These assignment terms and conditions of this Work Order are accepted on behalf of the Contractor by its authorised representative.

BACKGROUND

A. The Company wishes to engage the Contractor to provide the Services and the Contractor agrees to provide the Services, on the terms and conditions set out in this Agreement.

B. The Contractor has disclosed to the Company sufficient information about itself, its business operations and expertise to enable the Company to make a properly informed decision to engage the Contractor to provide the Services.

C. The Company and the Contractor agree that this Agreement will establish and regulate the relationship between the Company and the Contractor.

D. The Contractor agrees to be, or will appoint employees or other personnel to be, responsible (subject to the terms of this Agreement) for the providing the Services to the Company in accordance with this Agreement.

OPERATIVE PROVISIONS

 

1. DEFINITIONS

In this Agreement unless the context otherwise requires:

Agreement means this agreement for services and all schedules, annexures and attachments to it, as amended by the parties in writing in accordance with its terms.

Client means a client of the Company, with whom the Company has entered into an agreement for the provision of services and to whom the Contractor may be referred to, from time to time, under a Work Order.

Confidential Information means information (which is not in the public domain):

a) regarding the business, financial arrangements or position of the Company or its Related Bodies Corporate, any of the business dealings, transactions or affairs of the Company or its Related Bodies Corporate or any of the contacts, suppliers or providers used by the Company or its Related Bodies Corporate;

b) regarding the business, financial arrangements or position of Clients the Contractor is referred to under a Work Order, or their Related Bodies Corporate, any of the business dealings, transactions or affairs of such Clients or their Related Bodies Corporate or any of the contacts, suppliers or providers used by such Clients or their Related Bodies Corporate; and

c) which the Contractor was told during the course of the Contractor’s engagement with the Company was confidential or the Contractor knows or ought to know is confidential.

Deed Poll means the deed poll which sets out the obligations of the Contractor’s Personnel to the Company, executed by the Contractor’s Personnel, as applicable.

Employment Benefits means any benefits which employees are ordinarily entitled to at law including wages, salary, annual leave, personal/carer’s leave, leave loading, severance pay, long service leave, superannuation and workers compensation benefits and any taxes related to those benefits including PAYG, fringe benefits tax or payroll tax.

End Date means the date in the Work Order or such other date as the parties may agree in writing.

Fees means the rate or fees set out in the Work Order applicable to the Contractor from time to time.

Intellectual Property means any type of intellectual property including without limitation:

a) copyright (including future copyrights);

b) design, patent, trademark or service mark (whether registered, unregistered or applied for);

c) trade, business, company brand, commercial domain names or designations;

d) utility models, computer software, and software or hardware components, programs or configurations;

e) confidential scientific, engineering, technical or product information, and any developments or improvements to equipment, products, technology, processes, methods, practices or techniques;

f) registered or unregistered designs, drawings specifications or technology, or commercial names or designs;

g) know-how, inventions, discoveries, prototypes, processes (including design, engineering and manufacturing processes), and Confidential Information (whether in writing or recorded in any form);

h) any other proprietary, licence or personal rights arising from intellectual activity in the business, industrial, scientific or artistic fields; and

i) any pending application or right to apply for registration, letters patent, deed of grant, certificate or document of title for anything which is referred to in sub-paragraphs (1) to (8) above,

in any medium in which it is stored which presently exist or may arise in the future, anywhere in Australia or elsewhere in the world.

Loss means all damage, liability, claims, demands, proceedings, actions, and costs (including GST and legal fees on a client and solicitor basis and costs of defence or settlement).

Moral Rights means the right of integrity of authorship, right of attribution of authorship and right not to have authorship falsely attributed, as defined in the Copyright Act 1968 (Cth), as amended from time to time.

Personal Information has the meaning attributed to it in the Privacy Act 1988 (Cth), as amended from time to time.

Personnel means any employee or personnel of the Contractor appointed to perform the Services on the Contractor’s behalf.

Property means Confidential Information, Intellectual Property, other information and documents, devices, charge cards, mobile phones, credit cards, keys, access cards and other such items.

Related Bodies Corporate has the meaning attributed to it in the Corporations Act 2001 (Cth), as amended from time to time.

Sensitive Information has the meaning attributed to it in the Privacy Act 1988 (Cth), as amended from time to time.

Services means the services and/or deliverable set out in the Work Order(s) applicable to the Contractor from time to time.

Superannuation Legislation means the Superannuation Guarantee Charge Act 1992 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth), each as amended from time to time.

Work Order means the order for services issued by the Company and accepted by the Contractor in the form of Schedule 1 of this Agreement and as subsequently issued and accepted for the provision of future Services.

Works means all programs, programming, literary, dramatic, musical and artistic work within the meaning of the Copyright Act 1968 (Cth), as amended from time to time.

2. INTERPRETATION

In this Agreement unless the context otherwise requires:

a) reference to a person includes any other entity recognised by law and vice versa;

b) the singular includes the plural and vice versa;

c) words importing one gender include any gender;

d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;

e) any reference to any of the parties by their defined terms includes that party’s executors, administrators or permitted assigns or, being a company, its successors or permitted assigns;

f) an agreement, representation, or warranty on the part of two or more persons binds them jointly and severally;

g) an agreement, representation, or warranty in favour of two or more persons is for the benefit of them jointly and severally;

h) clause headings are for reference purposes only;

i) reference to a clause or schedule is a reference to the corresponding clause or schedule to this Agreement;

j) reference to a statute, ordinance, code, or other law includes regulations and other instructions under it and consolidations, amendments, re-enactments, or replacements of it; and

k) any reference to the terms “including”, “for example” or “such as” or when introducing an example, does not limit the meaning of the words to which the example relates to that example or examples of a similar kind.

3. COMMENCEMENT AND TERM

3.1 The Contractor will commence providing the Services on the date specified in the first Work Order issued by the Company and accepted by the Contractor and will continue to provide the Services until the End Date unless this Agreement is terminated earlier in accordance with clause 12.

3.2 The Contractor will be deemed to have accepted the terms of this Agreement, regardless of whether the Contractor has signed it, if the Contractor provides any of the Services after having received a copy of this Agreement.

3.3 The Contractor acknowledges that its engagement is only through to the End Date and the Company is not obliged to renew or extend the Contractor’s engagement beyond the End Date.

4. THE SERVICES

4.1 The Contractor will provide the Services to the Company, subject to, and in accordance with the Work Order issued by the Company and accepted by the Contractor. A Work Order will be substantially in the form of Schedule 1.

4.2 The Services are to be performed by the Contractor or by Personnel engaged by the Contractor in accordance with clause 8.

5. BASIS OF ENGAGEMENT

5.1 The Contractor acknowledges that the relationship between the parties is one of principal and independent contractor and that there is no relationship of employer-employee between the Company and the Contractor or any Personnel of the Contractor.

5.2 The Contractor acknowledges that nothing in this Agreement creates a relationship of employer-employee between or between the Client and the Contractor or any Personnel of the Contractor.

5.3 In accordance with clauses 5.1 and 5.2, the Contractor will not represent itself or hold itself out to be an employee of the Company or the Client and must ensure that any Personnel of the Contractor, do not do so either.

5.4 The Company acknowledges that the Contractor is under the direction and control of third parties. Accordingly, subject to the terms of this Agreement, the Company will not:

a) exercise any form of direction or control over the actions of the Contractor;

b) interfere with or question the business operations of the Contractor;

c) exercise any disciplinary action against the Contractor or any Personnel of the Contractor; and

d) be responsible for any actions of the Contractor or any Personnel of the Contractor, to the Client or other third party to which the Contractor provides services.

5.5 The Contractor acknowledges that it and any of its Personnel:

a) do not have any recourse to any employee grievance procedure within the Company, to the extent permissible by law;

b) do not have the authority to enter into any agreement on behalf of the Company and will not purport to bind the Company to any agreement or otherwise hold himself/herself out as being authorised to deal as an agent of the Company, except as otherwise expressly authorised to do so by the Company; and

c) are not entitled to payment or receipt of any Employment Benefits from the Company, other than those expressly set out in clause 6.7.

6. PAYMENT FOR SERVICES

6.1 Subject to the remainder of this clause, the Contractor will be paid the Fees set out in the applicable Work Order for the provision of the Services.

6.2 The Fees for the Services performed will not be paid to the Contractor by the Company unless:

a) the Contractor issues the Company with a time sheet in a format approved by the Company within 60 days of the Services being performed; and;

b) the time sheet is approved by the Client Representative named in the applicable Work Order, or other person nominated by the Client from time to time.

6.3 The Contractor will not be entitled to receive the Fees referrable to any period during which the Contractor or any Personnel of the Contractor performing the Services, was absent and as a consequence the Services, or a material part of them, were not provided by the Contractor during that period.

6.4 Client business shutdown periods may be notified to the Contractor by the Company or the Client, from time to time. Unless the Contractor is expressly advised by the Client that the Contractor and/or its Personnel are required to provide the Services during the shutdown period, the shutdown period will apply to the Contractor and the Contractor will not be entitled to receive any Fees referable to the shutdown period.

6.5 The Contractor will be paid the Fees in accordance with the Payment Cycle set out the applicable Work Order.

6.6 The Contractor acknowledges that the Company will not deduct from the Fees any amount for Employment Benefits, except those expressly set out in clauses 6.7.

6.7 The Contractor authorises the Company to and acknowledges that the Company will deduct from the Fees:

a) PAYG withholding amounts, payroll tax (if applicable) and other taxation; and

b) superannuation contributions at the minimum level required to avoid the imposition of a charge under the Superannuation Legislation.

6.8 Superannuation contributions will be paid by the Company into an eligible fund nominated by the Contractor at or prior to the commencement of the Contractor’s engagement. If the Contractor does not nominate a superannuation fund, then payment will be made into the Company’s default superannuation fund.

6.9 If there is any increase in the minimum level of superannuation contributions which the Company must make for the purposes of the Superannuation Legislation, the components of the Fees will be varied to ensure that there is no increase in the Fees.

6.10 The Company may deduct from or set off against any moneys payable by the Company to the Contractor, any amounts owing by the Contractor to the Company from time to time.

7. TRAVEL AND EXPENSES

7.1 The Company is not liable for any payment, allowance or reimbursement associated with any domestic or international travel the Contractor or its Personnel are required to undertake in order to carry out the Services. Reimbursement for any travel, accommodation and per diem expenses associated with such travel and any taxes arising from such travel, accommodation and other expenses will be at the discretion of the Client and should be agreed in writing in advance.

7.2 The Company will reimburse the Contractor for all reasonable business-related expenses incurred by the Contractor in the performance of the Services, provided that the Contractor:

a) has been authorised by the Company and the Client to incur such expenses; and

b) submits to the Company acceptable documentation for such expenses.

8. OBLIGATIONS OF THE CONTRACTOR

8.1 The Contractor will be responsible for the provision of the Services to the Company in accordance with this Agreement

8.2 The Contractor may engage Personnel or change existing Personnel, to perform the Services on the Contractor’s behalf, provided that:

a) the Contractor notifies the Company of any Personnel it wishes to have perform the Services on its behalf;

b) the Company expressly agrees in writing, to the Personnel of the Contractor performing the Services, which will not be unreasonably withheld; and

c) the Client expressly agrees in writing to the Personnel of the Contractor performing the Services.

8.3 The Contractor:

a) warrants that the Contractor’s and/or its Personnel’s immigration status gives them the right to work in Australia in such a way as to be able to fulfil the terms of this Agreement;

b) will immediately advise the Company if this status changes;

c) must supply, and must ensure that its Personnel supply, to the Company all documents (including their passport) as requested by the Company to confirm the Contractor’s and/or its Personnel’s right to work.

d) must ensure that it and where applicable its Personnel have appropriate current and valid qualifications and licences required to perform the services and will submit to the Company as requested; and

e) where applicable and if requested by the Client they will submit a written certificate from a registered medical practitioner to certify that the Personnel is fit to perform the services.

8.4 The Contractor must ensure that any Personnel engaged to perform the Services on the behalf, act in accordance with the Contractor’s obligations under this Agreement.

8.5 The Contractor must complete and where applicable, must ensure that any Personnel of the Contractor, completes all documents requested by the Company to comply with the Company’s requirements and any Client requirements as advised to the Company.

8.6 Prior to any Personnel of the Contractor performing the Services under this Agreement, the Contractor must provide to the Company, a copy of a Deed Poll, executed by any relevant Personnel.

8.7 The Contractor will notify the Company if it is unable, for any reason, to perform the Services. In the event of non-performance by the Contractor, the Company will not be responsible for any Loss to the Client that the Contractor is referred to under a Work Order.

8.8 Without limiting any other provision of this Agreement, the Contractor will, at all times during this Agreement:

a) exercise the utmost good faith in all transactions relating to the Company;

b) give to the Company an accurate account of those transactions as requested by the Company;

c) provide the Services in a proper, timely and professional manner to the reasonable expectations of the Company and the Client that the Contractor is referred to under a Work Order;

d) ensure compliance with all laws and Client policies and procedures, relevant to the provision of the Services and the Contractor and/or its Personnel working on the Client’s premises, as amended from time to time;

e) not at any time do anything which may directly or indirectly impair or be likely to impair the good name and reputation of the Company or its business.

8.9 Unless otherwise agreed with the Company or a Client, the Contractor will provide all plant, equipment and tools of trade as necessary in order to provide the Services.

8.10 Where applicable, the Company will arrange with the Client to provide security access to the Client’s premises for the Contractor’ and/or its Personnel in order to provide the Services, subject to the Contractor:

a) acknowledging that any of the facilities, equipment or other resources provided by the Client remain the property of the Client and will not be used for any purpose other than for the purpose of providing the Services;

b) protecting, and ensuring that any of it Personnel protect, security passes issued to them and return those passes to the Client on its request or once the provision of the Services is complete; and

c) wearing, and ensuring that any of it Personnel wear, safety equipment (if required) and dress in the manner required by the Client, as advised by the representative of the Client.

9. SUPPLY OF SERVICES TO OTHERS

9.1 Subject to clause 9.2, this Agreement does not prevent or restrict the Contractor from supplying services of any kind to any other person.

9.2 The Contractor must not supply services to another person if, in the reasonable opinion of the Company, doing so will:

a) adversely affect the Contractor’s ability to provide the Services in accordance with this Agreement; or

b) conflict with the interests of the Company or a Client that the Contractor provides Services to under a Work Order.

9.3 The Contractor must immediately disclose to the Company the existence, nature and extent of any conflict of interest that the Contractor may have in providing the Services in accordance with this Agreement and must comply with any reasonable directions or instructions of the Company.

10. INSURANCE

10.1 The Contractor will be covered by the insurance policies for

a) public liability; and workers compensation

b) Professional Indemnity insurance; unless it has been advised by the Company that the cover is not available.

10.2 The Contractor confirms that it has not previously been the subject of a claim that would otherwise be covered by a professional indemnity insurance policy and that after reasonable enquiry it is not aware of any claims or circumstances that might give rise to a claim under a professional indemnity insurance policy.

10.3 The Contractor must promptly provide written notice to the Company of any event or circumstances in relation to the provision of the Services that may result in a claim against the Contractor or the Company. The Contractor must provide the Company with all documents and information requested by the Company in relation to any such claims and keep the Company fully informed of all developments in connection with any such claims.

11. INDEMNITY

11.1 The Contractor will indemnify the Company against any and all Losses arising out of the actions or omissions of the Contractor or any Personnel of the Contractor, in respect of unauthorised representations, promises or agreements made by the Contractor or any of its Personnel.

11.2 In any event and under no circumstance will the Company be liable for Loss due to an action or omission of the Contractor or any Personnel of the Contractor.

11.3 In accordance with clause 6.6, the Contractor agrees to be solely responsible and liable for the payment of all Employment Benefits other than those expressly set out in clause 6.7, in respect of its performance of the Services and any performance of the Services by any of its Personnel. The Contractor agrees to indemnify and protect the Company against any breach non-compliance or non-performance of this obligation by the Contractor.

11.4 If the Company is found to have an obligation to pay any component of the Employment Benefits, other than those expressly set out in clause 6.7, in connection with the Contractor or any of its Personnel, performing the Services, the Company agrees to pay any such Employment Benefits and the Fees payable by the Company to the Contractor will be reduced by an amount equal to the Employment Benefits paid by the Company.

11.5 The Contractor agrees to indemnify the Company in respect of any damages, compensation, fine, penalty or other charge imposed on the Company relating to the payment of any Employment Benefits, other than those set out in clause 6.7, or any finding that the Contractor or any of its Personnel is an employee of the Company or a Client.

12. TERMINATION

12.1 Subject to clause 12.2, this Agreement may be terminated by either the Company or the Contractor by giving notice in writing in accordance with the notice period set out in the Work Order that applies at the relevant time to the Contractor.

12.2 The Company may immediately terminate this Agreement without notice, if:

a) the Contractor and/or any Personnel of the Contractor fail to perform the Services to the Client’s satisfaction and does not remedy this failure within five business days of receiving written notice to do so;

b) the Contractor and/or any Personnel of the Contractor, at any time, commit any act of dishonesty, fraud or misrepresentation which prejudicially affects the Company or the Client;

c) the Contractor and/or any Personnel of the Contractor is charged with any criminal offence which in the reasonable opinion of the Company is likely to bring the Contractor, the Company or a Client into serious disrepute;

d) the Contractor and/or any Personnel of the Contractor at any time commit any serious or persistent breach of the terms of this Agreement, including any Work Order issued to the Contractor, or of any law or Company or Client policy relevant to the performance of the Services;

e) any Personnel of the Contractor at any time commits any serious or persistent breach of the terms of the Deed Poll;

f) the Contractor ceases to be available to perform the Services; or

g) any proceedings are instituted for the bankruptcy of the Contractor or the Contractor enters into any arrangement for the benefit of creditors;

h) the Contractor and/or any Personnel of the Contractor do not meet the minimum requirements of background screening conducted in accordance with clause 15.2; or

i) the Australian immigration status of the Contractor and/or the Personnel of the Contractor do not permit the Contractor and/or the Personnel of the Contractor to deliver the Services in the manner contemplated by this Agreement.

12.3 On the completion of the Services to a Client, the cessation of this Agreement, or when requested to do so by the Client or Company (whichever occurs first), the Contractor must and must ensure that any Personnel of the Contractor, immediately return to the Client, all Property belonging to the Client which is in their possession, custody or control.

13. CONFIDENTIALITY

13.1 The Contractor acknowledges that during its engagement with the Company, the Contractor and any Personnel of the Contractor, may have access to Confidential Information about the Company and its Clients.

13.2 The Contractor must not and must procure that any Personnel of the Contractor do not, at any time during or after the termination of this Agreement, use copy or disclose any Confidential Information of the Company or a Client to which the Contractor was referred to under a Work Order during its engagement, otherwise than in the proper performance of the Services under a Work Order, with or the Client’s prior written consent.

13.3 If the Contractor and/or any Personnel of the Contractor disclose Confidential Information within the circumstances permitted by clauses 13.2, the Contractor and/or the relevant Personnel of the Contractor must inform whomever the Confidential Information is disclosed to, of its confidential nature, and must take all reasonable steps to ensure that any such person does not use, copy or disclose the Confidential Information other than for the purpose for which it was disclosed to them.

13.4 The Contractor agrees and will procure the agreement of any Personnel, not to make any notes or memoranda relating to any matter within the scope of business of the Company or a Client to which the Contractor was referred to under a Work Order during its engagement, other than in the proper performance of the Services under a Work Order and/or for the benefit of the Company. Any such notes or memoranda must be returned to the Client or destroyed at the end of each Assignment.

13.5 This clause 13 continues to apply after the termination (for any reason) of this Agreement.

14. INTELLECTUAL PROPERTY AND MORAL RIGHTS

14.1 The Contractor acknowledges and agrees that any Intellectual Property developed or created by the Contractor or any of its Personnel, in the course of or arising out of, the Contractor’s engagement with the Company, shall be the property of the Company and/or the relevant Client to which the Contractor is referred to under a Work Order, as directed by the Company.

14.2 The Contractor must and must ensure that the relevant Personnel of the Contractor will, immediately disclose full details of any such Intellectual Property to the Company and do all things necessary, including the execution of documents, for vesting all rights in the Intellectual Property in the Company or the Client, as directed by the Company.

14.3 The Contractor agrees that to the extent that the Intellectual Property contains pre-existing Intellectual Property owned by the Contractor, the Contractor provides the Company with a perpetual, irrevocable, transferable and royalty-free licence (including the right to sublicense) to utilise this pre-existing Intellectual Property for the purpose of obtaining the Services.

14.4 The Contractor must not and must procure that any of its Personnel, do not, use any Intellectual Property licensed or otherwise supplied by the Company or a Client to which the Contractor is referred to under a Work Order, for any purpose other than performing the Services to a Client under an applicable Work Order.

14.5 The Contractor must indemnify the Company and its agents, officers and employees against any Loss which is related to, arises out of, or is in any way associated with any claim that any Intellectual Property assigned, licensed or otherwise supplied by the Contractor to the Company or the Client or its use by the Company or the Client infringes the Intellectual Property rights of any third party.

14.6 The Contractor gives their consent and must arrange for any Personnel performing the Services to give their consent, to the doing of any acts or making of any omissions by the Company or a Client to which the Contractor is referred under a Work Order, their employees, servants, agents, licensees and assigns that infringes the Moral Rights in any Works made by the Contractor or its Personnel (as applicable) in the course of the Contractor’s engagement with the Company.

14.7 The Contractor acknowledges that its consent, and must ensure that the consent of any of its Personnel, is genuinely given without duress of any kind and that the Contractor and/or its Personnel has been given the opportunity to seek legal advice on the effect of giving this consent.

14.8 The Contractor must execute and must arrange for its Personnel to execute all documents and do all things required to give effect to this clause 14.

14.9 This clause 14 continues to apply after the termination (for any reason) of this Agreement.

15. PRIVACY

15.1 In relation to any Personal Information or Sensitive Information which the Contractor receives during the term of this Agreement, the Contractor agrees to comply with all obligations regarding the collection, use and disclosure of such information imposed on the Company and any Client the Contractor is referred to under a Work Order, by privacy and health laws, including but not limited to the Privacy Act 1988 (Cth), any relevant state or territory privacy legislation, and where applicable, the Company’s and the Client’s respective privacy policies, as amended from time to time.

15.2 The Contractor authorises and must procure authorisation from any of its Personnel for, the Company to complete, as required by the Company, background checks, including but not limited to, criminal record or police checks, qualification checks and/or any additional reference checks on the Contractor and its Personnel (as applicable) prior to considering whether to issue a Work Order to the Contractor.

15.3 The Contractor authorises and must procure authorisation from any of its Personnel for, the Company to disclose to a Client which the Contractor may be referred to under a Work Order, information in relation to the background checks referred to in clause 15.2.

16. GENERAL

16.1 The Company reserves the right to change the Fees payable and method of payment to the Contractor to discharge any new or existing legislative requirement.

16.2 This agreement shall be governed by the laws and jurisdiction of Queensland.

16.3 Each party must sign, execute and complete all additional documents which may be necessary to effect, perfect, or complete the provisions of this Agreement and the transactions to which it relates.

16.4 This Agreement may be executed in any number of counterparts, each of which is deemed to be an original and all of which constitute one and the same instrument.

16.5 The failure or omission of a party at any time to:

a) enforce or require the strict observance of or compliance with any provision of this Agreement; or

b) exercise any election or discretion under this Agreement,

will not operate as a waiver of them or of the rights of a party, whether express or implied, arising under this Agreement.

16.6 If any part of this Agreement is or becomes illegal, invalid or unenforceable in any relevant jurisdiction, that part shall be severed and the legality, validity or enforceability of the remainder of the Agreement will not be affected and this Agreement will be read as if the part had been deleted in that jurisdiction only.

16.7 This Agreement embodies the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes any prior negotiation, arrangement, understanding or agreement with respect to the subject matter or any term of this Agreement.