Client Agreement
standard terms and conditions for provision of contractors
drake australia pty ltd (ACN 004 939 771)
1. Agreement:
1 Drake Australia Pty Ltd (ACN 004 939 771) (“Drake”) agrees to provide to the client named in Clause
8.1 (“the Client”) temporary contract workers (“Contractors”) as and when required by the Client, upon the terms and conditions contained in this Agreement.
1.2 This Agreement replaces all prior agreements between Drake and the Client (whether written or verbal) and all prior statements or promises made by Drake staff. The Client is deemed to accept this Agreement when the Client signs this Agreement or, when a Drake Contractor commences an assignment with the Client.
2. Dr A ke’s Oblig Ati O ns t O the client:
2.1 Drake will use its best endeavours to supply suitably competent and qualified Contractor/s to the Client on a per assignment basis. Drake shall not be liable to the Client for any losses or costs incurred by the Client as a result of Drake being unable for any reason to fulfil an assignment.
2.2 If Drake receives notification from the Client that the Client is not reasonably satisfied with a Contractor Drake will take all reasonable steps to replace that Contractor and will endeavour to do so within 4 hours of notification. If the notification is received by Drake within 4 hours of the Contractor commencing the assignment, the Client will not be charged for the work done by that Contractor.
2. 3 Drake will be responsible for
(a) all payments to Contractors for their services;
(b) payment of superannuation contributions on behalf of Contractors when required by law to do so;
(c) payment of income related taxes with respect to Contractors’ payments when required by law to do so; and
(d) taking out workers’ compensation insurance with respect to Contractors when required by law to do so. The Client should note that this obligation does not excuse the Client from its obligations or liabilities as occupier of the site to which Contractors are assigned (whether such obligations arise by way of statute or otherwise).
2.4 Where a Contractor ceases work on an assignment prior to its completion, Drake’s liability will be limited to taking all reasonable steps to replace that Contractor and will endeavour to do so within 4 hours of notification by the Client.
3. the client’s Oblig Ati O ns:
3.1 The Client agrees to instruct Drake clearly of:-
(a) the nature of each assignment;
(b) the number of Contractors required;
(b) each Contractor’s duties;
(c) the expected duration of each assignment;
(e) the site of each assignment; and
(f) any other special requirements or qualifications that are required.
3.2 The Client agrees that it will not change any instructions referred to in clause 3.1 without first obtaining Drake’s prior consent.
3.3 The Client agrees that each Contractor will be engaged for a minimum of 4 hours per day.
3.4 The Client agrees that it will not request Drake Contractors to perform or participate in any work or use equipment with which the Contractor is unfamiliar, unqualified or has not received proper or adequate training and instruction.
3.5 The Client agrees not to discuss with any Contractor any matter relating to the Contractor’s agreement with Drake (such as the payments the Contractor is to receive).
3.6 While the Client is entitled to terminate a Contractor’s assignment for any lawful reason in accordance with clause 5.2, the Client agrees:-
(a) to notify Drake immediately it decides it wants to do so; and (b) not to inform the Contractor of its intention, but allow Drake to do so.
3.7 The Client agrees to allow Drake all reasonable access to its site and to relevant safety documentation to enable Drake to conduct site inspections and otherwise comply with its occupational health and safety obligations. In circumstance where a Drake Contractor is moved from site to site and Drake is unable to access the sites to perform a site inspection, the Client accepts responsibility for the safety of such sites and indemnifies and holds Drake harmless for any injury and or death to Drake Contractors that may occur on such sites.
3.8 In the event of an injury or death to a Drake Contractor at a client site, the Client agrees to comply with its reporting responsibilities and to provide to Drake access to the site, relevant documentation and full assistance with Drake’s investigators.
3.9 The Client agrees to comply with all relevant statutory requirements, including legislation regarding discrimination, harassment and workplace occupation health and safety, The Client shall provide to Contractors:
(a) a safe working environment and a safe system of work;
(b) adequate induction, supervision, training and instruction in their specific tasks to ensure the occupational health and safety of Contractors and to ensure that all Contractors’ work is performed safely;
(c) a working environment which is free from harassment or discrimination of any type; and
(d) communicate to Contractors safe work practices and procedures, provide details of all policies and procedures relating to (a) through (c) above upon commencement of their engagement with the Client.
The Client acknowledges that Contractors are entitled to stop work if these requirements are not met.
3.10 Where legislation, Australian Pay & Classification Scales, an industrial award, enterprise or site agreement (whether certified or not) is used by Drake as a guide to determine a fair and reasonable rate of pay for any Contractor, the Client acknowledges that the Fee is subject to change without notice where any change occurs in a rate of pay under such legislation, Australian Pay & Classification Scales, an industrial award, enterprise or site agreement.
3.11 Where legislation, Australian Pay & Classification Scales, an industrial award, enterprise or site agreement (whether certified or not) is used by Drake as a guide to determine a fair and reasonable rate of pay for any Contractor, the Client agrees to notify Drake immediately of any change to such legislation, Australian Pay & Classification Scales, an industrial award, enterprise or site agreement of which it is aware, or any change in duties performed by a Contractor where such change may affect the rate of pay of that Contractor. In the event that the Client fails to comply with the obligation contained in this clause, the Client agrees to indemnify Drake for any and all back pay or other liability that Drake may incur.
3.12 Drake reserves the right to pass on to the Client, any State or Federal tax, levy or charge (including the Goods and Services Tax) levied on or in relation to the Fee charged to the Client under this > Agreement or any payments made to Contractors. To the extent that any legislative or regulatory
amendment made during the term of this Agreement results in an increase to any legislative or regulatory charges (eg WorkCover levy) the Fee will be revised to reflect the increase. Such revision will take effect from such date as the relevant legislation or regulation requires.
3.13 In addition to the Fee, the Client will pay to Drake a Cancellation Fee where the Client cancels an assignment after 12:00 midday on the last Drake business day before the assignment is due to commence. The Cancellation Fee will be an amount equal to 4 hours at the relevant hourly charge(s) for that Contractor(s).
3.14 The Client agrees to pay to Drake a Permanent Placement Fee if it engages a Contractor (directly or indirectly) under any contract of service, or contract for services, within 6 months of that Contractor providing services to the Client pursuant to this Agreement. The Client agrees to notify Drake in writing if it engages a Contractor. The notification shall include the start date, nature of the engagement and the remuneration paid to the Contractor. The Permanent Placement Fee will be twelve (12%) percent of the total commencing salary. No replacement guarantee applies and no guarantee of suitability or duration of employment is made. This clause survives termination of this Agreement.
3.15 Subject to Clause 3.16, the Client agrees to indemnify and hold Drake, its employees, agents or contractors harmless for any loss or damage (including any loss as a result of personal injury or death of a Drake Contractor) and legal costs (on a solicitor client basis) suffered by any of them as a result of:
(a) a breach by the Client of any of its obligations under this Agreement:
(b) any negligent or wrongful act or omission of, the Client, its employees, agents or contractors:
(c) any activity of a Contractor involving the driving, operation, care, custody or control of any motorised vehicle at the Client’s direction or while the Contractor is performing duties on behalf of the Client;
(d) the loss of or damage to any property belonging to the Client or any third party or any personal injury or death caused by or contributed to by a Contractor whilst under the direct control and supervision of the Client.
3.16 Where any Act of Parliament implies in this Agreement any term and that Act voids or prohibits provisions in a contract excluding or modifying the application or exercise of or liability under such term, such term shall be deemed to be included in this Agreement. Drake’s liability for any breach of such term shall be limited at the option of Drake to any one or more of the following:
(a) providing the services again: or
(b) the payment of the cost of providing the services again.
3.17 Drake will not be liable for claims which are in nature of special, indirect, incidental, punative or consequential losses or damages.
4. fee AnD p Ayment:
4.1 Drake will charge the Client a fee for the services preformed by Drake in providing the Contractor/s (“the Fee”). The Fee is to be paid direct to Drake, not to the Contractor.
4.2 Drake reserves the right to vary the Fee at any time upon giving 7 days written notice.
4.3 The Client undertakes to approve Contractors’ timesheets (either paper based or through Drake Online) no later than the Friday of each week.
4.4 Drake will provide an Invoice to the Client on a weekly basis, which shall be paid by the Client within 7 days of invoice date, or as agreed to by both parties. The Invoice will contain details of the hours worked by Contractors and the relevant hourly rates for each of those Contractors.
4.5 A late payment charge of 1.25% per month (15% per annum) shall be applied to Drake Invoices not paid by the due date.
5. termin Ati On:
5.1 This Agreement may be terminated by either party giving the other reasonable notice in writing (but at least 1 day).
5.2 Either party may terminate an assignment upon the giving of reasonable notice to the other party (but at least 1 day).
6. Dr A ke cO mputer s ystems :
6.1 Where the Client uses Drake technologies, Drake computer systems or Drake Online during the term of an assignment, the Client agrees to comply with the following provisions:
(a) access codes are confidential and shall be used properly and only by authorised representatives of the Client;
b) approving Contractors timesheets using Drake Online constitutes formal approval and binds the Client to payment of properly generated invoices;
(c) the Client shall not modify or create any deriative works, interefere with decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive the source code, sell, rent, sub-licence or otherwise transfer rights to Drake computer systems or remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels;
(d) The Client acknowledges that Drake Online (including all connected printed materials) is protected by copyright. Drake Online, or any portion thereof may not be copied, reproduced or in any other manner transferred or redistributed without the prior written consent of Drake.
(e) The Client acknowledges that Drake Online, and the information within Drake Online, is owned exclusively by Drake. The Client will not take any action to jepodize, limit or interfere with those rights.
(f) Drake does not represent that Drake Online will be error or bug free or that the software will function without interruption. The Client releases and holds Drake harmless from any claim, action, loss or damage that the Client may incur through its use of Drake Online.
7.1 To the extent permitted by law and under legislation, the Client assumes all risk and liability and releases Drake from any loss damage or claim where Contractors handle the Client’s money, securities, valuables, negotiable documents or confidential information in the course of providing services to the Client except where the Client has specifically requested in writing a Contractor who will be required to provide such services.
7.2 Both Parties agree to observe the Privacy Act 1988 (Clth) and other applicable privacy laws in respect of all Personal Information (as defined in the Privacy Act), and to keep Personal Information secure and confidential. Drake’s privacy policy can be viewed at www.drakeintl.com.
7.3 The Client acknowledges that this Agreement is for the provision of temporary contract workers, who often work on short term assignment. In the event that the Client requires a Drake Contractor for a period of time in excess of 6 months, Drake may contact the Client at an appropriate time to discuss suitable options, which may include:
(a) making the Contractor a permanent employee of the Client, or;
(b) revising the Fee to reflect a possible change in the Contractor’s long term work entitlements.
7.4 Drake shall be entitled to replace any Contractor with another of comparable qualifications at any time and without prior notice.
7.5 The Client and Drake agree that any communication between them may be effected by post, facsimile or electronic mail. Where any communication is effected by electronic mail, the sender accepts any risk, problems and/or losses associated with the use of such mode of communication.
DRAKE AUSTRALIA PTY LTD (ACN 004 939 771)
8.1 CLIENT DETAILS:
Client Company Name:
Client Trading/Business Name:
Client ABN: Industry:
Work Cover Industry Classification:
Client Address: Street: Postal:
Client Telephone:
Client Facsimile:
Client Contact: Title: Name:
Phone Number: Home: Mobile:
Client e-mail address:
Person(s) authorised to approve timesheets:
Payroll tax exempt Yes
No
This Agreement applies to all assignments ordered by all business units/ divisions/ departments etc of the client regardless of which trading / business name has been identified above.
8.2 DRAKE’S DETAILS:
Drake’s Company Name:
Resgistered Office: Service Line: Service Line Address:
Service Line Telephone:
Service Line Facsimile:
Account Manager: Fast Track Number:
8.3 EXECUTION:
Drake Australia Pty Ltd (ACN 004 939 771) Level 41 / 55 Collins Street, Melbourne Victoria 3000
Date:
Signed for and on behalf of Drake by its duly authorised representative
Signed for and on behalf of The Client by its duly authorised representative:
Signature Signature Name (Please Print)
Representative’s Name (please print)