TERMS OF ENGAGEMENT FOR SUBCONTRACTORS
This Terms of Engagement Agreement
is Between
The Company [AusPac Transport and its subsidiary/Associate companies]
(ABN 77 668 326 716 and ABN 17 657 599 276)
and
The Subcontractor
BACKGROUND
The Company has requested the Subcontractor to provide the Services of the Schedule to the Company.
The Subcontractor has agreed to provide the Services to the Company on the terms of this Agreement from the Commencement Date.
The Company and the Subcontractor agree that:
DEFINITIONS:
Agreement means this document including the attached Schedule and any other schedules and annexures.
Claims mean all or any claims, demands, debts, accounts, actions, expenses, costs, liens, liabilities, and proceedings of any nature whatsoever (whether known or unknown).
Company Property means equipment, keys, documents, etc. or any other property that belongs to the Company.
Subcontractor means the Subcontractor as described in the Schedule and includes all officers, employees, agents, and Subcontractors of the Subcontractor who have been formally approved by the Company to provide Services or to perform any Services on behalf of the Subcontractor.
Confidential Information means all the information including trade secrets, Intellectual Property, marketing and business plans, client and supplier lists, computer software applications and programs, business contacts, finance, data concerning the Company or any of its related entities or any client of the Company’s, finances, operating margins, prospect’s lists, and transactions of the Company, and any materials provided to the Subcontractor by the Company, but does not include information in the public domain other than through a breach of an obligation of confidentiality.
Fee means the amount payable with respect to the Services set out at the Schedule.
GST means goods and services tax, value-added tax or similar levied or imposed in relation to a supply (or a deemed supply) of any goods, property, services, or any other thing.
Intellectual Property means all present and future copyright, registered and unregistered trademarks, patents, designs or rights and any other intellectual or industrial property rights, discoveries, inventions, secret processes or improvements in the procedure of any kind whether arising from statute, under common law or in equity.
Notice period means the period described in the Schedule.
Personnel means, in the respect of the Services, the person/people that the Subcontractor employs in order to provide the Services, including Subcontractors that the Subcontractor may engage.
Services mean the services described in the Schedule.
ADG Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail, as in force from time to time.
Chain of Responsibility Obligations means each of the requirements, obligations, and other provisions of the HVNL as they apply to the Subcontractor.
Force Majeure Events means an act, event or cause that is beyond the reasonable control of a party, including:
a) acts of God, lightning, earthquakes, floods, storms, explosions, mass virus outbreaks, fires, and any natural disaster
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, and revolution
(c) strikes and labour disputes, to the extent they exceed 14 days
SUBCONTRACTOR’S OBLIGATIONS
Services
The Subcontractor shall provide and perform the Services as described in the Schedule from the Commencement Date.
Professional standard of care
The Subcontractor must ensure that the Services are performed in a diligent and professional manner and to the standard of skill and care expected of a professional experienced in the provision of the type of services required by the Company under this Agreement. The Subcontractor must continually use its best endeavours to promote the interests and welfare of the Company.
Defective performance
The Subcontractor guarantees that if there is a defect in the performance of the Services the Subcontractor will remedy the defect or redo the Services at no additional cost to the Company.
Where the Subcontractor refuses or fails to remedy a defect in the performance of the Services or redo the Services within an agreed timeframe, the Subcontractor agrees that the Company may arrange for the performance of the necessary remedial work and recover any costs from the Subcontractor.
Licence/Qualifications
The Subcontractor must ensure that it, together with its employees and Subcontractors hold the requisite licence(s) and qualification(s) to legally perform the services.
The Subcontractor has obtained and will continue to maintain all permits, visas, and licences necessary for the lawful performance of the Services and agree to provide evidence of this to the Company upon request.
Subcontractor knowledge of requirements of the Company
The Subcontractor agrees that it will fully abide by the terms and conditions of the Company’s policies and procedures relating to confidentiality, intellectual property, equal opportunity, and bullying and harassment.
Subcontractor knowledge of industry legislation
The Subcontractor agrees that it will fully abide by any relevant and related legislation applicable to services provided in accordance with this agreement.
Engagement in other activities
The Subcontractor is free to engage in other business activities at any time when the Services are not required to be performed under this Agreement provided that the provision of the Services by the Subcontractor under this Agreement is not affected or prejudiced in any way or may create a potential conflict of interest.
Subcontractor’s relationship with the Company
The relationship between the Subcontractor and the Company is that of the principal and Subcontractor. Nothing in this Agreement is to be construed as constituting the Subcontractor or any employee of the Subcontractor and the Company as partners. Nor shall this Agreement be construed as creating the relationship of employer and employee between the Subcontractor and the Company or between any employee or director of the Subcontractor and the Company.
Assignment of Service performance
The Subcontractor may assign and/or subcontract any part of the Services with the prior written consent of the Company. Such consent will not be unreasonably withheld.
Any consent given by the Company permitting the Subcontractor to subcontract or assign any portion of the Services does not relieve the Subcontractor of its obligations and liabilities under this Agreement.
Remuneration of Personnel
The Subcontractor is liable to pay all Personnel for Services provided under this Agreement.
The Subcontractor must pay all payroll tax due in respect of the Personnel who provide Services under this Agreement as required.
The Parties agree that they have contracted on the basis that the provisions of the Superannuation Guarantee (Administration) Act 1992 (“SGAA”) have no application to their contractual relationship and that the Company is under no obligation to make superannuation payment on behalf of the Subcontractor, the Subcontractor’s employees, agents, or servants pursuant to the SGAA or any other statue.
JOB ALLOCATION, RUNS AND ROUTES
We will offer you a job, run or route to take carriage of and deliver goods in writing or by appropriate technology. You can accept the job/run/route in writing or by the same technology as soon as possible. For a job/run/route that you accept, we will provide you with all the information that you will need including, customer details, pick-up address, expected delivery pick-up and drop-off times and anything else you might need to know.
CONFIDENTIALITY AND INTELLECTUAL PROPERTY
The Subcontractor must ensure that the Confidential Information is:
-maintained confidential
-not disclosed to or used by any third party without the Company’s written consent
-only used for the purpose of the Company’s business and the performance of the Services
-not appropriated, copied, memorised, reproduced or reverse-engineered for the Subcontractor’s or any other person’s use and
-not removed from the Company’s place of business without the Company’s written consent.
All Confidential Information remains the exclusive property of the Company and no rights in respect of Confidential Information are granted or conveyed to the Subcontractor. In the event that the Subcontractor is legally required to disclose any Confidential Information, the Subcontractor must immediately notify the Company of that fact.
The Subcontractor acknowledges that any Intellectual Property created during the course of this Agreement is the property of the Company. The Subcontractor must disclose to the Company all Intellectual Property created by it during the course of this Agreement.
The Subcontractor consents to any acts or omissions (both past and future) by the Company which, apart from this clause, would infringe their moral rights (as defined in the Copyright Amendment (Moral Rights) Act 2000 (Cth)) in any works made or to be made by them in the course of this Agreement.
The Subcontractor must, both during and after the term of this Agreement, do all necessary acts and things and sign all necessary documents as the Company reasonably requires to secure the Company’s Intellectual Property created during the course of this Agreement.
The Subcontractor acknowledges that if the Subcontractor breaches this clause, then the Company may seek injunctive relief at the Subcontractor’s cost in respect of the breach.
The Subcontractor irrevocably appoints the Company to be its attorney for the purpose of executing any agreement and doing anything necessary to give effect to this clause.
FEE / FREIGHT CHARGE
In consideration for the proper provision of the Services, the Company will pay the Subcontractor the Fee as described in the Schedule.
Subject to any deductions authorised under this Agreement, your earnings will be dependent on the scheduled freight charges outlined at the time of your interview. The freight charges detailed are set annually by the Company, in response to changes in market and customer requirements and do not form part of this Agreement. The Company will notify you where changes to the freight charge schedule are made.
You acknowledge and agree that the payment provided by the Freight Charge is inclusive of, and in compensation for, all payments to which you may otherwise be entitled under any applicable industrial instrument or agreement.
FEE REVIEW
The Company may review the fee structure annually. In reviewing the fees, the Company may consider various factors including but not limited to the provision of services pursuant to this Agreement and market movements.
For the avoidance of doubt the Company is under no obligation to increase the Subcontractor’s fees.
INVOICES
To obtain payment, the Subcontractor agrees to submit an itemised invoice, which complies with all relevant legislation, including but not limited to the law relating to taxation.
Invoices and details of work must be forwarded by the Subcontractor to the Company Weekly and addressed to the person described in the Schedule and shall include:
the title of the Services provided
the Company’s full name
sufficient detail to allow the Company to obtain a clear understanding of the work that has been performed and to which the charges relate
all things necessary to ensure that the invoice is also a tax invoice for the purposes of any relevant GST which may apply, that enables the Company to claim input tax credits and
the tax invoice must include:
the Australian Business Number (ABN) of the entity that issues it
the price of the supply (inclusive of GST)
the words “tax invoice” prominently on the document
the date of issue of the tax invoice
title of the service and
the number of days noted at the Schedule as the days for terms of payment.
On receipt of payment of the invoice from the Company, the Subcontractor must, if so requested, provide the Company with a written undertaking to confirm that it has paid its employees for the period to which the invoice relates.
The Company can withhold payment of any amount which it reasonably disputes and can set off from any payment to the Subcontractor any amount that the Subcontractor owes the Company under this Agreement or otherwise.
The parties agree that each party must immediately notify the other party if it ceases to be registered for GST purposes or for any other reason is unable to lawfully comply with this clause.
EQUIPMENT AND EXPENSES
The Subcontractor is expected, at its own expense, to supply any equipment necessary to perform the Services.
The Company may agree to provide the Subcontractor with tools and equipment required for the Subcontractor to carry out the Services. Any provision of tools and equipment will be taken into account when determining the Fee under this Agreement.
Where provided the Subcontractor must protect and keep safe and secure any and all tools, equipment, property, documents, and other materials provided by the Company to the Subcontractor.
Upon the termination of this Agreement for whatever reason, the Subcontractor must promptly, and without further demand, return to the Company all Company Property which is in the Subcontractor’s possession or control.
If the Subcontractor fails to return Company Property, the Company may withhold all or part of any payments which might otherwise be due to the Subcontractor until such time that the Company Property is returned.
We may provide you with software, an application, a device or other business technology tool (Technology) to use in connection with the allocation of jobs, communication between us about jobs and other relevant information.
Any PDA (such as a scanner) or Smart Phone we, or a customer of the Company, provide to the Contractor or driver(s) remains the property of the Company or customer and must be used by you for the purposes of this Agreement only and must be returned by you to us when we request it, and at the end of the Agreement.
You may be provided with the PDA allowance where you are directed to install Company applications onto your PDA or smartphone by the Company, and a PDA or Smart Phone is not provided by the Company.
You must not try to reverse engineer any Technology, copy or amend any Technology or provide access to the Technology to any person unless approved by us in writing in advance and you must not use the Technology for any purpose other than in connection with the allocation of jobs, communication between us about jobs and other relevant information such as hazard reporting and incident management. If you misuse, lose or damage Technology then we will charge you for the replacement or repair cost (if any) by withholding the cost from Freight Charges payable to you.
During the term of this Agreement, you must ensure that vehicle under your care is well looked after both inside and out. Vehicles that are in a poor condition will not be accepted for customer deliveries and we will not provide any jobs to you until the vehicle is in good condition.
It is a requirement that you and your driver(s) wear the approved client’s uniform, and that your vehicle displays the Company logo while engaged in providing service to the Company. These are to be well maintained by you and your driver(s) throughout the life of this Agreement. It is your responsibility to provide and ensure that you and your drivers wear, the appropriate Personal Protective Equipment, including steel cap shoes, cargo pants, cargo shorts, gloves, eye and ear protection and where appropriate Hard Hat before work is allocated. If the Sub-Contractor terminates this agreement within 30 working days of commencement then the cost of the signage will be deducted from the monies owing to the Sub-Contractor on termination of this Agreement.
Customer service
Where you accept a job, you are responsible to ensure delivery. The only exception is where you identify that delivery of a job would be unsafe, and where we agree that the job will be performed another way, or the job will not need to be performed by you. You must ensure that you and your driver(s) maintain a high standard of customer service at all times. You must ensure that you and your driver(s) greet customers in a friendly and courteous way, ensure that their needs are met and listen to any concerns they might have and report these back to us. You must also ensure that you and your driver(s) keep all customer information confidential. Customer information includes any and all information that relates to the customer and which is not public knowledge. If you are ever uncertain about whether the information is confidential or not, ask us and we will let you know.
CONTRACT HOURS
The Company expects that, consistent with industry practice, the Subcontractor will need to adopt a flexible approach to hours of work in order to meet the requirements of the Agreement.
Your Driver
To be eligible to perform a job that is allocated by the Company, the person must be fit to work as a driver, which will require providing a current medical certificate that complies with the NHVR “Fitness to Drive” requirements, have the relevant licence or qualification, and be approved by the Company (and we will not unreasonably withhold our approval). You and your driver(s) must complete the Company induction program before any jobs can be allocated.
The training, cost, application fees and any other work, cost or charge associated with obtaining or renewing the correct licence is your responsibility. You will not allow any person to work as a driver, including yourself and perform any work covered by this Agreement if they do not have the correct licence.
TERMINATION OF AGREEMENT
The Company may terminate this Agreement without notice, in the event of a fundamental breach of this Agreement. In the event that the Company terminates this Agreement for a fundamental breach, the Subcontractor will:
be paid any amount owing to the Subcontractor in respect of services provided up to and including the date of termination
not be entitled to any notice of the termination or payment in lieu of notice of termination and
not be entitled to any compensation other than as specifically provided for in this Agreement.
The Company may terminate this Agreement immediately if the Subcontractor becomes insolvent or bankrupt within the meaning of either section 9 of the Corporations Act 2001 (Cth) or the Bankruptcy Act 1966 (Cth).
The Company may terminate this Agreement at any time without cause by:
giving the Subcontractor written notice equal to the Notice Period or
in lieu of notice, paying the Subcontractor the Fees for the amount of work it would have performed during the Notice Period.
Subcontractor’s continuing liability
Termination of this Agreement by the Company will not release the Subcontractor from liability in respect of any breach or non-performance of any obligation under this Agreement.
Termination of this Agreement by either party will not release the Subcontractor from the Confidentiality and Intellectual Property obligations of this Agreement.
Upon termination the Company will be entitled to reimbursement of the following costs:
Company Property that is not returned in good working order immediately on termination of this Agreement and
any overpayment or other monetary benefits.
The Company may recover these amounts by setting off against any amount owed to the Subcontractor by the Company.
DEDUCTIONS FROM FEES / FREIGHT CHARGES
The Company may:
- a) deduct from the Freight Charges any amount which may be required to be remitted to the appropriate authority pursuant to the Income Tax Assessment Act (Cth); and
- b) offset a reasonable part of any of the Freight Charges:
- against any money owed by the Sub-Contractor to the Company; or
- to pay for any Goods or Company Equipment which was lost, damaged, stolen or destroyed during the course of Carriage; or
- against any amount that the Company has failed to recover from the Consignor due to the failure of the Sub-Contractor to deliver the Goods in accordance with these Terms and Conditions.
- to pay for the additional costs incurred by the Company if the Sub-Contractor is not able to meet any assigned transport obligations.
- to pay for any shortfalls in Workers’ Compensation payments by the Subcontractor, until such time that the full amounts are recovered.
NON-SOLICITATION
In this provision, Client means any person, firm, or company who at any time during the period of 12 months prior to the cessation of this agreement was a Client of the Company in respect of the part or parts of the business in which you were providing a service.
From the date this agreement ceases, the Subcontractor agrees that it will not directly or indirectly, whether for the Subcontractor’s own benefit or for the benefit of another entity, solicit, canvass, approach (or attempt to solicit, canvass or approach) or accept an approach from a client of the Company for a period of:
12 months
Each of the above obligations are separate and independent obligations. In the event that one or more of the obligations are found to be unenforceable, the remaining obligations will continue to apply.
The Subcontractor acknowledges that each of the above restrictions are reasonable and necessary to protect the Company’s legitimate interest.
The Subcontractor acknowledges that the Subcontractor will be liable for damages (including punitive or special damages) arising out of the breach of any of the terms of this provision.
INSURANCE
The Subcontractor must on request provide the Company with proof of all insurance policies required to be maintained by the Subcontractor.
Professional indemnity and public liability insurance
The Subcontractor must obtain and maintain a policy of professional and public liability and indemnity insurance with an insurer with a limit of liability not less than the amount of AUD 10 million for the duration of this Agreement and for a period of 12 months after the termination, however, caused, of this Agreement. On reasonable request by the Company, the Subcontractor must liaise with the Company to ensure the insurer is approved by the Company (which approval will not be unreasonably withheld).
The policy must contain the following provisions:
the minimum indemnity limit in aggregate for the Services as agreed between the Parties
one automatic reinstatement provision and
a description of the risk covered by the policy.
Worker’s compensation
Where required under law, the Subcontractor must obtain and maintain for the duration of this Agreement a workers’ compensation and employer’s liability insurance policy covering liability for loss, damage, claims, and all direct or indirect costs and expenses arising at common law or under workers’ compensation or employer’s liability legislation in respect of persons employed or deemed to be employed by the Subcontractor.
WARRANTIES AND INDEMNITIES
The Subcontractor warrants that:
no conflict of interest exists which may prejudice the performance of its obligations under this Agreement and agrees to declare any conflict should it arise in the future and
the Subcontractor has obtained and will continue to maintain all permits, visas and licenses necessary for the lawful performance of the Services and agree to provide evidence of this to the Company’s satisfaction.
The Subcontractor must indemnify and keep the Company indemnified at all times against any Claim whatsoever against the Company by any person arising directly or indirectly out of the provision of the Services under this Agreement or out of any breach of this Agreement by the Subcontractor.
The Subcontractor agrees to keep the Company indemnified from and against any claim, charge or liability including but not limited to any infringement tickets, penalties, damage to customer goods and consequences of disclosing confidential information. Any liability which arises in connection with you as a driver or your driver(s) being deemed to be employees for any purpose (including wages or other remuneration or allowance, leave entitlement s of any type, superannuation, redundancy, or tax).
CONSEQUENTIAL LOSS
The Company will not in any event be liable to you as a driver or your driver(s) for consequential loss whether or not arising from a breach of this Agreement, negligence or any other fault on the part of the Company or any of the Company’s servants, agents, employees or contractors and whether or not in contemplation of the Company, you, or the driver(s), at or prior to, the commencement of this Agreement.
Subcontractor is liable to pay Insurance Access charges if Company has to claim or lodge an insurance claim due to any damage to the vehicle provided to the subcontractor driver or any property due to accident or negligence by the subcontractor.
WORK HEALTH AND SAFETY
The Company is required to comply with health and safety laws to maintain a safe and healthy workplace.
The Subcontractor is required to adhere to the Company’s work health and safety policies and procedures as amended from time to time.
The Company may monitor the Subcontractor’s work activities for health and safety compliance and implement a corrective action report in the event of unsafe work activities.
The Company reserves the right to exercise a duty of care and halt any unsafe work activity. The Subcontractor agrees to remedy any unsafe practices or work activity at their own cost, to ensure health and safety compliance, before work is resumed.
The Subcontractor is responsible for site safety hazard assessments and site-specific Safe Work Method Statements (SWMS) for any high-risk activity.
The Subcontractor is responsible for ensuring he/she is adequately inducted, trained, and instructed in both generic and site safety-specific SWMS and is deemed competent to undertake any assigned tasks.
At AusPac Transport our vision is zero injuries, zero harm to anyone, and zero tolerance of unsafe acts or dangerous workplaces and we will continue to work hard to ensure that you are safe during the term of this Agreement. We maintain a safe system of work, which includes a system of policies and procedures about working safely and reporting incidents or hazards as they are observed or occur. You and any of your drivers are empowered to refuse work, without disadvantage, where you have judged in consultation with your Company contact, that the pickup, loading, restraint, or delivery of freight compromises your safety and that of the community.
You and your driver(s) must complete the Company induction program before any jobs can be allocated. In some instances, you will also be required to complete the site induction at our customer’s site before any jobs can be allocated. There may be certain training requirements that you and your driver(s) will have to complete to Shield Logistics Standards and also to work within all legislation.
You must possess and provide evidence to the Company of current licences, working rights, accreditations, and certifications in order to transport freight on behalf of the Company. You are responsible for maintaining the currency of your licences, working rights, accreditations and certification and notifying the Company of any changes. All traffic infringements that have demerit points must be notified to AusPac Transport immediately with current licence printout.
Pre-Existing Medical Condition: The Sub-Contractor agrees that the Company has outlined the nature of the work to be performed under this Agreement in terms of physical activity and work pressures. The Sub-Contractor is required to advise the Company in writing whether the Driver has any condition (physical or psychological) which may impact on his or her ability to carry out the work as described. Failure to disclose any known condition may, under the Workers/Accident Compensation Legislation in this state, render the Driver without entitlement for Workers Compensation protection for any recurrence, aggravation, acceleration exacerbation or deterioration of any pre-existing condition.
GOVERNING LAW
This Agreement is governed by the law of the State, Territory or, if applicable, the Commonwealth described in the Schedule. The parties submit to the non-exclusive jurisdiction of the Courts of the jurisdiction specified in the Schedule and any court hearing appeals from those courts.
VARIATION
This Agreement is issued without alteration, deletion, or erasure. By signing this Agreement, the Subcontractor acknowledges that no verbal variations have been or will be made to this Agreement and any variation must be made in writing and signed by both parties to this Agreement.
Acknowledgement
I acknowledge that I:
- have read and understood the terms of the Subcontractor agreement.
- that I have not relied on any representations and/or promises made by the Company by entering into this Agreement.
- will carry out all contracts safely, taking into consideration my own fitness and ability, and
- Agree to my restraint and Agreement termination obligations outlined in this Agreement.
For schedule, please refer to your scheduled document sent in the email post signed the agreement and declaration.
