Lend Me A Hand Pty Ltd ACN 154 916 917 (“Sidekicker”, “the Company”) operates an online platform to obtain temporary staff through Sidekicker’s website at https://www.sidekicker.com.au.com.au/(“Sidekicker”, “Site”, “Sidekicker Site” or “Sidekicker Services”).
In using the Sidekicker Site, You confirm that you agree to be bound by this agreement for the supply of Labour Hire Services.
Please read these terms and conditions carefully.
A. Sidekicker provides temporary staff on a labour hire basis through its service called SKPlus.
B. The Client wishes to engage Sidekicker to provide labour as outlined in the job post made by the client on “Sidekicker Site”
C. 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 and any document that varies or supplements it;
Business Day means any day which is not a Saturday, Sunday or designated public holiday or bank holiday in the State or Territory in Australia the Services are provided;
Confidential Information means any information provided by the Client or any of its Representatives to Sidekicker (or any of its Representatives), or otherwise obtained by Sidekicker or any of its Representatives, whether obtained before or after execution of the Agreement, in connection with the Client , the Services or this Agreement. It includes:
(a) all confidential business information, documents, records, financial information, reports, technical information and forecasts which relate to the Client or the Client’s business;
(b) the Client’s Intellectual Property, including the Developed Intellectual Property;
(c) the terms and conditions of this Agreement; and
(d) any information created under or arising out of the provision of Services under this Agreement.
It 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 Client or any of its Representatives;
(b) was known to Sidekicker at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence; or
(c) Sidekicker can prove by contemporaneous written documentation was independently acquired 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;
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:
(1) acts of God, earthquake, fire, flood, storm;
(2) war, riot, insurrection, vandalism or sabotage;
(3) strikes, stoppages, labour disputes and other forms of industrial disturbance;
(4) explosion; or
(5) 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 same meaning given to the term in the GST Law;
GST Law means 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 either 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, title and interests in and to the inventions, know-how, patents, patent applications, registered and unregistered trade-marks, services marks, registered and unregistered designs, look and feel, copyrights, circuit layouts, domain names, internet addresses, computer programs, confidential information, trade secrets, trade or business names, brand names and all other rights resulting from intellectual activity in, but not limited to, the industrial, scientific, literary or artistic fields;
Labour Hire Request means a request by the Client for Sidekicker to provide the Services to the Client in accordance with clause Error! Reference source not found.;
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;
Related Bodies Corporate has the meaning provided in the Corporations Act;
Related Entity has the same meaning as under the Corporations Act;
Representative means any director, officer, employee, agent, contractor, subcontractor, adviser or Related Entity of a party, and for the avoidance of doubt, when referring to Sidekicker, includes its Sidekicks;
Services means the Service of providing labour hire to the client.
Sidekick means an employee of Sidekicker selected by Sidekicker to be placed in a particular position at the Client.
Term means the term of this Agreement that occur when a request is made or any other period that the parties agree in writing.
In this Agreement, except where the context otherwise requires:
(1) the singular includes the plural and vice versa, and a gender includes other genders;
(2) another grammatical form of a defined word or expression has a corresponding meaning;
(4) a reference to A$, $A, dollar or $ is to Australian currency;
(5) a reference to time is to Australian Eastern Standard Time or Australian Eastern Daylight Time (as the case may be);
(6) a reference to a party is to a party to this Agreement and includes the party’s executors, administrators, successors and permitted assigns and substitutes;
(7) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(8) 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;
(9) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(10) headings are for ease of reference only and do not affect interpretation;
(11) if a party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly;
(12) an obligation, representation or warranty in favour of more than one person is for the benefit of them jointly and collectively;
(13) 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;
(14) 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
(15) 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 start on the date a Sidekick is hired and remain in force for the Term unless terminated earlier or extended in accordance with this Agreement.
3.1. Provision of the Services
Sidekicker will provide the Services to the Client on the terms set out in this Agreement.
3.2. Exclusive Use
All interactions between a client and a Sidekick initiated through SKPLUS must be through the Sidekicker website. If a client wishes to employ a Sidekick, a 10% connection fee (based on a full years salary) or a $1,000 fee may be charged at Sidekicker’s discretion.
3.3. Non-exclusive appointment
The appointment of Sidekicker is non-exclusive and this Agreement does not restrict the Client’s right to perform any services itself or contract with other parties for the performance of services similar to the Services.
4. Sidekicker’s Sidekicks
4.1. Warranties in relation to Sidekicks
(1) Sidekicker warrants that, in relation to the provision of Sidekicks 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 Sidekicker’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 Sidekicks and provide the Sidekicks with group tax certificates;
(d) it will keep all necessary employment records of the Sidekicks; and
4.2. Standard of Behaviour
(1) Sidekicker will require that Sidekicks agree to:
(a) be suitably attired, courteous and diligent at all times; and
(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 Confidential Information confidential;
(e) wear such clothing (including personal protective clothing) and us such equipment while at a Client facility as is reasonably appropriate or otherwise required by the Client; and
(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 useable condition.
4.3. Nature of the relationship between the Client and Sidekicks
Nothing in this Agreement creates a relationship between the Client and the Sidekicks of employer and employee.
5. Sidekicker’s obligations
5.1. Level of Performance
(1) Sidekicker will seek to ensure that:
(a) the Services are provided promptly, carefully and in a professional manner;
(b) when providing the Services, it 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 satisfaction having regard to the Client’s requirements; and
(f) it complies with all instructions, directions, descriptions and specifications given by the Client.
5.2. Compliance with laws and policies
(1) At all times during the Term, Sidekicker must:
(a) comply with all requirements of any laws relating to the performance of the Services;
(b) comply with any of the Client standards, operating policies or procedures that are in effect and provided to Sidekicker from time to time.
6. Occupational Health and Safety
- The Client must ensure the health and safety of Sidekicks at all times whilst they are under it’s management and control. Without limiting this requirement in anyway, the client must ensure that all Sidekicks.
- have received any required training for the work to be performed; and
- are provided with all safe work procedures relevant to the workplace.
2. The Client agrees to provide Sidekicker if requested with:
- copies of all its induction, training and safe work procedures prior to any Sidekick commencing work; and
3. any updates to those procedures as soon as they are produced.
Sidekicker agrees to keep full 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 must make all documents and records relating to the Services available to the Client for inspection.
The Client will pay Sidekicker for providing the Service.
(1) All rates on the “Sidekicker site” are exclusive of GST.
(2) In addition to the rates, 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
(1) The Client will pay an invoice within 14 days from when it is received.
(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;
(c) the invoice is addressed to the Client and identifies this Agreement.
9.1. General warranties
Each party represents and warrants:
(1) it has full corporate power to enter into and give effect to this Agreement and the transactions contemplated by this Agreement;
(2) it has taken all necessary action to authorise the execution, delivery and performance of this Agreement;
(3) the execution, delivery and performance of this Agreement does not contravene any contractual, legal or other obligations that apply to it; and
(4) the obligations under the Agreement will be valid, binding and enforceable.
10. Liability and Indemnity
10.1. Sidekicker’s Indemnities
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:
(1) 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;
(2) loss of or damage to any property owned, hired or supplied by Sidekicker or its Representatives;
(3) loss of or damage to any property where the loss or damage is caused by or results from any act or omission of the Service Provide or its Representatives;
(4) a breach by way of any act or omission of Sidekicker or its Representatives of the confidentiality provisions in this Agreement;
(5) a breach by Sidekicker or its Representatives of the Privacy Act or of a the Client privacy code or policy;
(6) unlawful, negligent, or wrongful act or omission of Sidekicker or its Representatives in connection with the performance of its obligations under this Agreement;
(7) any breach by Sidekicker or its Representatives of its obligations under this Agreement,
10.2. Additional Indemnities
Sidekicker indemnifies and agrees to keep indemnified the Client against:
(1) any loss or penalty under any applicable legislation arising from all employee entitlements of Sidekicker’s Sidekicks, which, for the avoidance of doubt, will be provided by Sidekicker; and
(2) 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.
11. Intellectual Property
11.1. The Client’s existing Intellectual Property
(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 Related Entities.
(2) Sidekicker must not use or disclose such Intellectual Property or information for any purpose other than for the purpose of performing its obligations under this Agreement.
11.2. Sidekicker’s existing intellectual property
The Client acknowledges and agrees that Sidekicker continues to own all of its Intellectual Property existing at the date of this Agreement, or coming into existence during the term of this Agreement.
12.1. Obligations of confidence
Where either party receives Confidential Information from the other under this Agreement, each must:
(1) keep the Confidential Information confidential;
(2) not use, disclose or reproduce the Confidential Information for any purpose other than the purposes of this Agreement;
(3) 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
(4) 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
Notwithstanding clause 12.1, either party may use or disclose Confidential Information to the extent necessary to:
(1) comply with any law or binding directive of a regulator or a court order;
(2) comply with the listing rules of any stock exchange on which its securities are listed; or
(3) 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 continue in full force and effect after this Agreement ends.
13. Privacy obligations
(1) If, as a result of this Agreement, either party is able to access any information about identifiable individuals then both parties agree to:
(a) 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 information, as if it were regulated by these laws;
(b) comply with any privacy code or policy which has been adopted by the other as if it were bound by that code or policy.
14.1. Termination by notice
Either party may terminate this Agreement at any time by giving 30 days’ written notice to the other party.
Either party may immediately terminate this Agreement by written notice to the other if any of the following occurs:
(1) The other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(2) Either party is the subject of an Insolvency Event;
(3) Either party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(4) Either party or any of their Representatives are found to be guilty of fraud, dishonesty or any other serious misconduct; or
(5) any warranty given in clause 9 is found to be untrue or misleading.
15. Consequences of Termination
On the expiry or termination of this Agreement for any reason:
(1) each party retains its rights in respect of any breach by the other party;
(2) the Client is not liable to pay for any work including any Services provided after termination.
15.2. Return of property
On the expiration or termination of this Agreement for any reason, Sidekicker must immediately return all of the Client’s equipment, information, documents and property used in provision of the Services or otherwise in Sidekicker’s possession or control, except to the extent required by law.
15.3. Continuing obligations
The termination or expiration of this Agreement does not affect accrued rights.
16. Force Majeure
(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.
(2) The party that is prevented from or delayed in performing the obligation must promptly notify the other party of its inability to perform the obligation due to the Force Majeure Event.
(1) All notices to be given under this Agreement are to be in given in writing.
(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.
(3) All notices served under this Agreement will be considered to have been received three Business Days after posting, unless sent by facsimile in which case the notice will be deemed to have been received on the date shown on the sender’s transmission report.
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.
This Agreement may be executed in any number of counterparts and by the parties in separate counterparts. Each counterpart constitutes an original of this Agreement and all together constitutes one agreement.
If any part of this Agreement is held to be invalid or unenforceable in any way, the remaining provisions will not be affected and remain in full force for the Term.
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party.
(1) A party’s failure to delay to exercise a power or right does not operate as a waiver of that power or right.
(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.
(3) A waiver is not effective unless it is in writing.
(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.
An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.
24. Governing Law
This Agreement will be governed by the laws of the State of Victoria, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts in that State.
25. Entire Agreement
This Agreement constitutes the entire agreement between the parties in respect of the Services, and supersedes all prior agreements, representations, negotiations and correspondence.
Executed as an agreement.
The SKPLUS 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 to extent allowed by law.
26.3 More Information
Please direct any queries to firstname.lastname@example.org, 1300 098 375, Level 5 313 Flinders Lane Melbourne Vic 3000