Employment Hero Platform Terms and Conditions – 24.11.21

Overview

Welcome to Employment Hero, nice to meet you! Before you start your work easy journey, we do need you to look through and accept these terms. We’ve done our best to explain it all without using too much jargon, so it’s clear what we expect from you and what you can expect from us.

These are your legal rights and obligations, so please do read everything. If you can’t agree to our terms, then you can’t use our software.

These terms were superseded on 26 November 2021. See current terms here.

Employment Hero Platform General Terms

Introduction

This section describes the terms that apply to your use of the Employment Hero Platform

Thanks for using the Employment Hero Platform.

This page describes the legal rights and obligations that apply to your use of the Employment Hero website at employmenthero.com (“EH Website“)), mobile applications, services, content, subscriptions, accounts, benefits and offers as available through or as described on the EH Website or agreed between us  from time to time (“EH Platform“).

The terms on this page (“General Terms”) together with the terms referred to in clause 1 below are referred to as “Terms“. Please read these Terms carefully as they will apply if you use the EH Platform.

1. Other Terms: Other terms or policies may also apply to specific services, content or benefits offered through the EH Platform. These include:

• Our privacy policy, which describes how we collect, hold and use personal information and use cookies.
• Our cookies notice which describes how we use cookies.
• Data Processing Addendum which applies if you or your data is located in the EU or UK.
• Payroll Terms of Use, which describes terms that apply to the use of payroll services provided by our service provider.
• “My Benefits” terms which describe terms that apply to benefits offered through the EH Platform.
• Terms for Employment Hero Recognition and Hero Points (at Appendix A to these General Terms).
• The PEO Services Agreement which outlines the terms that apply to any request for Employment Hero to be employer of record or provide other related services at Appendix B).
• Terms agreed in writing between us, including in a service order form (“Order”).

A copy of Employment Hero Terms and policies can be found on our website.

2. Priority of Terms: If there is any inconsistency between the terms that apply to specific services available through the EH Platform (including those referred to above in clause 1) and these General Terms, the terms in the service specific terms will take priority in relation to those specific services. 

3. Updated Terms: We are always improving the EH Platform. We may amend or add to these Terms from time to time by posting our updated Terms to the EH Website. If you have an account with us (“EH Account“) we may also notify you of any changes through your account or by email. Please check the EH Website from time to time for changes.

4. Adverse Changes: If we have notified you, or you otherwise become aware of, a change in the Terms that adversely affects your use of the EH Platform and you do not agree with the change, please notify us by emailing support@employmenthero.com within 30 days of receiving notice of, or otherwise becoming aware of, the amended Terms. We may, at our discretion, notify you that we agree to allow you to continue to use some or all the EH Platform in accordance with the previously agreed Terms for the period of time set out in that notice. If we do not notify you that we agree to your continuing to use the EH Platform on the previously agreed Terms within 14 days of your notification, you may terminate your account with us and stop using the EH Platform within 30 days of the date you first notified us. If you continue to use the EH Platform you agree to the amended Terms.

5. Reseller Orders: If you purchase a subscription to the EH Platform through an EH Platform reseller, you must comply with these Terms as well as any terms imposed on you by the reseller. Resellers are not authorised to make promises on Employment Hero’s behalf and, to the extent permitted by law, we are not bound by any obligations to you other than those specified in these Terms.

Who do these Terms apply to?

This section describes who these Terms apply to

6. Customers: “Customers” are companies or individuals that use or purchase services or subscriptions from the EH Platform for business purposes. Customers may include employers, business owners and companies engaging contractors. Customers are responsible for paying any fees that apply to use of the EH Platform, unless a fee is stated as being payable by individual Users (defined below). If you are agreeing to these Terms on behalf of your company then “Customer” or “you” means your company, and you are binding your company to these Terms.

7. Users: A “User” is an individual who accesses the EH Platform whether on behalf of a Customer or on their own behalf and includes Customer’s employees, visitors to the EH Website, employers, administrators, employees or former employees who continue to access the EH Platform after leaving the employer that provided them with an EH Account and third party contractors working for Customers. If you are a User, then “User” or “you” means you, you must accept these Terms and all Terms apply to you except those that state that they apply to Customers.

8. Employment Hero: By using the EH Platform or agreeing to an Order you are entering into an agreement with the company indicated in the table below:

	Contracting Employment Hero Entity
The Contracting Employment Entity is indicated in an Order entered into by the Customer	Entity indicated in the Order
The Contracting Employment Hero Entity is indicated in service specific terms	Entity indicated in the service specific terms (but only in relation to those specific services)
If the Contracting entity is not specified in an Order or service specific terms and the Customer is located in the United Kingdom or the EU	Employment Hero (UK) Limited (Company Number_12861071)
All other cases	Employment Hero Pty Ltd (ABN 11 160 047 709)

The Contracting Employment Hero Entity applicable in the above table is referred to as “Employment Hero”, “we” or “us” in these Terms.

You may be contracting with different Contracting Employment Hero Entities for the provision of specific services or in relation to specific Orders. In that case, a separate agreement will be formed between you and each different Contracting Employment Hero Entity for the purpose of those the specific services or Orders.

9. Associated Entities: We may provide services through other members of the of Employment Hero Group “Associated Entities“. The “Employment Hero Group” means Employment Hero Holdings Pty Ltd (ACN 611 036 796) and the companies for which it is the ultimate holding company. Unless otherwise agreed, your agreement is with the Employment Hero Contracting Entity indicated in the table in clause 8 and all claims you may have with us must be made to that entity.

Employment Hero Accounts 

This section provides information about your Employment Hero Account

10. Accessing the Employment Hero Platform: You may need to create an EH Account with us to access some of the subscriptions, services, content, benefits or offers available from the EH Platform. Customers who have created an EH Account may grant Users permission to create their own accounts using the EH Platform functionality.

11. User Accounts: If you are a User who has been granted access to an EH Account you must comply with these Terms.

12. Protect your login information: You must keep your user name and password secure and not let anyone access your EH Account. If you have activated biometric authentication (for example finger print or facial recognition or voice recognition) on a device, you are responsible for safeguarding your biometric identifier. You must notify us of any actual or suspected unauthorised use of your EH Account or if you suspect someone has access to your login credentials (including your biometric identifier). You are responsible for all actions and losses arising from use of your EH Account as a result of your failure to keep your information secure and confidential.

13. Responsibility of Customers: Customers are responsible for all actions and losses arising from the Customer’s EH Account and any EH Accounts it has granted to Users.

EH Platform

This section sets out your rights and obligations when using the EH Platform

14. Right to use Employment Hero Platform: We grant you the right to use the EH Platform for internal business purposes only based on the subscriptions and services that have been purchased or signed up for, your role and the access level that you have been granted.

15. Ownership of EH Platform: We own all rights in everything on the EH Platform except content that is owned by others such as content and information you provide when using the EH Platform. This includes copyright, trade marks, the design, compilation and look and feel of the EH Platform and all other intellectual property. You must not copy, distribute, modify or make copies of the EH Platform or any content on the EH Platform or use any of our intellectual property rights except as permitted by these Terms or expressly permitted by us in writing.

16. EH Templates: From time to time we may make available templates of documents including standard employment agreements, workplace policies, performance and coaching reviews and surveys (“EH Templates”). You may copy, distribute or modify EH Templates for your internal business purposes only.

17. Pre-release or beta versions: We may make pre-release or beta versions of products or services available to you. These products and services may be still under development and may be inoperable or incomplete and contain more errors and bugs than our generally available services or products. Because of the nature of these services, you use them at your own risk.

18. Third Party Services: Some of the services available through the EH Platform are provided by other companies (“Third Party Services“) and you must agree to any additional terms or fees that may apply to those services. Use of Third Party Services are subject to the terms and privacy policies set by the Third Party Service provider. You should make sure you understand the terms and how the Third Party Service provider may use your data and personal information before using the Third Party Services.

19. Restrictions:  Below is a list of things you must not do:

• use the EH Platform in a way that impairs its functionality, compromises the security or integrity of our systems or networks or interferes with other people’s use of the EH Platform;
• decompile, reverse engineer disassemble rent or sublicense anything on the EH Platform;
• access any system or account without our permission; or
• use the EH Platform for any illegal or fraudulent purpose or upload anything that may be offensive, discriminatory, defamatory, abusive or infringes the rights of others including intellectual property rights and privacy rights.

20. Intellectual Property Indemnity: We will defend you, at our own cost against any claims made by a third party that the EH Platform (including content) used by you in accordance with these Terms infringes that third party’s intellectual property rights (“Infringement Claim“). You must notify us promptly of any such Infringement Claims, give us sole control over the defense and settlement of the Infringement Claim, and provide reasonable help in defending the Infringement Claim. Subject to the foregoing, we will indemnify you for i) the amount paid by you to the third party based on a settlement (agreed by us) or final court judgment, and ii) reasonable legal and other out-of-pocket expenses that you incur in giving the help to us referred to above.

21. Remedies: If we reasonably believe that an Infringement Claim under clause 20 may bar your use of the EH Platform, we will either obtain the right to keep using the EH Platform, or modify or replace the EH Platform with a functional equivalent. If either of these options would cause unreasonable costs to us, we may terminate your right to use the infringing EH Platform content or service and we will reimburse the corresponding proportion of prepaid subscription fees for the terminated EH Platform content or service on a pro-rata basis.

22. Limitations: We are not liable if the Infringement Claim results from i) use of the EH Platform in violation of these Terms or against our written instructions, ii) alteration of the EH Platform service or content by you or the Customer not authorised by us, iii) our compliance with your or the Customer’s express written instructions, iv) use of the EH Platform in combination with any product or service not provided by us if the EH Platform would not infringe without such combination.

23. Exclusive Remedy: Clauses 20 to 22 state your sole and exclusive rights and remedy with respect to Infringement Claims.

Additional Services

This section provides information about additional services we may offer

24. Additional Services: We may offer certain additional services related to the EH Platform such as implementation services, data cleansing services, advisory services, development of template documents or employee services (“Additional Services“). These Additional Services will be specified in more detail in an Order, a statement of work or on the EH Website. Additional fees and terms in addition to these Terms may apply to our Additional Services.

25. Schedules: We will use reasonable efforts to meet any specific time schedules mutually agreed by the parties in writing for any Additional Services.

Subscriptions, Fees and Payment

The section explains your obligation to pay fees and information about subscriptions and free services

26. Fees: Pricing for our Subscriptions (defined in clause 27 below) and other services and content offered through the EH Platform are as set out on the EH Website unless otherwise agreed with you in writing.

27. Subscriptions: Services and content on the EH Platform may be offered on a paid subscription basis to Customers (“Subscriptions“). Customer’s Subscriptions will automatically renew at the end of each Subscription period. Customers can cancel Subscriptions though their EH Account, in which case the Subscription will end at the end of the then current Subscription period. On termination of a paid Subscription, we may, at our discretion, offer to downgrade the Subscription to a free Service offered by us if applicable. If a Customer has agreed to a minimum term with us, then the Customer cannot terminate the Subscription for convenience before the end of that minimum term.

28. No-charge Services: We may offer services at no charge such as fee-free basic accounts, free trials or access to beta versions (“No-charge Services“). Your use of No-charge Services may be subject to additional terms that we specify and may be available only for a limited time period. We may change, suspend or terminate your right to use No-charge Services at any time at our sole discretion.

29. Trial Periods: If a Customer has signed up for fee-free trial period for any of our Subscriptions, the Subscription will automatically renew at the end of the trial period and the Customer will be charged the applicable Subscription fee, unless the Subscription is terminated prior to the end of the fee-free trial period.

30. User Fees: Users may have the option to purchase goods and services through the EH Platform, for example through the “My Benefits” discount program. Prices for such goods and services will be displayed at the point of purchase and Users are responsible for any payments.

31. Payment Methods: You may be required as part of the registration process or prior to accessing parts of the EH Platform to provide a valid payment method or other payment information (such as payment card details). If you provide such payment information you authorise Employment Hero to process payments using that payment method for Subscriptions or services purchased from us. Please ensure that any payment information you provide to us remains up to date. If you miss a payment, we may suspend your access to paid Subscriptions and the EH Platform or suspend the provision of services until the payment is made.

32. Invoicing and Payment of Subscriptions:

If you signed up through an agreement:

You will be invoiced monthly in arrears on the 1st day of each month commencing on the first full month after you sign up. Payment terms are net 14 days from invoice (14th of the month).

If you signed up through the platform:

You will be invoiced monthly in arrears and your payment details will be debited on the 1st day of each month. Your first invoice will be pro-rata based on when you signed up.

33. Taxes: All fees are exclusive of Goods and Service Taxes, Value Added Taxes, Sales Taxes and any other applicable taxes and duties, unless expressly stated otherwise. You are responsible for paying us the amount of any such taxes or duties that apply.

34. Changes to Fees: We may change the pricing of our Subscriptions and services by providing 30 days written notice to you. Price changes for Subscriptions will take effect at the start of the next Subscription period following the date of the price change. If you continue to use the EH Platform after the price change takes effect, you accept the new price.

Data Use, Privacy and Confidential Information

This section describes how we will deal with your personal and confidential information, and how you should protect our confidential information

35. Your Data:  The Customer or the relevant User owns the data, information and content entered or upload to the EH Platform by Users or Customers (“Your Data“). You grant us a licence to use Your Data for the purpose of providing services under these Terms, to enable you to use the EH Platform, to allow us to improve the EH Platform, to carry data analytics using deidentified aggregated data, to communicate with about the EH Platform and our services and to send information we think may be of interest to you.

36. Use of Personal Data: We take your privacy and data protection seriously and we will comply with applicable data protection and privacy laws. In addition to these Terms, our Privacy Policy sets out in detail how we deal with personal data that you enter or upload to the EH Platform or otherwise provide to us. By agreeing to these Terms you consent to our use of Your Data as described in our Privacy Policy. If you or your data is based in the EU or UK, the Data Processing Addendum sets out further terms that apply to the processing of personal data.

37. Other People’s Information: If you enter or upload another person’s personal information, confidential information or intellectual property to the EH Platform (including information about your employees), you must ensure that you have the rights as an employer or you made any required notifications and gained necessary consents to allow us to store and use that personal information, confidential information and intellectual property as required to provide the EH Platform services and as permitted by these Terms. You indemnify us, our Associated Entities and our directors, officers, employees, agents and licensors against all losses and costs (including legal costs), third-party claims, expenses or liability that arise out of your failure to comply with this clause.

38. Removal and Suspension: We have no obligation to monitor Your Data uploaded to the EH Platform. However we have the right to (but we are not obliged to) remove Your Data or suspend or terminate your access to the EH Platform if we consider that Your Data contravenes these Terms or any law or in response to a take-down request or allegation that Your Data breaches any persons intellectual property or other rights. We are not liable for any losses you may incur if we take any actions permitted by these Terms.

39. Our Confidential Information: While using the EH Platform you may have access to our confidential information such as information that is not publicly available about our business, operations, trade secrets, technical information, non-public pricing information, information about the characteristics, features and performance of pre-release or beta versions. You agree to protect our confidential information and not to share it without our express written permission unless required to by law.

40. Your Confidential Information: We will protect your confidential information that you provide to use and only use it to perform our obligations under these Terms and as permitted by these Terms. We may also disclose your confidential information to our Associated Entities for the purpose of providing you with additional information about the EH Platform.

Liability and Indemnity

This section describes liability terms between us and both Customers and Users

41. Warranty Disclaimers: The EH Platform is provided on an “as is, as available” basis. To the maximum extent permitted by law, Employment Hero disclaims any and all express or implied warranties, guarantees or representations including but not limited to merchantability, reliability, that the EH Platform will be uninterrupted or error free and fitness for a particular purpose of the EH Platform including any content, services and products or that the EH Platform will meet your requirements. We do not warrant that all features of the EH Platform will continue to be available, or that particular features will be developed in the future.

42. EH Platform does not provide advice: Some parts of the EH Platform may include general summaries of the law, contract templates or tools to assist with compliance which may not deal with or be applicable to your particular circumstances. We use reasonable efforts to create content and services that comply with applicable laws in a general way, but content and services provided through the EH Platform does not constitute legal, financial, accounting or taxation advice, and nor should it be relied upon as such by you. You are responsible for compliance with the workplace, tax and other laws that apply to you or your business and you should obtain independent legal and tax advice if required. Except for liability that cannot be excluded or limited by law, we exclude liability for losses, costs, third-party claims, regulatory penalties, expenses or liability arising from or relating to legal, tax, accounting or compliance issues associated with your use of the EH Platform.

43. You indemnify us: You indemnify us, our Associated Entities and our directors, officers, employees, agents and licensors against all losses and costs (including legal costs), third-party claims, expenses or liability (“Losses“) that arise out of or relate to your use of the EH Platform or any Third Party Service (except to the extent the Losses were caused by our breach of these Terms or our negligence).

44. Liability Exclusions: Except for liability that cannot be excluded or limited by law, and except for your indemnity in clauses 37 and 43 each party excludes liability for loss of profits or revenue, loss of goodwill, damage to reputation, loss of anticipated savings, loss or corruption of data, loss, penalties or expenses arising from legal, tax or accounting compliance issues and any indirect, consequential, incidental, punitive, exemplary or special loss, damage or expense.

45. Limitation of liability: Our total aggregate liability to you under this Agreement and in connection with the EH Platform (including in connection with any Additional Services) is limited to direct damages up to the total paid by you to us during the 6 month period preceding the first event that gave rise to our liability under these Terms. 

46. Consumer Laws:  You may have the benefit of non-excludable warranties, guarantees or other rights provided under applicable laws in your jurisdiction (“Non-excludable Conditions“). These Terms are subject to any Non-Excludable Conditions that apply to you. Our liability for a Non-excludable Conditions is limited, at our option, to the cost of replacing or paying for the costs of replacing the relevant goods or services (except if the liability for any Non-excludable Conditions cannot be so limited by law, in which case our liability for that Non-excludable Condition will be limited to the extent permitted by law).

Term, Termination and Suspension

This section sets out information about the term and termination and suspension rights

47. Subscription Periods:  If you are  a Customer using an EH Platform paid Subscription, the Subscription continues for the Subscription period you have paid for and will automatically renew at the end of each Subscription period on a monthly basis unless either party provides at least 90 days notice that that party does not wish to renew your Subscription, provided that a Subscription cannot be terminated under this clause before the end of any minimum term we have agreed in writing (for example, in an Order).

48. Termination: Unless we have agreed on a minimum contract term or minimum notice period in writing such as in an Order, and except in relation to Subscriptions as set out in clause 47  EH Accounts or access to some or all services associated with the EH Platform may be terminated by either you or us by providing written notice. If we terminate any services under this clause and you have not breached these Terms, we will refund any prepaid fees that relate to terminated Subscription or services on a pro-rata basis.

49. Termination by us: We may also terminate your access to the EH Platform (either in whole or in part):

• if you or the Customer breaches any of these terms and does not remedy the breach within 14 days of being asked to do so, or immediately if the breach is not capable of being remedied;
• any subscription fees payable for your use of the EH Platform have not been paid by the Customer responsible for the payment of the subscription fees; and
• if you, your business or the Customer responsible for paying the fees under these Terms becomes subject to an insolvency event (if permitted by the applicable law).

50. Continuation of Terms: These Terms will continue to apply until all your Subscriptions, EH Accounts and services provided under these Terms or associated with the EH Platform have terminated.

51. Suspension by us: We may suspend your access to any part of or all of the EH Platform or the provision of any services under these Terms at our sole discretion including if:

• you or the Customer are in breach of these Terms;
• payment of any fees are overdue; or
• we believe suspension is required to protect the EH Platform, our systems or other users of the EH Platform.

52. Refunds: If any Subscriptions are terminated, or your access to any part or all of the EH Platform is terminated or suspended, you will not be entitled to a refund of any fees paid other than as specified in these Terms or required by applicable laws.

53. Your data: We have no obligation to store or provide access to Your Data on the EH Platform after termination of your paid Subscription, your EH Account or termination of your access to the relevant part of the EH Platform. We may delete or remove any of Your Data stored on the EH Platform after 3 months from the date of termination of your EH Account. We will not be liable for losses incurred directly or indirectly from the loss of Your Data.

General Terms

This section sets out other important terms

54. Publicity Rights: We may refer to Customers as an Employment Hero customer on the EH Website or in our promotional materials. Customers may ask that we stop doing this by emailing us at support@employmenthero.com It may take up to 30 days to process your request.

55. Notices: Any notices under these Terms to us must be sent to us by emailing support@employmenthero.com. We may send legal notices to you by email to the email address you have provided to us or through the notification functionality in your EH Account.

56. Things beyond our control: We are not liable for any delay or failure to perform obligations under these Terms due to events that are beyond our reasonable control, including without limitation failure of power, telecommunications or data networks, natural disasters, government orders, strikes, wars, epidemics or pandemics.

57. Assignment: If you are a User, the rights given to you under these Terms are personal and you may not assign or transfer your rights or obligations under these Terms without our prior written consent. If you are a Customer, we will not unreasonably refuse our consent if the assignee agrees to be bound by these Terms and we do not consider them to be a financial or other risk. We may assign our rights and obligations under the Terms (in whole or in part) without your consent.

58. Our Relationship: We are independent contractors. Unless the parties explicitly agree in writing otherwise, nothing in these Terms are to be interpreted as forming a partnership between Employment Hero and Customers or any Users, or as forming any other type of legal association that would give any Customer or User the right power or authority to bind or create any duty or obligation of Employment Hero.

59. Survival of Terms: Any terms that by their nature should continue to apply after termination f these Terms will continue to apply.

60. Governing Law and Disputes: These Terms are governed by the laws of New South Wales, Australia and subject to the exclusive jurisdiction of the courts of New South Wales, Australia. If you have any concerns or complaints about us or the EH platform please contact us by emailing support@employmenthero.com. If either of us has a dispute or claim arising out of related to these Terms or the EH Platform, each of us will consult and negotiate in good faith to resolve the matter. If we are not able to reach a settlement within 60 days, then either party may commence legal proceedings.

THE REMAINING TERMS AND CONDITIONS ONLY APPLY TO CERTAIN FEATURES AND SERVICES PROVIDED BY US. IF YOU DO NOT UTILISE THESE FEATURES OR SERVICES THESE DO NOT APPLY TO YOU.

Appendix A

Terms for Employment Hero Recognition and Hero Points

1. Application of terms: These terms apply to Customers in Australia that have opted to allow Users to benefit from the Employment Hero Recognition program (“Employment Hero Recognition” or “Recognition”). Employment Hero Recognition can be enabled by Customers through the EH Platform. These terms also apply to Users who have been awarded Hero Points either by the Customer or by Employment Hero.

2. Hero Points: “Hero Points” are points issued by Employment Hero or by Customers to Users for a variety of reasons including through Employment Hero Recognition. Employment Hero may issue Hero Points to Customers or Users at its sole discretion.

3. Purchase and award: Customers may purchase Hero Points, which Customers may award to Users. Customers may use the Employment Hero Recognition program to create award categories to determine the Hero Point value to be awarded to Users using the EH Platform functionality. Once Hero Points have been awarded to a User, the transaction cannot be reversed or cancelled by the Customer.

4. Redeeming Hero Points: Hero Points may only be redeemed by Users through the Employment Hero Discounts available through the EH Platform. Hero Points are not redeemable for cash and are not refundable once purchased unless required by applicable laws.

5. Hero Point Balances: In order to maintain Customer’s Hero Point balance, the Customer must purchase Hero Points or make an award to a User or a User to whom Hero Points have been awarded must redeem Hero Points through Employment Hero Discounts (“Hero Point Activity”) at least once in every 24 month period. After 24 months from the date of the last Hero Point Activity we may cancel any Hero Points that remain unused in both the Customers and User accounts. Unused Hero Points will be cancelled if your EH Account is terminated. In the event that you terminate your Employment Hero account we may cancel any Hero Points that remain unused.

6. Termination of program: We reserve the right to terminate the Employment Hero Recognition and Hero Point programs by providing written notice. If we terminate the program in accordance with this clause you will have 90 days from the date of termination to award and redeem any outstanding Hero Points. After 90 days all Hero Point balances will be cancelled and you will no longer be able to award or redeem Hero Points.

7. Suspension or Cancellation: We may suspend your EH Account and cancel any Hero Points at our sole discretion if you breach these Terms or if we reasonably suspect you are operating your EH Account fraudulently.

8. Tax: Customers are responsible and liable for any tax liability, stamp or other duty or other government charge or reporting requirement in connection with or on any benefit derived by Customers or any User arising from the use of Hero Points, Employment Hero Recognition or Employment Hero Discounts. You should consider seeking professional advice in respect of your specific situation, including possible fringe benefit tax implications. Employment Hero provides no advice, assurances or warranties in respect of any liability arising in respect of the Employment Recognition Program or the issuance of Hero Points.

THESE FOLLOWING TERMS AND CONDITIONS ONLY APPLY IF A CUSTOMER USES OUR GLOBAL TEAMS PROFESSIONAL EMPLOYMENT ORGANISATION SERVICE.

Appendix B

Terms for Employment Hero Global Teams 

PEO Service Agreement 

This PEO Services Agreement (“PEO Agreement“) forms a separate agreement between Remote Hero (Australia) Pty Ltd (“EH“) and the Customer purchasing the PEO Services indicated on the Order (“Customer“). This PEO Agreement contains service specific terms and shall apply in relation to PEO Services in addition to the General Terms, which are incorporated into this PEO Agreement. To the extent of any inconsistency between these service specific terms and the General Terms, this PEO Agreement will apply in relation to the PEO Services.

Background

A. EH provides employer of record, international payroll, HR compliance and administrative services via its proprietary software platform and user interface, the EH Platform.

B. The Customer wishes to engage EH to provide any such services (or part thereof) on the terms and conditions set out in this PEO Service Agreement (“PEO Agreement“).

1. Definitions and interpretation

1.1 In this PEO Agreement unless the context otherwise requires:

• Effective Date means the date on which the Customer subscribes to the EH Platform pursuant to the General Terms or makes a request for Personnel either through a Personnel Request Form or otherwise in writing;
• Employment Contract means a contract of employment between EH, a member of its Group or its nominee, and the Personnel (as approved by the Customer), which contract shall include any special conditions outlined by the Customer and agreed by EH in the Personnel Request Form;
• General Terms means the Employment Hero Platform General Terms and Conditions;
• Group means any related body corporate of EH as that term is defined in the Corporations Act 2001;
• Management Issues means all those matters arising from the employment of Personnel or under the Employment Contract which require action and/or investigation by the Customer including in particular (by way of illustration only and without limitation) appraisals, performance issues, salary reviews and the award of other payments and benefits under the Employment Contract, periods of leave or other absence, complaints, concerns or grievances by or involving the Personnel (whether formal or otherwise);
• Payroll Processing Date means the date on which EH will process the payroll for Personnel, which date is as set out in the Schedule of Fees;
• PEO Services means the services provided by EH or its nominee to the Customer, either via the EH Platform or otherwise, from time to time, which services shall be set out in the Personnel Request Form or in writing by the Customer and may include employer of record, international payroll, HR compliance and/or administrative services;
• Personnel mean the individual(s) that EH is requested to either employ or procure the employment of through its nominee, by the Customer pursuant to the Personnel Request Form;
• Personnel Request Form means either the form(s) completed by the Customer and EH and uploaded to the EH Platform or otherwise a request in writing to EH for the employment of Personnel from time to time;
• Schedule of Fees means the schedule provided by EH to the Customer either on its own behalf or on behalf of its nominee, which outlines the relevant fees in relation to each personnel the subject of a Personnel Request Form;
• Setup Fee means a payment as set out in the Schedule of Fees for each Personnel that the Customer requests EH or its nominee to employ pursuant to the Personnel Request Form;
• Total Payroll Cost means any amount due to Personnel under the applicable Employment Contract, including in respect of wages, overtime, commissions, bonuses, leave payments and accruals, penalties, allowances, loadings, benefits, superannuation, pension or other social security charges and any on-costs such as taxes which may apply pursuant to applicable laws in the relevant Territory; and
• Territory means the jurisdiction(s) set out in the Personnel Request Form in which the PEO Services will be primarily provided by EH or its nominee.

1.2 Any capitalised terms that are not defined in this PEO Agreement shall have the same meaning as set out in the General Terms.

2. Appointment

1. The Customer hereby appoints EH to provide the PEO Services in the relevant Territory.
2. EH or its nominee will act as the employer of record for the Customer and will be responsible for direct employment of the Personnel pursuant to the terms of the Employment Contract applicable in the Territory in which Personnel is based.
3. EH reserves the right to use a member of its group or third parties (agents or partners, being locally registered entities) to provide the PEO Services to the Customer, either in whole or in part. Such members of EH’s Group and any third parties are referred to as EH’s nominee in this PEO Agreement. Notwithstanding the foregoing, any and all claims the Customer may have under this PEO Agreement must be made to Remote Hero (Australia) Pty Ltd.
4. Each time the Customer uploads a Personnel Request Form to the EH Platform, this PEO Agreement and the General Terms will continue to apply to the parties.

3. Term and relationship

1. This PEO Agreement shall commence as of the Effective Date and shall continue unless terminated earlier in accordance with the provisions of this PEO Agreement.
2. EH is an independent contractor and nothing in this PEO Agreement constitutes a relationship of joint venture, employment, agency or partnership between EH and the Customer.

4. Obligations of the parties

1. EH or its nominee may, as requested by the Customer in the Personnel Request Form, provide any or all of the following to the Customer:

1.1. payment of wages to Personnel, as agreed with the Customer, through EH’s payroll or that of its nominee, including that EH or its nominee will make all the required deductions and withholdings as required by local law;

1.2. reporting and remitting payroll taxes and other mandatory social security and/or retirement charges, in compliance with all local tax and employment requirements in respect of wages paid to Personnel under this PEO Agreement;

1.3. providing and administering benefits (e.g. health and welfare benefits) that the Customer requests from EH from time to time;

1.4. providing the Customer with workplace policies that comply with local laws in the locations where Personnel are based; and

1.5. maintaining all employee-related records, as may be required by local law.

2. The Customer agrees:

2.1. to complete a Personnel Request Form that specifies the terms and conditions of employment of each Personnel, including without limitation the rate of pay, start date, end date (if applicable), job title, a brief description of their duties, classification under any industrial instrument, work location, hours of work and any other information as requested by EH from time to time.

2.2 that it has responsibility for the day-to-day control and supervision of the Personnel including in respect of work location, working times, working practices, equipment and monitoring of all matters concerning performance of work, in a manner consistent with the Employment Contract;

2.3. to provide EH or its nominee with such information and assistance as it reasonably requires in order to carry out its obligations as the employer of record of the Personnel;

2.4. that it will consult with EH before approving any holiday request made by any Personnel;

2.5. that it will carry out performance reviews in respect of the Personnel on a regular basis and at least one month prior to the expiry of any applicable probationary period. Upon the completion of such reviews, the Customer must provide written reports to EH which contain sufficient detail regarding the review process, the steps taken by the Customer to support the Personnel, any specific objectives the Personnel is required to achieve and the review period;

2.6. to notify EH in the event that it proposes to commence a formal performance or conduct improvement process with any Personnel and clearly outline the reasons for such proposal;

2.7. to provide all required equipment for Personnel (hardware, software, stationery, tools, etc.) and that it will be solely responsible for collecting all such equipment and other property belonging to it (e.g. business information) from Personnel in the event of a termination of employment or termination of the PEO Agreement;

2.8. that Personnel are entitled to any and all statutory benefits provided to employees in the Territory of the Personnel’s employment and any contractual benefits provided in the Employment Contract;

2.9. to consult with EH regarding any changes to location, business activity and right to work status for Personnel;

2.10 that the Personnel will not be required to perform work outside the Territory for a period of time that would impact the Personnel’s compliance or tax status;

2.11. to immediately notify EH of any act by the Personnel which may entitle EH to terminate the employment of the Personnel immediately and without notice of termination;\

2.12 to maintain detailed and accurate records regarding time worked by the Personnel and to provide information to EH in a timely manner and by no later than agreed in the Personnel Request Form, including in relation to:

2.12.1. wages and regular rate of pay;

2.12.2. overtime;

2.12.3. commissions;

2.12.4. bonuses;

2.12.5. paid leave;

2.12.6. unpaid leave; and

2.12.7. any other payments or deductions which should be made to Personnel for the relevant pay period;

2.13. that it will not induce the Personnel to breach the Employment Contract;

2.14. that it will not make any representations to the Personnel in relation to the terms of the Employment Contract and is not otherwise authorised to make any variations to its terms;

2.15. to maintain, at its own expense, such licenses and permits as may be reasonably required by applicable law and regulation in order to carry on its business in the Territories;

2.16. to immediately inform EH if it has any knowledge of any actual or potential employment-related claim regarding the Personnel, including but not limited to any complaints (oral or written), allegations or claims made by the Personnel; and

2.17. that it will not give any directions or instructions to EH or its nominee that would render either EH or its nominee in breach of any local laws. In the event of any refusal by EH or its nominee to carry out an unlawful direction or instruction given by the Customer, the Customer agrees and confirms that it will continue to be liable for all payments and fees due to EH or its nominee under this PEO Agreement and will otherwise continue to comply with its obligations herein.

5. Fees and payment terms

1. The Fees payable by the Customer (including any applicable setup fees) shall be as set out in the Schedule of Fees that apply to each Personnel. The Fees shall be payable at the times and in the manner set out in the Schedule of Fees and the Customer shall transfer the relevant amount as a lump sum payment to EH.

1.1. All amounts in the Schedule of Fees are exclusive of applicable taxes, which shall be added to EH’s invoices to the Customer at the rate applicable at the time of invoicing.

1.2. The Customer:

1.2.1. agrees to make a payment to EH for the value of the estimated first month’s Total Payroll Cost by no later than 7 days prior to the Payroll Processing Date; and

1.2.2. will continue at all times to keep EH or its nominee in funds by a sum equivalent to at least one month’s Total Payroll Cost. Where the Customer fails to make an advance payment of such sum, or where such payment is late, then EH or its nominee will be entitled to:

1.2.2.1. charge an additional 2% of the Total Payroll Cost for the relevant month; and

1.2.2.2. elect to terminate the Personnel’s Employment Contract for reason of redundancy, in which case the Customer shall comply with all aspects of clause 9.2 of this PEO Agreement.

6. Confidential information

1. Both EH and the Customer may be given access to or acquire information which is proprietary or confidential to the other party or its Group, clients and customers. Any and all such information obtained by the other party shall be deemed to be confidential and proprietary information and must not be disclosed to anyone without the prior written approval of the other party.

2. Both parties agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purpose whatsoever other than the providing of the PEO Services under this PEO Agreement. EH may also disclose the Customer’s confidential information to other members of its Group for the purpose of providing the PEO Services.

7. Intellectual property

1. EH agrees that (subject to local employment law restrictions) all work performed by the Personnel pursuant to the Employment Contract, including all intellectual property rights, moral rights and other tangible rights in and to that work, will belong or be transferred to the Customer. EH will include a term to the effect of this clause in the Employment Contract of the Personnel.

8. Management issues

1. The Customer shall refer to EH as soon as reasonably practicable any Management Issues concerning the Personnel. The Customer shall continue to deal with any Management Issues relating to the Personnel, following consultation with EH.

2. In the event of the existence of any Management Issues, the Customer agrees to ensure that EH and/or its nominee is allowed access to, and included in, all meetings with or involving the Personnel, including without limitation, meetings with third party advisors such as legal representatives.

3. The Customer agrees to provide any information, documentation and ongoing assistance (including but not limited to giving witness evidence to EH and/or its nominee to deal with any Management Issues concerning the Personnel whether under the internal procedures of EH or its nominee or before any court or tribunal.

9. Termination of this PEO agreement

1. Either party may terminate the PEO Agreement in the event of:

1.1. a material breach of this PEO Agreement by the other party which, if capable of remedy, is not remedied by the defaulting party within 14 days of its receipt of written notice of the breach from the non-defaulting party;

1.1.1. fraud or wilful default of the other party; or

1.1.2. the other party becoming insolvent or unable to pay its debts as and when they fall due or has a liquidator or receiver appointed to it, or a winding up order instituted against it.

2. In the event that this PEO Agreement is terminated in accordance with clause 9.1 above, EH may (and may on behalf of any member of the Group or its nominee) require the Customer to either:

2.1. effect the transfer of the employment of all Personnel in each Territory and their Employment Contracts to an entity of the Customer or such entity as nominated by it, including to facilitate the transfer of all accrued leave entitlements from EH or its nominee to the Customer’s nominated entity and to make a direct offer of employment  to the Personnel, which offer must:

2.1.1. be on the same terms and conditions as the Employment Contract;

2.1.2. be made to the Personnel within 3 days of the termination of the employment of from EH or its nominee; and

2.1.3. recognise prior service of the Personnel with EH or its nominee, including for the purpose of all leave and service-based entitlements;

2.1.3.1. cooperate with EH or its nominee to terminate the Personnel’s Employment Contract for reason of redundancy and in such case, the Customer agrees to pay to EH or its nominee any and all costs associated with such termination, including without limitation, notice, leave entitlements, redundancy and severance pay.

3. For the avoidance of doubt and notwithstanding any other provision of this PEO Agreement:

3.1. a termination of the employment of any Personnel will not give rise to a termination of this PEO Agreement;

3.2. a termination of this PEO Agreement or the General Terms will not automatically terminate any Employment Contract and the Customer shall remain bound by the terms of this PEO Agreement until the Customer’s obligations under this Agreement have been fully discharged, including those set out in 9.2 above and all costs associated with the termination of the Employment Contract have been settled in full by the Customer; and

3.3. the termination provisions in the General Terms do not apply to this PEO Agreement.

4. The Customer agrees and acknowledges that notwithstanding the termination of an Employment Contract for any reason, the Personnel may still be affiliated with EH or a member of its Group and continue to use the EH Platform.

5. Termination of this PEO Agreement does not affect any accrued rights or remedies a party may have.

10. Termination of personnel’s employment

1. The Customer must provide prior written notice to EH of any proposed termination of the employment of any Personnel and consult with EH or its nominee in the event it is proposing to terminate the employment of any Personnel.

2. The Customer must not require EH to terminate the employment of Personnel without first providing EH with written notice 30 days’ prior to the date on which any such notice of termination is proposed to be given to Personnel (in compliance with any applicable contractual or statutory, whichever is greater notice period in the Territory in which the Personnel is based,), or in the case of serious misconduct, as soon as reasonably practicable. Such notice to EH should address the following points in detail:

2.1. the grounds on which the Customer proposes to terminate the Personnel’s employment, pursuant to the Employment Contract and applicable local law;

2.1.1. any steps the Customer has taken in relation to the reason for the dismissal, which depending on the relevant grounds could include carrying out an investigation or internal review, conducting a performance management process, issuing prior warnings, undergoing consultation in respect of redundancy, considering redeployment opportunities etc.;

2.1.2. any outstanding payments to be made to the Personnel, which for the avoidance of doubt, will be borne by the Customer.

3. Upon compliance with this clause 10 by the Customer, EH agrees to provide guidance to the Customer as to how the termination of the Personnel’s employment will be effected, in accordance with the relevant Territory’s employment laws and regulations. The Customer agrees that it will strictly follow any such guidance or instruction provided to it either by EH or its nominee.

4. The Customer agrees and acknowledges that in the event the termination of the Personnel’s employment by EH takes longer than anticipated to, for example, ensure its lawfulness, the Customer must continue to pay the relevant Fees to EH.

11. Indemnities

1. Save to the extent excluded by law:

1.1. EH, its nominee and each member of its Group will in no circumstances be liable for any consequential direct or indirect loss or damage (including without limitation loss of business or loss of profit) howsoever arising whether in contract, tort or otherwise; and

1.2. the total aggregate liability of EH, its nominee and the members of EH’s Group in aggregate to the Customer, whether in contract, tort or otherwise in connection with this PEO Agreement, shall in no circumstances exceed the amount of Total Payroll Costs paid by the Customer to EH for the monthly period immediately preceding the date on which the loss incurred.

2. The Customer will indemnify and hold EH, each member of its Group and its nominee, and each of their directors, officers, employees, agents and licensors (“Indemnified Parties”), harmless from expenses, losses, damages and costs that they may sustain or incur as a result, whether directly or indirectly, of any of the following:

2.1. breach of this PEO Agreement by the Customer;

2.2. negligent or wilful act or omission of the Customer;

2.3. claims or demands brought by the Personnel (or on its or their behalf) against EH, a member of its Group or its nominee as the employer arising out of their employment, the Employment Contract or its termination; and

2.4. all personal, property injury or damages incurred, suffered or caused by Personnel during any engagement with the Customer.

3. Should any claims arise against the Indemnified Parties as a direct or indirect result of EH or its nominee following the Customer’s direction or instructions, the Customer shall take all reasonable steps to mitigate and cover the costs of any and all damages, liabilities, expenses, claims, fines and losses of any type, including without limitation reasonable legal fees, in connection with, arising out of or relating to, in whole or in part, of any such claim against the Indemnified Parties.

12. Further action

Each party must do or cause to be done all things necessary or desirable to give effect to, and must refrain from doing all things that could hinder performance of, this PEO Agreement.

13. Governing law

This PEO Agreement is governed by the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction the courts of New South Wales, Australia.

14. Severability 

The whole or any part of any clause of this PEO Agreement that is illegal or unenforceable will be severed and will not affect the continued operation of the remaining provisions of this PEO Agreement.

15. Variation

Any variation to any of the terms of this PEO Agreement must be signed by each of EH and the Customer or its authorised representatives before it is valid.

16. Entire agreement

This PEO Agreement (including each Personnel Request Form agreed between the parties) constitutes the entire agreement between the parties and supersedes all prior representations and agreements in connection with the PEO Services.