Considering the curricula vitae of the Worker to ensure that the Worker is suitable for the Assignment;
taking reasonable steps to validate the information contained in curricula vitae, including but not limited to experience, certificates, qualifications, trade specific information and references provided by Workers; and undertaking all reasonable enquiries to ensure that the Worker holds any necessary Visa to undertake the role; and
- ensure that the Worker is competent, trained and skilled in the carrying out of any work required in fulfilling their duties on Assignment including taking such steps such as induction;
- abide by all Applicable Laws that cast upon the Host Employer any obligation to do, or refrain from doing, anything, or to make or pay any payment, deduction, premium, levy, allowance, compensation, damages, interest or costs in respect of or in connection with the engagement of the Worker under this Agreement or any work done by them whilst on Assignment to the Host Employer;
- release the Labour Provider from all claims which the Host Employer or any other person claiming through the Host Employer now have or has or might have in the future, in respect of the Labour Provider’s liability for any damage, loss or injury to or death of the Worker, or any other person, to the extent that the Labour Provider’s liability is not required by law to be covered by insurance or other suitable and permissible statutory indemnity or self-insurance arrangement, or if not so required is not covered by them; and
- pay any statutory charges, levies and taxes for which the Labour Provider may become liable in respect of performing the Labour Provider’s obligations under this Agreement by reason of such statutory charges, levies or taxes being introduced after the acceptance of the offer to supply services.
- Prior to providing the Host Employer with the Worker for an Assignment, the Host Employer will provide the Labour Provider with full and accurate information about the job requirements relevant to the Assignment, which will include:
- if the requirements are within the classification description of the relevant Modern Award, the name of the relevant Modern Award and the classification;
- if the requirements are different to the relevant Modern Award classifications, the Assignment description must be provided in the Purchase Order identifying the specialist needs required; and
- any trade or industry specific requirements or qualifications.
- Unless otherwise specified in the Purchase Order, the Host Employer is responsible for providing the tools and equipment.
- If the Host Employer is responsible for tools and equipment the Host Employer must comply with all Applicable Laws with respect to the tools and equipment.
- The Host Employer acknowledges that the Host Employer is bound by the terms and conditions of the relevant Fair Work Instrument affecting the Worker to the same extent as if the Host Employer were the employer of the Worker, including without limitation any obligations placed upon the Host Employer which would entitle the Worker to elect permanent employment with the Host Employer, or that would compel the Host Employer to offer such employment (subject to the terms of this Agreement).
- The Host Employer must not, subject to the terms of this Agreement, offer to employ the Worker at any time.
- Once Assignment of the Worker commences, the Host Employer must:
- not, without the Labour Provider’s prior written approval, on-hire or resupply the Worker to any other person or organisation;
- not, without the Labour Provider’s prior approval, allocate tasks or responsibilities to the Worker or require the Worker to perform or participate in work, other than in accordance with the relevant Purchase Order;
- not request the Worker to perform or participate in any work or use any plant or equipment with which the Worker is unfamiliar or in respect of which he or she is unqualified or has not received adequate training;
- supervise, instruct and direct the Worker properly at all times whilst he or she is on Assignment to the Host Employer;
- provide the Labour Provider with details of responsibilities and duties the Worker will be required to carry out including where relevant, details of the plant and equipment the Worker will be operating;
- report to the Labour Provider any performance issues in relation to the Worker in a written format, so that the Labour Provider can manage the feedback process with the Worker; and
- notify the Labour Provider immediately if the job description applicable to the tasks performed by the Worker changes or the duration of the Assignment changes.
- occupational health and safety and other matters
- The Host Employer will:
- be solely responsible and liable for ensuring the health and safety of Workers while the Workers are on Assignment with the Host Employer;
- be solely responsible and liable for ensuring that the work site is safe and suitable for the Services;
- be solely responsible for the supervision of the Workers on Assignment for compliance with any workplace health and safety laws and regulations;
- be solely responsible for the engineering, stability, safety and security, construction and suitability of the Services performed by the Worker, and for any advice, procedures, plans or information provided by the Worker and for any claims arising in connection with the works performed by the Worker;
- comply with the Host Employer’s obligations to the Worker pursuant to Applicable Laws, including legislation relating to workplace or occupational health and safety, discrimination and harassment;
- maintain a safe work environment and safe systems of work and establish safe work practices;
- not ask Workers to operate machinery or vehicles that they are not qualified and experienced to operate or that they do not have the correct ticket and/or applicable licence to operate. It is the Host Employer’s obligation to assess Workers to ensure that they are qualified and experienced to operate any machinery or vehicles prior to instructing or permitting them to do so;
- communicate safe work procedures to the Worker;
- conduct and prepare safety assessments including site inductions, work method statements, job safety analysis and risk assessments on the job site;
- consult, cooperate and coordinate with the Labour Provider on health and safety matters for Workers;
- comply with safety standards;
- maintain and service plant and equipment, in particular, regularly and, as appropriate, have a qualified person check that the plant and equipment to be used by the Worker is safe and meets legal requirements and:
- if the plant is safe, have a qualified person provide a written certification that he or she has inspected the plant and it is safe and meets legal requirements and provide the Labour Provider with a copy of that certification upon request; or
- if the plant is not safe, immediately instruct the Worker not to use that plant and to notify the Labour Provider of the plant that is found to be unsafe;
- not ask any Worker to operate any plant and/or equipment that is not compliant with the terms of this Agreement;
- supervise through relevantly competent and experienced persons, instruct and direct the Worker and the Host Employer’s own employees and contractors properly at all times whilst they are on Assignment to the Host Employer;
- provide adequate induction, training and safety consumables to the Worker where appropriate;
- ensure the Workers wear steel capped safety boots at all times (if Workers do not the Host Employer must not allow them onto the site and must inform the Labour Provider);
- inform the Worker and the Labour Provider promptly of any unusual workplace risk or practice or of any change in site or safety conditions that may present a hazard to the Worker;
- ensure Workers are able to reasonably and safely return to their residences after providing the Services on any Assignment. Without limiting the foregoing provisions:
- the Host Employer must ensure that Workers finish each Assignment at the same place that they started, or provide the Workers with paid transport home; and
- the Host Employer must not leave Workers stranded at the end of an Assignment;
- notify the Labour Provider immediately via the Labour Provider’s incident report form if an Incident involving the Worker occurs including any occupational health and safety risks or discrimination or harassment issues in connection with the provision of the Services;
- comply with the Labour Provider’s reasonable requests to ensure the workplace health and safety of the Worker and to promptly rectify any deficiency in the provision of a safe work environment or safe systems of work, that in the Labour Provider’s reasonable opinion would pose a threat to the safety of the Worker or to any other person who may attend a place at which work is or may be performed by the Worker under the Assignment;
- rectify any work environment that the Worker reasonably considers to be unsafe within a reasonable time after the Worker informs the Host Employer;
- allow the Labour Provider to enter into the workplace where the Worker works to ensure the compliance with the relevant legislation, including legislation relating to workplace or occupational health and safety, discrimination and harassment;
- provide the Labour Provider with copies of all safety and/or training records;
- on reasonable notice, grant the Labour Provider the right to examine any books, records and files maintained by the Host Employer or perform any audit or investigations relating to the safety and/or training records;
- forward to the Labour Provider promptly a written notification of any workplace incident that may give rise to a claim by, against or involving the Worker; and
- assist where practicable, with the rehabilitation of the Worker by way of providing the Worker, through the Labour Provider, with suitable work (including light duties) once the Worker is able to return to work, if the Worker suffers an injury that is compensable under any law relating to worker’s compensation or occupational health and safety. In the event that the work contemplated by this subclause is provided, and is of a lesser value, classification or remuneration than the work principally contracted for under the Assignment, the Labour Provider will discount the Labour Provider’s charges to the amount agreed between the Host Employer and the Labour Provider that represents the fair value of the work.
Without limiting any of the obligations of the Host Employer under this Agreement, the Host Employer agrees that:
the Labour Provider requires all Workers to complete the forms listed at https://megacrew.co/resources/ in respect of each Assignment the subject of a Purchase Order, prior to attending the Assignment (Labour Provider WHS Assessment);
the Labour Provider will promptly, following a request by the Host Employer, provide the Host Employer with the completed forms with respect to any Labour Provider WHS Assessment completed by any Worker for the purposes of an Assignment (Labour Provider WHS Assessment Results);
the Host Employer acknowledges and agrees that, the Labour Provider does not represent that any Labour Provider WHS Assessment, or any Labour Provider WHS Assessment Results are comprehensive, adequate or relevant to the Assignment;
prior to relying on any Labour Provider WHS Assessment or Labour Provider WHS Assessment Results, the Host Employer must carry out their own independent assessment of the relevant Workers, the Labour Provider WHS Assessment and the Labour Provider WHS Assessment Results;
neither the completion of a Labour Provider WHS Assessment, or the provision to the Host Employer of any Labour Provider WHS Assessment Results limits the Host Employer’s obligations under this Agreement in any manner;
unless the Host Employer notifies the Labour Provider to the contrary prior to the commencement of any Assignment, the Host Employer will be deemed to have irrevocably confirmed and represented to the Labour Provider and all Workers that the Labour Provider WHS Assessment and the Labour Provider WHS Assessment Results are relevant, sufficient, appropriate, and can be relied upon by the Labour Provider and the Workers, for the purposes of the Assignment the subject of the Purchase Order.
The Labour Provider may in its absolute discretion, but is not obliged to, perform inspections, audits and/or checks such as venue safety inspections, inductions and competency assessments of Workers at any time, prior to and during the provision of any Services on site.
- The Labour Provider’s Responsibilities
- The Labour Provider will take all reasonable steps to ensure that its Worker has suitable qualifications and experiences specified in the Purchase Order to fulfil the Assignment, which may include undertaking tasks such as:
- collecting and perusing the curricula vitae of the Worker;
- requesting and reviewing any licence or qualification documents that the Worker provides to the Labour Provider;
- requesting the Worker provides proof of its insurances; and
- taking reasonable steps to validate the information contained in curricula vitae, qualifications and references forwarded to the Labour Provider by the Worker,
however the Labour Provider does not make any representation as to the authenticity and veracity of the information provided to it by the Worker or any third party as to the Worker’s experience and qualifications.
- Except where required by Applicable Laws, the Labour Provider has not conducted any criminal history checks in relation to the Worker.
- Notwithstanding clauses 1 and 13.2 the Labour Provider gives no warranty as to the suitability of the Worker. The Host Employer shall satisfy itself as to the suitability of the Worker and the Host Employer shall take such steps as it deems necessary to satisfy itself on the suitability of the Worker. The Host Employer is responsible for obtaining work permits and/or such other permission to work as may be required, for the arrangement of medical examinations and/or investigations into the medical history of any Worker, and satisfying any medical and other requirements, qualifications or permission required by law of the country in which the Worker is engaged to work.
- The Labour Provider is solely responsible for the payment of all amounts due to Workers in relation to the provision of the Services by the Worker to the Host Employer under an Assignment.
- The Labour Provider must provide a Worker placed on an Assignment with any policies and work rules maintained from time to time by the Host Employer which are provided to the Labour Provider.
- The Labour Provider will ensure the Worker executes such acknowledgements and other documents as the Host Employer may reasonably require before commencing the Assignment, provided such notices and documents are provided to the Labour Provider at the same time as the Purchase Order is provided.
- Either party may terminate this Agreement or a Purchase Order at any time and for any reason by giving 30 days’ written notice to the other party.
- If the Host Employer terminates a Purchase Order or this Agreement in accordance with clause 14.1(a) above, the Host Employer will still be liable to pay to the Labour Provider all outstanding charges in addition to any cost incurred by the Labour Provider to effect the termination.
- If the Host Employer terminates a Purchase Order, the Host Employer agrees that the Host Employer will indemnify the Labour Provider for any liability, damages, compensation, expenses, or costs that the Labour Provider may incur as a result of any proceedings which may be commenced or claims that may be made by the Worker arising out of, or in any way related to the termination of the Purchase Order.
Either party may, at any time, by notice in writing to the other party, terminate a Purchase Order or this Agreement immediately without prejudice to any other claim, right or remedy they may have against the other party under this Agreement if the other party is in breach or default of any of its agreements, duties or obligations under a Purchase Order or this Agreement, and:
- if that breach is able to be rectified, fails to rectify the breach or default within 7 days after being requested to do so by notice in writing; or
- that breach is not able to be rectified.
- Effect of Termination
- Following termination of this Agreement, the Host Employer must pay to the Labour Provider any amounts properly due and unpaid to the date of termination of the Agreement.
- Any Purchase Orders which are current as at the date of termination of this Agreement will be deemed to be terminated contemporaneously with the termination of this Agreement.
- The determination of this Agreement shall not affect the rights of the parties accrued before or upon or as a result of termination.
- business protection
During the Restraint Period, the Host Employer and its Related Entities must not, in any capacity (whether as a principal, employee, agent, director, officer, partner, consultant, Worker, advisor or otherwise), for its benefit or the benefit of any other person, directly or indirectly, without the prior written consent of the Labour Provider:
- induce or encourage any Worker with whom the Host Employer or its Related Entities has had dealings with or has been introduced to during the 12 month period prior to the event that gives rise to this clause (being the inducement or the encouragement) or 12 months prior to termination of this Agreement as the case may be, to leave their current engagement with the Labour Provider;
- engage a Worker with whom the Host Employer or its Related Entities has had dealings with or has been introduced to during the 12 month period prior to the event that gives rise to this clause (being the engagement) or 12 months prior to termination of this Agreement as the case may be; or
- act in any way which may assist or induce a Worker to breach any agreement with the Labour Provider, or to terminate or to not renew any contract of any sort that they may have with the Labour Provider, or to circumvent the involvement of the Labour Provider in any arrangement between the Host Employer and any Worker who has been assigned to the Host Employer at any time,
without the involvement of the Labour Provider.
The Host Employer acknowledges and agrees that that:
- this clause has effect as if it consisted of several separate covenants and restraints consisting of each separate covenant and restraint set out in clause 15.1 combined with each separate Restraint Period (“Restraint Covenants“) and if any of the Restraint Covenants are or become invalid or unenforceable for any reason then the invalidity or unenforceability does not affect the validity or enforceability of any of the other Restraint Covenants;
- reference to the Worker in the Restraint Covenants includes the Worker and any Related Entity of the Worker, including the Worker trading as an individual or under another name or structure;
- the Host Employer, through this Agreement, has received substantial and valuable consideration for each of the Restraint Covenants including:
- it will acquire Confidential Information and trade secrets of the Labour Provider;
- subject to the Host Employer fulfilling its obligations, the Labour Provider will provide Workers to the Host Employer;
- it will establish close business relationships with Workers and other persons involved in important trade connections with the Labour Provider;
- the restraint contained in this Agreement is reasonable in scope, duration and time, and reasonably necessary to protect the Labour Provider’s goodwill and legitimate interests; and
- it has sought independent legal advice regarding the effect of this restraint.
The Host Employer agrees that damages may be inadequate compensation for breach of the obligations contained in this part and, subject to the Court’s discretion, the Labour Provider may restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or will be in breach of this clause.
- If the Host Employer or a Related Entity of the Host Employer is in breach of this clause, the Host Employer agrees to pay the Labour Provider a recruitment fee as follows (Recruitment Fee):
- the Recruitment Fee is $10,000 plus GST for each Worker that you employ or engage on a full time basis;
- the Recruitment Fee is $5,000 plus GST for each Worker that you employ or engage on a casual or part time basis.
- In addition to the Recruitment Fee, the Host Employer agrees to irrevocably engage the Labour Provider to provide the Worker for an additional 200 hours.
- The Host Employer agrees that the amount of damages calculated in accordance with this formula represents a genuine pre-estimate of the Labour Provider’s losses and damages. The parties confirm that the Recruitment Fee is reasonable and proportionate to protect the Labour Provider’s legitimate interest and is not a penalty.
- The Host Employer will be invoiced for the Recruitment Fee and the Recruitment Fee is payable within 7 days of the date of the invoice.
- If the Recruitment Fee is not paid by the Host Employer within this 14 day period, the Host Employer will be liable to pay the Labour Provider interest, calculated at the rate of 12% per annum, accruing daily and compounding monthly.
- If the Host Employer employs the Worker or engages the Worker as a contractor or similar, the Host Employer or its Related Entity will become the employer or principal of the Worker and will assume all relevant liabilities.
- The Host Employer agrees to pay the Recruitment Fee irrespective of whether:
- the Host Employer approached the Worker for work directly;
- the Worker approaches the Host Employer directly looking for work (including without limitation where they provide the Host Employer with a resume, or respond to a job advertisement;
- the Worker previously worked for the Host Employer when they were at a different company or did work for the Host Employer personally.
- This clause 15 survives termination of this Agreement.
- If the Host Employer or a Related Entity of the Host Employer wishes to hire a Worker direct, the Host Employer must first give notice to the Labour Provider of its intention to do so (Hire Notice).
- A Host Employer is permitted to hire a Worker direct subject to the following:
- the Host Employer providing the Labour Provider with the Hire Notice immediately upon its intention to do so;
- the Host Employer not making it known to the relevant Worker of its intentions;
- the Host Employer engaging the Labour Provider to provide the Worker for an additional 200 hours from the date of receipt of the Hire Notice; and
- upon completion of the 200 hours, the Host Employer agreeing to pay the Recruitment Fee calculated in the same manner as clause 15.4.
- Subject to the Host Employer satisfying the terms of this clause to the satisfaction of the Labour Provider, the hire of a Worker direct by the Host Employer will not be in breach of this Agreement.
- Whilst the Labour Provider uses reasonable endeavours to ensure that only suitable Workers are placed on Assignments, the Labour Provider makes no representation or guarantee that the Worker will achieve a certain level of performance, achieve a certain outcome, solve a particular problem or be suitable for any purpose. The Services are provided by the Labour Provider on an “as is” basis, without any warranties or representations except as expressly set out in this Agreement. The Host Employer uses the Services at its own risk. The Host Employer must satisfy itself as to whether the Worker is suitable for the Assignment.
- The Host Employer must indemnify and keep indemnified the Labour Provider from all Loss, damage, expense, claim or liability (including without limitation legal costs and expenses on a solicitor own client basis) incurred by the Labour Provider arising from or incidental to:
- the negligent act or omission or wilful misconduct of the Host Employer, the Host Employer’s employees or agents;
- all increases in insurance premiums paid or payable by the Labour Provider as a result of the Host Employer;
- any act or omission of the Host Employer which affects any insurance policy of the Labour Provider and/or the Host Employer that causes it to become void or voidable, any claim to be rejected or a premium to be increased;
- the provision of, or omission or failure to provide or error or defect in the Services;
- any claim (including those made by third parties) as to any outcome of the Services;
- the enforcement of this Agreement;
- a breach by the Host Employer, the Host Employer’s employees or agents of any of the Host Employer’s obligations under this Agreement;
- those matters specified under clause 10; and
- a breach by the Host Employer, the Host Employer’s employees or agents of any third party rights and any Applicable Laws.
- The liability of the Host Employer to indemnify the Labour Provider under this clause shall be reduced to the extent that the Labour Provider has caused or contributed to the loss or damage subject of the indemnity.
- To the extent permitted by law, the Labour Provider will not be liable to the Host Employer, and the Host Employer releases the Labour Provider in respect of any damage, loss or injury suffered by any person of any nature or kind, however caused, which may be suffered or incurred, arising directly or indirectly, in respect of the Services provided under this Agreement, except to the extent, wholly or in part, that the Labour Provider’s liability to indemnify the Host Employer is directly caused by the Labour Provider’s negligent or wilful actions or omissions or the negligent or wilful actions or omissions of the Labour Provider’s employees or agents. The Labour Provider specifically excludes liability for:
- the provision of, or omission or failure to provide or error or defect in the Services;
- any damage, loss or injury suffered by any person of any nature or kind where payment of an insurance claim is properly refused in respect of such damage, loss or injury because of any act or omission by the Host Employer;
- those matters specified under clause 10; and
- if the Labour Provider is unable to supply Workers required by the Host Employer at any time.
- Subject to the other terms of this clause, the Labour Provider’s maximum aggregate liability to the Host Employer in any 12-month period for any loss or damage or injury arising out of or in connection with the Services under this Agreement, including any breach by the Labour Provider of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by the Host Employer under this Agreement in the 12-month period preceding the matter or event giving rise to the claim.
- Nothing in this agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision or any liability of the Labour Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
- If the Labour Provider is liable to the Host Employer in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Labour Provider’s total liability to the Host Employer for that failure is limited to, at the option of the Labour Provider to:
- providing the Services again; or
- the payment of the cost of providing the Services again.
- Subject to the other terms of this clause, each party shall not be liable to other for any special, indirect or consequential loss arising under or in connection with this Agreement, including any loss of profits, loss of sales or business, loss of production, loss of agreements, loss of business opportunity, loss of or damage to goodwill or loss of reputation.
- The Labour Provider will not be liable for any claim under or in connection to or arising out of this Agreement unless the Host Employer has first made a claim under any insurance policy held by the Host Employer that may cover that claim and that claim has been denied in whole or partly by the relevant insurer (at no fault of the Host Employer).
- Nothing in this clause prohibits the Host Employer from making any claim directly against a Worker in relation to the Services provided by the Worker, particularly in relation to any negligent acts or omissions of the Worker.
- Confidential information
- Other than where:
- disclosure is required under this Agreement;
- the Confidential Information is in the public domain, except as a consequence of a breach of this clause;
- expressly agreed by all parties in writing; or
- required by law;
the Host Employer must at all times:
- treat and keep the Confidential Information confidential;
- not use, or allow the use, of the Confidential Information by any third party;
- not disclose or allow the disclosure of the Confidential Information or the fact of the disclosure of the Confidential Information to any third party.
- If requested by the Labour Provider, the Host Employer must immediately return all Confidential Information, and any copies of the Confidential Information, to the Labour Provider.
- In the event of a breach or threatened breach of the terms of this clause by the Host Employer, the Labour Provider will, as between the parties, be entitled to an injunction restraining the Host Employer from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by the Labour Provider.
- Neither party shall make any public statement or announcement concerning the other, the terms of this Agreement or the performance of this Agreement without the prior written consent of the other.
- Notwithstanding the obligations under this clause, a party may disclose the Confidential Information to their own professional advisers, insurers, agents, referrers and subcontractors who have a need to access the relevant Confidential Information.
This clause will survive the termination of this Agreement.
- In consideration of the Labour Provider agreeing to be bound by this Agreement, the Guarantor, and where there is more than one Guarantor the Guarantors jointly and severally, as a principal obligor and not merely as surety, irrevocably and unconditionally guarantees to the Labour Provider (and indemnifies the Labour Provider in respect of) the due and punctual performance of all the obligations of the Host Employer under or arising out of the Agreement including (without limitation):
- the prompt payment of all amounts payable by the Host Employer under the Agreement;
- the prompt performance of all other obligations of the Host Employer under this Agreement;
- the prompt payment of all amounts for which the Host Employer may become liable in respect of any breach of this Agreement (including without limitation any Recruitment Fees).
- The Guarantor agrees that the Guarantor’s obligations under this guarantee and indemnity shall be unconditional irrespective of:
- the validity, regularity and enforceability of any provision of this Agreement;
- the absence of any action by the Labour Provider or the Host Employer to enforce this Agreement;
- the waiver or consent of the Labour Provider in respect of any provision of this Agreement;
- the recovery of any judgment against the Host Employer;
- any action to enforce judgment against the Host Employer;
- any variation of the terms of this Agreement;
- any time or indulgence granted to the Host Employer by the Labour Provider;
- the winding up or dissolution of the Host Employer;
- any change in the status, function, control or ownership of the Host Employer;
- any consolidation, merger, conveyance or transfer by the Host Employer;
- any other dealing, transaction or arrangement between the Labour Provider and the Host Employer; or
- any other circumstances which might otherwise constitute a legal or equitable discharge of or defence to a surety.
- This guarantee and indemnity shall be a continuing guarantee and indemnity which shall not be discharged except by complete performance of all the obligations of the Host Employer under or arising out of this Agreement.
- The Labour Provider may require the Guarantor to make a payment or perform any other obligation of the Host Employer under or arising out of this Agreement:
- without first asking the Host Employer to do so; and
- irrespective of whether the payment or other obligation would be enforceable against the Host Employer.
- The Guarantor agrees to pay and indemnify the Labour Provider against all transfer duty (if any) in respect of this guarantee and indemnity.
- Force majeure
- If the Labour Provider becomes unable wholly or in part by reason of a Force Majeure to carry out any of its duties or obligations arising under or by virtue of this Agreement:
- the Labour Provider must use reasonable endeavours to give to the Host Employer prompt written notice of the Force Majeure with reasonably full particulars thereof and, in so far as known, the probable extent to which it will be unable to perform or be delayed in performing such duty or obligation;
- such duty or obligation so far as it affected by the Force Majeure will be suspended during but no longer than the continuance of the Force Majeure; and
- the Labour Provider must use reasonable diligence to overcome or remove the Force Majeure as quickly as possible.
- The requirement that any Force Majeure be overcome or remedied with all possible diligence does not oblige the Labour Provider to settle any strike or other labour dispute on terms contrary to its wishes or to contest the validity or enforceability of any law, regulation or decree by way of legal proceedings
Each party warrants to each other party that:
- this Agreement creates legal, valid and binding obligations, enforceable against the relevant party in accordance with its terms; and
- unless otherwise stated, it has not entered into this Agreement in the capacity of trustee of any trust.
If an attorney executes this Agreement on behalf of any party, the attorney declares it has no notice of the revocation of the Power of attorney.
In the event any Special Conditions are set out in a Purchase Order, such Special Conditions form part of this Agreement and in the event of inconsistency between the Special Conditions and any other clause of this Agreement, the Special Conditions shall prevail to the extent of the inconsistency.
All notices authorised or required under this Agreement to be given by a party to another shall be in writing sent by delivered personally or sent by prepaid post or email and in each case addressed to the other party at that party’s Address for Service or at such other address as a party may from time to time notify to the other party.
- Proof of receipt of notice
- The following shall constitute proof of receipt:
- hand delivery; or
- proof of posting; or
- proof of email.
- Receipt of a notice given under this Agreement will be deemed to occur:
- in the case of hand delivery, on the date of delivery;
- in the case of a communication sent by prepaid post, on the third business day after posting; and
in the case of an email, at the time it is sent.
General provisions and interpretation
Any term that by its nature is intended to, or is capable of, surviving termination of this Agreement shall survive termination.
This Agreement is governed by the laws of New South Wales and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales.
The Host Employer acknowledges that it has had the opportunity to seek, and has sought and obtained, legal advice in relation to this Agreement.
If a Court decides that any part of this Agreement is invalid or unenforceable, that part of the Agreement will be modified (if possible) so that it is enforceable. If that part cannot be modified, it will be severed and the rest of the Agreement will continue to operate.
The Labour Provider may assign this Agreement without the Host Employer’s prior written consent. The Host Employer must not assign this Agreement without the Labour Provider’s prior written consent which may be unreasonably withheld. This Agreement may only be amended in writing signed by both parties.
No failure to exercise or delay in exercising any right under this Agreement will operate as a waiver or preclude any further exercise of that right. A waiver of a right must be in writing and signed by the party giving the waiver.
This Agreement constitutes the entire agreement between the parties and supersedes and replaces all previous arrangements or understandings between the parties in connection with its subject matter. It covers all of what has been agreed between the parties and does not cover any additional services that may be the subject of separate discussions and agreement.