Independent Contractor Agreement
This Agreement ("Agreement") is made and entered into by and between you, the undersigned contractor ("CONTRACTOR"), an independent contractor engaged in the business of performing the delivery services contemplated by this Agreement, and Aircart Pty Ltd (ACN 631 643 813) ("AIRCART" or "COMPANY"). CONTRACTOR may enter this Agreement either as an individual or as a corporate entity. This Agreement will become effective on the date it is accepted regardless of whether you are eligible to, or ever do, perform any Services.
A. The Company supplies grocery delivery services to its customers.
B. The Company wishes to engage an independent contractor to provide certain services to the Company (defined below as Services).
C. The Company wishes to appoint the Contractor and the Contractor is willing to accept such appointment, as an independent contractor for the Company on the terms and conditions set out in this Agreement.
D. The Company and the Contractor wish to set out their mutual rights and obligations in accordance with this Agreement.
1. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise indicates:
(a) Agreement means this agreement and any schedules or annexures to this agreement and any specific written agreement between the parties referring to this Agreement including Delivery Agreements.
(b) Aircart Debit Card means any debit or credit card provided by Aircart to the Contractor.
(c) Aircart Platform means the technology platform operated by the Company that enables customers who seek personal shopping and/or delivery services from retailers in their area to be matched with persons who are registered with the Company to provide those services.
(d) Claims includes any action, application, arbitration, cause of action, complaint, cost, debt due, demand, determination, inquiry, judgment and verdict at law; in equity; arising under any statute; or arising under any award, certified agreement or other instrument made or approved under any law.
(e) Commencement Date has the meaning as set out in clause 3.
(f) Company means:
(i) the Company identified as a party to this Agreement and its officers, employees and agents;
(ii) any entity that is connected with the Company by a common interest in an economic enterprise, for example, Related Bodies Corporate or joint venture partners, and each of their officers, employees and agents.
(g) Completion Rating has the meaning given to it in the Customer Service Policy.
(h) Confidential Information means confidential information of the Company, its Related Bodies Corporate and its clients, including all trade secrets and all financial, accounting, marketing and technical information, customer and supplier lists (including any prospective or proposed customer and supplier lists or information, authorised agent's information, ideas, concepts, know-how, Intellectual Property, results of experiments and tests, technology, operating procedures, processes, business methods, knowledge and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential", but excluding information in the public domain otherwise than because of a breach of confidentiality owed by any person to the Company).
(i) Contractor means:
(i) the Contractor identified as a party to this Agreement and its Personnel;
(ii) any entity that is connected with the Contractor by a common interest in an economic enterprise, for example, Related Bodies Corporate or joint venture partners, and each of their officers, employees and agents.
(j) Contractor's Equipment means all necessary equipment to perform the Services, such as smartphone, insulated travel bags, automotive vehicles, other suitable transport, tools and materials to the standards set out in this agreement.
(k) Corporations Act means the Corporations Act 2001 (Cth), as amended from time to time or any replacement or other relevant legislation and regulations.
(l) Customer Rating has the meaning given to it in the Customer Service Policy.
(m) Customer Service Policy means Aircart's policy regarding customer service as made available to the Contractor from time to time.
(n) Delivery Agreement means an agreement between the parties referred to in clause 4.1 of this Agreement relating to a Delivery Opportunity.
(o) Delivery Opportunity means a task or tasks for which the Contractor is engaged by the Company to provide the Services from time to time.
(p) Force Majeure Event means:
(i) an act of God, lightning, fire, flood, severe weather conditions or other natural disaster;
(ii) strike, lock out or other industrial action;
(iii) wars, hostilities, terrorist acts, riots or civil commotion;
(iv) compliance with any law, regulation or order of any governmental body or court;
(v) any other cause whether of a kind specified above or otherwise which is not reasonably within the control of the party affected.
(q) GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) as amended from time to time or any replacement or other relevant legislation and regulations.
(r) GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999.
(s) Intellectual Property Rights means rights in patents, rights to inventions, copyright and related rights, trade marks (registered or unregistered), business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs and unregistered designs, topography rights and database rights, rights to use, and protect the confidentiality of, confidential information (including know-how, trade secrets, and datasets), technology and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future, anywhere in the world.
(t) Laws means all legislation, regulations, notices, ordinances, ministerial directives and government guidelines.
(u) Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).
(v) Personnel means any person(s) that the Contractor designates to perform the Services on the Contractor's behalf including (where the context requires) the Nominated Person.
(w) Related Bodies Corporate has the meaning given in the Corporations Act 2001 (Cth).
(x) Relevant Policies means all of the Company's policies in force from time to time.
(y) Schedule means the Schedule to this Agreement.
(z) Services means the services set out in clause 4.1 of this Agreement and in any Delivery Agreement.
(aa) Shopper App means the software application associated with the Aircart Platform that is to be used by the Contractor to provide Services under this Agreement and as available for download at www.aircart.com.au.
(bb) Term has the meaning as set out in clause 3.
In this Agreement:
(a) All headings are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement;
(b) Unless the context otherwise indicates:
(i) references to a clause shall be construed as references to a clause of this Agreement;
(ii) references to (or to any specified provision of) this Agreement shall be construed as references to (or to that provision of) this Agreement as amended or substituted with the agreement of the relevant parties and in force at any relevant time;
(iii) references to any statute, ordinance or other law shall include all regulations or other instruments thereunder and all consolidations, amendments, re-enactments or replacements thereof;
(iv) words importing the singular shall include the plural and vice versa; words importing a gender shall include other genders and vice versa and references to an individual shall include a firm, body corporation or association (whether incorporated or not); and
(v) references to days and months means calendar days and calendar months.
(a) The Company may engage the Contractor from time to time under one or more Delivery Opportunities to provide the Services on the terms and subject to the conditions referred to in this Agreement.
(b) Nothing in this Agreement creates a right to or guarantee of work to be offered by the Company to the Contractor and the Company may or may not offer the Contractor work on a specific Delivery Opportunity or Delivery Opportunities, at its absolute discretion.
This Agreement will become effective on the date it is accepted regardless of whether you are eligible to, or ever do, perform any Services (Commencement Date) and shall continue until terminated (Term).
4. CONTRACTOR OBLIGATIONS
4.1 Services provided to the Company
(a) Throughout the Term of this Agreement, the Contractor agrees to download and maintain the latest version of the Shopper App when providing Services.
(b) The Company may notify the Contractor of an opportunity to perform personal shopping and/or delivery services through the Shopper App (Delivery Opportunity). The Contractor may choose to accept or reject the Delivery Opportunity at its sole discretion.
(c) The Delivery Opportunity will specify in writing the relevant details of that Delivery Opportunity (Delivery Agreement) and may include matters such as (where relevant):
(i) the goods the Contractor is required to purchase;
(ii) the store and location the goods are to be purchased from;
(iii) the address the Contractor must deliver the goods to;
(iv) the time by or in which the goods must be delivered to the designated location;
(v) the payment method for the goods; and
(vi) an estimate of the fees payable to the Contractor.
(d) Except as provided by clause 18.1, both parties acknowledge that the Contractor has no obligation to accept and the Company has no obligation to provide a minimum or maximum number of Delivery Opportunities.
(e) The Contractor is solely responsible for determining the most effective, efficient and safe manner to perform the Services, including determining the manner of pickup, delivery, and route selection, in order to meet the terms of the Delivery Agreement.
4.2 Use of the Aircart Debit Card
Aircart may provide the Contractor with an Aircart Debit Card. If this occurs, the Contractor must:
(a) only use the Debit Card to purchase goods for customers pursuant to Delivery Opportunities as contemplated in this Agreement or otherwise at the Company's express written direction;
(b) ensure the Debit Card is not used by any third party without the Company's prior written consent;
(c) keep safe and not disclose the details of the Debit Card, including any relevant personal identification number (PIN); and
(d) report any loss, damaged or stolen Debit Card, immediately to the Company and provide any related information or further documentation as requested by the Company.
The Contractor may use its Personnel to perform Services provided that:
(a) the Contractor makes the terms of this Agreement enforceable by written agreement between the Contractor and such Personnel and provides the Company with a copy of the written agreement at least seven days in advance of the Personnel performing any Services;
(b) the Personnel satisfies and complies with all requirements in this Agreement and any Delivery Agreement imposed upon the Contractor including but not limited to the requirement to submit to Background Checks in accordance with clause 4.6;
(c) the Contractor remains, at all times, responsible for performance of the Services; and
(d) if the Company requests, the Contractor will preclude certain Personnel from performing the Services.
4.4 Duties of Contractor
In providing the Services, the Contractor must:
(a) not use the Shopper App, or any customer information, to communicate with a customer except to the extent necessary to provide the Services;
(b) where the Contractor delivers alcohol to a customer:
(i) comply with all relevant federal and state laws regarding the service and/or delivery of alcohol; and
(ii) ensure the customer has valid photographic identification, is at least the minimum legal drinking age and is not visibly intoxicated;
(c) where the Delivery Opportunity includes goods that need to be maintained at a certain temperature:
(i) adhere to all relevant federal and state laws and guidelines on the handling of food and drink;
(ii) deliver the goods in a manner that ensures the health and safety of the customer; and
(iii) use all necessary equipment, including but not limited to insulated bags, necessary to suitably perform the Services;
(d) render the Services to the Company with due diligence and integrity in a good and reliable manner and in accordance with the requirements of all applicable legislation, regulations and codes of practice;
(e) faithfully and diligently provide the Services in a competent, professional and responsible manner, and at all times act in the best interests of the Company;
(f) protect the property of the Company (including but not limited to Intellectual Property) from theft, loss, damage or neglect and without delay give notice to the Company of any such theft, damage or neglect of such property of the Company;
(g) make available to the Company all knowledge, information and expertise available to or in his/her possession relating to the provision of the Services;
(h) regularly consult or liaise with and report (either orally or in writing) to the Company regarding the performance of the Services at such times and in such manner as the Company may reasonably require;
(i) maintain a suitably professional appearance;
(j) comply with all (state and federal) laws, regulations, rules and government guidance relating to pandemic conditions, including the wearing of masks and gloves, and adhering to hygienic disposal and replacement procedures, at the recommended intervals;
(k) perform the Services in a timely manner and to a standard satisfactory to the Company and in accordance with any details and instructions provided in the Delivery Agreement and this Agreement;
(l) protect the Customer's goods, maintain quality of the goods and ensure all packaging remains intact, during the delivery process.
The Contractor agrees to maintain a satisfactory Customer Rating and a Completion Rating, as set out in the Customer Service Policy, for the duration of the Agreement. Failure to maintain a Customer Rating and/or Completion Rating constitutes a material breach of this Agreement.
4.6 Background Checks
(a) Prior to performing any Services, the Contractor must consent, and must procure the consent of its Personnel, to the Company:
(i) performing all Background Checks reasonably requested by the Company;
(ii) conducting further Background Checks as necessary for the term of this Agreement; and
(iii) using third party service providers to perform Background Checks.
(b) Access to the Aircart Platform and Shopper App is contingent upon the Company being satisfied with the results of the Background Checks and the Contractor and its Personnel otherwise complying with the terms of this Agreement.
4.7 Login Information
(a) The Company will issue the Contractor a username and password (Login Information) to enable the Contractor to access the Shopper App.
(b) The Contractor must maintain the confidentiality of all login information and must not allow or authorise any person other than the Contractor or a person notified to the Company under clause 0 to use the Login Information.
(c) The Contractor must immediately notify the Company of any suspected or actual unauthorised access to or use of the Login Information.
(d) The Contractor is responsible for any and all activities that occur using the Contractor's Login Information, whether or not authorised by the Contractor.
The Company does not require the Contractor to wear a uniform or any clothing that bears the Company's name or logo.
5. MANNER OF PERFORMANCE OF THE SERVICES
5.1 Independent Contractor
(a) In providing the Services, the Contractor is an independent contractor and not an employee or agent of the Company for any purpose.
(b) The Contractor will not represent in any manner that the Contractor is an agent of the Company nor that the Contractor has any authority to enter into any contract, binding legal arrangement or commitment on behalf of the Company.
(c) This Agreement does not constitute any relationship of agency, partnership or employment.
(d) The Services are to be provided by the Contractor at such location as the nature of the Services requires or the Company may reasonably direct.(e) In providing the Services, the Contractor relinquishes any claim on superannuation, workcover, or payroll tax from the Company.(f) In providing the Services, the Contractor relinquishes any claim to sick leave paid by the Company.
6. SERVICES AND VARIATION TO SERVICES
(a) The Company makes no warranty or guarantee to the Contractor that it will require each or all of the Services referred to in this Agreement to be provided to it by the Contractor, or that the provision of them will be ongoing.
(b) The Company has the absolute discretion to determine, at any time, whether one or more of the Services provided by the Contractor will continue to be performed under this Agreement.
(a) The Company will pay the Contractor under each Delivery Agreement in accordance with the rates posted on the Shopper App or otherwise made available for the Contractor's review.
(b) From time to time, the Company may offer additional opportunities for Contractors for additional payment for performing Services at specified times or in specified locations.
(c) The Contractor is not entitled to recover any expenses incurred by the Contractor in providing the Services unless agreed in writing by the Contractor and the Company.
(d) The Contractor acknowledges that the fees shall be inclusive of any GST that may be charged by the Contractor to the Company.
(e) In the event that the Contractor fails to fully perform any Service due to, in the Company's reasonable opinion, the Contractor's fault, the Contractor shall forfeit all or part of the agreed upon fee to the extent determined by the Company.
7.2 Payment method
Payments for Delivery Opportunities completed by the Contractor in a given week will be transferred via direct deposit into the Contractor's nominated bank account within 7 days of the end of that week unless the Company notifies the Contractor in writing.
The Contractor agrees that the Company can offset the following amounts from the Contractor's entitlement to be paid under this clause 7:
(a) any previous overpayment(s) made by the Company to the Contractor; and
(b) any unauthorised expense the Contractor incurs using the Aircart Debit Card.
7.4 Payment estimates
(a) The Company will reasonably endeavour to provide the Contractor with payment estimates on the Shopper App prior to the Contractor accepting a Delivery Opportunity.
(b) The Company is not bound by any payment estimates it makes and is not liable for any difference between an estimate and the actual payment amount paid in accordance with 7(a).
7.5 Gratuity payments
The Contractor is entitled to 100% of gratuity payments made by the customer to the Contractor, regardless of whether the gratuity payment is made in cash or through the Aircart Platform.
The Company may offer various promotions or referral programs through the Aircart Platform and Shopper App. The Contractor must not manipulate, abuse or game such promotions and referral programs (which, if reasonably suspected by the Company, will entitle the Company to terminate this Agreement immediately). This includes but is not limited to:
(a) tampering with the location feature on the Contractor's mobile phone;
(b) collecting incentive or promotional pay when not eligible to receive such pay under relevant policies; or
(c) creating multiple accounts on the Aircart Platform or Shopper App.
8. GOODS AND SERVICES TAX
It is the responsibility of the Contractor to maintain registration for GST and provide the Contractor's registration number to the Company.
(a) The Contractor shall, for the Term, effect and maintain current at its own expense comprehensive motor vehicle insurance with a total limit of $20 million per occurrence.
(b) The Contractor shall, at least seven days prior to providing any Services under this Agreement, or at any other time upon the Company's request, deposit with the Company copies of certificates of currency of such policies of insurance described in clause 9(a) and for any renewal of such policies of insurance.
(c) The Contractor shall provide the Company with 30 days' written notice before cancellation of any insurance policy required by this Agreement.
(d) If, subject to the requirements of clause 18.1, the Contractor subcontracts any part of the Services to be performed under this Agreement, the Contractor shall ensure that each of his/her sub-contractors effects and maintains during the currency of this Agreement insurances of the type referred to in clause 9(a) and provides warranties in accordance with the provisions of clause 10(a).
(e) The Contractor will notify the Company as soon as may be practicably possible in writing and in any event within five days, of all accidents or Claims which might arise out of or in the course of the performance of the Services performed under this Agreement. In the event of an accident involving death, serious injury or major property damage, the advice shall be immediately communicated by telephone to the Company and confirmed in writing as soon as may be possible thereafter.
(f) Insurance effected by the Company shall not relieve the Contractor of any obligations under this Agreement.
10. INDEMNITY AND LIABILITY
(a) The Contractor hereby indemnifies and agrees to keep indemnified the Company as well as its officers, directors, agents, representatives, attorneys, and employees, as well as all customers and retailers (regardless of whether Aircart holds formal relationships or not), against any Claim or cost in respect of:
(i) personal injury, illness or death of any person where the personal injury, illness or death is caused by or results from the negligence or fault of the Contractor;
(ii) loss of or damage to any property owned, hired or supplied by the Contractor, including the Contractor's Equipment where the loss or damage is caused by or results from the negligence of the Contractor;
(iii) any property where the loss or damage is caused by or results from the negligence or fault of the Contractor, including without limitation Customer property;
(iv) the Contractor's business, including but not limited to, the expense and responsibility for any and all applicable insurance, local, state or federal licences, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities;
(v) any liability arising from or associated with the Contractor's relationship with any of its Personnel as an employer or otherwise;
(vi) the Contractor's use of a motor vehicle;
(vii) its performance of the Services, including any loss or damage of goods prior to completion of the Delivery Agreement; and
(viii) any liability otherwise arising from the Contractor's failure to comply with the terms of this Agreement.
(b) The Contractor's obligation under clause 10(a) includes the obligation to indemnify against any settlement agreed upon and all associated legal costs.
(c) Neither party will be liable to the other for any indirect or consequential expenses, losses, damages or costs incurred or awarded against the other party.
(a) The Contractor acknowledges that, except where information is generally available to the public (other than by reason of a breach of this Agreement) or is required to be disclosed by law, the Contractor must at all times including after this Agreement ends:
(i) keep all information, whether oral, graphic, electronic, written or in any other form, which he/she receives, possesses or acquires in relation to the Company, its customers, agents, employees or contractors and/or the Services and the engagement of the Contractor to perform the Services, confidential and take all reasonable steps to secure and keep secure all such confidential information; and
(ii) not memorise, use, modify, reverse engineer or make copies, notes or records of the Confidential Information for any purpose other than in connection with the performance by the Contractor of its obligations under this Agreement.
(a) The Contractor consents to all actions taken by the Company with respect to the Contractor's information in accordance with the Shopper Privacy Statement.
(b) The Contractor agrees to comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in providing the Services, including without limitation in respect of the Customer Personal Information.
(c) Where the Contractor collects, holds, uses or discloses Personal Information in the course of providing Services, the Contractor must:
(ii) only use Personal Information for the purpose of performing its obligations under this Agreement and/or the Delivery Agreement;
(iii) not disclose Personal Information to any third party without the Company's prior written consent unless required by law;
(iv) protect Personal Information from misuse, interference, loss, unauthorised access, modification and/or disclosure; and
(v) comply with any direction given by the Company relating to Personal Information to the extent that they are not inconsistent with the requirements of this Clause 12(a).
(d) The Contractor must notify the Company immediately in writing if the Contractor becomes aware of any:
(i) breaches of this clause 12;
(ii) request regarding access to, or correction of, any Personal Information;
(iii) any complaint about the handling of Personal Information;
(iv) any complaint made to the Contractor about its handling of Personal Information generally or beyond the scope of this agreement; or
(v) disclosure of Personal Information required by law.
(a) The Contractor will not, directly or indirectly, on the Contractor's own account, or on behalf of any other entity, during the Agreement or for 12 months following the termination of the Agreement:
(i) induce, encourage or solicit any employee or contractor of the Company to cease their employment or engagement with the Company;
(ii) induce, encourage or solicit any of the Company's clients, suppliers or candidates with whom the Contractor has had dealings and influence over in the preceding 12 months, to end or restrict their trade relationship with the Company.
(b) The Contractor acknowledges that each non-solicitation provision is fair and reasonable in the circumstances. While the non-solicitation provisions set out in this clause 13 are considered to be reasonable by the Contractor, if any provision is considered by a court to be void or unreasonable, but would be valid if part of the text were deleted, periods reduced or reduced in scope, the provision will apply with such modifications necessary to make it valid and effective.
(c) The Company acknowledges that the Contractor has the right to perform services (whether personal shopping and/or delivery services or other services) for others.
14. CONFLICT OF INTEREST
The Contractor agrees that it will not engage in any other work and assignments throughout the duration of this Agreement, without the prior consent in writing of the Company (which consent the Company will not unreasonably withhold), which would conflict with the Contractor’s duties and responsibilities to the Company under this Agreement or bring the Company into disrepute.
15. INTELLECTUAL PROPERTY
(a) The Contractor acknowledges that:
(i) any Intellectual Property arising as a result of or in connection with the provision of the Services, the Shopper App and the Aircart Platform will, from its creation, vest exclusively in the Company; and
(ii) in any event, the Contractor assigns to the Company all his/her interests which the Contractor may have at present or in the future in such Intellectual Property.
(b) The Contractor undertakes to do all such acts and to execute all such documents necessary to vest the Intellectual Property in the Company pursuant to this clause 15.
(a) The Contractor warrants that:
(i) it is above 18 years old and has the capacity to enter into and abide by the terms of this agreement;
(ii) has a valid driver's licence; and
(iii) has all necessary Contactor Equipment, insurances, other licences and capabilities and satisfies all legal requirements necessary to perform the Services.
(b) The Contractor warrants that it will:
(i) provide the Services in a safe manner free from risks to health and safety;
(ii) perform the Services safely and to a reasonable standard of workmanship expected in the profession or industry in which the Contractor operates;
(iii) comply with all relevant Laws in providing the Services;
(iv) comply with all Relevant Policies relating to providing the Services; and
(v) not engage in any business or activity or have any other interest which would conflict with the Company's business interests or bring the Company into disrepute.
(c) The Contractor further acknowledges that it is aware that the Company is relying on these warranties.
17. HEALTH AND SAFETY
(a) The Contractor shall ensure that he/she observes and adheres to the Company's health and safety policies and procedures as well as the Contractor's health and safety regulations, and any other applicable laws, regulations, rules and local council, state or federal government guidance.
(b) For the purposes of all applicable occupational health, safety and welfare legislation, it is hereby agreed by the parties that any person or persons employed or engaged by the Contractor shall in all respects be under the control and direction of the Contractor and not the Company and the Contractor shall be responsible for complying at all times with the provisions of the legislation in relation to these individuals.
18. TERMINATION OF AGREEMENT
18.1 Automatic termination
This Agreement will automatically terminate without either party needing to provide written notice if:
(a) the Contractor does not provide any Services under the Agreement within 45 consecutive days of the Commencement Date of this Agreement; or
(b) if the Contractor has performed Services under the Agreement previously, after 75 consecutive days during which the Contractor does not perform Services under this Agreement.
18.2 Mutual rights to terminate
The Company or the Contractor may terminate this Agreement upon the happening of any of the following events:
(a) the giving of at least seven days' written notice by one party to the other party of the intention to terminate this Agreement;
(b) if the other party enters into a deed of arrangement or an order is made for it to be wound up;
(c) if an administrator, receiver or receiver/manager or a liquidator is appointed to the other party pursuant to the Corporations Act 2001 (Cth); or
(d) if the other party would be presumed to be insolvent by a court in any of the circumstances referred to in s 459(2) of the Corporations Act 2001 (Cth);
18.3 Contractor's rights to terminate
The Contractor may terminate this Agreement by notice in writing to the Company if the Company fails to observe any term of this Agreement and fails to rectify this breach to the satisfaction of the Contractor following the expiration of 48 hours' notice of the breach being given in writing by the Contractor to the Company.
18.4 Company's rights to terminate
(a) The Company may terminate this Agreement or suspend any part of the Contractor's access to the Aircart Platform or Shopper App:
(i) by notice in writing to the Contractor if the Contractor fails to observe any term of this Agreement and fails to rectify this breach to the satisfaction of the Company following the expiration of 48 hours' notice of the breach being given in writing by the Company to the Contractor; or
(ii) in the manner and for any reason identified in the Aircart Deactivation Policy as amended from time to time.
(b) Notwithstanding anything in this Agreement to the contrary the Company may terminate this Agreement immediately at any time by notice in writing to the Contractor, if the Contractor or any of the Contractor’s Personnel is guilty of any dishonesty, serious misconduct or serious neglect of duty, in or in connection with the provision of the Services.
(c) Notwithstanding in this Agreement, the Company may at its discretion suspend, disable or revoke the Contractor's ability to access the Shopper App or Aircart Platform when the Company determines it is necessary or desirable to do so. For the avoidance of doubt, this includes during any notice period set out in this clause 18.
(d) Upon termination of this Agreement any fees, expenses or reimbursements payable by the Company to the Contractor in respect of any period prior to the termination must be paid by the Company in the same manner and time as it would have been ordinarily been paid under this agreement.
This Agreement may not be assigned without the consent of all the parties.
The Company and the Contractor consider the covenants, obligations and restrictions contained in this Agreement to be reasonable in all the circumstances of the Agreement and each and every one of these covenants, obligations and restrictions and each and every part of them is deemed to be a severable and independent covenant, obligation or restriction with the intent that, if they are, taken together, adjudged to go beyond what is reasonable in all the circumstances, but would be adjudged reasonable with any one or more of them or one or more part of them deleted, the Agreement will apply as if the offending covenants, obligations or restrictions or parts of them were deleted.
Without prejudice to any other mode of service permitted by law any notice required to be given to the Company or to the Contractor under this Agreement may be effectively given if made in writing and signed on behalf of the Company or the Contractor by the director, secretary or other appropriately authorised officer of the Company or the Contractor.
22. FORCE MAJEURE
Where a Force Majeure Event prevents or delays a party from performing any obligation under this Agreement (either in whole or part), that party shall give immediate written notice to the other party specifying:
(a) the obligations which the party cannot perform;
(b) the extent to which those obligations can be performed; and
(c) the particulars of the relevant Force Majeure Event.
22.2 Suspension of obligations
(a) The obligations of a party are suspended following a notice under clause 22.1 for so long as the Force Majeure Event continues but only to the extent that the relevant Force Majeure Event prevents or delays the party from performing such obligations.
22.3 Remedy and mitigation of a Force Majeure Event
(a) A party shall remedy a Force Majeure Event which prevents or delays that party from performing any obligation under this Agreement to the extent reasonably practicable and performance of the obligations shall resume as soon as reasonably possible after remedy.
(b) A party which is prevented or delayed (in whole or in part) from performing any obligation under this Agreement by a Force Majeure Event shall take all action reasonably practicable to mitigate any loss suffered by the other party or a third party as a result of that Force Majeure Event.
22.4 Events not constituting a Force Majeure Event
(a) A party’s contractual commitments, existing or prospective, to a third party which limits the ability of the party to meet its obligations under this Agreement can never be a Force Majeure Event.
23. DISPUTE RESOLUTION
23.1 Obligation to negotiate in good faith
If any dispute arises out of this Agreement, either party may notify the other in writing in which case a nominated representative of each affected party must promptly attempt in good faith to resolve the dispute.
(a) Before the parties may seek to bring their Claim before any kind of court or commission for resolution and not before 90 days after written notice in clause 23.1 has been made, the parties must in good faith attempt to mediate their dispute.
(b) Where the parties cannot in good faith agree on a mediator, then the mediator will be a person determined by the President for the time being of the Law Institute of Victoria. If the Law Institute of Victoria is no longer in existence, then the mediator shall be selected by the head of an organisation with the same or similar objectives.
(c) Nothing in this clause, shall prevent a party from seeking urgent injunctive relief before an appropriate court with respect to a violation of Intellectual Property Rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
24. CLASS ACTION WAIVER
To the extent permitted by law, the Contractor agrees that any proceeding to litigate or arbitrate any dispute arising out of or relating to this Agreement, will be conducted solely on an individual basis. The Contractor agrees not to seek to have any Claim heard as a class action, a representative action or any other form of group action or proceeding nor to join, consolidate or combine its proceeding with another.
25. NO WAIVER
A party’s right to enforce this Agreement will not be prejudiced or restricted by any forbearance, delay or indulgence on its part in enforcing this Agreement. If a party waives a right under this Agreement, this does not operate as a waiver of a subsequent breach of this right or any other right under this Agreement.
This Agreement may not be changed or modified in any way except in writing signed by or on behalf of all the parties.
27. AMOUNTS PAYABLE
(a) All amounts referred to in this Agreement are inclusive of GST.
(b) Terms defined in the GST Act have the same meaning in this clause 27.
(c) The recovery of any amount in respect of GST by the Supplier from the Purchaser is subject to the Supplier issuing to the Purchaser a Tax Invoice or an Adjustment Note enabling the Purchaser to claim any applicable tax credits in respect of the Supply.
(d) Each party warrants that it is registered for GST purposes if required.
28. ENTIRE AGREEMENT
(a) Subject to clause 28(b) below, this Agreement constitutes the entire agreement of the parties in respect of the matters dealt with in this Agreement and supersedes all prior agreements, understandings, undertakings and negotiations in respect of the matters dealt with in this Agreement.
(b) Any Delivery Agreement under clause 4.1 forms part of this Agreement. In the event of any inconsistency between this Agreement and any Delivery Agreement, the Delivery Agreement will prevail to the extent of the inconsistency.
29. GOVERNING LAW
This Agreement is governed by, and is to be construed and take effect in accordance with, the Laws of the jurisdiction of Victoria.
This Agreement may be executed in any number of counterparts and all of those counterparts taken together will constitute one and the same instrument.