it complies with all relevant occupational, health, safety and associated legislation, regulations and codes of practice;
6.1.4 it will provide comprehensive site and safety inductions to Sidekicks;
6.1.5 it will advise Sidekicker of any proposed change in the nature of the tasks undertaken (or to be undertaken) by a Sidekick;
6.1.6 it adequately supervise Sidekicks at all times; and
6.1.7 it promptly lets Sidekicker know of any incidents or injuries involving Sidekicks.
6.2 The Client agrees to provide Sidekicker (if requested) with:
6.2.1 copies of all its induction, training and safe work procedures prior to any Sidekick commencing work;
6.2.2 copies of the Client’s occupational, health and safety policies; and
6.2.3 any updates to those procedures as soon as they are produced.
The Client will permit Sidekicker (on reasonable notice) to attend any Work Site for the purpose of:
(a) carrying out workplace inspections;
(b) meetings with its Sidekicks on site; and/or
(c) investigation of incidents and injuries.
6.4 No Duty to Review
(a) Sidekicker, nor any person acting on their behalf, assumes or owes 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 this Agreement.
(b) No receipt or review of, comments upon, consent to, rejection or approval of, permission to use, or failure to review or comment on or to reject or approve or consent to or give permission to use, that documentation or any other documentation or any other direction by Sidekicker about such documentation will:
(i) relieve the Client from, or alter or affect, the Client’s liabilities or responsibilities whether under this Agreement or otherwise according to law; or
(ii) prejudice Sidekicker’s rights and remedies against the Client whether under this Agreement or otherwise according to law.
Sidekicker agrees to keep records and documentation in relation to the Services during the Term and for a period of seven years after the Agreement ends. Upon request by the Client, Sidekicker will make documentation relating to the Services available to the Client for inspection.
8.1.1 The Client will pay Sidekicker the equivalent of the sum of:
8.1.1(a) the total gross wage costs paid to workers before tax deductions, including but not limited to overtime and penalty rates and employee entitlements (if any); and
8.1.1(b) oncosts, being the sum of the equivalent of the following costs, which apply to Sidekicker, being the employer of the Sidekicks, but such amounts are to be paid to Sidekicker by the Client:
8.1.1(b)(i) superannuation guarantee costs;
8.1.1(b)(ii) worker’s compensation insurance costs;
8.1.1(b)(iii) payroll tax costs;
8.1.1(b)(iv) other costs presented to the Client online at the time it posts a Job Brief. For the avoidance of doubt, the Client may cancel (or choose not to proceed with) the Job Brief at that time;
8.1.1(b)(v) a levy for the cost of other insurances, equivalent to 0.25% of the sum of the total gross wage amount paid to workers before tax deductions plus the superannuation guarantee costs; and
8.1.1(c) a service fee calculated in accordance with clause 8.1.2 (the “Service Fee”);
(collectively, the “Rate”).
8.1.2 The Service Fee will be calculated by multiplying the sum of all components of clauses 8.1.1(a) and 8.1.1(b) by 20%, unless agreed otherwise in writing by Sidekicker.
8.1.3 Sidekicks to be paid based on the correct Award and Award Classification
The Client acknowledges that the pay rate ordinarily used when calculating a Sidekick’s gross wages is determined in accordance with 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 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 based on the correct Award for the Services provided, Sidekicker will adjust the job category and / or the job sub-category to match the correct Award and Award classification that should apply. If this is not identified until after the Client has already been invoiced for the Services, 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 8.3 of this Agreement.
8.1.4 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 Services. Sidekicks are the employees of Sidekicker at all times while providing the Services and Sidekicker is responsible for the payment of all wages and related on-costs for the Sidekicks.
8.2.1 The Rate is exclusive of GST.
8.2.2 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.
8.3 Invoices and payment
8.3.1 The Client must pay all invoices properly issued by Sidekicker immediately upon Sidekicker issuing the invoice, unless agreed otherwise in writing by Sidekicker, where:
8.3.1(a) the invoice is a tax invoice within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
8.3.1(b) the rates claimed in the invoice are due for payment under this Agreement; and
8.3.1(c) the invoice is addressed to the Client.
8.3.2 Invoices will be dated no earlier than the last day of the week (Monday to Sunday) in which the Services were provided.
8.4 Interest on overdue balances owing to Sidekicker
Any amount not paid by the Client to Sidekicker on time as set out in clause 8.3.1 will accrue interest payable to Sidekicker at a rate of 1% per month, calculated daily from the first day it becomes overdue.
8.5 Recovery Costs
The Client will pay (on a full indemnity basis) all 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, including but not limited to debt recovery costs.
8.6 Sidekicks Undertaking Regular and Systematic Work
8.6.1 Public Holidays
Where a Sidekick is employed pursuant to a fixed term or a permanent contract, at the request or agreement of the Client, or where a casual employee Sidekick is a Sidekick Undertaking Regular and Systematic Work, if that Sidekick is required to work on a public holiday that would be an ‘otherwise working day’ within their regular pattern of work, subject to the applicable Award, the Sidekick may be entitled to an alternative day of holiday to compensate and/or to wages calculated at the rate stipulated in the applicable Award for hours worked on the public holiday. If the Sidekick is not required to work on a public holiday that would be an ‘otherwise working day’ within their regular pattern of work, the Sidekick will be entitled to wages at the standard rate for the hours they would have otherwise been rostered to work on that day. The Client will be invoiced for the Rate, pursuant to clause 8.1 of this Agreement, relating to the payment of wages to the Sidekick for the public holiday and for the alternative day of holiday, if applicable, pursuant to this clause.
8.6.2 Long Service Leave payable
The Client acknowledges that in relation to Sidekicks Undertaking Regular and Systematic Work for an extended period of time, the Sidekick may become eligible for Long Service Leave (“LSL”) pursuant to the LSL Act applicable in the jurisdiction in which the Services are performed. As at the Effective Date the period of regular and systematic work required for a Sidekick to become eligible for LSL ranges between seven (7) and ten (10) years, depending on the applicable State or Territory. That period could change from time to time pursuant to statute. If a Sidekick does become eligible for LSL as outlined above, the Client agrees that when and as the Sidekick takes or is paid out all or part of the accrued entitlement for LSL or if this Agreement is terminated or expires, it will reimburse Sidekicker in accordance with clause 8.3, for the total gross amount of LSL paid or accrued, before deducting tax, plus any applicable statutory on-costs and GST.
9.1 General warranties
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. Liability and Indemnity
10.1 Sidekicker’s Indemnities
10.1.1 Sidekicker shall be liable for and shall indemnify, and keep indemnified, the Client and its Representatives from and against all Loss in relation to or in connection with:
10.1.1(a) personal injury, illness or death of any person where the personal injury, illness or death is caused by or results from any act or omission of Sidekicker or its Representatives;
10.1.1(b) loss of or damage to any property owned, hired or supplied by Sidekicker or its Representatives;
10.1.1(c) a breach by way of any act or omission of Sidekicker or its Representatives of the confidentiality provisions in this Agreement;
10.1.1(e) unlawful, negligent, or wrongful act or omission of Sidekicker or its Representatives in connection with the performance of its obligations under this Agreement;
but only to the extent not caused or contributed to by the Client or its Representatives and Sidekicker shall only be liable for Loss to the extent that is directly caused by Sidekicker or its representatives.
The Client acknowledges that Sidekicker does not hold motor vehicle insurance for vehicles that are registered or required at law to be registered and which are not owned by Sidekicker. The indemnities in this Agreement do not apply to the Loss to the extent they would ordinarily and commonly be covered by a motor vehicle insurance policy unless the motor vehicle is a forklift.
10.2 Sidekicker’s Additional Indemnities
10.2.1 Sidekicker indemnifies and agrees to keep indemnified the Client against:
10.2.1(a) any loss or penalty under any applicable legislation arising from all employee entitlements of Sidekicks, which, for the avoidance of doubt, will be provided by Sidekicker; and
10.2.1(b) any loss or penalty under any applicable legislation that the Client may incur in connection with any workers compensation or pay-roll tax liability arising out of the performance of the Services (including in respect of the engagement or employment (as applicable) by Sidekicker of the Sidekicks.
but only to the extent not caused or contributed to by the Client or its Representatives.
10.3 No consequential loss
Under no circumstance will either Party be liable to the other for any indirect or consequential loss, however it arises or for punitive or exemplary damages or for any loss of profit, loss of revenue, or loss of opportunity
10.4 Limitation of Liability and Disclaimers
(a) Sidekicker endeavours to provide accurate background, qualification and experience checks of its Sidekicks (“Sidekick Checks”). However, these details are based on information made available by the Sidekicks and referees. Accordingly, no responsibility can be accepted by Sidekicker for errors, omissions, or incorrect conclusions in relation to the Sidekick Checks.
(b) Sidekicker makes every effort to provide Sidekicks that are suitable for the Client’s requirements. However it is the Client’s sole obligation to satisfy itself as to whether a Sidekick is suitable for the Client’s needs.
(c) Notwithstanding any other provision of this agreement, Sidekicker shall not be liable for any loss of or damage to the property of the Client and the Client releases and forever discharges Sidekicker and it’s Representatives for any and all such claims.
10.5 The Client’s Indemnities
The Client shall indemnify, and keep indemnified, Sidekicker its Sidekicks and its Representatives from and against:
10.5.1 all losses arising from or in connection with the Client’s breach of its commitments and obligations under this Agreement; and
10.5.2 all losses not caused by Sidekicker or its Representatives.
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 and that no licence thereto is granted to the Client.
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:
12.1.1 (a) keep the Confidential Information confidential;
12.1.1 (b) not use, disclose or reproduce the Confidential Information for any purpose other than the purposes of this Agreement;
12.1.1 (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
12.1.1 (c)establish and maintain effective security measures to safeguard the Confidential Information from unauthorised access, use, copying or disclosure, including but not limited to any security measures specified by the other Party.
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:
12.2.1(a) comply with any law or binding directive of a regulator or a court order;
12.2.1(b) comply with the listing rules of any stock exchange on which its securities are listed; or
12.2.1(c) obtain professional advice in relation to matters arising under or in connection with this Agreement.
12.3 Return of Confidential Information
Each Party must immediately on demand, or on completion or termination of this Agreement, return to the other Party, or destroy if requested, any documents in its possession, power or control containing Confidential Information.
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:
13.2.1 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); and
13.3.2 comply with any reasonable privacy code or policy which has been adopted by the other and which has been communicated to the other Party, as if it were bound by that code or policy.
Either Party may terminate this Agreement at any time by providing written notice to the other Party.
15. Consequences of Termination and Continuing Obligations
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 clauses 8.3. For the avoidance of doubt, clause 8.4 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.
16. Force Majeure
16.1 If a Party is prevented from or delayed in performing an obligation under this Agreement (other than an obligation to pay money) 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.
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.
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 prepaid post or registered mail to the addresses set out in this Agreement or otherwise as notified in writing to the other Party from time to time.
17.3 All notices served under this Agreement will be considered to have been received three Business Days after posting, unless sent by facsimile or email, in which case the notice will be deemed to have been received on the date shown on the sender’s transmission report, or if sent via the Sidekicker Platform, in which case it will be deemed to have been received on the date the sender’s systems demonstrate the notice was first delivered to a Representative of the Client.
18.1 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.
19.1 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.
20.1 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 and Changing the Agreement
23.1 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.
23.2 Changes to this Agreement
Sidekicker may change any term of this Agreement by providing reasonable notice to the Client and / or its Representatives. The new form of this Agreement including the changed term will then become effective in entirety.
If Sidekicker does make changes to the terms of this Agreement and the Client determines the change(s) could adversely affect the Client, the Client may terminate this Agreement pursuant to clause 14.
The Client can obtain a copy of the current version of this Agreement at any time from the Sidekicker website at www.sidekicker.com
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 disclaims 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, where that report has been produced or provided to Sidekicker by a third party provider, including where Sidekicker obtains such report then represents the results of same to the client rather than providing a copy of the report received from the third party provider, such as 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, 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 was inaccurate.
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 Notice of dispute adequately identifying and providing details of the dispute.
25.2 Continue to Perform
Notwithstanding the existence of a dispute the parties shall continue to perform this Agreement.
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.
If the parties are unable to resolve the dispute pursuant to clause 25.4, either party may refer the dispute or difference to be resolved by arbitration. The arbitration will be administered by the Australian Centre for International Commercial Arbitration and will be finally resolved under the Australian Centre for International Commercial Arbitration Arbitration Rules (Arbitration Rules). There shall be one arbitrator who shall be appointed in accordance with the Arbitration Rules. The seat of the arbitration shall be Victoria, Australia and the language of the arbitration shall be English. The arbitrator must give written reasons for their award.
25.6 Final and Binding Decision
The arbitrator’s decision shall be final and binding on the parties.
25.7 Parties not to Commence Legal Action
Notwithstanding anything in this clause 25, either Party may apply to court:
a) for urgent interim relief;
b) for summary judgment to recover an amount due and payable by the other Party;
c) to enforce an arbitral award; or
d) to determine whether clause 25.5 or 25.6 of this Agreement are held to be invalid, unlawful or unenforceable.
Schedule 1 – Termination of Labour Hire Workers / Sidekicks
The table below relates to the termination processes for Sidekicks who are completing regular and systematic work.
||Process required to terminate
||Notice to be given to Sidekick
||None – action to be taken immediately
||NA – summary dismissal
||Attending work under the influence of drugs or alcohol, sexual harassment
||Notify Sidekicker of performance issues
||Sidekicker to manage (NA)
Not completing tasks to level required
Not consistently punctual to shifts / unreliable
||Sidekick must be given two warnings before termination.
Per employment contract:
3-12 months: 1 week
1-3 years: 2 weeks
|Role no longer required
||Notify Sidekicker of change of requirements
Dependent on service:
0-1 year: 2 weeks
1-3 years: 3 weeks
(including one week consultation period)
Role is no longer required
Restructure of workforce