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IMMEDIATELY AVAILABLE PTY LTD
(ACN 614 124 373)
CLIENT TERMS OF BUSINESS

These Client Terms of Business (Terms) are between the Client (you) and Immediately Available Pty Ltd (ACN 614 124 373) (Weploy) and apply in relation to the provision of any Temporary Employees by Weploy via the Weploy App platform.

These Terms form a binding legal agreement between the 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 Temporary Employees by Weploy via the Weploy App platform), you will be deemed to have accepted and will be bound by these Terms.

1.

WHEN THESE TERMS APPLY AND HOW JOBS ARE ALLOCATED

1.1 These Terms will apply each time you request the provision of Temporary Employees by Weploy via the Weploy App platform.
1.2 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.
1.3 Once a Temporary Employee has been allocated to your Job, that Temporary Employee will be provided to you in accordance with these Terms.
1.4 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.
1.5 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 7.1, difficulties with the Weploy App, shortage of labour or other factors beyond the reasonable control of Weploy, or the Temporary Employee.
1.6 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.
1.7 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.

WEPLOY USER TERMS

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 and the Weploy User Terms, these Terms shall take precedence.
2.3 Unless the context requires otherwise, capitalised definitions in these Terms have the same meaning as those used in the Weploy User Terms. www.weployapp.com
3.

FEES YOU MUST PAY

3.1 You agree to pay the applicable Fees for a Job which may be specified by Weploy in the Rates Card annexed to these Terms or on the Staffing Request Form. Fees will be calculated based on timesheets submitted by the Temporary Employees.
3.2 The Fees are payable in accordance with the payment terms specified in the Rates Card annexed to these Terms or on the Staffing Request Form. If 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, 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.
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.

SPECIFIC PROVISIONS RELATING TO WEPLOY TEMPORARY EMPLOYEES

4.1 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.
4.2 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.
4.3 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.
4.4 You must not disclose details of the Fees or any associated information with the Temporary Employees.
4.5 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.
4.6 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.
4.7 You are responsible for protecting your own confidential information and intellectual property. Weploy accepts no responsibility or liability for any associated claim.
4.8 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.
4.9 You must reasonably permit Temporary Employees to take leave where they have an entitlement to do so.
4.10 You must provide training to the Temporary Employees on all of your relevant policies and procedures.
4.11 You warrant that your managers and supervisors are properly trained and have the necessary skills to manage the Temporary Employees.
4.12 In the event you wish to cancel the Job either before or during a Job, you must notify Weploy in writing immediately.
4.13 During any Job, and for the Restraint Period, you will not or attempt to directly or indirectly for yourself or on behalf of another person unless you have Weploy’s written consent approach, solicit, induce, persuade or accept an approach from any Temporary Employee, employee, contractor, supplier or agent of Weploy to cease their engagement with Weploy.

For the purposes of this clause, Restraint Period means:

(a) 9 months after the end of the relevant Job;
(b) 6 months after the end of the relevant Job;
(c) 3 months after the end of the relevant Job.

In the event of a buyout outside of the Restraint Period, you will pay the buyout fee $1900 plus the difference between 600 hours less actual hours engaged. The final buyout amount will be advised by Weploy in written documentation.

Below is an example of the buyout schedule at different hours of engagement

Weployee Buyout figures

4.14 Without limiting Weploy’s other rights and remedies, you must pay Weploy an amount of $1,500 for any breach (per breach) of clause 4.13 on demand by Weploy. You acknowledge that such an amount represents a genuine pre-estimate of Weploy’s administrative costs in relation losing and replacing any Temporary Employee.
4.15 You acknowledge and agree that:

(a) each restraint in combination above is to be read as a number of separate and distinct covenants, with each covenant capable of being enforced on its terms, or if not enforceable severed and the next best covenant being enforced without affecting the validity of the remaining covenants; and
(b) that each of the covenants and restraints is reasonable as between you and Weploy and do no more than protect Weploy’s legitimate interests.
5.

INDEMNITIES

5.1 You agree that 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.
5.2
(a) Weploy is not liable for any acts or omissions of Temparary Employees where those Temporary Employees are acting under Your direction or supervision, other than as provided in clause 5.3.
(b) You are not liable for any acts or omissions of the Temparary Employees resulting from Weploy’s failure to meet its obligations under these Tems (including any act or omission of Weploy in respect of its recruitment and selection process to provide You with suitable Temporary Employees) except to the extent than any such liability is caused or contributed to by you.
5.3 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. This will be your sole and exclusive remedy with respect to the acts, errors or omissions of Weploy or Temporary Employees.

5.4 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 other than as provided in clause 5.3.
6.

INSURANCE

6.1 Weploy is responsible for ensuring that the Temporary Employees are adequately covered by an insurance policy including cover for:

(a) Workers’ Compensation as required by law;
(b) Public Liability;
(c) Professional Indemnity including a dishonest of fraudulent act or omission committed for any insured; and
(d) Product Liability.
6.2 You will maintain insurances in respect of persons acting under Your direction or supervision, including any Temporary Employees acting under Your direction or supervision.
7.

LIMITATION OF LIABILITY AND IMPLIED TERMS

7.1 You agree that Weploy will not be liable or responsible for any failure in, or delay to, the provision of the Temporary Employees 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) any conduct by you or any person who uses the Weploy App on your behalf;
(b) fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
(c) 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;
(d) a significant demand is 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);
(e) the failure of any third party to fulfil any obligation to Weploy; or
(f) any other circumstances or event similar to the above which is beyond the reasonable control of Weploy, including labour shortages.
7.2 You acknowledge that Weploy has not made and will not make any express or implied warranties in relation to the provision of the Temporary Employees or any other services provided by Weploy under these Terms other than those warranties expressly contained in these Terms. Subject to clauses 7.5 and 7.7, 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.
7.3 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 any amount of Fees paid for the applicable Job.
7.4 You agree that Weploy will not be liable or responsible for anything or act other users post to the Weploy App or do.
7.5 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(ii) the repair of the goods;
(iv) the payment of the cost of having the goods repaired.
7.6 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.
7.7 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).
8.

TERMINATION

8.1 You may terminate any Job at any time, however you will still remain responsible for payment of all Fees in relation to the Job as if the Job had been performed and completed.
8.2 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. If you have any Jobs placed at the time of termination then either, as determined by Weploy in its sole and absolute discretion:

(a) those Jobs will continue to be fulfilled and termination of these Terms will be postponed until completion of those Jobs (and you will continue to remain liable for the Fees for those Jobs); or
(b) those Jobs will continue to be fulfilled and termination of these Terms will be postponed until completion of those Jobs (and you will continue to remain liable for the Fees for those Jobs); or
8.3 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, however if you have any Jobs placed at the time of termination then either, as determined by Weploy in its sole and absolute discretion:

(a) those Jobs will continue to be fulfilled and termination of these Terms will be postponed until completion of those Jobs (and you will continue to remain liable for the Fees for those Jobs); or
(b) such Jobs will terminate, however you will remain liable for the Fees for those Jobs as if the Jobs had been performed and completed.
8.4 If either party terminates the Weploy User Terms, then that termination will also be deemed to terminate these Terms under this clause 8.
8.5 Upon termination, you must pay any unpaid Fees including those which Weploy are yet to invoice as at the date of termination.
9.

GENERAL

9.1 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 by pre paid post, on the third day after the date of posting;
(c) 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
(b) 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.
9.2 These Terms supersede all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of these Terms and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of these Terms.
9.3 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.
9.4 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.
9.5 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).
9.6 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.
9.7 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.
10.

DEFINITIONS AND INTERPRETATION

In these Terms, the following terms will have the following meanings, unless the context otherwise requires.
Fees means the fees and charges to be paid to Weploy by you as specified in the Rates Card, as specified by Weploy on a Staffing Request Form or at the time you place an order for a Job, or as otherwise agreed between you and Weploy in writing.
Job has the same meaning which is used in clause 1.2 of the Terms.
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 this Terms.
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 has the same meaning which is used in the Weploy User Terms.
Weploy has the same meaning which is used in the Weploy User Terms.
Weploy App has the same meaning which is used in the Weploy User Terms.