Host
and
SVEN JOBS PTY LTD (ACN 657 600 621) of Level 12, 412 St Kilda Road, Melbourne, VIC 3004 (Sven)
A. The Host carries on the type of business in the industry described in the Shift Summary.
B. Sven provides labour hire services including the provision of contract or temporary labour.
C. The Host and Sven have agreed for Sven to provide the Services to the Host in accordance with this Agreement.
1. DEFINITIONS AND INTERPRETATION
Agreement means this agreement and any Schedules.
Award means the modern award, as replaced from time to time, that applies to the Worker's employment by law.
Confidential Information means confidential information of Sven and any of its Hosts, clients and suppliers including all trade secrets and all financial, accounting, marketing and technical information, customer and supplier lists (including any prospective or proposed customer and supplier lists or information), authorised agent's information, ideas, concepts, know-how, Intellectual Property, results of experiments and tests, technology, operating procedures, processes, business methods, knowledge and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential", but excluding information in the public domain otherwise than because of a breach of confidentiality owed by any person to Sven.
Fees means the fees payable by the Host to Sven asset out in Schedule 1.
Force Majeure Event means any circumstance that is not within the reasonable control of a party, cannot be prevented or avoided by that party and adversely impacts that party's ability to perform its obligations under this Agreement.
Host means the Host entity and any related body corporate as defined in the Corporations Act 2001(Cth).
Intellectual Property means copyright, know-how, inventions, processes, Confidential Information, trademarks, designs, and patents (whether registered, unregistered or applied for), whatever the form of any of these items.
Shift means the time that the Worker is rostered to work for the Host and, where applicable, performs work for the Host, as detailed in the Shift Summary.
Shift Summary means the record containing details about the Worker and the Shift that Sven provides to you before each Shift.
Services means the provision of temporary labour and associated services.
Sven App means the Sven digital applications, algorithms, and platform that:
(a) matches a Worker and a Host, so that the Host can offer Shifts for the Worker to accept; and
(b) the Host and the Worker must use to offer, accept, coordinate, and record Shifts.
Worker means an employee of Sven who performs contract or temporary work for the Host.
2.1 Nature of relationship
Sven is an independent contractor of the Host and a Worker is not an employee or agent of the Host. Nothing in this Agreement constitutes the relationship of employer and employee, principal and agent, partnership or joint venture between:
(a) Sven and the Host; or
(b) the Host and the Worker.
2.2 Exclusive appointment of Sven
The Host may not engage or appoint any other person to provide the Services during the Shift.
This Agreement commences on the date that Sven provides the Host with access to the Sven App and remains in force until terminated in accordance with this Agreement.
4.1 Provision of Services
Sven must provide the Services to the Host:
(a) in accordance with this Agreement;
(b) to a standard expected of a competent independent contractor performing services similar to the Services provided by Sven; and
(c) in compliance with all applicable laws relating to the provision of the Services, including any labour hire licensing laws relating to the supply of the Worker and work health and safety laws.
4.2 Sven's responsibilities for the Worker
Sven is responsible for:
(a) remuneration and any other benefits to which theWorker is entitled, including superannuation contributions, leave entitlements, overtime, penalties and allowances;
(b) compliance with the terms of the Award;
(c) ensuring the Worker warrants that they have provided accurate information as to their:
(i) right to work in Australia;
(ii) skills, qualifications, fitness to perform anyShift for the Host;
(iii) obligation to use the Sven App for arranging and recording Shifts; and
(iv) obligation to comply with all applicable laws, and any directions, policies and procedures of the Host.
4.3 Assignment and sub-contracting
Sven may assign or subcontract its rights or obligations under this Agreement to a third party.
(a) During the term of this Agreement, each party will effect and maintain for itself:
(i) workers compensation insurance as required by law; and
(ii) public liability insurance to a minimum amount of $10,000,000 per any one event.
(b) During the term of this Agreement, the Host will effect and maintain:
(i) motor vehicle insurance for all vehicles theWorker is required to use during the Shift; and
(ii) any other insurances required by law.
(c) At Sven's request at any time during the term of this Agreement, the Host must provide satisfactory evidence of its insurance policies.
6.1 General
The Host must:
(a) comply with the terms of this Agreement;
(b) comply with all applicable laws relating to the receipt of the Services, including work health and safety laws;
(c) provide information that Sven requests, for the purpose of the provision of the Services, including health and safety information;
(d) provide accurate information to Sven and in theSven App about the Host and the Shift;
(e) not engage or attempt to engage the Worker in work that is different to the Shift; and
(f) report to Sven if the Worker performs poorly, engages in misconduct or does not comply with the Host's policies.
6.2 Use of the Sven app
(a) The Host must read and comply with any terms of use for the Sven App and website, as published on the Sven website or available on the Sven App and amended from time to time.
(b) The Host must use the Sven App to:
(i) engage a Worker. The Host must only engage theWorker using the Sven App and not engage the Worker by any other method during the term of this Agreement or 28 days after the Worker completes a Shift, whichever period concludes latest (Booking Requirement);
(ii) within twelve hours of the Worker completing a Shift:
(A) record the time that a Worker starts the Shift, ends the Shift and takes breaks on the Shift (Recording requirement);and
(B) rate the Worker in the Sven App.
(c) If the Host does not comply with the BookingRequirement, Sven may charge the host a breach fee as set out in the Fees in Schedule 1.
(d) If the Host does not comply with the RecordingRequirement, Sven may charge the Host in accordance with the hours submitted for the relevant Shift or the record submitted by the Worker for the Shift, whichever is greater.
6.3 Work health and safety
(a) The Host must comply with all of its occupational health and safety obligations in relation to the Services and the Worker whilst receiving the Services.
(b) The Host must ensure that the Worker receives an appropriate health and safety induction and appropriate health and safety training specific to the Shift and their duties:
(i) at the commencement of any Worker's first Shift with the Host; and
(ii) at the commencement of any future Shift if the Host's workplace health and safety risks have changed since the commencement of the first Shift.
(c) The Host must ensure that the Worker is familiar with the Host's health and safety policies and procedures.
(d) The Host must ensure that the Worker is provided with any personal protective equipment required to complete their duties.
(e) The Host must allow Sven or any third party appointed by Sven to audit or inspect the location of any Shift that the Host has offered or will offer to Workers or in relation to the Services.
6.4 Assignment and sub-contracting
The Host must not assign or subcontract its rights or obligations under this Agreement to a third party unless it obtains written consent from Sven.
6.5 Media
The Host must not communicate with or disclose to any representative of the media any information of any nature whatsoever relating to Sven or any Worker without Sven’s prior written consent.
(a) Sven, the Host or a Worker may:
(i) cancel a Shift before it starts; or
(ii) once the Shift starts, end the Shift early.
(b) The Host will comply with any Shift cancellation policy or early finish policy introduced by Sven and as amended from time to time (which may be set out in a Schedule to this Agreement), including to the extent it contains fees payable for cancellation or early finish of Shifts.
(c) Sven does not guarantee the supply of the Worker or a replacement Worker if the Shift is cancelled.
8.1 Fees
(a) The Host will pay Sven in accordance with the Fees set out in Schedule 1.
(b) The Fees may change without notice if:
(i) Sven's legal obligations to the Worker change;
(ii) the fees payable by Sven to the Service providers identified in Schedule 1 change.
(c) For the avoidance of doubt, any estimate of fees that Sven provides to the Host prior to charging the Fees is an estimate only and is subject to change.
8.2 GST
(a) The Host will pay Sven any GST in respect of the Services, on the same date on which payment for the relevant Services are due and payable.
(b) GST means a tax, levy, duty, charge or deduction, together with any related additional tax, interest, penalty, fine or other charge, imposed by or under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or another law relating to a goods and services tax.
8.3 Payment of the Fees
(a) The Host will enable direct debit of the Fees by the method Sven requires.
(b) The Fees will be debited from the Host and Sven will issue a receipt for payment of the Fees on a weekly basis.
(c) The receipt will detail the Services provided and the fees paid in respect of those Services.
8.4 Rates payable to Worker
(a) At any time after a Shift, if it is identified that the rate paid to a Worker for the Shift was lower than the rate the Worker should have been paid at law, Sven will debit the difference/issue an invoice for the difference payable by the Host.
9.1 Confidentiality
(a) During and after the term of this Agreement, theHost must keep confidential all Confidential Information the Host knows, or ought to know, is confidential, unless the Host is required by law to disclose the information.
(b) During and after the term of this Agreement, Sven must keep confidential information in relation to the Host that is not known to the public and that Sven knows is confidential, unless Sven is required by law to disclose the information.
9.2 Intellectual property
(a) The Host agrees that the rights to any Intellectual Property created by Sven vest exclusively in Sven and, in any event, the Host assigns to Sven all interests which the Host may have now or in the future in such Intellectual Property.
(b) The Host agrees that any rights in Intellectual Property which arise in the course of the performance of this Agreement and relate to the business of Sven are vested and will vest in Sven.
(c) If the Host provides any material to Sven, the Host:
(i) grants Sven a licence or assigns the material toSven for the term of this Agreement to use the Host's material to meet its obligations under this Agreement;
(ii) warrants that Sven's use of the material will not infringe any other person's Intellectual Property rights; and
(iii) indemnifies Sven against any liability or loss that arises out of any breach of the above warranty and will do all things requested by Sven to give full effect to the warranty.
(d) The Host will, if requested by Sven and atSven's expense, do anything lawful and reasonably necessary, to assist Sven to protect its intellectual property rights and to perfect Sven's ownership of those intellectual property rights.
9.3 Survival
(a) The intellectual property and confidentiality provisions survive termination of this Agreement.
(a) The parties must comply with the Privacy Act 1988 (Cth) and data protection laws as may be in force from time to time in relation to theServices and any Worker delivering the Services.
(b) The Host must comply with any privacy policy introduced by Sven, including in relation to the Worker, Services, Sven App or website.
11.1 Dispute resolution policy
The Host must comply with any dispute resolution policy introduced by Sven in connection with this Agreement or the Services, and as amended from time to time.
11.2 Dispute process prior to court proceedings
(a) A party must not commence court proceedings against the other party about a dispute in connection with this Agreement unless it has complied with this dispute resolution clause.
(b) If a party considers that a dispute exists in connection with this Agreement, that party must give the other party written notice detailing the nature of the dispute.
(c) Within 14 days of receiving written notice of the dispute, the parties must communicate about the dispute and make reasonable efforts to attempt to resolve the dispute.
(d) This clause does not prevent a party from seeking urgent interlocutory or declaratory relief about a dispute in connection with this Agreement.
To the extent permitted by law:
(a) Sven's liability to the Host for any loss in relation to this Agreement is limited to the Fees the Host has paid to Sven;
(b) the Host indemnifies Sven for any loss or damage in connection with the Shift:
(i) arising from the use of a motor vehicle; or
(ii) caused by the Worker.
(c) the Host indemnifies Sven for any loss or damage arising out of:
(i) any finding that the Worker has been under paid or not paid any entitlements whatsoever;
(ii) non-compliance with the Host's health and safety obligations arising from this Agreement; or
(iii) the Host providing incorrect information to Sven.
13.1 Termination with notice
(a) Sven may terminate this Agreement by giving the Host28 days written notice.
(b) The Host may terminate this Agreement by giving Sven 28 days written notice or by terminating its account in accordance with the procedure set out in the Sven App.
(c) The Host must complete any Shifts that are active in the Sven App, by having the Shifts worked or cancelling the Shifts, prior to termination of the Agreement.
(d) For the avoidance of doubt, the Host's liability for any Fees incurred during the term of this Agreement survives the termination of this Agreement.
13.2 Termination or suspension with immediate effect
(a) Sven may terminate this Agreement or suspend theHost from using the Services with immediate effect if the Host:
(i) commits a material breach of this Agreement or aShift which cannot be rectified or has not been rectified on Sven giving notice;
(ii) has been wound up, had administrators appointed, become insolvent or bankrupt, or any similar event or procedure has occurred;
(iii) has failed to pay the Fees within the time specified under this Agreement; or
(iv) any site at which the Worker will perform theShift is investigated for health and safety risks or is deemed to be unsafe or possibly unsafe by Sven or any regulator for any reason.
(a) If a Force Majeure Event occurs, the affected party:
(i) must notify the other party as soon as reasonably practicable of the occurrence and any obligations under this Agreement that it will be prevented from meeting;
(ii) must notify the other party as soon as reasonably practicable after the occurrence has ceased; and
(iii) continue to perform the balance of its obligations under this Agreement.
(b) Neither party is liable to the other for any failure to comply with this Agreement that arises from a Force Majeure Event.
15.1 Warranty
Each party warrants to the other that it has corporate power to execute and perform its obligations under this Agreement.
15.2 Entire agreement and variation
(a) This Agreement sets out the entire agreement between the parties regarding Services. Any prior representations or commitments in relation to the Services are superseded by this Agreement.
(b) This Agreement can be varied:
(i) if in writing and signed by the Host and Sven; or
(ii) by Sven if the variation does not cause material disadvantage to the Host.
(c) If this Agreement is varied, Sven will notify the Host and the varied agreement will come into effect at the time it is published on the Sven website.
15.3 No waiver
The failure of Sven at any time to insist on performance of any term of this Agreement is not a waiver of its right at any later time to insist on performance of the term or any other term of this Agreement.
15.4 Governing law
This Agreement will be governed by the laws of New South Wales.
Schedule 1
Schedule 2
Shift Cancellation Policy
Early Finish Policy
