Go To Guy Network Pty Ltd (the Company) is pleased to engage you (the Contractor) to provide services to the Company on the terms set out in this agreement. The Company may amend the terms of this agreement at any time. It is your responsibility to check the Go To Guy Independent Contractor Agreement webpage on the Go To Guy website prior to performing, or accepting any request to perform, any services under this agreement to ensure you are familiar with and accept the most recent version of this agreement. Each time you accept any request to perform, or perform, services under this agreement you will be deemed to have accepted the most recent version of this agreement. If you do not accept these terms you must immediately notify us and cease performing services for or on behalf of the Company.
IT IS AGREED AS FOLLOWS:
1. Purpose of this agreement
The Company is engaged in the business of viewing goods that the Company’s customers are considering purchasing from various persons and locations around Australia, and reporting on the following matters:
- in respect of goods advertised on Grays Online, Carsales.com.au, eBay.com.au and other similar websites[See Note 1];
- by providing photographs of items, objects and persons viewed on site;
- facilitation of preparatory freight services, including packaging and item strip-down, preparation, pre-positioning and/or removal for freight;
- the provision of general information in respect of a particular locality (eg. information on hotels, houses, facilities, businesses, locations);
- the provision of general information about goods and services available at a particular location;
- The Company advertises the Services on its GoToGuy.com.au website and may advertise the Services in other mediums.
- The Company engages the Contractor on a non-exclusive basis to provide the Services from time to time, and the Contractor accepts the engagement.
- The Company does not guarantee that the Contractor will be issued any particular number of, or any, requests to perform Services.
2. Contractor services and obligations
- The Company may request the Contractor to perform the Services from time to time.
- The Contractor may accept or reject requests by the Company to perform the Services.
If the Contractor accepts a request by the Company to perform the Services, the Services provided by the Contractor will also include:
- reviewing requests to view goods;
- promptly contacting the relevant person in possession of the goods to arrange a viewing of the goods (such contact to take place within 4 business hours (business hours being between 8am and 8pm), 7 days a week, of the Contractor’s acceptance of a request by the Company to perform the Services for a particular task;
- using best endeavours to have the Services completed within 48 to 72 hours after the Contractor accepts the task should no timeframe be specified in the task order;
- using best endeavours to have the Services completed within the contracted time as specified in the task order;
- travelling to and attending at various locations for viewing of the goods, facility, location, person(s) or other thing;
- viewing goods;
- photographing and/or videoing of goods, facilities and person(s);
- providing reports on the goods, facilities and person(s) and which reports shall include photographs and video as required by the Company’s customers;
- ensuring that the Contractor and the Contractor’s personnel engaged in the provision of the Services keep the Company fully informed in a timely manner in relation to the performance of the Services;
- ensuring that the Contractor and the Contractor’s personnel engaged in the provision of the Services provide reports in the form and in the manner required by the Company;
- ensuring that the Contractor and the Contractor’s personnel engaged in the provision of the Services are readily contactable by mobile telephone at all times during business hours in the Contractor’s jurisdiction, at any time during which the Contractor or its personnel are performing, or have not completed performing, Services in respect of any particular task;
- ensuring that the Contractor and the Contractor’s personnel engaged in the provision of the Services have obtained all licenses, registrations, insurances and other requirements necessary for the performance of the Services;
- ensuring that the Contractor and the Contractor’s personnel engaged in the provision of the Services act professionally and courteously in all dealings with the Company, its clients, its officers, employees and contractors and any other person the Contractor and its personnel deal with in the course of the performance of the Services; and
- ensuring that the Contractor and the Contractor’s personnel engaged in the provision of the Services comply with relevant policies of the Company including those relating to safety.
The Contractor acknowledges that:
- the Company may issue requests to multiple contractors engaged by the Company for the performance of Services in relation to a particular task;
- if the Company elects to have another contractor perform the Services in relation to a particular task, the Company may advise, and the Contractor, must not, perform the Services in relation to that task; and
- the Company may terminate the engagement of the Contractor to perform a particular task at any time and in such circumstances the Contractor will be paid on a pro-rata basis for the proportion of the task completed prior to the termination as calculated by the Company.
3. Contractor’s personnel
- The Contractor is responsible to the Company for the acts and omissions of the Contractor’s personnel. The Contractor will obtain the Company's consent before using any particular personnel to provide the Services and the Company reserves the right to direct the Contractor to cease using any particular personnel to provide the Services and replace that person with other personnel within seven (7) days of the direction being given by the Company.
- The Contractor warrants and represents that it and its personnel have not been convicted of any criminal offence. The Contractor consents to the Company obtaining a National Police Certificate under a National Criminal History Record Check from the NSW Police Force or other state or territory police force, or from the Commonwealth in relation to the Contractor and any personnel of the Contractor that will be involved in the provision of the Services and in that regard the Contractor will complete the relevant Application form for the National Criminal History Record Check and obtain all necessary consents from the Contractor’s personnel. The Company may in its absolute discretion if it chooses to, decide not to obtain a National Criminal History Record Check in respect of the Contractor or its personnel or any of them. Should the Company choose to obtain a National Criminal History Record Check in respect of the Contractor or its personnel or any of them the Company will pay the application fee.
- The Contractor will start providing the Services from the date the Contractor first accepts a request to perform Services (the Start Date) and the Contractor's engagement and this agreement may be terminated in accordance with clause 9 below.
5. The Contractor's other obligations
- When the Contractor accepts the Company’s requests to perform Services, the Contractor will complete the tasks specified by the Company from time to time within the time frames and to the standard reasonably specified by the Company.
- The Contractor and its personnel must not contact, or communicate directly with, any customer of the Company without the prior written consent of the Company.
- The Contractor must ensure that the provision of services to or for any other person or entity by the Contractor or its personnel do not interfere with the provision of the Services to the Company in the manner required by this agreement.
- The Contractor must not, and must ensure that its personnel do not, without the prior written agreement of the Company, provide any services to or for any person or entity who or which has an interest which is in competition with the activities of the Company.
6. Fee and Liability
- The Company will pay the Contractor a fee for providing the Services (the “Fee”). The Fee will be specified in the task order for each particular task the Contractor is ordered to carry out in the course of providing the Services. The Fee is exclusive of GST.
- The Contractor will invoice the Company, utilising the automated invoicing system capability provided on the website only, upon completion of a task ordered to be carried out by the Company and the Company will make payment within not less than eight (8) days and not more than fourteen (14) days of receiving the invoice. The invoice must specify the Services performed, the date they were performed and any other details reasonably required by the Company. The invoice must be submitted to the Company via the Company website automated invoicing system only.
- The Contractor agrees that payment of the Fee constitutes full payment for the provision of the Services including all work undertaken by the Contractor’s personnel.
- To the extent possible by law, the Company’s total aggregate combined liability to the Contractor shall be the Fee.
- If a customer of the Company has made a complaint in relation to any Services performed by the Contractor, the Company is entitled to withhold payment of the Fee to the Contractor until the complaint is resolved and the Fee will not be payable if the Contractor has not performed the Services in accordance with this agreement.
The Contractor will provide the Services at its own cost, and unless expressly authorised in writing by the Company, will not be entitled to be reimbursed for any out of pocket expenses incurred by the Contractor and/or its personnel in connection with the provision of the Services and the Contractor will be solely responsible for, solely bear and indemnify the Company for any claims made against the Company in connection with:
- the cost of purchasing tools, transport, internet access, computers, scanners, camera equipment and other items necessary for the performance of the Services and the preparation of the reports, photographs and video the subject of the Services;
- the payment to the Contractor's employees, contractors and agents of remuneration and benefits including salaries and wages, annual leave, sick leave, superannuation, long service leave and all other benefits to which any of them may be entitled under any contract of service or contract for service with the Contractor or under any award, industrial instrument, statute or common law;
- the payment of all taxes and duties in respect of such remuneration and benefits; and
- the cost of compliance with all other statutory, award or other legal or contractual requirements with respect to the Contactor's employees, contractors or agents.
8. Nature of relationship
- The Contractor is engaged by the Company as an independent contractor and nothing in this agreement constitutes the Contractor or the Contractor’s personnel as agents, employees, directors or partners of the Company.
- As between the Company and the Contractor, the Contractor’s personnel are and will remain at all times employees, independent contractors or agents of the Contractor.
- The Contractor and the Contractor’s personnel have no authority to incur, and will not incur, any obligation on behalf of the Company except with the prior written approval of the Company.
- The Contractor and its personnel when performing the Services must identify themselves as a “GoToGuy” and must use any identification and other materials prescribed by the Company, and follow any dress code required by the Company.
- Subject to the terms of this agreement, the parties acknowledge that the Contractor is solely responsible for controlling the manner in which the Contractor and the Contractor’s personnel provide the Services provided that the Contractor must ensure that it and its personnel comply with all applicable laws, regulations, codes, common law and statutes in the course of performing the Services.
- The Contractor indemnifies the Company for all loss and damage directly or indirectly suffered by the Company in connection with any breach of this Agreement by the Contractor or the Contractor’s personnel or of any applicable laws, regulations, codes, common law and statutes.
9. Termination with notice
- The Contractor or the Company may terminate the engagement of the Contractor and this agreement at any time by giving the other party notice in writing. Notice may be given by the Company by email, Simple Messaging Service or post. Notice may be given by the Contractor by email or post.
- The Contractor is responsible for its own liability insurance cover and is responsible to any third party for death or injury, loss or damage of property or monetary loss resulting from the Contractor’s negligence, action or advice from any work performed in the course of providing the Services.
- The Contractor must also take out any workers compensation insurance in respect of its personnel as required by law.
- If requested by the Company, the Contractor must provide the Company with a certificate of currency in respect of each such policy of insurance.
11. Goods and services tax
- Unless stated otherwise and subject to this clause, any amount required to be paid or consideration required to be provided under any other provision of this agreement, is calculated to be exclusive of GST.
- If GST is payable in relation to a supply made by the Contractor to the Company under this agreement then subject to subclause (a) above the Company will pay to the Contractor, an additional amount equal to the GST payable on that supply.
- The Contractor may not recover the additional amount under subclause (b) above unless and until a valid tax invoice for the supply to which that additional amount relates is issued and delivered to the Company.
- If any amount to be paid by the Company to the Contractor is calculated by reference to an amount, cost or expense incurred by the Contractor, the amount which the Company is required to pay the Contractor will be reduced by the amount of any input tax credit to which the Contractor is entitled in respect of that amount, cost or expense.
- The Contractor indemnifies the Company in respect of any tax deductions or liability that the Australian Commissioner of Taxation may seek to recover from the Company in respect of all and any Fees which the Company pays to the Contractor under this agreement.
Without limiting subclause 5(c) and (d) of this agreement and subject to subclause 12(b), during the operation of this agreement, the Contractor will not, and will ensure that its personnel do not, without the prior written consent of the Company, either directly or indirectly become involved or participate in any capacity in any business, activities, decisions, operations, undertakings or concerns which, in the reasonable opinion of the Company:
- conflict or appear to conflict, with the interests of the Company; and
- are in competition with, or are of a similar nature to, the activities of the Company.
For a period of 12 months after termination of this agreement for whatever reason, the Contractor agrees that it will not, and will ensure that its personnel who took part in the provision of the Services will not, within the State or Territory of the Contractor:
- canvass, solicit or endeavour to entice away from the Company any person or organisation that was a customer of the Company at the date of the termination and, in relation to whom, the Contractor or its personnel engaged in the provision of the Services dealt with during the operation of this Agreement;
- counsel or induce any other person to perform any of the acts specified in subclause (i).
- The Contractor acknowledges that any breach by the Contractor of this clause would cause irreparable harm and significant damage to the Company and accordingly that the Company has the right to seek and obtain immediate injunctive relief from a court in relation to any such breach. The Contractor will ensure that its personnel make the same acknowledgements prior to performing any Services.
- The Contractor acknowledges that the covenants in respect of non-competition contained in this clause are fair and reasonable and that the Company is relying upon this acknowledgement in entering into this agreement. The Contractor will ensure that its personnel will make the same acknowledgement.
For the purpose of this agreement, “Confidential Information” means all information concerning:
- the names and addresses of the Company’s customers;
- any personal information of the Company’s customers (as “personal information” is defined in the Privacy Act 1988 (Cth));
- the reports, documents, photographs, video and records prepared by the Contractor in the performance of the Services;
- the Company's trade secrets;
- other information designated as confidential by the Company,
- which the Contractor or its personnel receive, become aware of, develop, create or generate in the course of or incidental to the operation of this agreement.
The Contractor agrees and warrants:
- subject to subclause (c) below, it will not, either during the operation of this agreement or at any time thereafter use or disclose to any person or entity any of the Confidential Information;
- it will hold for the benefit of the Company the Confidential Information in trust and confidence; and
- it will use its best endeavours to prevent the unauthorised use or disclosure of any of the Confidential Information.
The obligations in subclause (b) above do not apply to any Confidential Information which:
- is in the public domain other than due to a breach of an obligation of confidence under this agreement; or
- the Contractor is required by law to disclose, although the Contractor must notify the Company immediately upon becoming aware that it will be required to disclose any Confidential Information in accordance with this clause.
The Contractor must take all reasonable precautions to prevent any unauthorised disclosure of Confidential Information, including the following precautions:
- the Contractor must at all times store all Confidential Information safely and securely;
- the Contractor must immediately notify the Company in writing of any actual, threatened or suspected unauthorised disclosure of any Confidential Information; and
- the Contractor must take all reasonable measures to minimise any unauthorised dissemination of any Confidential Information which is in any way related to or resulting from an act or failure to act by the Contractor.
- The Contractor must if and when requested by the Company immediately, return, or at the option of the Company, destroy, all Confidential Information in the Contractor’s possession or control.
- The Contractor must ensure that its personnel agree to the same terms of the Contractor in respect of the Confidential Information as set out in this clause 13.
14. Intellectual property
The Contractor will:
- immediately inform the Company of any task which may come to its notice during the operation of this agreement which may be of interest or importance or use to the Company; and
- immediately communicate to the Company any proposals or suggestions occurring to it during the operation of this agreement which may be of service for the business of the Company.
- Any discovery, design, invention, idea, concept, technique, secret process or improvement in procedure conceived, made, developed or discovered by the Contractor or its personnel in the course of providing the Services under this agreement (whether alone or with any other person) which is capable of being used or adapted for use in connection with the activities of the Company (the Inventions) must immediately be disclosed by the Contractor to the Company, whether or not the Inventions are capable of being protected by copyright, letters patent, registered design or other protection.
- All Inventions will be part of the Confidential Information of the Company, and the Contractor assigns or, to the extent deemed necessary by the Company, will assign its entire right, title and interest in and to the Inventions (and any intellectual property protection obtained in respect of the Inventions) to the Company as the Company may require.
The Contractor will at the expense of the Company execute all documents and do and execute all such further acts, matters and things as may be necessary or reasonable to:
- register or otherwise protect the Inventions; and
- perfect the assignment required by this clause 14.
- Whenever required to do so, and at the expense of the Company, the Contractor will apply or join in applying for letters patent or any other intellectual property protection reasonably determined by the Company in Australia or in any other part of the world for any Invention conceived, made, developed or discovered by the Contractor in the course of providing services under this agreement. The Contractor will execute all instruments and do all things necessary to apply for such protection and to assign the benefit of that protection to the Company or its nominee.
- The Contractor must ensure that its personnel observe and agree to a clause on equivalent terms to this clause 14 in respect of any discovery, design, invention, idea, concept, technique, secret process or improvement in procedure conceived, made, developed or discovered by them in the course of providing services to the Company on behalf of the Contractor.
- The Contractor may not assign this agreement without the prior written consent of the Company. The Company may assign this agreement at any time in its absolute discretion.
17. No waiver
- Failure or omission by the Company at any time to enforce or require strict or timely compliance with any provision of this agreement will not affect or impair that provision, or the right of the Company to avail itself of the remedies it may have in respect of any breach of a provision, in any way.
- Any provision of this agreement which is or becomes illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and will not invalidate the remaining provisions.
- The Company may amend the terms of this agreement at any time. It is your responsibility to check the Go To Guy Independent Contractor Agreement webpage on the Go To Guy Network Pty Ltd website (www.gotoguy.com.au) prior to performing, or accepting any request to perform, any services under this agreement to ensure you are familiar with and accept the most recent version of this agreement. Each time you accept any request to perform, or perform, services under this agreement you will be deemed to have accepted the most recent version of this agreement. If you do not accept these terms you must immediately notify us and cease performing services for or on behalf of the Company.
20. Governing law
- This agreement is governed by, takes effect and will be construed in accordance with the laws of New South Wales, and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales and courts entitled to hear appeals therefrom.
21. Entire agreement
- This agreement constitutes the entire agreement between the parties concerning the matters dealt with pursuant to this agreement. For the avoidance of doubt, this agreement supersedes all provisions, covenants, agreements, warranties, representations, negotiations and understandings with respect to the matters dealt with in this agreement.
- If this agreement is terminated for any reason such termination will not affect any accrued rights or liabilities of either party nor will it affect the coming into force or the continuance in force of any provision of this agreement (in so far as it imposes obligations on the Contractor or its personnel) which is expressly or by implication intended to come into force or continue on or after the termination including but not limited to clauses 8(f), and 12 to 14 (inclusive).