Terms & conditions
Business members

1. Definition and Interpretation

1.1 In this Agreement the following terms have the following meanings, unless otherwise stated:

“Additional Services” means any Services that we determine in our sole discretion to offer to you, and that are agreed between us, as further set out in Schedule B;

“Agreement” means this Agreement constituted by these Terms and conditions, Schedules and any written Addendums to this Agreement;

“Business Day” means a day other than a weekend or public or bank holiday in Victoria, Australia;

“Business Member” means a business, company, partnership, sole trader, organisation or any entity that uses the Services or Platform to be connected with a Talent Member. A Business Member does not include a Talent Member;

“Business User” means an individual / natural person in business, a partner within a partnership, the sole trader, an individual within an organisation or entity that uses the Services or Platform. A Business User is an individual within the Business Member.  

“Commencement Date” means the date of this Agreement;

“Confidential Information” includes all business and technical information, data and know-how disclosed, made available or accessible by Disclosing Party to Recipient in any form (whether identified as confidential or not) including but not limited to:

a)  any business, technical, strategic or financial information, including any ideas, inventions, discoveries, trade secrets, know-how, data, documents, Intellectual Property, analysis, lists of actual or potential customers or partners, business or marketing plans, software, hardware, drawings, diagrams, sketches, graphs, charts, spreadsheets, disks, tapes, prototypes, samples, tools, devices, letters, notes, memoranda, and verbal and/or visual observations, disclosures and presentations);

b)  the existence and terms of this Agreement; and

c)  any, or any copies of, information, material, data and technology generated by the Recipient that contains, reflects or is derived from the Confidential Information;

“Consultants” means the employees, subcontractors and consultants, which we use to perform the Services, but does not include Talent Members;

“Engagement” means each Introduction or Talent Recommendation in respect of which you make an offer to engage Talent Members or in respect of a gig, project role or opportunity, and such offer is accepted by a Talent Member (including without limitation through the execution of an agreement, statement of work, or any other engagement type (e.g. employment) between you and the Talent Member);

“GST” means a goods or services tax, or similar value added tax, levied or imposed under the GST Law;

“GST Law” has the definition set out in A New Tax System (Goods and Services Tax) ACT 1999 (Cth);

“Fees” refer to the payment rates for the Services, as set out in clause 3 and Schedule A of this Agreement, or as otherwise specified in writing by us from time to time;

“Intellectual Property Rights” means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including, but not limited to, all technical information, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights, whether created, written developed or brought to existence by us or you in the provision of the Services;

“Introduce” or “Introduction” means an introduction of two or more Werkling Members, with each other, as part of Talent Matching Services (which includes without limitation any ancillary services or deliverables);

“Key Terms” means Schedule A of this Agreement; 

“Marketing Materials” means marketing and/or presentation materials in any format such as, but not limited to any Member Showcase, user instruction manuals, promotional materials or marketing copy (digital or otherwise);

“Material” means any information, data, source codes, drawings, content, text or images in any form (whether visible or not), audio recordings, video recordings, lists, sound, video, links, layout, look and feel, control features and interfaces contained on the Website, or otherwise displayed, uploaded or published on, or via, the Platform;

“Member Showcase” means any recordings or materials we may, in our sole discretion, produce or reasonably ask your assistance in producing, including but not limited to case studies and testimonials;

“Parties” means the parties to this Agreement, being you and us;

“Payment Date” means the date a payment of Fees falls due and payable, as set out in clause 3 and Schedule A of this Agreement or as otherwise specified in writing by us, from time to time;

“Matching Fee” means fees payable by you to Us, for each and every Engagement you enter into;

“Platform” means talent matching platform that we use to connect Business Members and Talent Members. It is a web-based platform that is accessible at https://www.werkling.com/, and where applicable includes other platforms and technology used to support the Services;

“Platform Services” has the meaning given to it in clause 2;

“Restraint period” means the period during this Agreement and from the date of termination of this Agreement for:

i)  24 months, unless that period is in the circumstances found to be unreasonable to be enforceable at law or in equity, in which case;

ii)  18 months, unless that period is in the circumstances found to be unreasonable to be enforceable at law or in equity, in which case;

iii)  12 months, unless that period is in the circumstances found to be unreasonable to be enforceable at law or in equity, in which case;

iv)  9 months, unless that period is in the circumstances found to be unreasonable to be enforceable at law or in equity, in which case;

v)  6 months, unless that period is in the circumstances found to be unreasonable to be enforceable at law or in equity, in which case;

vi)  3 months.

“Services” means any Talent Matching Services, Talent Invoicing Services, Platform Services or any applicable Additional Services we provide to you in accordance with this Agreement;

“Subscription” means an active membership in respect of which you pay the Subscription Fee for access to the Services; 

“Subscription Fee” means a fee payable by You for each Business User for accessing the Services;

“Subscription Term” means the term agreed between us in writing, which may range from twelve (12) months to twenty-four (24) months in length;

“Talent Invoicing Services” has the meaning given to it in clause 2;

“Talent Matching Services” has the meanings given to it in clause 2;

“Talent Member” means an entity or individual who works as on-demand talent, freelancer, or independent consultant who use the Platform to access potential opportunities be connected with Business Members (or in some cases other Talent Members) and other community benefits;

“Talent Recommendation” means Werkling’s suggestion or proposal of a Talent Member as a prospective resourcing solution for an eligible project, gig, contract, employment or opportunity with a Werkling Member;

“Talent Panels” means a selection or pool of one or more Talent Members that:

a)  Werkling has Introduced to a Business Member, or put forward a Talent Recommendation in respect of;

b)  Which a Business Member accepted or expressed interest in; and

c)  Which Werkling and the Business Member subsequently agreed would be pre-selected by the Business Member to make gig or opportunity requests in respect of, as agreed by Werkling and the relevant Talent Member from time to time within the agreed Term.

“Term” means term from the Commencement Date until the completion or expiration of the Services, subject to any extension or earlier termination in accordance with clause 8 of this Agreement.

“Werkling Members” means Business Members, Talent Members, and/or any other entity that is provided our Services (as the situation requires). In this Agreement, unless the context requires otherwise:

a)  the singular includes the plural and vice-versa;

b)  words that are gender neutral or gender specific include each gender;

c)  headings are for convenience only and do not affect interpretation;

d)  a monetary amount is in Australian dollars and all amounts payable under or in connection with this Agreement are payable in Australian dollars;

e)  the words “including”, “for example”, “such as” or other similar expressions (in any form) are not words of limitation;

f)  where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; and

g)  a reference to:

     i)  a party includes its agents, administrators, successors, substitutes by novation and assigns;

      ii)  a person includes a natural person, body corporate, partnership, government agency, and any other legal or non-legal entity;

     iii)  any legislation or to any provision of any legislation includes variations, consolidations or replacements of that legislation and includes all regulations and other instruments issued under that legislation; and

h)  a requirement for an item to be in writing includes writing in electronic form.

2.  Services

Talent Matching Services for Business Members

2.1 We will provide you with the following Talent Matching Services, including, but not limited to:

a)  Briefing Services – to explore your business needs, project requirements and capabilities needs, and help you scope a gig brief so we can provide Talent Matching Services;

b)  Talent Identification Services – utilising our Platform and Talent Member data or otherwise to determine which Talent Members we may Introduce to you

c)  Talent Introduction, suggestion or proposal of a Talent Member as a prospective resourcing solution for an eligible project, gig, contract, employment or opportunity with a Werkling Member; and/or

d)  where we agree, ongoing support to help Talent Members be accessed by you, the nature, extent and duration of which shall be determined in our sole discretion,

(together and in the context of a Business Member, the “Talent Matching Services”)

Talent Invoicing Services

2.2  We will provide you with the following services, unless agreed otherwise:

a)  Invoicing Services- where we facilitate a Talent Member invoicing you and your payment of such invoices for a Talent Member Engagement or Engagements; and/or

b)  Aggregated Invoicing Services – for multiple Talent Members Engagement or Engagements (including without limitation where such Talent Members sub-contract each other),

(together and in the context of a Business Member, the “Talent Invoicing Services”).

2.3  All Werkling Members acknowledge and agree that we do not provide payroll services. However, if you require assistance with outsourcing your payroll, in respect of a Talent Member:

a)  we may assist, in our absolute discretion, only if you make a written request to us to provide payroll services for the Talent Member;

b)  To do so, we may engage third parties on your behalf, to assist you with the facilitating and/or managing of payroll functions and any other obligations in respect of a Talent Member’s Engagement;

c)  we may charge additional fees for facilitating such an arrangement; and

d) You remain fully responsible and liable for complying with the relevant laws and regulations regarding any such payments to the Talent Members.

Platform Services

2.4  As a Werkling Member we will also provide you with the following services related to the Platform:

a)  access to our unique, secure web-portal to submit and receive information in relation to gigs, and projects, Talent Recommendations or Talent Pools;

b)  where agreed by us, access to our onboarding or technical support services for the Platform;

c)  where applicable, communication and management tools relating to your participation as a Werkling Member and/or

d)  additional Platform features as they are developed and communicated to Members,

(together, the “Platform Services”).

2.5  You may be provided with Platform Services in order to access our Services through the Platform. The specifics of your Platform Services may be determined between every Werkling Member individually and separately.

Additional Services

2.6  We may provide you with additional services as outlined in Schedule B of this Agreement.

2.7  We may provide you with additional services after the date of this Agreement and as mutually agreed in writing between the Parties from time to time. The scope, nature and extent of any Additional Services shall be determined in our sole discretion, and may be subject to further fees, pricing mechanisms or payment processes as agreed between the Parties.

2.8  We may, in our sole discretion, provide general industry, talent market or career information to any Werkling Member or otherwise assist them as we see fit. You agree that under no circumstances will we need:

a)  your approval for this; or

b)  to share the basis, nature or contents of our communications with Members with you.

General

2.9  You agree and accept that in providing the Services:

a)  we are under no obligation to:

     i)  provide you or any Werkling Member the Services, or the Services with respect to any particular Werkling Member(s);

     ii)  make any specific recommendations or introduction to any Werkling Members regarding you or any opportunity, project, gig, or proposed Engagement;

     iii)  cease, censure or adjust any contact and communications we have with any Werkling Member, including without limitation if you are (or have been) matched with them; and/or

     iv)  agree to provide you with a greater degree of support in respect of a Werkling Member otherwise than as explicitly set out in this Agreement.

b)  we are under no obligation to, though we may, in our sole discretion:

     i)  assist a Werkling Member with gig, project or opportunity readiness as we see fit;

     ii)  include a Werkling Member or their perspectives (including without limitation in regards to their dealings with you or their reactions to any Member Showcase) in our Marketing Materials and communications;

     iii)  share any information or opinions collected from Werkling Members with you for feedback or other purposes; and/or

     iv)  provide you the Services, if and when opportunities arise over the duration of the Term or the Subscription Term.

2.10  You acknowledge and agree that once an Introduction and/or Talent Recommendation has been made, Werkling shall not be involved in the scope, nature or delivery of the Werkling Members’ Engagement in any extent. Werkling recommends that the Business Member and Talent Member enter into an agreement for the Engagement.

2.11  You acknowledge and agree that Werkling shall only be involved to provide Services in accordance with this Agreement, or by the application of this Agreement to any particular Werkling Member (e.g., to calculate or collect a Matching Fee, provide Talent Invoicing Services, gather Talent reviews, etc.).

2.12  All information we provide directly or via third parties in provision of the Services or access to the Platform is supplied in good faith, but we do not warrant or guarantee its accuracy or completeness, including without limitation where such information is tendered or provided by other Werkling Members.

2.13  Any times quoted for delivery, commencement or completion of any part of the Services will be estimates only and time will not be of the essence.

2.14  We may use Consultants to meet our obligations under this Agreement from time to time with your written consent. You agree not to unreasonably withheld consent to our use of Consultants.

2.15  Werkling provides no warranty as to the fitness of a Talent Member’s Engagement for the Business Member’s purpose or that the services rendered by the Talent Member shall be fit for purpose or will comply with the Australian Consumer Law or otherwise.

2.16  Werkling is solely responsible for Talent Matching Services and Services under this Agreement only.

2.17  You remain responsible for conducting your relevant due diligence of the Talent Member and their suitability prior to the Engagement, as you would in the ordinary course of business.

3.     Fees & Payment

Fees

3.1  You must pay us the Fees.

Matching Fee

3.2  A Matching Fee is payable in accordance with Schedule A of this Agreement. This Fee is applicable for each Engagement you enter with the Talent Member (whether through Werkling or otherwise) The Fee is calculated in accordance with Schedule A of this Agreement.

Subscription Fee

3.3  A Subscription Fee is payable in accordance with Schedule A of this Agreement.

3.4  All Subscription Fees shall automatically renew at the end of each Subscription Term, unless terminated in accordance with this Agreement. Unless otherwise agreed, all Subscription Fees must be paid:

a)  in accordance with Schedule A and this Agreement;

b)  By the Business Member for each Business User; and

c)  By Direct Debit or via Stripe, direct deposit or bank transfer, within 30 days of being issued a tax invoice by us (or as otherwise agreed in writing otherwise).

If a Subscription is cancelled, we will cancel all future payments of the Subscription Fee and you will not be charged for the next Subscription Term. However, we will be entitled to charge up to the full amount of any outstanding amounts payable in respect of the remaining months of any applicable Subscription Term.

3.5  If a Subscription began on a day not contained in a given month, we may bill for the relevant Subscription Term on another day in the applicable month as we deem appropriate.

Any other fee

3.6  We may charge any other Fee in accordance with Schedule A of this Agreement or as agreed in writing between the Parties.

Invoice

3.7  We will provide you with an invoice for the Fees incurred in respect of the Services.

3.8  We may render Invoices on a daily, weekly, fortnightly, month, bi-monthly, quarterly, bi-annually or annually, or as we see fit.

3.9  Each invoice shall set out the details of the relevant Fees and shall be due and payable within 30 days of being issued.

3.10  If we provide Talent Invoicing Service, depending on the nature of the Engagement, our Invoice shall also include money due and payable to the Talent Member by you. You remain fully liable to the Talent Member for money due and payable by you and associated costs, despite being rendered an invoice by us. We may charge a fee for this Talent Invoicing Service to you or the Talent Member.

3.11  For money due and payable to more than one Talent Member (in respect of your interactions with different Talent Members), you agree and accept that we may also aggregate money into a single invoice or multiple invoices. We may separate the money payable to each Talent Member in such circumstances. You remain fully liable to the Talent Members for money due and payable by you and associated costs, despite being rendered an invoice by us. We may charge a fee for this Talent Invoicing Service to you or the Talent Member.

3.12  We may provide you a lump sum invoice or an itemised invoice. If you receive a lump sum invoice, you shall need to seek an itemisation from the Talent Member that you engage.

3.13  If you have a dispute with our invoice or any part of our invoice, you agree to and must:

a)  pay the invoice in full without deduction;

b)  give us a written notice setting out the details of our objection, including supporting reasons and documentation within 3 business days of the Invoice date. If you do not provide such a written notice, you will lose your right to dispute the Invoice; and

c) give us 30 days from the date of your written notice to respond to your dispute. We may investigate your dispute at our sole discretion and are not obligated to take any particular action. If the dispute is resolved in your favour, a refund shall be processed to your for the amount resolved in your favour.

General

3.14  By using payment processing services provided by a third party (ie not Werkling) to engage Recommended Talent, you agree to be subject to any agreements specified to be applicable by such third party, which may be modified by the third party from time to time. As a condition of enabling payment processing services through a third party, you agree to provide us with accurate and complete information about you and your business, and you authorise us to share it and transaction information related to your use of the payment processing services provided by a third party.

3.15  If we do not receive payment of the Fees by any applicable due date:

a)  The Talent Member/s may elect to no longer complete work as required by the Engagement, until cleared funds are received in full;

b) We may sue you for the Fees and amounts payable;

c) We may charge interest on the outstanding amount at the rate as agreed between us in writing or pursuant to the Penalty Interest Act 1986;

d) We may charge you for any fees or expenses reasonably incurred in collecting outstanding amounts, payable by you on an indemnity basis;

e) We may require you to make advance payments of the Fee (or part thereof) or other amounts due in full or in part prior to provision of our Services;

f) We may Suspend your Subscription;

g) We may cease providing Services to you;

h) We may revoke your and your Business User’s access to the Platform; and/or

i) We may terminate this Agreement pursuant to clause 8.

3.16  Unless expressly stated otherwise, all amounts payable or the value of other consideration provided in respect of supplies made in relation to this Agreement are exclusive of GST (if any).

3.17  Unless otherwise agreed in writing, you shall make all payments, without tax deduction (unless a tax deduction is required by law. If you’re required to make a tax deduction by law, the payment due from you to us will be increased to an amount which (after making the tax deduction) leaves an amount equal to the payment which would have been due if no tax deduction had been required.

3.18  All Fees paid in connection to this Agreement or money due and payable or paid to the Talent Members are non-refundable.

4.     Werkling Member Obligations

General Obligations

4.1  You acknowledge and agree:

a)  to obtain independent professional legal and financial advice in relation to your participation as a Business Member under this Agreement (including without limitation in respect of any arrangements you enter into with other Werkling Members). Nothing in this Agreement is be construed as advice or necessarily appropriate for your situation;

b)  to maintain appropriate insurance that covers your actions and liabilities as a Werkling Member and your interactions with other Werkling Members (including without limitation (and where applicable) in respect of public liability, professional indemnity, workers compensation, or other industry-standard insurance.);

c)  to execute, with any Werkling Members whom you engage, a written agreement and statement of work that defines the scope of the engagement; and

d)  to immediately notify us in writing where any additional Engagement has been initiated with a Talent Member. This clause requires you to inform us in writing of any additional Engagement with the Talent Member.

e)  to ensure that your use or access of the Service and/or Platform will not advocate, support or practice discrimination based on race, religion, age, national origin, language, gender, sexual orientation, or disability;

f)  to co-operate with and assist us or our Consultants in the performance of the Werkling Services, including without limitation by undertaking all reasonable actions necessary to enable a Talent Introduction;

g)  to provide us and/or our Consultants with full and safe access to any location relevant for the Services or in compliance with this Agreement;

h)  where reasonably required or relevant, provide us or our Consultants with a suitable work space, materials, equipment and facilities required to carry out the Services.;

i)  to procure from the relevant third parties all necessary rights required for us to be able to provide the Services from time to time.

4.2  While using the Platform, and any associated Services, you must not:

a)  misuse any part of the Platform, including but not limited to introducing viruses, trojans or other material that is malicious or technologically harmful;

b)  modify the Platform or merge any aspect of the Platform with another program or software;

c)  encumber, transfer, license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Platform or make the Platform available to any third party (including, but not limited to, providing Platform login details or passwords, or otherwise provide access to or features of the Platform, to an unauthorised third party) unless otherwise agreed with us at payment;

d)  copy or use the Platform for any purpose other than as permitted in this Agreement;

e)  engage in unlawful behaviour, including unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;

f)  attempt to gain unauthorised access to any part of the Platform, the server on which the Platform is stored or any server, computer or database connected to the Platform;

g)  engage in any activity that interferes with or disrupts the Platform or Services or the servers and networks that host the Platform or otherwise engage in any conduct on the Platform that is in breach of this Agreement (or any agreements mentioned therein);

h)  attempt to circumvent, disable or otherwise interfere with any security-related features of the Platform or Services or any features that prevent or restrict the use or copying of any content or enforce limitations on the use of the content of the Services or the Platform;

i)  modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Platform;

j) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Platform;

k)  engage in any abusive or derogatory behaviour; or

l)  advocate, support or practice discrimination based on race, religion, age, national origin, language, gender, sexual orientation or disability,

m)  comply with the relevant terms and conditions, as amended from time to time

unless otherwise permitted by us, in our sole discretion.

4.3  All Parties to this Agreement shall not:

a)  make any public announcements or statements about the other party or any commercial arrangement it enters into with the other party without the other party’s prior written consent;

b)  use any Marketing Materials or infringe on any of the other party’s rights in respect of Marketing Materials without the other party’s prior written consent; or

c)  explicitly or implicitly disparage us, the other party, the other party’s Consultants, any of our related parties or other Werkling Members, including without limitation through communications made or transmitted over the internet.

Acknowledgments

4.4  You acknowledge and agree:

a)  that you ought to enter into an agreement with the Talent Member (s) and this agreement, which is separate to this Agreement, may include:

     i)  the specific details, scope, deliverables, timeframe, milestones, costs and requirements of any Engagement, relevant gig or opportunity;

     ii)  Quotes and cost pertaining to an Engagement provided to Business Members from Talent Members (exclusive of Werkling fees);

     iii)  any requirements around background checks, vetting or gauging suitability for a particular role or opportunity;

     iv)  the legal relationship of the parties;

     v)  any terms relating to sub-contracting;

     vi.  any terms covering the provision of equipment or reimbursements;

     vii)  any terms relating to any possible limitations of liability, warranties, insurances or indemnities;

     viii)  any terms outlining procedures or requirements in respect of conflicts of interest;

     ix)  any terms governing the ownership of intellectual property, or confidentiality between the parties;

     x)  any terms relating to insurance policies, qualifications, accreditations or other ancillary matters relevant to the relationship between the Werkling Members; and/or

     xi)  anything that the parties consider necessary to protect their interests or that they determine requires to be included.

     xii)  For the avoidance of doubt, Werkling is not a party to this agreement between you and the Talent Member and/or other Werkling Member. Werkling is solely responsible for providing the Services under this Agreement only, including but not limited to Talent Matching Services and Talent Invoicing Services.

b)  to accommodate and take all reasonable actions in screening, meeting and entering into discussions with Talent Members we have Introduced you to. You are not obligated to make any specific offers to a Talent Member;

c)  that Talent Members shall typically be engaged as independent consultants via an agreement and statement of work;

d)  that the Talent Member with whom you engage is responsible for delivering the agreed work under the Engagement; and

e)  that any dispute or issue resulting from a Talent Member’s actions or inaction will be between the Business Member and the Talent Member and we are not obliged to be involved in anyway.

5.     Warranties

5.1  We will use reasonable care and skill in performing the Services.

5.2  You warrant that your compliance with this Agreement or any other agreement between us will not violate any duty or interest you owe to any other person or entity, and you agree you will not do anything in performance of your obligations under this Agreement that would violate such a duty. If you come to realise that there may be a conflict of interest, or that you owe a duty to any other entity, you will let us know in writing as soon as practicable.

5.3  You agree to use reasonable endeavours to ensure the information, data and explanations you provide to us are full and accurate and notify us in writing if there is any change to the information or explanations supplied.

5.4  From time to time, we may ask other Werkling Members about their experiences and interactions in dealing with each other, including in respect of their interactions with you. The content, scope and nature that such feedback may be determined by us in our sole discretion and without limitation may be used to develop internal ranking mechanisms. You warrant that if you participate in such feedback, you will provide accurate and true information, which shall not include any offensive or defamatory language.

5.5  Except as agreed by us in writing, and to the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Services and/or the Platform provided hereunder is given or assumed by us, and all implied warranties are hereby excluded.

6.     Limitations of Liability and Indemnities

6.1  We are not liable in any way for any costs, delays or interruptions caused by your failure to comply with your obligations under this Agreement, including without limitation in respect of your obligations set out in clause 4 and any event that occurs as set out in clause 11. You agree to indemnify us for any loss or damage arising from your action, inaction, or failure to comply with your obligations under this Agreement or any laws.

6.2  You also indemnity us from any loss or damage arising from the Talent Member’s Engagement and otherwise.

6.3  We are not liable in any way for a Talent Member’s performance during an Engagement or actions at any stage of our dealings with you, or a Werkling Member’s dealings with you, and in no way do we guarantee or make any representation about whether, or how Talent Members will interact with you or other Werkling Members.

6.4  You accept and agree that we are not liable for any costs, delays or interruptions that are caused by Talent Members.

6.5  Our total liability to you (whether based on warranty, contract, tort, statute, misrepresentation or otherwise) arising out of, or in connection with, this Agreement, for any one event or a series of related events, will be limited to $1,000 (excluding GST).

6.6  Nothing in this Agreement will in any way exclude or limit either party’s liability to the other for death or personal injury caused by negligence, or liability for fraudulent misrepresentation or for any other liability which by law it is not possible to exclude or limit.

6.7  Neither party will be liable for any direct, indirect, consequential, special or incidental loss or damages of any kind caused by any Werkling Member, including any loss of revenue, loss of profits, failure to realise expected profits or savings, overhead costs or other economic losses, in contract, tort (including negligence) under any statute otherwise arising out of or in any way connected to this Agreement.

6.8  The parties acknowledge that the limitations of liability contained in this clause are a fair and reasonable allocation of the commercial risk between the Parties.

6.9  This clause 6 survives the termination or expiry of this Agreement.

7.     Confidentiality

7.1  The Parties to this Agreement must not use or disclose Confidential Information disclosed or made available by the other party to this Agreement, except for such use(s) or disclosure(s) required to perform its obligations under this Agreement.

7.2  A party who receives Confidential Information (“Recipient”) may disclose Confidential Information to its employees, officers, agents or contractors only if:

a)  such person needs to know the Confidential Information to perform the Recipient’s obligations under this Agreement; and

b)  the Recipient has taken all reasonable steps to obtain such person’s agreement to comply with similar obligations of confidentiality under this clause 7.

7.3  You agree that information will not be treated as confidential, and a receiving party shall have no obligation of confidentiality, where the information:

a)  is provided for the purposes of, or otherwise in connection with the delivery of Services, including where such information is disclosed to other Talent Member or Werkling Members;

b)  is already in the public domain;

c)  enters the public domain through no fault of the receiving party;

d)  is received from a third party without any obligations of confidentiality;

e)  is used or disclosed with the prior written consent of the owner of that information;

f)  is disclosed in compliance with a legal requirement; or

g)  is independently developed by either party without reliance on any Confidential Information.

7.4  Any Confidential Information will be returned or destroyed at the written request of the owner.

7.5  If we execute a separate confidentiality agreement with you, the terms of that agreement will prevail.

7.6  As required, you may execute a confidentiality agreement with any Talent Members you engage prior to the Engagement or commencing any work. It will be separate to this Agreement.

7.7  This clause 7 survives termination or expiry of this Agreement.

8.     Termination

Termination without cause

8.1  Either party may terminate this Agreement, for any reason whatsoever, by giving the other party written notice of no less than 90 calendar days before the effective date of termination.

Termination with cause

8.2  Either party may terminate this Agreement immediately by written notice if:

a)  the other is in breach of this Agreement to a material extent and fails to remedy the breach within 14 days of being notified of the breach in writing (if it is capable of being remedied); or

b)  the other party is bankrupt, in a voluntary arrangement, in liquidation or receivership or has ceased business or threatened to cease business or is otherwise insolvent.

8.3  We may, at our absolute discretion, terminate this Agreement or cease to supply you with access to the Platform and/or the Services immediately if:

a)  it transpires that you have provided false or misleading information to us or on the Platform;

b)  we find that you have been offensive or abusive to another Werkling Member; or

c)  you fail to pay any amounts payable by you to us and such amounts remains unpaid for 7 days after notice has been to you that such amounts have not been paid.

8.4  If notice is given to terminate this Agreement, both Parties agree and acknowledge that they will continue to perform their obligations under this Agreement in good faith until the termination date.

8.5  On termination of this Agreement, we will be entitled to payment for all outstanding amounts payable by you under this Agreement to us or to the Talent Member, including without limitation any Fees, any interest, or any other amounts due and payable by you.

8.6  This clause 8 survives termination or expiry of this Agreement.

9.     Intellectual Property

9.1  All Intellectual Property Rights discovered, developed or which otherwise comes into existence in connection with performance of this Agreement (including without limitation in connection with the Services we provide you and the creation of any Member Showcase or other Marketing Materials) will immediately and automatically vest in, and are assigned to, Werkling unless otherwise agreed by the Parties in writing (“Developed IP”). You agree to take all the necessary steps to ensure that the Developed IP will vest in and remain vested in us.

9.2  Clause 9.1 does not apply to:

a)  any pre-existing Intellectual Property Rights owned by you before entry into this Agreement (“Background IP”); an

b)  any Intellectual Property Rights created as a result of the provision of services by a Talent Member to other persons or entities.

9.3  You may not modify or copy the layout or appearance of the Services or any computer software or code contained in the Services or Platform, nor may you decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the Services.

9.4  You must not in any form or by any means reproduce, modify, distribute, store, transmit, publish, use or display the Services or Platform on another website or commercialise any information obtained from any part of the Services or Platform without our prior written consent.

9.5  By uploading, posting, transmitting or otherwise making available any Material via the Services or Platform, you:

a)  represent and warrant that you either own the Intellectual Property Rights in that Material or have the necessary permission to upload, post, transmit or otherwise make available that Material via the Platform or to us in the provision of the Services;

b)  authorise us to use your name, logo and any ancillary Intellectual Property Rights or other business identifiers when referring to our Services or business partners (including in instances where we display this information alongside similar information from other partners we work with) and for the purposes of delivering the Services and marketing and promotional purposes; and

c)  grant to us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable licence to use, publish, reproduce and otherwise exploit the Material in any form including for the purposes of delivering the Services and promoting our relationship with Werkling Members for the term of this Agreement and you agree to unconditionally waive any moral rights that you might have in respect of the Material.

9.6  We grant you a non-exclusive, non-transferable, revocable and royalty-free licence to use the Intellectual Property Rights owned by us that have been provided to you for the sole purpose of carrying out your business during the Term, except for any Intellectual Property Rights contained in Marketing Materials and any ad hoc advisory services we may separately provide to you.

9.7  No party may sub-license its rights under this clause 9 without the other Parties’ prior written consent.

9.8  This clause 9 survives termination or expiry of this Agreement.

10.  Non-Solicitation

10.1  Nothing in this Agreement will be construed to limit the duty or duties owed by You to us, including the duty of loyalty and fidelity.

10.2  During the Restraint Period, You must not:

a) Without Werkling’s written consent, enter another Engagement (in any capacity including but not limited to an independent contractor, employee, consultant, contractor, director, client, adviser (formal or informal), principal, agent, manager, equity holder, employee, partner, associate, franchisee, franchisor, unit holder, member, shareholder, beneficial owner, beneficiary, trustee, joint venturer or financier) with a Talent Member or another Werking Member;

b) Canvass, solicit, induce, encourage any person who was a staff member, employee, contractor or key personnel of Werkling to leave us and join You in any capacity (including but not limited to consultant, contractor, director, client , adviser (formal or informal), principal, agent, manager, equity holder, employee, partner, associate, franchisee, franchisor, unit holder, member, shareholder, beneficial owner, beneficiary, trustee, joint venturer or financier); or

c) Without Werkling’s written consent, canvass, solicit, induce, encourage any person who was a Talent Member of Werkling to join You in any capacity (including but not limited to consultant, contractor, director, client, adviser (formal or informal), principal, agent, manager, equity holder, employee, partner, associate, franchisee, franchisor, unit holder, member, shareholder, beneficial owner, beneficiary, trustee, joint venturer or financier);

d) Canvass, solicit, approach or accept any approach from any person who was or is a staff member, employee, contractor, Talent Member or key personnel of Werkling; and/or

e) Engage a Talent Member directly (in any capacity) unless done in agreement with   

10.3  You acknowledge that:

a)  Each agreed restraint specified above is, in the circumstances, reasonable and necessary to protect the genuine business interests of Werkling;

b)  Damages are not necessarily an adequate remedy if You breach this restraint clause; and

c) We may apply for injunctive relief if:

     i)  You breach or threatens to breach this restraint clause; or

     ii)  We believe that you are likely to breach this restraint clause.

10.4  Each party agrees that if:

a)  A court of competent jurisdiction finds that any provision of this restraint clause is an unenforceable provision not enforceable at law or in equity; and

b)  The unenforceable provision would be enforceable if:

     i)  One or more of the alternate periods referred to in the definition of restraint period were deleted; or

     ii)  One or more of the alternate areas referred to in the definition of restraint area were deleted,

then the unenforceable provision must be made enforceable by making those deletions.

10.5  This clause 10 survives termination or expiry of this Agreement.

11.  Situations or events outside our reasonable control

11.1  There are certain situations or events (not within our reasonable control) that can occur which will stop us from performing the Services. Where one of these occur, we will notify you and attempt to recommence performing the Services as soon as the situation has been resolved. In such circumstances there may be a delay (sometimes a substantial delay) before we can start or continue performing the Services.

12.  Notices

12.1  Any notice required to be given under this Agreement will be in writing (including email) and will be sent to the other party at the address specified in this Agreement or in the account created on the Werkling platform (or to such other address as either party may notify to the other party in writing in accordance with this clause).

12.2  Where the delivery time is contested, a correctly addressed notice sent by post will be deemed to have been delivered 72 hours after posting, and correctly addressed emails will be deemed to have been delivered 24 hours after sending.

13.  Dispute Resolution

13.1  If a dispute arises in relation to this Agreement, a party (“Provider”) may give the other party (“Recipient”) a written notice adequately identifying the matters in dispute (“Dispute Notice”).

13.2  Within 10 days of the Provider giving a Dispute Notice, the parties must meet informally and attempt to resolve the dispute. If a resolution is not achieved within 10 days from the informal meeting, the Provider may give the Recipient written notice requiring the dispute to be referred to mediation (“Mediation Notice”).

13.3  If a Mediation Notice is given, the parties will appoint a mediator in writing, or if the parties cannot agree on a mediator within seven (7) days of the Mediation Notice being served, a mediator will be appointed by the Chair of Resolution Institute or the Chair’s designated representative. The parties or their nominated representatives must attend any arranged mediation to attempt to resolve the dispute and unless otherwise agreed by the parties, the Resolution Institute Mediation Rules will apply to the mediation.

13.4  The costs of mediation will be shared equally by the parties unless otherwise agreed in writing.

13.5  If the dispute identified in the Mediation Notice is not resolved within 14 days of appointment of the mediator, either party may seek mediation again pursuant to this clause, with the parties agreeing that the mediator will make a binding resolution.

13.6  No party may commence litigation unless they have first complied with this clause, except where the party is seeking urgent interlocutory relief.

13.7  Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.

13.8  This item survives the termination or expiry of this Agreement.

14.  General

14.1  This Agreement, and the relationship it sets out, is not in any way exclusive. You acknowledge and accept that we or our Consultants may continue to provide any Services or any related information to or on behalf of multiple Werkling Members or other persons. Unless explicitly stated, nothing in this Agreement will restrict us in our dealings with any other entities in any way.

14.2  This Agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.

14.3  No party may assign, transfer or otherwise deal with this Agreement or any right under this Agreement without the prior written consent of each other party, which must not be unreasonably withheld.

14.4  In the event of any inconsistency between the terms and conditions and Schedule B, Schedule A- Key Terms will prevail to the extent of any such inconsistency.

14.5  If either party chooses to waive or ignore a breach of this Agreement, this will not prevent that party from taking action in respect of the same type of breach at a future date.

14.6  This Agreement will not constitute or imply the entry into any partnership, joint venture, agency, fiduciary relationship or other relationship between Us. You shall have, nor represent that it has, any authority to bind Werkling, or assume or create any obligations on our behalf.

14.7  If any provision of this Agreement is held invalid or unenforceable, such provision will be deemed deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the parties’ intent in agreeing to the original provision. The remaining provisions of this Agreement will continue in full force and effect.

14.8  This Agreement is governed by the laws of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.

14.9  This Agreement may be executed electronically and in counterparts, and all counterparts taken together will constitute one instrument.

14.10  This Agreement constitutes the entire agreement between the parties in respect of the subject matter of this Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings. You acknowledge that in the event of any conflict between the terms and conditions made available by us on our website and any terms and conditions we specifically provide to you, the former will prevail. The parties confirm that they have not relied on any representation that is not expressly incorporated into this Agreement.

a)  Notwithstanding any other provisions of this Agreement:

     i)  We consent to you publishing all such information as is necessary to comply with the legislative requirements of and the Auditor-General and any freedom of information legislation or regulations as applicable from time to time;

     ii)  We acknowledge that we will be bound by the Information Privacy Principles (being the information privacy principles set out in the Privacy and Data Protection Act 2014 (Vic) and any applicable code of practice as defined in, and approved under such legislation; and

     iii)  We acknowledge that we will be bound by protective data security standards being any such standards issued under Part 4 of the Privacy and Data Protection Act 2014 (Vic).

Schedule A

Our details

 Werkling Pty Ltd (“Werkling”, “we”, “us” or “our”)

ACN: 638 605 302

Address: PO Box 382, Chelsea VIC 3196

Email: hello@werkling.com

Services

Subject to this Agreement:

a)  we will provide you with the relevant Talent Matching Services, Talent Invoicing Services and Platform Services; and

b)  we may also provide you Additional Services in accordance.

Any Additional Services offered will be detailed in Schedule B, an addendum to this Agreement or an annexure or schedule of this Agreement.

Term

This Agreement shall have effect from the date that the last of the Parties agree to the terms (“Commencement Date”) until validly terminated in accordance with clause 8 of the Agreement

Fees  

The Fees payable by you in respect of the Services are set out below:

a)  for each Engagement (as defined in clause 1.1 of the Agreement) you enter into, you will pay us a total fee of:

     i)  16% (or as amended by Werkling from time to time) of the total (gross) value of the Engagement excluding GST. The total (gross) value includes the total compensation including bonuses, incentives, bonuses and other value or benefits agreed between you and the Talent Member. The total (gross) value shall be the greater of the amount agreed between you and the Talent Member or paid by you to the Talent Member.

     ii) 16% (or as amended by Werkling from time to time) of the total (gross) value of the Engagement excluding GST.If you engage the Talent Member again after the initial Engagement. The Matching Fee is payable for every Engagement, calculated in the same manner as outlined in 5 b i of this Schedule A.

     iii)  16% (or as amended by Werkling from time to time) of the total (gross) value of the Engagement excluding GST if you engage the Talent Member directly or otherwise (through Werkling or otherwise). The Matching Fee is still payable for every engagement with the Talent Member within 18-month period from the Commencement Date of the First Engagement.

     iv.  For example, the Matching Fee will be $16+gst if you engage the Talent Member for a 1- month Engagement with the total gross value of $100+gst. If the Talent Member is engaged again directly or otherwise, if say during the 18-month period, the total gross value of the engagements with the Talent Member is a $1,000+gst, $160.0+gst will be payable as the Matching Fee.

Subscription Fees – Standard Approach

A Subscription Fee of A$19.95+gst per month of the Subscription Term, per Business User who may access the Services, excluding GST (“Subscription Fee”). Your Subscription Term is a minimum of 12 months or as otherwise specified in writing. The Subscription Fee only allows for one Business User to access the Services. If you require access to be given to more than one Business User within your Business Member organisation, please contact us for team and enterprise memberships or subscriptions;

and/or

a)  any other Fees (such as invoice administration fees or bespoke Talent Panel fees) as mutually agreed by the Parties, including without limitation where such agreement is set out in writing.

(together, “Fees”).

Payment

Payment of all Fees must be made to the following Australian bank account, unless otherwise directed by us:

Name:  Werkling Pty Ltd
BSB:    313140
ACC:    12247381

If we have agreed to take payment via direct debit, any payment for Fees may be taken as the relevant Fees are incurred.

Special terms

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Schedule B

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