Terms and Conditions
RELATIONSHIP BETWEEN THE PARTIES
The Customer engages the Company to deliver the Services as an independent agent.
The Parties acknowledge and agree that:
(a) this Agreement is made between them as independent parties for the purpose of their mutual but independent benefit;
(b) the relationship between the Parties is one of an independent agent and principal;
(c) the Company is not the Customer’s employee, partner, legal representative, joint venturer or franchisee;
(d) the Customer has no right or authority to bind the Company, assume or create any obligations for or on behalf of the Company, or make any representations or warranties for or on behalf of the Company; and
(e) this Agreement is not designed or intended to avoid the provisions of the Fair Work Act 2009.
Any Crew supplied to the Customer under this Agreement are not the Company’s employees, partners, legal representatives, agents, joint venturers or franchisees.
The Crew are not entitled to any benefit from the Company usually attributable to an employee nor are the Crew entitled to any payments of any nature from the Company.
PERFORMANCE OF SERVICES BY THE COMPANY
The Company will use its best endeavours to perform the Services as requested by the Customer from time to time.
The Customer will give the Company as much notice as possible of its requirements from time to time to ensure the Company has a reasonable time to perform the Services.
The Company will use its best endeavours to ensure that it does not provide any Crew to the Customer who do not have the requisite skill, training and/or expertise.
The Parties acknowledge and agree that all Crew placed with the Customer will be under the sole control and direction of the Customer and the Customer shall be responsible for all matters pertaining to such Crew.
The Customer releases the Company and agrees to indemnify the Company in respect of any Loss, damage, liability, fine, penalty or other charge including any legal expenses or costs incurred directly or indirectly by the Company as a result of:
(a) the actions of any and all Crew supplied under this Agreement; or
(b) the Company being unable to meet its obligations under this clause 4.
The Parties acknowledge and agree that the Company does not provide the Crew to the Customer under a labour hire agreement between the Company and the Customer or the Company and the Crew.
PAYMENT FOR SERVICES
The Customer will pay the Company the Service Fee in exchange for the Services.
Unless otherwise agreed between the Parties:
(a) the Company will issue the Customer with a Tax Invoice as soon as possible after the Crew are taken on board by the Customer;
(b) the Customer will pay the Company for the provision of Crew within seven (7) days of receipt of the Tax Invoice from the Company;
(c) if payment is not made in accordance with clause 5.2(b), the Company may charge a late fee of 15% of the total amount payable under the Tax Invoice issued in accordance with clause 5.2(a).
The Customer will be solely responsible for and solely bear the liability for any costs or expenses incurred by the Company and/or the Crew in meeting the requirements of the Customer, including any reasonable travel expenses.
GOODS AND SERVICES TAX
In the event the Company in performance of the Services undertakes a Taxable Supply the Company will include the amount of goods and services tax (“GST”) payable in respect of the Services on any tax invoice issued to the Company and the Company shall pay such GST in addition to the Service Fee.
CUSTOMER’S SPECIFIC OBLIGATIONS
The Customer will be solely responsible for and solely bear the liability for:
(a) the payment of remuneration to the Crew, including their salaries and wages, superannuation, annual leave, sick leave, long service leave and other benefits to which any of them may be entitled under any contract of service or for services with the Customer or under any rule, statute, common law or industrial instrument (as defined in relevant legislation);
(b) the payment of all taxes and duties in respect of such remuneration and benefits;
(c) compliance with and the cost of compliance with, all statutory, award or other legal or contractual requirements with respect to such employees, agents, servants and contractors;
(d) the maintenance of and the cost of obtaining one or multiple workers' compensation policies providing coverage for the Crew.
At no time will the Company or any company related to the Company have any responsibility with respect to the payment of salary or wages to any Crew nor the payment of any payroll tax, PAYG taxation instalments or superannuation guarantee charge associated will the employment of any Crew, annual leave, sick leave or long service leave which may accrue to any Crew, any other benefits to which any Crew may otherwise become entitled under any industrial instrument, statute or common law.
SUPPLY AND REPLACEMENT OF CREW
In the event the Customer (acting reasonably) is not satisfied with the performance of a member of Crew provided by the Company, the Customer will as soon as possible notify the Company and the Company will use its best endeavours to provide alternative Crew in accordance with the terms of this Agreement within a reasonable timeframe, but no later than forty-eight (48) hours from the time of the Customer’s notification.
In the event the Customer is not satisfied with the performance of the alternative Crew provided by the Company under clause 8.1, subject to the Customer having paid the Service Fee to the Company, the Company will provide a refund of the Customer’s payment at the Refund Rate or as otherwise agreed between the Parties.
PERMANENT PLACEMENT OF CREW
The Customer acknowledges and agrees that, in the event the Customer hires a member or members of Crew provided by the Company (“the Retained Crew”) on any terms including but not limited to hire on a casual, part-time or full-time basis such that the Company considers that the Retained Crew is no longer available for use in the Company’s Business, the Customer agrees to pay to the Company the Permanent Placement Fee (in addition to the Service Fee) within seven days of the date of issue of a tax invoice by the Company to the Customer.
The Company warrants that the Company will:
(a) devote its best efforts and attention to the timely performance of any required Services; and
(b) comply with any legislative requirements relating to the Company’s provision of the Services including any qualification, permit or licensing requirements in any relevant jurisdiction.
The Customer warrants that the Customer:
(a) at all times during and after this Agreement will act in good faith and in the best interests of the Company; and
(b) was provided with a reasonable opportunity to negotiate the terms of this Agreement and seek independent legal advice upon those terms before executing the Agreement.
The Customer is responsible for providing all relevant tools, equipment and other assets necessary for the Crew to perform the work for which such Crew have been provided.
The Parties acknowledge and agree that:
(a) the Customer is responsible for all approved expenses incurred in the performance of the Services by the Company; and
(b) the Company will provide the Customer with written receipts for those expenses; and
(c) the Company is not responsible for any expenses incurred by the Customer or the Crew.
Despite clause 13.1, the Parties may negotiate with each other regarding specific items of expenditure.
Each Party must maintain the confidentiality of and not disclose any trade secret, confidential information or commercially sensitive information about the other Party or any of its related clients or bodies corporate obtained during the Term of this Agreement, other than when required by law or when the information falls into the public domain.
This clause will survive termination of this Agreement.
The Customer warrants that the delivery of the Services does not infringe any Intellectual Property belonging to any third party and agrees to indemnify the Company, its employees, directors and agents, against all losses, liabilities and legal costs arising directly or indirectly from any infringement.
This Agreement may be terminated:
(a) by mutual agreement between the Parties;
(b) by either Party providing one (1) months written notice to the other party unless both parties agree to an earlier date;
(c) by the Company, without prior written notice if:
(i) the Customer has committed any breach of any of the provisions of this Agreement and has not remedied the breach within a reasonable notice period, whether the breach is material or not;
(ii) the Customer is, in the opinion of the Company, guilty of serious misconduct or wilful neglect or incompetence relating to the discharge of the obligations under or associated with this Agreement;
(iii) the Customer ceases to be qualified and/or licensed to operate within the Whitsunday Marine Park and/or the Great Barrier Reef Marine Park;
(iv) the Customer is guilty of a criminal offence, other than an offence which in the reasonable opinion of the Company does not affect the Customer’s ability to operate its business;
(v) the Customer by its actions or omissions in the reasonable opinion of the Company has seriously damaged the interests of the Company and/or has brought the reputation of the Company into disrepute;
(d) by the Customer, without prior written notice, if the Company materially breaches any material term of this Agreement and fails to rectify the breach after having been given notice of the nature of the breach and having been required by the notice to rectify the breach within 7 days of the notice;
(e) by either Party if the other party for whatever reason becomes unable to discharge its obligations under this Agreement;
(f) by either Party if the other party becomes insolvent or seeks to take advantage of any law relating to insolvency (otherwise than for the purpose of any corporate reconstruction or amalgamation).
Immediately after termination of this Agreement, the Customer must:
(a) return to the Company all documents, materials, property and information including Confidential Information; and
(b) ensure that its legal and financial advisers return to the Company any documents, materials, property or information including Confidential Information that is held by them.
The Parties acknowledge that termination of this Agreement will not prejudice any rights or remedies already accrued to either Party under, or in respect of any breach of, this Agreement.
COMPENSATION AND INDEMNIFICATION
The Customer agrees to compensate the Company for any liquidated (and general and consequential) damages incurred by the Company which are referable to the Services delivered to the Customer under this Agreement, to the extent that such damages have been caused or contributed to by the Customer, or any other servant, agent or contractor of the Customer (including the Crew).
The Customer agrees to indemnify the Company against any action, suit, claim, demand, loss, damage, cost or expense arising out of or referable to:
(a) any damage, injury or loss caused by or resulting from any wilful or negligent act or omission or misfeasance of the Customer or any other servant, agent or contractor of the Customer (including the Crew);
(b) all injury, loss or damage sustained by any officer, servant or agent or contractor of the Customer (including the Crew) incurred in delivering the Services under this Agreement or incidental or preparatory thereto, unless that injury, loss or damage was caused or contributed to by any wilful or negligent act or omission of the Company or any officer, servant or agent of the Company; and
(c) a breach of any term of this Agreement by the Customer.
If any liability, fine, penalty or other charge is imposed on the Company as a result of the non-compliance by the Customer with clause 17.1, the Customer agrees to indemnify the Company in respect of that liability, fine, penalty or other charge including any legal expenses or costs incurred directly or indirectly as a result of the liability, fine, penalty or other charge on a solicitor and own client basis.
The obligations in this clause survive termination or expiry of this Agreement.
Each party warrants that it has entered into this Agreement without relying on any representation by any other party or any person purporting to represent that party.
The Customer expressly acknowledges that the Company has made no representation nor given any warranty as to the tax effectiveness of the Customer’s acceptance of any engagement from the Company or the legal implications arising from the engagement and that the Customer has been advised to take independent legal and accounting advice and warrants that it has taken such advice or by executing this agreement has expressly waived the opportunity to do so.
Each Party must pay its own costs and disbursements connected with the negotiation, preparation and execution of this Agreement.
This Agreement contains the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes and merges any prior agreement or understanding on anything connected with that subject matter.
If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.
This Agreement may only be amended in writing.
Headings will not affect the interpretation of this Agreement.
The Company may assign or otherwise deal with the whole or any part of this Agreement.
An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties. Nothing in this Agreement obliges the parties to reach agreement as to any particular matter.
A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right. No waiver is effective unless it is in writing.
The non-exercise of a power or right does not preclude its future exercise or the exercise of any other power or right. The 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.
Each party must promptly at its own cost do all things (including executing all documents) necessary or desirable to give full effect to this Agreement.
The law of Queensland governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of Queensland and the Federal Court of Australia.