Terms & Conditions

Weploy Pty. Ltd. (Acn 614 124 373)
Introduction

Client Terms of Business

These Client Terms of Business are between the Client (you) and WEPLOY PTY. LTD. (ACN 614 124 373) (Weploy) and apply in relation to the provision of Services by Weploy to you via the Weploy App.  

These Terms form a binding legal agreement between you and Weploy. You should read these Terms carefully. Without limiting the way in which you may be bound by these Terms, by signing a document agreeing to be bound by these Terms, by clicking a button on a computer screen, smart phone or tablet indicating your acceptance of these Terms, or by proceeding to use the Weploy App (including by placing a request for the provision of Services by Weploy via the Weploy App), you will be deemed to have accepted and will be bound by these Terms.

1. When these terms apply

1.1. These Terms will apply when you make use of any of the Services, including via the Weploy App.

1.2. The particular Services you choose to use may be:

(a) purchased by you via the Weploy App or by using a separate means of purchase provided by Weploy from time to time; or

(b) purchased by you via a separate agreement with Weploy.

1.3. You agree that Weploy may refuse your offer to purchase or use a Service for any reason whatsoever. Your purchase of a Service, and right to use a Service, is not effective until such time as your offer to purchase that Service is accepted by Weploy. Weploy may, without limitation, accept your offer by activating the relevant functionality in the Weploy App or commencing to provide the Service to you.

1.4. Each individual Service provided by Weploy will be governed by:

(a) the Addendum relevant to the provision of that Service; and

(b) these General Conditions.

2. Weploy User Terms and each Addendum

2.1. These Terms should be read in conjunction with the Weploy User Terms. You agree that you are bound by both these Terms and the Weploy User Terms.

2.2. To the extent there is any inconsistency between these Terms, each Addendum to these Terms, and the Weploy User Terms, then those documents shall be read in the following order of precedence:

(a) firstly, these Terms;

(b) secondly, each Addendum; and

(c) finally, the Weploy User Terms.

2.3. Unless the context requires otherwise, capitalised definitions in these Terms have the same meaning as those used in the Weploy User Terms. However if a term is redefined in these Terms, then the definition in these Terms will apply.

3. Fees YOU Must Pay

3.1. In consideration of Weploy providing the Services, you agree to pay the applicable Fees to Weploy. The specific Fees you will pay will depend on which Services you use, and are as specified in each applicable Addendum, specified separately by Weploy, or as otherwise separately agreed between you and Weploy in writing.

3.2. The payment terms for the Fees shall vary depending on the type of Service they relate to. These payment terms are specified in the relevant Addendum. If however no such payment terms are specified then the Fees will be payable within 7 days of the date of any invoice of Weploy relating to the same. Weploy may also require some or all of the Fees to be paid in advance.  

3.3. Weploy may require you to provide it with an authorisation to direct debit the Fees from your credit card or nominated bank account. Once authorisation is provided the Fees will be automatically debited by Weploy.

3.4. Unless specified to the contrary, the Fees payable to Weploy under these Terms are expressed to be exclusive of all Taxes. If any Taxes are levied on Weploy in respect of the Fees (or otherwise apply in relation to the supply of the Services), then you must pay an additional amount to Weploy on account of those Taxes, such that after deduction of those Taxes, Weploy receives no less than the Fees. 

3.5. Overdue payments will incur interest on a daily basis on the unpaid amount at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic).

3.6. A dispute will not affect payment of non-disputed Fees on the same invoice or the payment of any other invoices due by you and you will have no right of deduction or set off. Any disputed amount will still remain payable unless otherwise agreed by Weploy.

3.7. Any costs (including, without limitation, debt recovery and legal costs) incurred by Weploy in recovering amounts overdue will be payable by you.

4. Indemnities

4.1. You indemnify Weploy against any claim, liability, cost, loss or damage suffered or incurred by Weploy as a result of any failure by you to meet your obligations under these Terms.

5. Insurance

5.1. Weploy will maintain the following insurance policies in relation to Weploy and the Services:

(a) Workers' Compensation as required by law;

(b) Public Liability for at least $20 million for any one occurrence;

(c) Professional Indemnity for at least $10 million for any one claim including a dishonest of fraudulent act or omission committed for any insured; and

(d) Product Liability for at least $20 million for any one occurrence.

6. Limitation Of Liability And Implied Terms

6.1. You agree that Weploy will not be liable or responsible for any failure in, or delay to, the provision of the Services or in Weploy complying with its obligations under these Terms where such failure or delay has arisen as a direct or indirect result of:

(a) your act or omission;

(b)
  any conduct by you or any person who uses the Weploy App on your behalf; 

(c)
 any conduct of any other user of the Weploy App;

(d)
fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;

(e)
denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;

(f)
a significant demand being placed on Weploy’s Services or the Weploy App which is above the usual level of demand and which results in a failure of Weploy’s software and hardware to function correctly (including the Weploy App);

(g)
the failure of any third party to fulfil any obligation to Weploy; or

(h) any other circumstances or event similar to the above which is beyond the reasonable control of Weploy, including labour shortages.

6.2. You acknowledge that Weploy has not made and will not make any express or implied warranties in relation to the provision of the Services or any other services provided by Weploy under these Terms other than those warranties expressly contained in these Terms. Subject to clauses 6.4 and 6.6, any term that would be implied into these Terms, including without limitation any condition or warranty, is hereby excluded to the maximum extent permitted by law. 


6.3. You agree that the maximum liability of Weploy under these Terms for any and all breaches of these Terms and for any negligence in relation to these Terms, will not exceed the amount of Fees paid for the relevant Service to which the breach or negligence relates.


6.4. If the Competition and Consumer Act 2010 (Cth) (or analogous legislation in a relevant jurisdiction) applies to these Terms and permits the limitation of liability for breach of warranty implied by statute, the liability of Weploy is limited, at the option of Weploy, to:

(a) in the case of services:

(i) the supplying of the services again; or

(ii)
the payment of the cost of having the services supplied again; and

(b) in the case of goods, any one or more of the following:

(i)  the replacement of the goods or the supply of equivalent goods;

(ii)
the repair of the goods;

(iii)
the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv)
the payment of the cost of having the goods repaired.


6.5. Any of the terms and conditions of these Terms which limit or exclude any term, condition or warranty, express or implied, or the liability of Weploy will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies, arising by virtue of the breach of any implied term of these Terms where such exclusion, qualification or limitation would be prohibited by statute or by the Australian Consumer Law.

6.6. If you are a consumer (as defined in the Competition and Consumer Act 2010 (Cth)), then nothing in these Terms restricts, limits or modifies your rights or remedies against Weploy for the failure of a statutory guarantee under the Australian Consumer Law where such restriction, limitation or modification would be prohibited by the Competition and Consumer Act 2010 (Cth).

7. Termination

7.1. When termination occurs

(a) These Terms may be terminated by Weploy at any time, and for any reason, with or without notice to you. Weploy may effect such termination by written notice to you, by deleting your Account, and/or by removing your access to, or use of, the Weploy App.

(b)
You may terminate these Terms at any time by written notice to Weploy. Such termination will also act to terminate the Weploy User Terms, your Account and your use of the Weploy App. Such termination will take effect upon receipt of your notice by Weploy.  

(c)
You or Weploy may terminate the provision of a particular Service in accordance with the applicable terms set out in the Addendums which are relevant to that Service. Termination of one Service will not, unless otherwise stated in these Terms or an Addendum, act to terminate your use of any other Service.  

(d)
If either party terminates the Weploy User Terms, then that termination will also be deemed to terminate these Terms under this clause 7. 


7.2. Effect of termination
Upon termination of these Terms:

(a) Weploy may delete all data and information which it holds about you, your employees or your Associates in the Weploy App and is under no obligation to provide a copy of that data or information to you;

(b) you must cease using the Weploy App in your capacity as a user of the Services, however you may continue to use the Weploy App as a Temporary Employee (if applicable, should you choose to do so);

(c) you must pay any unpaid Fees including those which Weploy are yet to invoice as at the date of termination;

(d)
if at the date termination is effected under clause 7.1, you have Temporary Employees undertaking Jobs and/or are using the Payroll Services, then termination of these Terms will be postponed until the later of:

(i) the termination of all Jobs in accordance with the Temporary Employees Addendum; or
(ii) the termination of the Payroll Services in accordance with the Payroll Services Addendum; and 

(e)  the relevant provisions set out in each Addendum will apply in relation to the termination of each Service.

8. General

8.1. Any notice given under these Terms must be in writing and must be signed by the party or its agent giving the notice. A notice is taken to be received:

(a) in the case of a notice delivered by hand, when so delivered;

(b) 
in the case of a notice sent via functionality contained in the Weploy App, at the time the Weploy App records the notice as having been first read or accessed by the recipient;

(c)
in the case of a notice sent by pre paid post, on the third day after the date of posting;

(d) in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that the facsimile has been successfully sent; or

(e)
 in the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the recipient’s email server that the email has been received by the recipient.

8.2. These Terms supersede all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of these Terms and these Terms, together with the Weploy User Terms, set forth the entire and exclusive agreement and understanding between the parties relating to their subject matter.

8.3. A provision of or a right created under these Terms may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under these Terms will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in these Terms are cumulative with and not exclusive of any rights, powers or remedies provided independently of these Terms.

8.4. If any provision of these Terms is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of these Terms to the intent that the invalid or unenforceable provision will be treated as severed from these Terms.

8.5.
 Weploy may assign its rights and novate or transfer obligations which arise under these Terms, with or without notice to you. You must not assign, novate or otherwise transfer your rights or obligations under these Terms without the prior written consent of Weploy (which may be withheld). You must not subcontract your rights or obligations under these Terms without the prior written consent of Weploy (which may be withheld).

8.6.
 The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Terms or part of it.

8.7. This agreement is governed by, and must be construed in accordance with, the laws of the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.

9. Definitions and Interpretation

Account means an account with the Weploy App which allows you to access and use the Services through the Weploy App.
Addendum

means an addendum to these Terms which sets out specific terms and conditions applying to your use of a Service.  The current Addendums are:

(a) Addendum 1 – Temporary Employees (Temporary Employees Addendum)

(b) Addendum 2 – Payroll Services (Payroll Services Addendum).

Associate of a person has the same meaning as in the Corporations Act 2001 (Cth)
Australian
Consumer Law
means the law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Fees means the fees and charges to be paid to Weploy by you for the provision of Services.
General
Conditions
means the terms of this document, excluding the Addendums
Job  has the same meaning which is used in clause 1.1 of the Temporary Employees Addendum.
Payroll
Services
means the Service described in the Payroll Services Addendum, and in particular, in clause 1.2 of that Addendum
Payroll Services
Schedule
means the document specifying the applicable fees and charges for the provision of Payroll Services by Weploy as annexed to these Terms or as provided separately by Weploy to you from time to time.
Rates
Card
means the document specifying the applicable fees and charges for the provision of Temporary Employees by Weploy via the Weploy App as annexed to these Terms, or as provided separately by Weploy to you from time to time.
Services means the specific goods and services to be provided by Weploy under these Terms, as purchased by you pursuant to clause 1.  The Services which may be purchased are those described in the Temporary Employees Addendum and Payroll Services Addendum.     
Staffing
Request Form
 
means an order form available via the Weploy App in a format specified by Weploy, that describes, amongst other things, each request for a Job.
Taxes  means all government taxes, charges and levies, including but not limited to GST.
Temporary
Employees
means a temporary on-demand employee provided to you by Weploy (where Weploy remains the employer).
Terms means these General Conditions together with each Addendum
Weploy means WEPLOY PTY. LTD. (ACN 614 124 373) of 57-61 Alexandra Parade, Collingwood VIC 3066.
Weploy
App

means Weploy’s application and any computer software (including source code) or a smartphone or tablet application Weploy publishes which allows you to access and use the Services.

1. Services

1.1. You may request the provision of Temporary Employees by submitting the online Staffing Request Form with the Weploy App and agreeing to pay the applicable Fees (Job), and Weploy will allocate this Job to the first available Temporary Employee. This Addendum will apply each time you request a Job and separately in respect of each individual Job.

1.2. Once a Temporary Employee has been allocated to your Job, that Temporary Employee will be provided to you in accordance with the General Conditions and this Addendum.

1.3. You acknowledge that our Temporary Employees may be subject to minimum shift durations and any other minimum entitlements under their applicable modern award/s during their engagement with you. You must pay any Fees which are associated with Weploy complying with these requirements and must comply with any other conditions stipulated for the engagement by Weploy from time to time.

1.4. You agree that Weploy, or the Temporary Employee, may reject your Job or may determine not to provide services to you for any reason in their sole and absolute discretion. This may occur for reasons including an event described in clause 6.1 of the General Conditions, difficulties with the Weploy App, shortage of labour or other factors beyond the reasonable control of Weploy, or the Temporary Employee.

1.5. You will be liable for the Fees if you cancel a confirmed Job once it has been placed unless expressly permitted otherwise under these Terms or by Weploy in writing. If the terms of any Staffing Request Form differ from these Terms, then these Terms will apply so far as there is any conflict, unless the Staffing Request Form expressly provides that such terms are to override these Terms.

2. Fees

2.1. In addition to the obligations in clause 3 of the General Conditions, you agree to pay the applicable Fees for a Job which may be specified by Weploy in a Rates Card or on the Staffing Request Form. Fees will be calculated based on timesheets submitted by the Temporary Employees.

2.2. The Fees are payable in accordance with the payment terms specified in the applicable Rates Card or on the Staffing Request Form.

3. Specific Provisions Relating To Weploy Temporary Employees

3.1. Weploy is responsible to pay the Temporary Employees’ remuneration, superannuation guarantee charges, payroll tax and other taxation required by the ATO and workers’ compensation payments.

3.2. Temporary Employees will be employed by Weploy at all times but you are responsible for ensuring that all necessary supervision and instructions are provided to the Temporary Employees. You acknowledge that that you have direct supervision and management of the Temporary Employees and the outcome of a Temporary Employees’ performance.

3.3. Management of performance issues is the responsibility of Weploy. You must not communicate directly with the Temporary Employees in relation to performance or conduct issues unless you seek the prior consent of Weploy.

3.4. You must not disclose details of the Fees or any associated information with the Temporary Employees.


3.5. You must not change the hours or location of work, the duties or tasks carried out by the Temporary Employees without first seeking Weploy’s consent to change the Job, which may result in a variation to the applicable Fees.

3.6. You are responsible for the working conditions and occupational health and safety of the Temporary Employees providing services at the sites or premises in which you control. You must ensure that your sites or premises satisfy all the requirements and legislation as required by law, including but not limited to:

(a) ensuring that the work environment is safe and free of any risks, hazards and discrimination;

(b) providing necessary induction, health and safety training and supervision of Temporary Employees;

(c) verifying that Temporary Employees have the necessary skills, experience to perform the services safely;

(d) constantly informing and updating Weploy and the Temporary Employees of any changes to the workplace that may impact their health and safety; and

(e) notifying Weploy and the relevant authorities immediately of any workplace-related incidents or injuries.

3.7. You are responsible for protecting your own confidential information and intellectual property. Weploy accepts no responsibility or liability for any associated claim.

3.8. You must not do anything that may cause Weploy to be in breach of employment conditions agreed with Temporary Employees. A copy of Weploy’s standard template employment contract (as used with Temporary Employees) may be provided upon request. 

3.9. You must reasonably permit Temporary Employees to take leave where they have an entitlement to do so.

3.10. You must provide training to the Temporary Employees on all of your relevant policies and procedures.

3.11.  You warrant that your managers and supervisors are properly trained and have the necessary skills to manage the Temporary Employees.

3.12. You acknowledge that Weploy invests significant time and expense in recruiting Temporary Employees, onboarding Temporary Employees and providing training to them. You further acknowledge that Weploy supplies the services of Temporary Employees to you in good faith, on the understanding that you will not separately seek to recruit those Temporary Employees. You agree that if you approach, solicit, induce, persuade or accept an approach from a Temporary Employee of Weploy, to cease their engagement with Weploy, for the purposes of the Temporary Employee becoming an employee, contractor, consultant of or provider of services to you or your Associate (Buyout), at any time during the period commencing from the last day of their last Job with you or an Associate, and ending 6 months after that date (Buyout Period), that you will pay Weploy a recruitment fee calculated as follows (Buyout Fee):  


BF = $5,445 + ((600 – EH) x $8.66)
Where:
BF = the Buyout Fee for the Temporary Employee
EH = the number of hours which the Temporary Employee has been paid by Weploy as Weploy’s employee (as calculated by Weploy), to a maximum of 600 hours (Engagement Hours).
 

Without limiting the above formula, the following is an example of the amount of the Buyout Fee payable depending on the Engagement Hours worked by the Temporary Employee.

 

Screen Shot 2019-07-01 at 9-48-25 am

3.13. You agree that:

(a) you will advise Weploy in writing within 5 Business Days of the Buyout of a Temporary Employee. Your written notice must state the name of the Temporary Employee and the role in which they have been engaged by you or your Associate;

(b) Weploy may charge you the Buyout Fee promptly upon learning of the Buyout (whether or not from you), and the Buyout Fee will be payable within 5 Business Days of Weploy’s invoice relating to the same; and

(c)
the Buyout Fee remains payable irrespective of the conduct or performance of the Temporary Employee as an employee, contractor or, consultant to, or service provider of you or your Associates, or the term that they are engaged by you or your Associates in that capacity.

4. Specific Indemnities Relating To The Provision Of Temporary Employees

4.1. You agree that:

(a) Weploy is a provider of Temporary Employees assigned to work at your business and location under your direction. As such, Weploy has no responsibility for the means or methods used by Weploy’s Temporary Employees to perform their work.

(b) Weploy is not liable on any legal or equitable basis, including in negligence, for any acts or omissions of Temporary Employees.

4.2. Subject to your full compliance with these Terms and the Weploy User Terms, Weploy will indemnify you against any claim, liability, cost, loss or damage suffered or incurred in connection with Temporary Employees within the scope of their relevant Job with you, solely in relation to:

(a) remuneration;

(b) leave entitlements;

(c) notice of termination of employment or payment in lieu of notice;

(d) redundancy or severance pay;

(e) entitlements arising under a contract, award or industrial instrument; or

(f) superannuation guarantee charges

except to the extent caused or contributed to by your own act or omissions or the acts or omissions of your employees or Associates. This will be your sole and exclusive remedy with respect to the acts, errors or omissions of Weploy or Temporary Employees.