OUTSOURCING TERMS AND CONDITIONS
These Terms & Conditions and the Proposal collectively form a Services Agreement (“Agreement”) between the Company and the Client.
In this Agreement;
- The “Client” means the Client named in the Proposal, and includes any of its employees, contractors and agents.
- The “Company” means Mapeton Pty Ltd, ABN 20 634 494 321 trading as Trust the Process and includes any of its employees, contractors, agents, successors and assigns.
- “Confidential Information” means any information in respect of the business or affairs of the Client that is not in the public domain including, but not limited to, customer lists, pricing/costing mechanisms and structures, strategy and planning materials, trade secrets, and anything marked as confidential; but does not include anything in the public domain and or already known to the Company prior to the date of this Agreement.
- “Intellectual Property Rights” means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.
- The “Services” means the services provided by the Company in sourcing and supplying the Personnel to the Client.
- Nature of Relationship
2.1 The Company will make available to the Client the services of one or more workers based in the Philippines (the “Personnel”) as set out in the Proposal, on the terms and conditions in this Agreement.
2.2 The Client acknowledges that the Personnel are not employees or contractors to the Client. The Personnel are contractors to the Company, and may be performing work for other clients as well as the Client.
2.3 This Agreement does not create an agency, employment or partnership relationship between the Client and the Company.
- Client Acknowledgements
The Client acknowledges that;
3.1 By making payment of the Fees and/or requesting the Company to provide the Services after receiving this Agreement, the Client will be taken to have read and understood the Agreement, and to have agreed to become bound by its terms.
3.2 Whilst the Company will provide the Services in a professional manner, the Company will not be deemed to have breached this Agreement, will not have any liability for loss or damage incurred by the Client, and will be entitled to all Fees for Services provided notwithstanding the fact that a particular outcome has not been achieved.
- Client Responsibilities
The Client acknowledges and agrees that;
4.1 The Client will provide all such information, details and other assistance as may reasonably be required by the Company in order to provide the Services.
4.2 The Company may provide the Client with templated performance aids, and the Personnel may be monitored generally by a Company team leader. However it is the responsibility of the Client to provide the Personnel with training sufficient to enable the Personnel to perform the tasks required of their job description, and the Client will be responsible for managing the Personnel on a day to day basis. The Company will not be responsible for level of the Personnel’s performance or for any acts or omissions of the Personnel.
4.3 It is the Client’s responsibility to provide the Personnel, at the Client’s cost, with such software and resources as are required by the Personnel to perform the tasks required of their job description.
4.4 It is the Client’s responsibility to provide the Personnel with adequate tasks to fill their designated hours of work as set out in the Proposal (“Hours of Work”). Should the Personnel complete all tasks allocated by the Client within a shorter period of time, no refund or credit of Fees will be given.
- Invoicing and Payment
5.1 The Company will charge Fees as set out in the Proposal.
5,2 Goods and Services Tax and any other taxes and duties that may be applicable shall be charged in addition, except where expressly stated to be included in the Fees.
5.3 The Fees shall be paid by the Client in accordance with the payment terms set out in the Proposal, in the currency in which they are invoiced in cleared funds, without any set-off, withholding or deduction.
5.4 The Client acknowledges that the Fees charged by the Company include where applicable, infrastructure and office rental costs, the payment of mandatory Government wages and benefits for the Personnel on the basis of the Hours of Work set out in the Proposal, international transfer fees, and the Company’s account management time up to a maximum of one hour per month. The Client acknowledges and agrees that should the Client request the Personnel to perform work in excess of the Hours of Work set out in the Proposal (“Overtime”), this request must be confirmed in writing to the Company. The Client will be required to pay additional Fees for this Overtime, calculated on a pro rata basis with regard to the Personnel’s ordinary Hours of Work, which will be automatically billed to the Client’s account on the first day of the month for Overtime carried out in the preceding month.
5.5 The Client acknowledges that the Fees charged by the Company have been calculated by reference to an exchange rate between the Philippines Peso and the Australian Dollar being at least equal to 32:1 (the “Benchmark Rate”). Should the exchange rate fluctuate so as to fall below the Benchmark Rate, then the Company reserves the right to increase the Fees pro rata to the change in the exchange rate, which increase may apply for such period that the exchange rate stays below the Benchmark Rate. The Company will give the Client at least 7 days notice in writing of any such increase in Fees.
5.6 The Company will have the right to automatically increase the Fees payable by the Client, by 5% at each anniversary date of the Commencement Date set out in the Proposal. The Client acknowledges that such price increases are designed to manage cyclical pay rises to the Personnel as well as rising costs to the Company generally.
5.7 The Client agrees that if it fails to make any payment due in accordance with this Agreement, the Company is entitled to;
- Suspend the provision of Services until all money due is fully paid; and if any money remains outstanding for more than 14 days, then the Company may terminate the Agreement;
- Charge interest on all payments outstanding at the rate of 10% per annum, calculated on a daily basis; and
- Recover all costs and expenses incurred in trying to obtain payment of amounts outstanding, including legal costs on an indemnity basis.
- Term and Termination
6.1 This Agreement will commence on the Commencement Date set out in the Proposal, for a minimum term of 3 months, and continuing thereafter on an ongoing basis until terminated.
6.2 Following the minimum 3 month term, either party may terminate this Agreement by giving 30 days notice in writing to the other.
6.3 Upon termination the Client must immediately pay all Fees and other monies owing to the Company in accordance with this Agreement.
6.4 Termination of this Agreement shall not release either party from any liability or right of action which at the time of expiry or termination has already accrued to either party or which may thereafter accrue in respect of any act or omission prior to such expiry or termination. Such rights shall include but not be limited to the recovery of any monies due under this Agreement
- Leave and Public Holidays
7.1 In accordance with the laws applying in the Philippines, the Personnel are entitled to receive 12 paid days per annum combined sick and holiday leave, accruing monthly from the Commencement Date. The Client agrees that such days have been taken into account in formulating the Fees, and the Client will not be entitled to receive any refund or credit of Fees should the Personnel take one or more leave days during any given period.
7.2 In accordance with the laws applying in the Philippines, the Personnel are entitled to receive the following paid public holidays: 1 January – New Years Day; 1 April – Maundy Thursday; 2 April – Good Friday; 9 April – Day of Valor; 1 May – Labor Day; 13 May – Eidul-Fitar; 12 June – Independence Day; 20 July – Eidul-Fitar; 30 August – National Heroes Day; 30 November – Bonifacio Day; 25 December – Christmas Day; 30 December – Rizal Day. Should the Client request the Personnel to work on any of these public holidays, and the Personnel agrees, this will be subject to the payment of additional Fees by the Client reflecting double time pay for the Personnel in accordance with Filipino law.
7.3 The Personnel will be expected to work Australian public holidays, except where such public holidays overlap with Filipino public holidays. No additional Fees will be required to be paid by the Client in respect of the Personnel working on Australian public holidays.
- Personnel Absence, Resignation and Reallocation
8.1 The Client acknowledges and agrees that the Personnel may reasonably be absent from work on sick leave, personal leave or public holidays as referred to in clause 7, and this shall not be grounds for terminating this Agreement or seeking any refund or credit of Fees paid.
8.2 The Client acknowledges and agrees that from time to time, the Company may consider it appropriate to reallocate Personnel and the Client may be allocated one or more new Personnel. The Client agrees that reallocation of Personnel shall not be grounds for terminating this Agreement.
8.3 The Company acknowledges and agrees that the Client may request the allocation of different Personnel, if they have concerns about the Personnel’s conduct and/or level of performance, which have not been rectified within 14 days of the Client providing the Company with written notice of their concerns. The Company will have a period of 28 days thereafter in which to allocate different Personnel to the Client.
8.4 The Client acknowledges and agrees that from time to time, the Personnel may resign from their working arrangements with the Company. The Client agrees that in such circumstances, the Company shall endeavour to find a replacement as soon as possible. During the replacement period, the Client will be credited for any Hours of Work not performed. The Client agrees that resignation of Personnel shall not be grounds for terminating this Agreement, unless the Company is unable to find a replacement within a period of 28 days.
- Confidentiality and Privacy
9.1 The Client acknowledges that the Company may require access to its Confidential Information and other data for the purpose of providing Services to the Client, and the Company will take all reasonable steps to ensure that any records of Confidential Information and other data held by the Company are secure from any unauthorised use, misuse or disclosure, however cannot guarantee that Confidential Information and other data cannot be accessed by an unauthorised person or that unauthorised disclosure will not occur.
9.2 The Client acknowledges that the Personnel may require or obtain access to its Confidential Information and other data in the course of performing the tasks required of their job description. It is the Client’s responsibility to train the Personnel in all privacy obligations which may apply to that Confidential Information and other data, and to monitor the Personnel’s compliance with these obligations.
9.3 The Client hereby acknowledges and agrees that the Company shall not be liable to the Client or any third party for any loss or damage whatsoever sustained or incurred as a result of any unauthorised access to or disclosure of Confidential Information, any failure on the part of the Personnel to comply with privacy obligations in relation to that Confidential Information, or any breach of security in relation to any other data howsoever occurring.
- Intellectual Property
10.1 The Company acknowledges that all Intellectual Property Rights belonging to the Client shall remain the property of the Client. The Client grants to the Company a limited license in respect of such Intellectual Property to the extent necessary for the Company to provide Services to the Client pursuant to this Agreement.
10.2 The Client acknowledges that all Intellectual Property Rights belonging to the Company shall remain the property of the Company. The Company grants to the Client a limited license in respect of such Intellectual Property to the extent necessary for the Client to obtain the benefit of Services provided pursuant to this Agreement.
10.3 The Intellectual Property Rights in any materials created or developed by the Company for the Client in the course of providing Services to the Client, shall pass to the Client upon full payment of all Fees owing pursuant to this Agreement to the Company.
10.4 The Company shall have the right to reference its relationship with the Client, including all authorised testimonials, on its website, social media and in public outreach efforts.
- Non-Solicitation and Interference
11.1 The Client agrees that it shall not, during the term of this Agreement and for a period of 1 year after termination, solicit, approach or accept any approach from any Personnel introduced by the Company for the purpose of employment or any form of paid work whatsoever, except with the prior written consent of the Company.
11.2 The Client agrees that it shall not, during the term of this Agreement and for a period of 1 year after termination, cause any third party to solicit, approach or accept any approach from any Personnel introduced by the Company for the purpose of employment or any form of paid work whatsoever, except with the prior written consent of the Company.
11.3 The Client agrees that should it fail to comply with this clause, then it will be liable to pay the Company an amount equivalent to 12 months of Fees as set out in the Proposal. The Client acknowledges that the Company is authorised to charge such amount to the Client’s nominated credit card or bank account.
All warranties and conditions relating to the provision of the Services by the Company to the Client which may by law be excluded, are expressly excluded. Where such warranties or conditions cannot be excluded, modified or restricted, the Company’s liability will be limited, at its option, to;
- Resupplying the Services; or
- Payment of the reasonable cost of resupplying the Services.
- Liability and Indemnity
13.1 To the maximum extent permitted by law, the Company shall not be liable to the Client or any third party under any circumstances for any loss or damage, loss of profit, interruption to business, or for any indirect, incidental or consequential loss and damage sustained or incurred by the Client, whether such liability arises directly or indirectly as a result of or in connection with the provision of Services by the Company to the Client.
13.2 The Client agrees to release, indemnify, defend and hold harmless the Company and any related bodies corporate against all losses, damages, expenses, liabilities and costs of whatever nature (including legal costs on an indemnity basis) which it or they incur or suffer as a result, whether directly or indirectly, of any breach of this Agreement by the Client.
Neither party may assign their rights and/or obligations under this Agreement without the consent of the other party.
The Company may vary this Agreement by providing the Client 14 days notice in writing.
16.1 Except as otherwise stated in this Agreement, any notice or communication required or permitted to be given under this Agreement must be in writing and shall be deemed given by the sending party and received by the receiving party when such notice or communication is delivered.
16.2 For the purposes of Sections 9 and 10 of the Electronic Transactions Act 1999 (Cth) and Sections 8 and 9 of the Electronic Transactions Act 2000 (NSW), the parties consent and agree that any notice or communication required or permitted to be given in writing under this Agreement can be given electronically, provided that it complies with that legislation as applicable.
- Severance and Waiver
17.1 If any part of this Agreement is found to be void, unlawful or unenforceable then that part will be deemed to be severed from the Agreement and the severed part will not affect the validity and enforceability of any remaining provisions.
17.2 Any failure by a party to enforce any of the provisions of this Agreement shall not be construed as a waiver of such provision or any other provision hereof unless expressly in writing and signed by an authorised representative of that party.
- Entire Agreement
This Agreement supersedes all prior agreements, arrangements or understandings (whether written or verbal) between the parties with respect to the subject matter of this Agreement.
This Agreement shall be deemed to have been made in New South Wales and shall be interpreted in accordance with the laws of New South Wales, Australia. The parties irrevocably submit to the exclusive jurisdiction of the Courts of New South Wales, Australia with regard to any suit, action or proceeding arising out of or relating to this Agreement and the provision of the Services.
The language in all parts of this Agreement will be construed, in all cases, according to its fair meaning, and not for or against either party. The parties acknowledge that each party has had an opportunity to review and negotiate on the terms of this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement.
- Dispute Resolution
21.1 If a dispute (“Dispute”) arises out of or relates to this Agreement (including any dispute as to breach or termination of the Agreement or as to any claim in tort, in equity, or pursuant to any statute), a party may not commence any court, arbitration proceedings or alternative dispute procedure other than as provided for herein relating to the Dispute unless it has complied with the following paragraphs of this clause except where the party seeks urgent interlocutory relief.
21.2 A party claiming that a Dispute has arisen under or in relation to this Agreement must give written notice (“Notice”) to the other party specifying the nature of the Dispute.
21.3 On receipt of that notice by that other party, the parties must endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, or similar techniques agreed by them.
21.4 If the parties do not agree within 7 days of receipt of the Notice (or such further period as agreed in writing by them) as to the dispute resolution technique and procedures to be adopted; the timetable for all steps in those procedures; and the selection and compensation of the independent person required for such technique; then the parties must mediate the Dispute in accordance with the Mediation Rules of the Law Society of New South Wales, and the President of the Law Society of New South Wales, or the President’s nominee, will select the mediator and determine the mediator’s hourly remuneration.
- Force Majeure
22.1 For the purpose of this Agreement “force majeure” means circumstances or occurrences beyond the Company’s reasonable control, whether or not foreseeable at the time of signing this Agreement, in consequence of which the Company cannot reasonably be required to complete the Services or otherwise perform its obligations under this Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics and pandemics, governmental regulations and/or similar acts, embargoes, and non-availability of any permits, licenses and/or authorizations required by governmental authority.
22.2 In the event of force majeure, the Company may terminate this Agreement without liability to Client, provided the Company refunds all amounts which Client has already paid to the Company for Services not fully performed.