Employment Hero Global Teams Terms and Conditions – 18.9.23

Terms for Employment Hero Global Teams

Background

EH provides employer of record, international payroll, human resources compliance and administrative services through the EH Platform. The Customer agrees to engage EH to provide such services, as specified in an Employee Schedule, in accordance with the terms and conditions of this master services agreement.

The parties agree:

1. Definitions and interpretation

1.1 Definitions

A term or expression starting with a capital letter:

1. which is defined in the definitions section of Schedule 1 or in bold in the body of this agreement, has the meaning given to it there; and
2. which is defined in the EH Platform Terms, but is not otherwise defined in this agreement, has the meaning given to it in the EH Platform Terms.

1.2 Interpretation

The interpretation section of Schedule 1 sets out the rules of interpretation for this agreement.

2. This agreement, Employee Schedules and the EH Platform

2.1 Structure of this agreement

This agreement is a framework agreement that sets out the terms and conditions under which EH or its Nominee will provide Services to the Customer in accordance with an Employee Schedule.

2.2 Employee Schedules

1. From time to time, the Customer may request EH to provide Services.
2. In response to a request from the Customer, EH may agree to provide Services to the Customer by the parties agreeing to an Employee Schedule.
3. An Employee Schedule will form a separate binding agreement between the EH Group entity that is a party to the Employee Schedule and the Customer. Subject to clause 2.4, the terms of this agreement will apply to the Employee Schedule as if set out in full and as if each reference in this agreement:
   1. to EH is a reference to the relevant EH Group entity that is a party to the Employee Schedule; and
   2. to the Customer is a reference to the relevant Customer Group entity that is a party to the Employee Schedule.
4. An Employee Schedule may be made available to the Customer and agreed electronically between the parties to it directly through the EH Platform.
5. From time to time, EH may notify the Customer of another format for Employee Schedules or another process for the parties to agree Employee Schedules. Such notification will amend this agreement.

2.3 Use of the EH Platform

To the extent that the parties use the EH Platform to perform or assist with the performance of this agreement, the Customer acknowledges that its use of the EH Platform is governed by the EH Platform Terms and agrees to the EH Platform Terms.

2.4 Conflicts between an Employee Schedule, this agreement and the EH Platform terms

To the extent of any inconsistency between an Employee Schedule, this agreement and the EH Platform Terms, then in respect of the Services:

1. an Employee Schedule will prevail to the extent of any inconsistency between it and this agreement or the EH Platform Terms;
2. this agreement will prevail to the extent of any inconsistency between it and the EH Platform Terms.

3. Appointment as employer of record

3.1 EH will provide the Services in the Territory

By agreeing to an Employee Schedule, the Customer agrees to engage EH to provide the Services in the relevant Territory in accordance with that Employee Schedule.

3.2 EH may provide the Services through a Nominee

When providing Services under an Employee Schedule:

1. EH may engage a Nominee to provide some or all of the Services. If EH engages a Nominee to perform any Services under this agreement, then EH agrees to be fully responsible and liable for the Nominee’s performance of this agreement as if EH was providing those Services itself; and
2. EH or its Nominee will act as the employer of record for the Customer, and will be responsible for directly employing the Personnel in accordance with the terms of the Employment Contract that applies in the Territory in which Personnel are based.

3.3 Changes to the Nominee

From time to time, EH may change the Nominee that will provide Services under an Employee Schedule by written notice to the Customer. Following such notice, the parties agree to work together in good faith and take any actions that are reasonably necessary to transfer the employment of the relevant Personnel from the outgoing Nominee to the incoming Nominee in accordance with any reasonable instructions provided by EH.

4. Obligations of the parties

4.1 EH or its Nominee

1. When entering into an Employee Schedule EH or its Nominee agrees to provide the following core Services to the Customer (Management Services) in exchange for the Management Fee:
   1. employment of the Personnel using an appropriate Employment Contract and employing entity;
   2. payment of agreed wages to Personnel, including payment of any deductions and withholdings as required by applicable Law;
   3. reporting and remitting payroll taxes and other mandatory social security and/or retirement charges, in compliance with all local tax and employment Laws in respect of payments made to Personnel under their Employment Contract;
   4. providing the Customer with workplace policies that comply with Laws in the relevant Territories where Personnel are based; and
   5. maintaining employee-related records as required by applicable Law.
2. EH or its Nominee may agree to provide Services to the Customer beyond the scope of the Management Services in an Employee Schedule or otherwise in writing (Additional Services). For the avoidance of doubt, Additional Services may incur additional Fees, above the agreed Management Fee (Additional Fees). Additional Services may include:
   1. providing and administering custom benefits and rewards (which could include health and welfare benefits) as agreed between EH and the Customer from time to time;
   2. involuntary terminations of Personnel (ie other than where the Personnel voluntarily resign);
   3. formal performance management programs (eg Performance Improvement Plans);
   4. customisation of documents required for the Customer’s specific circumstances or requests; or
   5. other services not included in the Management Services.

4.2 The Customer

The Customer agrees:

1. to provide all information requested by EH in writing from time to time related to the terms and conditions of employment of each member of the Personnel, including 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 and hours of work;
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, work health and safety, equipment and monitoring of all matters concerning performance of work, in a manner consistent with the Employment Contract;
3. to provide EH or its Nominee with any assistance and information as reasonably required to enable EH or its Nominee to perform its obligations under this agreement;
4. 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;
5. to notify EH in writing if it proposes to commence a formal performance or conduct improvement process with any Personnel and clearly outline the reasons for such proposal;
6. to provide all required equipment for Personnel to perform their duties under the Employment Contract (including hardware, software, stationery and tools). The Customer will be solely responsible for collecting all such equipment and other property belonging to it (e.g. business information) from Personnel if their employment or this agreement is terminated;
7. that all Personnel are entitled to any and all statutory benefits required by Law in the Territory of the Personnel’s employment and any contractual benefits provided in their Employment Contract;
8. to consult with EH regarding any changes to location, business activity and right to work status for any Personnel;
9. that the Personnel will not be required to perform work outside the Territory for a period of time that would impact the Personnel’s legal or tax status;
10. to immediately notify EH of any act by the Personnel which may entitle EH to terminate such Personnel’s Employment Contract immediately and without notice of termination;
11. 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 writing with EH, including in relation to:
    1. wages and regular rate of pay;
    2. overtime;
    3. commissions;
    4. bonuses;
    5. paid leave;
    6. unpaid leave; and
    7. any other payments or deductions which must be made to Personnel for the relevant pay period;
12. that it will not induce or provide instructions to the Personnel to breach the Employment Contract or contravene any Law;
13. 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 on behalf of EH;
14. 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;
15. 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
16. 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 applicable Law. If EH or its Nominee reasonably believes that a direction of the Customer does not comply with applicable Law, it will notify the Customer and will not be required to follow that direction. For the avoidance of doubt, the Customer will continue to be liable for all Fees where EH or its Nominee refuses to follow a direction of the Customer under this clause.

4.3 Management issues

1. In this clause, 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 appraisals, performance issues, salary reviews and the award of other discretionary 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).
2. If any Management Issues arise during the term, then the Customer agrees that it will notify EH of the Management Issues in writing as soon as reasonably practicable.
3. The Customer must then consult with EH before taking further action relating to the Management Issues, and agrees to follow any reasonable directions or guidance given by EH about the Management Issues arising from these consultations.
4. The Customer must ensure that EH or its Nominee has the option to attend all meetings with or involving the Personnel about the Management Issues and any meetings with third party advisors including legal advisors.
5. The Customer agrees to provide any information and ongoing assistance requested by EH or its Nominee relating to the Management Issues and the Personnel, which may include providing witness evidence and other legal assistance.

4.4 Fair employment practices

1. The EH Group believes in hiring the best person for any role, regardless of their gender, ethnicity, age, sexual orientation, disability, or national origin. The Customer agrees to ensure that its recruiting, performance management and HR policies and practices support this outcome.
2. The Customer agrees to comply will applicable anti-discrimination and anti-modern slavery Laws relating to the hiring, management and termination of Personnel when performing its obligations or exercising its rights under this agreement.

4.5 Changes to the Services

EH or its Nominee may make changes to the Services or the way in which they are delivered from time to time, where such changes are considered by EH or its Nominee to be reasonable or necessary, which may include changes that improve the Services or that are necessary to reflect changes in applicable Law. EH or its Nominee will provide written notice of any changes that they reasonably determine may materially affect the Customer or the Employee.

4.6 Conduct of claims from Personnel

If any claim or demand is brought by the Personnel (or on their behalf) against one or more of EH, a member of the EH Group, a Nominee or the Customer, then:

1. the person receiving the claim or demand agrees to notify the other parties to this agreement as soon as reasonably practicable;
2. the Customer agrees that:
   1. if EH elects, then EH or an EH Group entity may assume sole control over the defence and settlement of the claim or demand; and
   2. it must provide all reasonable assistance that is requested by EH to assist with defending the claim or demand.

5. When this agreement and an Employee Schedule starts and ends

5.1 This agreement

The term of this agreement starts on the Effective Date and continues until it is terminated in accordance with its terms.

5.2 An Employee Schedule

The term of an Employee Schedule starts on the date the last party agrees to the Employee Schedule, and continues:

1.  if a term is specified in the Employee Schedule, until the end of that term; or
2. if no expiry date is specified in the Employee Schedule, indefinitely,

unless the Employee Schedule is terminated under its terms or the terms of this agreement.

6. Fees and payment terms

6.1 Customer Fees and invoicing

1. The Customer agrees to pay all amounts owing under this agreement including Total Payroll Costs, Management Fees and any Additional fees, together with (if applicable) a banking service fee equal to 1% of all amounts owing under this agreement.
2. The Management Fees payable by the Customer for Management Services will be set out in each Employee Schedule. Any Additional Fees will be agreed between the parties when agreeing Additional Services.
3. An additional month’s Management Fee will be charged in the event that Personnel are terminated at the Customer’s discretion (ie not resignations) within 6 months of commencement.
4. EH will typically invoice the Customer for the Fees in the second week of each month, however this may vary where onboarding, offboarding, local payroll information, processing of payroll updates and foreign exchange delays EH’s ability to issue an invoice.
5. Invoices are payable strictly within 7 days of their date of issue.

6.2 Taxes

1. All payment obligations in this agreement are exclusive of any applicable sales taxes (for example, GST or VAT).
2. If sales tax is or becomes payable on a supply made under or in connection with this agreement, an additional amount is payable by the party with the payment obligation equal to the amount of sales tax payable on that supply in accordance with relevant tax Law. EH will include any applicable sales taxes on invoices issued to the Customer under this agreement.

6.3 Foreign exchange

The foreign exchange (FX) rates applied to amounts payable under this agreement are subject to change and are determined based on the prevailing rates at the time of invoicing. Employment Hero will attempt to ensure accuracy and fairness in transactions by utilising the most up-to-date rates from reputable sources. However, the parties acknowledge that the FX market is dynamic and unpredictable, and fluctuations in rates may occur.

6.4 Customer deposit

The Customer agrees that during the term of this agreement, it will continue to maintain a deposit with EH or its Nominee (at the direction of EH) equal in value to the previous month’s Total Payroll Cost, including any commissions, bonuses or ancillary payments (Deposit). The Customer agrees to make a payment to EH for the Deposit amount within 7 days of the invoice date.

6.5 Statutory or other employment costs relating to the Personnel

1. The Customer agrees that it will be liable to pay any additional costs relating to EH or its Nominee’s employment of the Personnel that must be paid under the Employment Contract or applicable Law. These may include:
   1.  any payments for costs (including legal costs), severance or similar payments, compensation, settlement payments, indemnities, bank or administration fees from third parties or any other such payments relating to the termination of Personnel under their Employment Contract and applicable Law;
   2. changes to any such additional costs due to a change in Law, social costs or other factors beyond EH or its Nominee’s control;
   3. any additional statutory costs or fees applied by Law to any additional compensation (including allowances, commissions or bonuses) paid to Personnel.
2. Where such costs are payable by the Customer, EH will provide supporting documentation for these costs on request.

6.6 Accruals and additional benefits

1. If applicable, accruals are collected based on fixed statutory costs and are provided to the Personnel based on applicable Law, or at termination if not used before termination.
2. Additional benefits above the relevant statutory minimums will be paid directly to the Personnel as an ‘allowance’. The Customer will be responsible for considering and will be liable for any tax consequences of any such payments.

6.7 Late payments

1. Where the Customer fails to make a payment when due under this agreement, then EH or its Nominee may:
   1. charge the Customer a late payment fee equal to the lower of $50 per day that the payment is late and the maximum amount permitted by Law; and
   2. follow the process for terminating this agreement under clause 11.3.
   3. The Customer acknowledges that its failure to make payments to EH when due under this agreement may result in delays in EH processing payroll for Personnel.

6.8 Changes to the Fees

1. On and from 1 July each year after the first anniversary of this agreement, and by providing at least 1 month’s notice in writing to the Customer, EH may increase the Fees by an amount equal to the greater of:
   1. the consumer price index published by the Australian Bureau of Statistics for the year immediately before such increase; and
   2. 5% of the Fees payable immediately before such increase.

7. Confidential information

7.1 Obligations of both parties

Any party that receives Confidential Information from the other party (the Recipient) must not disclose, publish, release or make available any Confidential Information of the other party to any third-party other than under this clause.

7.2 Use and disclosure to Representatives

The Recipient:

1. must only Confidential Information for the purpose of performing its obligations under this agreement;
2. may only disclose Confidential Information to Representatives on a ‘need-to-know’ basis for the purpose of performing the Recipient’s obligations under this agreement;
3. must ensure that each Representative to whom Confidential Information is disclosed observes and complies with this clause as if each Representative was a party and signatory to this agreement; and
4. agrees it is fully responsible and liable for any breach by a Representative of the obligations stated in this clause as if it is its own breach.

7.3 Disclosure required by Law

If the Recipient or any of its Representatives is required by the operation of any Law to disclose any Confidential Information to a third-party, the Recipient must (to the extent permitted by Law):

1. notify the other party before doing so and give the other party a reasonable opportunity to take any steps that it considers necessary to protect the confidentiality of that Confidential Information; and
2. notify the third person that the information is Confidential Information of the other party.

7.4 Security

The Recipient must apply and maintain effective security procedures to safeguard the Confidential Information from unauthorised use and disclosure, at least to the same standard that the Recipient uses to protect its own confidential information.

7.5 Right to injunctive relief

Each party acknowledges that monetary damages may not be a sufficient remedy for a breach of its obligations under this clause, and that the other party will be entitled, without waiving any of its other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction if any such breach occurs.

7.6 Publicity

Neither party may make any public statements about this agreement, or anything related to the existence or terms of this agreement without the prior written consent of the other party.

8. Data protection

The parties agree to comply with any applicable Privacy Laws in respect of Personal Information collected in the course of performing their obligations under this agreement. Personal Information collected by EH will subject to the applicable EH Privacy Policy.

9. Intellectual property

9.1 Ownership of Intellectual Property Rights

1. All Intellectual Property Rights belonging to a party before the execution of this agreement will remain vested in that party.
2. To the extent permitted by applicable Law, EH will ensure that:
   1. ownership of all work performed by the Personnel under the Employment Contract, including all Intellectual Property Rights in the work, will be automatically assigned to the Customer; and
   2. the Employment Contract contains an assignment of any such Intellectual Property Rights from the Personnel to the Customer.
3. The Customer acknowledges that this agreement does not transfer to it any proprietary rights (including Intellectual Property Rights) in the Services provided by EH or its Nominees under this agreement.

9.2 License from the Customer to EH

During the term of this agreement, the Customer grants to EH and each of its Nominees that are engaged to perform services under this agreement a non-exclusive, non-transferable, royalty free right to use the Customer’s Intellectual Property Rights that are required for EH or its Nominees to provide the Services under this agreement.

10. Termination of Personnel’s employment

10.1 The Customer must provide notice to EH before any termination of Personnel

1. If the Customer proposes to terminate the employment of any Personnel, then it must provide EH with prior written notice of the proposed termination (a Proposed Termination Notice) before communicating with the Personnel:
   1. in the case of termination for serious misconduct or other material breach of the Employment Contract that allows for the Employment Contract to be terminated without notice, as soon as reasonably practical before the date on which the termination is proposed to be communicated to the Personnel; or
   2. in any other case, at least 14 days before the date on which the termination is proposed to be communicated to the Personnel.
2. The Proposed Termination Notice must follow any template questionnaire provided by EH for this purpose, but in any event provide a reasonable level of detail about:
   1. the reasons for terminating the Personnel’s employment under applicable Law or the Employment Contract;
   2. any steps the Customer has taken in relation to the reasons for termination, including any investigations or internal reviews, performance management processes, prior warnings, consultations in respect of any redundancies, considerations of the possibility of redeployment or any similar actions; and
   3. any outstanding payments to be made to the Personnel under the Employment Contract or as part of the termination at Law.

10.2 EH will provide guidance on the Proposed Termination Notice

As soon as practicable (having regard to the urgency of the request) after receiving the Proposed Termination Notice, EH will provide guidance to the Customer on how the termination of the Personnel’s employment must be carried out so that it complies with applicable Law in the Territory (the Termination Plan) and will discuss this with the Customer in good faith. For the avoidance of doubt, the Termination Plan may depart from the proposed termination process or timing provided for in the Proposed Termination Notice, and outline alternative processes for terminating the Personnel’s employment.

10.3 Customer and EH to give effect to Termination Plan

1. The Customer must strictly follow the Termination Plan provided to it by EH or its Nominee under this agreement. The parties (and if applicable, the Nominee) must work towards giving effect to the Termination Plan in good faith, having regard to the timelines and actions of each party outlined in the Termination Plan.
2. The Customer agrees to be responsible for any claims, demands or costs arising out of the Personnel’s employment, employment contract or termination including payments to the Personnel as required by Law or the Employment Contract, and to continue to pay the Fees for the period until termination of the Personnel’s employment is complete.

10.4 Effect of terminating employment of Personnel

1. Termination of the employment of one member of the Personnel will not give rise to a termination of this agreement or any other Personnel.
2. Notwithstanding the termination of an Employment Contract for any reason, the Personnel may still be affiliated with EH or the EH Group and continue to use the EH Platform (eg EH retaining employment records).

11. Termination of this agreement

11.1 Termination of this agreement for convenience

Either party may terminate this agreement on written notice to the other party if:

1. no Employee Schedules remain on foot; and
2. each party has fulfilled its material outstanding obligations under this agreement.

For the avoidance of doubt, this may include following the procedure for termination of all Employment Contracts with Personnel under clause 10.

11.2 Termination of an Employee Schedule for convenience

An Employee Schedule will automatically terminate when:

1. the Employment Contract for the Personnel employed under that Employee Schedule has been terminated; and
2. each party has fulfilled its material outstanding obligations under that Employee Schedule.

For the avoidance of doubt, this may include following the procedure for termination of all Employment Contracts with Personnel under clause 10.

11.3 Termination of this agreement or an Employee Schedule for cause

1. A party may terminate this agreement or an Employee Schedule by written notice to the other party with immediate effect if the other party:
   1. materially breaches this agreement or an Employee Schedule in a way that cannot be remedied;
   2. materially breaches this agreement or an Employee Schedule in a way that can be remedied, but that is not remedied by the breaching party within 7 days after receiving written notice requiring it to do so;
   3. suffers an Insolvency Event;
   4. commits an act of fraud; or
   5. engages in any unlawful business practice or other behaviour that is reasonably likely to bring either of the parties into disrepute.
2. EH may terminate this agreement or an Employee Schedule by written notice to the Customer with immediate effect if any event occurs, or circumstance arises, that gives EH reasonable grounds to believe that the Customer will be unable to fulfill its payment or other material obligations under this agreement or an Employee Schedule.

11.4 Effect of termination

1. Termination of this agreement does not affect any party’s accrued rights or obligations.
2. Termination of an Employee Schedule does not automatically terminate any rights or obligations of a party under this agreement.
3. Termination of any Employee Schedule will not automatically terminate this agreement or any other Employee Schedule.

11.5 Transfer of Personnel on termination of this agreement or an Employee Schedule for cause

If this agreement or an Employee Schedule is terminated under clause 11.3, then:

1. for at least 5 Business Days after the date of termination, the parties will cooperate in good faith to agree to:
   1. Termination of any Employee Schedule will not automatically terminate this agreement or any other Employee Schedule.
   2. effect the transfer of the employment of all Personnel in each Territory and their Employment Contracts to an entity nominated by the Customer, with such transfer to be on terms equivalent to a transfer under clause 11.5(b); or
   3. 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; or
2. if the parties fail to agree in good faith to proceed under clause 11.5(a), EH may in its absolute discretion (and may on behalf of any member of the EH Group or its Nominee):
   1. 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; or
   2. require the Customer to, as soon as reasonably possible, effect the transfer of the employment of all Personnel in each Territory and their Employment Contracts to the Customer or another entity that it nominates, 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:
      1. be on the same terms and conditions as the Employment Contract;
      2. be made to the Personnel within 3 days of the termination of the employment of the Personnel from EH or its Nominee; and
      3. recognise prior service of the Personnel with EH or its Nominee, including for the purpose of all leave and service-based entitlements; and
      4. in the case of (a) or (b) above, the Customer agrees to pay all fees or costs payable under this agreement (including Management Fees and any Additional Fees that apply) in respect of each member of the Personnel for the period ending on the date on which that person’s Employment Contract is terminated or their employment is transferred under this clause.

12. Limitation of liability and indemnities

12.1 Claims must be made against EH

Notwithstanding the foregoing, any and all claims the Customer may have under this agreement must be made against EH, and the Customer agrees not to claim for direct or indirect loss of any kind against any Representative of EH.

12.2 No liability for Consequential Loss

To the maximum extent allowed by Law, neither party (nor its Representatives) will be liable to the other party or any third party under or in connection with this agreement for any Consequential Loss.

12.3 Limitation on other liability

The maximum liability of each party (and, for the avoidance of doubt, its Representatives) for any and all claims in aggregate under or in connection with this agreement, whether arising in contract, negligence or any other tort, restitution, or for breach of statutory duty or misrepresentation or otherwise is in all circumstances limited to the aggregate Management Fee paid or payable by the Customer under this agreement in the 12 months immediately before the event giving rise to the liability. This limitation on liability will not limit or exclude the Customer’s payment obligations under this agreement.

12.4 When the limit in clause 12.3 won’t apply

The limitations of liability under clause 12.3 will not apply to the extent that liability arises from:

1. the indemnity provided by the Customer under clause 12.5; or
2. breach of any Law or fraudulent act or behaviour.

12.5 Customer indemnity

1. The Customer will indemnify and hold EH, each member of the EH 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:
   1. breach of this agreement by the Customer;
   2. negligent or wilful act or omission of the Customer;
   3. claims or demands brought by the Personnel (or on their behalf) against EH, a member of the EH Group or its Nominee as the employer arising out of:
      1. their employment and / or any Management Issues to the extent that the Customer is not following directions provided by EH or its Nominee; or
      2. the Employment Contract or its termination; and
      3. all personal, property injury or damages incurred, suffered or caused by Personnel during any engagement with the Customer.
2. 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.

13. Warranties

13.1 Authority of each party

Each party represents, warrants and undertakes to the other that:

1. it has taken all necessary corporate action to authorise the creation, execution by its signatory, delivery and performance of this agreement and each Employee Schedule, and to observe and perform the provisions of this agreement in accordance with its terms; and
2. it (and in the case of EH, each of its Nominees) has all licences, authorisations, consents, approvals and permits required by applicable Laws to perform its obligations under this agreement and each Employee Schedule.

13.2 EH warranties

EH warrants that:

1.  it and its Nominees are suitably qualified to provide the Services;
2. all Services will be provided with due care and skill and in compliance with applicable Laws;
3. Personnel will be, and remain for the term of their employment under an Employee Schedule, the direct employees of EH or its Nominee, subject to the terms of an Employment Contract;
4. EH or its Nominee (as applicable) will be solely responsible for the payment of wages, overtime, leave entitlements, applicable taxes, expenses and benefits under the Employment Contract relating to each member of the Personnel
5. in providing the Services neither EH or its Nominees will be in breach of any obligation owed to any person or infringe any Intellectual Property Rights of any person.

13.3 Customer warranties

The Customer warrants that:

1. It will provide any information and assistance reasonably requested by EH to enable EH to meet its obligations under this agreement, and will ensure that any information provided to EH is accurate in all material respects;
2. in engaging EH to provide Services, none of the materials or documentation provided to EH by the Customer will infringe any Intellectual Property Right of any person; and
3. when engaging or managing Personnel, the Customer will comply with any applicable Laws relating to anti-discrimination and fair hiring.

13.4 Exclusion of implied warranties

All express or implied guarantees, warranties, representations, or other terms and conditions relating to this agreement or its subject matter, not contained in this agreement, are excluded from this agreement to the maximum extent permitted by Law.

14. Force Majeure Events

1. Notwithstanding any other provision of this agreement, no party will be liable for any failure to perform its obligations under this agreement where that performance is delayed, prevented, restricted or interfered with as a result of a Force Majeure Event, provided that the Force Majeure Event could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing party through the use of reasonable alternate sources, workarounds or other means.
2. The party unable to perform its obligations must:
   1. notify the other party promptly of any delay reasonably expected as a result of the Force Majeure Event; and
   2. use its best efforts to minimise the effect of the Force Majeure Event and resume performance in accordance with this agreement as soon as possible.
3. Upon receipt of the notification referred to in clause (i) above, the parties must meet and discuss in good faith how to take account of the Force Majeure Event and to resume performance in accordance with this agreement.
4. Neither party is excused from any obligation to pay money under this agreement because of a Force Majeure Event.

15. Dispute Resolution

1.  Except where a party seeks urgent interim relief, a party must not commence court proceedings in relation to any dispute or disagreement in connection with this agreement (Dispute) unless it has complied with the provisions of this clause.
2.  A party claiming that a Dispute has arisen must notify the other party accordingly, which notice must describe the nature of the Dispute (Dispute Notice).
3. Within 5 Business Days after receipt of a Dispute Notice, each party must nominate a representative who has express authority to resolve the Dispute, and those representatives must meet to seek to resolve the Dispute by negotiation.  All aspects of the negotiation must be kept confidential, and all communications between representatives during the negotiation are made on a without prejudice basis.
4. If the Dispute has not been resolved within 10 Business Days after receipt of the Dispute Notice, either party may refer the Dispute for mediation in accordance with, and subject to, Resolution Institute Mediation Rules, by notifying the other party accordingly.
5. If within 20 Business Days after receipt of the Dispute Notice, neither party has referred the Dispute for mediation in accordance with paragraph (d), or the Dispute has not been resolved, either party may commence court proceedings in relation to the Dispute.

16. General

16.1 Governing Law

1. This agreement is governed by the Laws of the State of New South Wales.
2. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and the courts competent to determine appeals from those courts with respect to any proceedings that may be brought at any time relating to this agreement.

16.2 Entire agreement

This agreement (together with any Employee Schedules) constitutes the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter.

16.3 Variation

This agreement may not be varied except by agreement in writing between the parties.

16.4 Relationship of the parties

Nothing in this agreement is intended to constitute a fiduciary relationship or an agency, partnership or trust, and neither party has authority to bind the other party.

16.5 Survival and merger

1. No term of this agreement merges on completion of any transaction contemplated by this agreement.
2. The terms of this agreement and any Employee Schedule, which by their nature survive termination or expiration of this agreement or an Employee Schedule will continue after expiration or termination of this agreement or an Employee Schedule.

16.6 Severability

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this agreement is not affected.

16.7 Waiver

1. No waiver of a right or remedy under this agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted.
2. A single or partial exercise of a right or remedy under this agreement does not prevent a further exercise of that or of any other right or remedy. Failure to exercise or delay in exercising a right or remedy under this agreement does not operate as a waiver or prevent further exercise of that or of any other right or remedy.

16.8 Cumulative rights

Except as expressly provided in this agreement, the rights of a party under this agreement are in addition to and do not exclude or limit any other rights or remedies provided by Law.

16.9 Further assurances

Each party must do all things and execute all further documents necessary to give full effect to this agreement.

16.10 Assignment, novation and other dealings

1. Subject to paragraph (b), neither party may assign or novate this agreement or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of each other party which consent must not be unreasonably withheld.
2. EH may assign, novate or subcontract all or any part of this agreement or any Employee Schedule to any member of the EH Group at any time, by giving written notice of such assignment to the Customer. The Customer consents to any novation of this agreement under this clause.

16.11 Notices

1. A notice, consent or other communication under this agreement is only effective if it is in writing, signed by or on behalf of the party giving it and it is received in full and legible form at the addressee’s address or email address. It is regarded as received at the time and on the day it is actually received, but if it is received on a day that is not a Business Day or after 5.00 pm on a Business Day it is regarded as received at 9.00 am on the following Business Day.
2. For the purposes of this clause, a party’s address and email address are those set out on the first page of this agreement, unless the party has notified the other party of a change to these details in writing.

16.12 Construction

No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this agreement.

16.13 Counterparts

This agreement may be executed in any number of counterparts that are executed in writing or electronically, each of which, when executed, is an original. Those counterparts together make one instrument.

Schedule 1 Dictionary

1. Definitions

In this agreement:

Affiliate means, in relation to a person, any other person that (directly or indirectly) controls, is controlled by, is under common control with or that is a Related Body Corporate (as defined in the Corporations Act 2001 (Cth)) of such person.

Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in New South Wales, Australia.

Confidential Information means the terms of this agreement and any information relating to the party disclosing information or any of its Affiliates in any form (including oral, written or electronic form) that:

a. is by its nature confidential;

b. a reasonable person would understand to be confidential to the Discloser; or

c. the Discloser has designated as confidential or proprietary,

and that is made available by or on behalf of the disclosing party to the Recipient, directly or indirectly, before or after the date of this agreement, but does not include information that:

d. is or becomes publicly available other than through a breach of this agreement by the Recipient or its Representatives;

e. is developed independently by the Recipient or any of its Representatives without use of the Confidential Information; or

f. is or becomes, before or after such information was disclosed by the Discloser, in the Recipient’s possession and that was lawfully obtained from a third party without any restriction as to use or disclosure.

Consequential Loss means indirect, special, incidental, punitive, exemplary, consequential, or extra-contractual damages of any kind, including any loss of profit, loss of business, loss of opportunity or goodwill, loss of anticipated savings, loss of reputation and loss of data.

Customer has the meaning given to it in the ‘Parties’ section, and, where applicable, means any other entity specified as the ‘Customer’ on an Employee Schedule.

Effective Date means the date on which the last party signs this agreement.

EH has the meaning given to it in the ‘Parties’ section.

EH Group means EH and its Affiliates.

EH Platform means the Employment Hero Platform as made available through the Employment Hero website.

EH Platform Terms means the Employment Hero Platform terms and conditions made available on the Employment Hero website at https://employmenthero.com/sg/legals/, as amended or replaced from time to time in accordance with their terms, together with any customer agreement for the EH Platform entered into between the Customer and an EH Group entity.

EH Privacy Policy means the privacy policies that apply in each Territory as available on the EH website at https://employmenthero.com/sg/legals/, as amended or replaced from time to time in accordance with their terms.

Employee Schedule means a form provided by EH to the Customer that is identified as an Employee Schedule from time to time (including through the EH Platform).

Employment Contract means the contract of employment entered into between EH or its Nominee and each member of the Personnel.

Fees means the Management Fees together with any Additional Fees that are payable for Services provided under this agreement.

Force Majeure Event means any event or circumstance which:

a. is not within the reasonable control of the affected party or its Affiliates or subcontractors;

b. directly or indirectly and alone or when taken together with any other such events, causes the affected party to fail to perform on time any of its obligations under this agreement; and

c. is not reasonably able to be prevented by the affected party taking reasonable precautions and cannot reasonably be circumvented by the affected party.

Insolvency Event means the occurrence of any one or more of the following events in relation to a party:

a. an order is made or an effective resolution is passed for winding up or dissolution without winding up (otherwise than for the purposes of reconstruction or amalgamation) of that party and the order or resolution remains in effect for a continuous period of 7 Business Days;

b. a receiver, receiver and manager, official manager, administrator, provisional liquidator, liquidator, or like official is appointed over the whole or substantial part of the undertaking and property of that party and the appointment remains in effect for a continuous period of 7 Business Days;

c. a holder of an encumbrance takes possession of the whole or any substantial part of the undertaking and property of that party;

d. that party is unable to pay its debts as they fall due; or

e. that party becomes insolvent or is deemed to become insolvent under any applicable Law.

Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world including rights in respect of or in connection with any Confidential Information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trade marks, service marks, designs and circuit layouts whether or not now existing and whether or not registered or registrable including any right to apply for the registration of such rights and all renewals and extensions.

Law means (whether in Australia or any other relevant jurisdiction) all laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory and mandatory codes of conduct, writs, orders, injunctions, judgments, Australian generally accepted accounting principles in force or as applicable from time to time.

Management Fee means the amount payable to EH in respect of the Management Services provided by EH or its Nominee, excluding any salary, wages and benefits costs payable to Personnel under their Employment Contract and amounts remitted in respect of taxes relating to their employment.

Nominee means an EH Group entity other than EH or a third party agent or partner that is not a member of the EH Group, that is engaged by EH to provide some or all of the Services on EH’s behalf.

Personal Information has the meaning given to it in the Privacy Act 1988 (Cth) or other applicable Privacy Law, that is provided to, or obtained or accessed by, a party in the course of performing its obligations under this agreement.

Personnel means the people that EH or its Nominee employ at the direction of the Customer under an Employee Schedule.

Privacy Laws means (as applicable):

a. the Privacy Act 1988 (Cth); and

b. any Law (to the extent that such legislation applies to Personal Information that is processed under this agreement) from time to time in force in any jurisdiction which affects privacy, personal information or the collection, handling, storage, processing, use or disclosure of data.

Representative means a director, officer, employee, agent, contractor or professional adviser of a party or of any of that party’s Affiliates and, in respect of EH, includes any Nominee.

Services means the services provided by EH or its Nominee to the Customer as agreed under this agreement and in an Employee Schedule from time to time.

Territory in respect of each member of the Personnel, means the country in which that member of the Personnel is employed by EH or its Nominee and in which the Personnel provides services to the Customer.

Total Payroll Cost means any amount due in respect of Personnel under or arising in respect of 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.

2. Interpretation

In this agreement the following rules of interpretation apply unless the contrary intention appears:

1. headings are for convenience only and do not affect the interpretation of this agreement;
2. the singular includes the plural and vice versa;
3. words that are gender neutral or gender specific include each gender;
4. including and similar words are not used as, nor are they intended to be interpreted as, words of limitation;
5. no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this agreement or any part of it; and
6. a reference to:
   1. a person includes a natural person, body corporate, unincorporated body or other body corporate;
   2. a party includes its successors and permitted assigns;
   3. a document includes all amendments or supplements to that document;
   4. this agreement includes all schedules and attachments to it;
   5. a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgement, rule of common law or equity or a rule of an applicable financial market and is a reference to that law as amended, consolidated or replaced; and
   6. conduct includes any omissions, statements or undertakings, whether or not in writing.