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Terms and Conditions

Terms for Business

Werkling Pty Ltd (ACN 638 605 302) (“Werkling”, “we”, “us” or “our”) will provide the Services to you on the following terms and conditions (“Legal Terms”). By using or accessing our Services, you agree to comply with the Legal Terms. 

1.    Definitions 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 clause 2;
“Agreement” means the agreement constituted by these Legal Terms and any Key Terms provided to you by us;
“Business Day” means a day other than a weekend or public or bank holiday in Victoria, Australia;
“Business Member” means an individual within a business, a business, organisation or entity that uses the Services or Platform to be connected with Talent Members;
“Commencement Date” means the commencement date that the last of the parties signs or otherwise agrees to be bound by this Agreement, including acceptance on the Platform; 
“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;

(a)    in respect of Business Members, means each Introduction or Talent Recommendation in respect of which you make an offer to enter into a placement 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 a statement of work, contractor agreement, formal employment or any other engagement type);
(b)    in respect of Talent Members, means each Introduction or Talent Recommendation in respect of which you accept an offer to enter into a placement or in respect of a gig, project role or opportunity made by a Business Member (including without limitation through the execution of a statement of work, contractor agreement, formal employment or any other engagement type

“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 any Key Terms provided to you or as otherwise specified in writing, in accordance with clause 3 of these Legal Terms;
“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 as part of Talent Matching Services, which includes without limitation any ancillary services or deliverables;
“Key Terms” means the document containing key details including, without limitation, party details and Fees;  
“Location(s)” means the location(s) where the Services are to be provided as set out in the Key Terms, or otherwise in 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 any Key Terms provided to you or as otherwise specified in writing, in accordance with clause 3 of these Legal Terms;
“Matching Fee” means all fees payable by you for each 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, and where applicable includes other platforms and technology used to support the Services;
“Platform Services” has the meaning given to it in clause 2;
“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 in return for Fees;
“Subscription” means an active subscription or membership in respect of which you pay the Subscription Fee for access to the Services on the basis of a Subscription Term, or as otherwise agreed between us time to time; 
“Subscription Fee” means a fee payable in respect of accessing the Services during a Subscription Term as set out, updated or amended by us from time to time;
“Subscription Term” means each billing cycle as determined by you, which may be one (1) month, six (6) months, twelve (12) months or twenty-four (24) months in length unless we agree in writing for different time period;

“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 uses the Services or 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 placement 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 accessible to 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 the Legal Terms. 
“Werkling Members” means Business Members, Talent Members, and/or any other entity that is provided our Services (as the situation requires). If you are contracting with us for the supply of Services directly to a third party then you will:

(a)    procure that such third party will comply with the terms of this Agreement; and
(b)    indemnify us for any claim, loss, damage or expense incurred by us as a result of any breach of the terms of this Agreement by such third party.

1.2.    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.    If you are a Business Member, we will provide you with the following Talent Matching Services:

(a)    briefing services that allow us to understand your business needs, capabilities and the requirements and scope of any work, gigs, projects talent needs we can provide assistance in resourcing;
(b)    talent identification services to determine which Talent Members we may Introduce to you. The identification services will be set and provided in our discretion, and may include peer referral, initial and ongoing interviews and assessment, reviewing business feedback about a Talent Member and/or any further processes or mechanisms which we consider appropriate or as reasonably requested by you;
(c)    talent identification, introduction, recommendation and/or referral services in respect of Introductions, Talent Recommendations or Talent Panels to address your project needs as a business; and
(d)    where we agree, ongoing support to help Talent Members be accessed by your organisation, 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 Matching Services for Talent Members
2.2.    If you are a Talent Member, we will provide you with the following Talent Matching Services:

(a)    profiling services to allow you to list and provide information relevant to Introductions or Talent Recommendations, such your experiences, qualifications and examples of prior work;
(b)    briefing services that allow us to understand and validate your capacity, capabilities, availability and scope of opportunities sought;
(c)    opportunity development services to help determine which Werkling Business Members we may Introduce to you, including without limitation as part of a Talent Panel (where you also agree to this);
(d)    introduction and recommendation services whereby we will facilitate your Introduction to a Business Member in respect of a specific opportunity, gig, project or role (to be clear our Service here will be making the Introduction, and in no way do we guarantee, warrant or represent any specific outcome from this Introduction);
(e)    where we agree, a degree of ongoing support to assist in confirming your placement with a Business Member; and 
(f)    where we agree, panelling services to facilitate you being accessed in the future by relevant Business Members as part of a Talent Panel, the nature, extent and duration of which shall be determined in our sole discretion, 
(together and in the context of a Talent Member, the “Talent Matching Services”).

Talent Invoicing Services 

2.3.    If you are a Business Member, we will provide you with the following services unless stated otherwise:

(a)    invoicing services, where we facilitate a Talent Member invoicing you and your payment of such invoices; and
(b)    aggregated invoicing services for multiple Talent Members that have been successfully placed in your organisation, including without limitation where such Talent Members sub-contract each other,,
(together and in the context of a Business Member, the “Talent Invoicing Services”).

2.4.    If you are a Talent Member, we will provide you with invoicing services where we facilitate your invoicing of a Werkling Business Member and the payment of such invoices, including without limitation where you are connected with a Werkling Business Member as part of a Talent Panel or other aggregated or “team” arrangement, unless stated otherwise (in the context of a Talent Member, the “Talent Invoicing Services”).
2.5.    All Werkling Members acknowledge and agree that if you require assistance with managing your payroll:

(a)    we may engage third parties to assist you with the facilitating and/or managing of payroll functions and any other obligations in respect of a Talent Member’s placement in a Business Member’s organisation on your behalf; and 
(b)    we may charge additional fees for facilitating such an arrangement.

Platform Services
2.6.    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 create your Talent Profile and receive information in relation to gigs, projects, Talent placements 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, or in a Talent Pools; and
(d)    additional Platform features as they are developed and communicated to Members, 
(together, the “Platform Services”).

2.7.    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
2.8.    We may provide you with additional services 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.
2.9.    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.

2.10.    You agree and accept that in providing the Services:

(a)    we are under no obligation to:

i.    provide you or any Werkling Member with Services with respect to any particular Werkling Member(s);
ii.    make any specific recommendations to any Werkling Members regarding you or any opportunity, project, gig, or role availabilities;
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 role 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 as and when opportunities arise, as determined in our sole discretion, over the duration of the Term.

2.11.    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, except if otherwise required 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. 


3.    Fees & Payment    

3.1.    In consideration of the provision of Services, Werkling Members shall pay us the relevant Fees as specified by us in writing or as otherwise specified in the Key Terms.
3.2.    A Matching Fee is applicable for each Engagement you enter into within the 18-month period from the first Engagement.  A reduced fee may apply beyond 18month where Talent Invoicing Services are provided.
3.3.    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 any Key Terms provided to you; or 
(b)    if you have not been provided with any Key Terms, via Stripe, direct deposit or bank transfer within 30 days of being issued a tax invoice by us. 

In the event that 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.
3.4.    In the event that 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.
3.5.    We will provide you with an invoice for the Fees incurred in respect of the Services. Each invoice shall set out the details of the relevant Fees and shall be due and payable within 30 days of being issued. Depending on the nature of the engagement with the between Talent Werkling Members, our Fees may be invoiced monthly or at agreed milestones as set out in the Talent Member’s statement of work.  
3.6.    You agree and accept that we may also aggregate Fees payable in respect of your interactions with different Werkling Members into a single invoice or multiple invoices provided to you on a monthly basis or otherwise decided by us in our sole discretion. We will itemise each Fee payable in such circumstances. 
3.7.    If you are a Talent Member and where we provide you with Talent Invoicing Services:

(a)    you must provide us an invoice in accordance with the agreed payment schedule and unless otherwise agreed with a payment due date of 32 days;
(b)    you acknowledge that our role is merely to facilitate payments between our Werkling Members, and you agree not to hold us responsible or liable for payment of your invoice(s) for any such durations during which we have not received payment from the relevant Business Member; and
(c)    we will facilitate payment within 2 Business Days of us receiving the relevant payment from the relevant Business Member.

3.8.    If you have an issue with one of our invoices for the Services, you agree to:

(a)    pay any undisputed amount or part of the invoice in full;
(b)    pay any disputed amount of the invoice, which may be processed as a separate transaction and will be returned to you if the relevant dispute is resolved in your favour;
(c)    give us a notice setting out the details of our objection, including supporting reasons and documentation; and
(d)    give us 30 days from the notice to respond to your claim – how we proceed from here remains up to us, and we are not forced to take any particular action under this Agreement.

3.9.    By using payment processing services provided by a third party, 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. 
3.10.    If we do not receive payment of the Fees by any applicable due date, we:

(a)    will be entitled to withhold providing any Werkling Member the Services until payment is received in full and in cleared funds; and
(b)    may charge interest on the outstanding amount at the rate as agreed between us in writing;  
(c)    may charge you for any fees or expenses reasonably incurred in collecting outstanding amounts;
(d)    may require that a Werkling Member make advance payments of the Fee (or part thereof) or other amounts due in full or in part prior to provision of our Services; and/or
(e)    may terminate this Agreement pursuant to clause 8.

3.11.    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).
3.12.    Unless otherwise agreed in writing, all Werkling Members 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.
3.13.    All Fees paid in connection to this Agreement 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 Werkling 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. You agree to these terms even if it means you need to take out new policies, and you agree to provide us with proof of these insurance policies if we ask for it;
(c)    to take all reasonable precautions to ensure that all work carried out for, or work environment provided to, other Werkling Members are compliant with all relevant work health and safety requirements, including without limitation where such requirements are set out in specific regulations, standards and legislation;
(d)    to execute, with any Werkling Members whom you engage, a written agreement (e.g., a statement of work) that defines the scope of the engagement; and
(e)    to immediately notify us in writing where an additional Engagement has been initiated within an 18 month period from the first Engagement. 
(f)    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;
(g)    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 successfully match with another Werkling Member;
(h)    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; 
(i)    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. Anything provided pursuant to this clause 4.5(f) shall be at your cost;
(j)    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, 

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.
Specific Obligations for Talent Members 

4.4.    If you access our Services and/or Platform as a Talent Member, you agree and accept the following obligations and conditions: 

(a)    you will not rely on our Services for the existence or efficacy of your business, and that our Services or Platform are only used to for efficiency in connecting with commercial opportunities;
(b)    any income or enrichment you earn in connection with the Services or Platform shall not equal or exceed 75% of your gross income;
(c)    if you breach, suspect you will breach, or should reasonably suspect you will breach the threshold set out in clause 4.10(b) above you agree to provide us with written notice as soon as practicable; 
(d)    to the fullest extent possible, you agree to assume all responsibility for dealing with the relevant Werkling Members on this point and you agree not to hold us liable for any losses, damages or actions resulting from your provision of subsequent services or deliverables; 
(e)    you are responsible for documenting in writing any agreement or statement of work between yourself and any Business Member for each Engagement, including deliverables, cost, timing, and any relevant terms and conditions; and
(f)    unless otherwise agreed, you will issue any invoices in relation to Talent Invoicing Services provided by us with a due date of 32 days of its date of issue (30 day business payment terms + 2 day Werkling payment).

Obligations for All Werkling Members 

4.5.    All Werkling Members acknowledge and agree:

(a)    that the concepts to be explored, negotiated and settled between successfully matched Werkling Members may include:

i.    the specific details, scope, deliverables, milestones, and requirements of any relevant role, gig or opportunity;
ii.    any requirements around background checks, vetting or gauging suitability for a particular role or opportunity;
iii.    the legal relationship of the parties;
iv.    any terms relating to sub-contracting;
v.    any terms covering the provision of equipment or reimbursements;
vi.    any terms relating to any possible limitations of liability or indemnities;
vii.    any terms outlining procedures or requirements in respect of conflicts of interest;
viii.    any terms governing the ownership of intellectual property, or confidentiality between the parties; and/or
ix.    any terms relating to insurance policies, qualifications, accreditations or other ancillary matters relevant to the relationship between the Werkling Members.

(b)    to accommodate and take all reasonable actions in screening, meeting and entering into discussions with Talent Members we have Introduced you to. To be clear, this does not oblige you to make any specific offers;
(c)    that Talent Members shall typically be engaged as independent contractors, unless agreed in writing between the respective Werkling Members otherwise, with written notice of such an agreement to be provided to Werkling as soon as practicable; 
(d)    that the Talent Member with whom you engage is responsible for delivering the agreed work; 
(e)    that the Business Member with whom you engage is solely responsible for paying all invoices in respect of the work done by the Talent Member and our role is merely to facilitate payments between Werkling Members; 
(f)    that any dispute or issue resulting from a Talent Member’s actions or inaction (whether arising in connection with Services provided under the Agreement or not) will be between you and the Talent Member and we are not obliged to be involved in anyway; and
(g)    to ensure the information set out in any agreement between yourself and another Werkling Member, invoice or other written notification is correct and appropriate.

5.    Warranties

5.1.    We will use reasonable care and skill in performing the Services.
5.2.    You warrant to us that you have all the required qualifications, expertise, skills and knowledge necessary to competently meet your obligations under this Agreement. You also warrant that you will take all necessary steps to ensure that your products and services are provided without risk to anyone’s health and safety.
5.3.    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.
5.4.    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.
5.5.    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.
5.6.    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.    We are not liable in any way for a Talent Member’s success, continued engagement, engagement performance, or continued employment 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 other Werkling Members.
6.3.    You accept and agree that we are not liable for any costs, delays or interruptions that are caused by Talent Members, even if they are acting in relation to support services offered to them. 
6.4.    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 the total Fees paid (excluding GST and expenses) by you to us in the 12 months immediately prior to the event(s) complained of, and even then our liability shall only be calculated in respect of the Fees of particular Talent Members whose Talent Recommendations or placements have been complained of. 
6.5.    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.
6.6.    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. 
6.7.    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. 
6.8.    This clause 6 survives the termination or expiry of this Agreement.


7.    Confidentiality
7.1.    All Parties to this Agreement must not use or disclose Confidential Information disclosed or made available by a party to this Agreement or any other Werkling Member to it, 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.    Werkling and all Werkling Members 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 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, Business Members should execute a confidentiality agreement with any Talent Members it engages prior to commencing any work.
7.7.    This clause 7 survives termination or expiry of this Agreement.


8.    Termination
8.1.    Either party may terminate this Agreement at their absolute discretion and for any reason whatsoever by giving the other party written notice 90 days before the effective date of termination.
8.2.    Either party may terminate this Agreement immediately on 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 (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 14 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 for whatever reason, we will be entitled to payment for all outstanding amounts payable by you under this Agreement, including without limitation any Fees that have accrued any interest, properly incurred up to the date of termination and during any notice period. 
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.    Prior to entering into an Engagement, all relevant Werkling Members must determine any Intellectual Property Rights that may be affected by this Agreement.
9.9.    This clause 9 survives termination or expiry of this Agreement.


10.    Non-Solicitation
10.1.    All Werkling Members will not attempt to engage or employ either directly or indirectly any of our Consultants or Werkling Member (or where applicable, that Werkling Member’s agents, representatives, employees and officers) during the Term and for 18 months after termination or expiry of this Agreement, without our prior written consent. If you are in breach of this clause, we will be entitled to terminate this Agreement in accordance with clause 8.
10.2.    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 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 of these Legal Terms and Key Terms, the 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 the Werkling and any Werkling Member other than the contractual relationship expressly provided for in this Agreement. No Werkling Member 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.

Terms for Talent
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