1 DEFINITIONS AND INTERPRETATION
In this agreement:
Application means the mobile application developed by us to request the collection and delivery of goods;
Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, Loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this agreement;
Confidential Information means information about that party or that party’s business or activities (regardless of the medium in which it is recorded) which is disclosed to or otherwise comes to the knowledge of the other party in connection with this agreement, and which is designated by the first party to be confidential or which a reasonable person would, having regard to the nature of the information, consider to be confidential to the first party;
Delivery Block means the particular confirmed block of time for the provision of Services, starting when you collect the Deliverables and ending at the time the last Deliverable is delivered or, if undeliverable, is returned to us;
Delivery Contract means the contract which arises between you and us when in accordance with clause 2.6;
Delivery Request means a request made by us to you for the collection and delivery of goods in accordance with clause 2.5;
Deliverables means the goods required to be delivered by you as specified in the Delivery Contract;
GST means goods and services tax or similar value added tax levied or imposed in Australia under the GST Law or otherwise on a supply;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
GST Law has the same meaning as in the GST Act;
Liability means any liability or obligation (whether actual, contingent or prospective) including any Loss, irrespective of when the acts, events or things giving rise to the liability or obligation occurred;
Loss includes any loss, damage, cost, charge liability or expense (including legal costs and expenses);
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth);
Related Entity has the meaning given in the Corporations Act 2001 (Cth);
Services means the collection and delivery of Deliverables in accordance with the terms and conditions of this agreement;
Service Failure means any failure to provide or complete all or part of any contract to provide Services, including failure to provide the Services within the Delivery Block;
Service Fees mean the fees for the Services in the amounts indicated in the Application at the time of acceptance, or as otherwise agreed between you and us from time to time;
Term means the term of this agreement as described in clause 2.2;
You means the independent contractor engaged to provide the Services; and
We, us or DIP means DIP Australia Pty Ltd (ACN 653 903 649) of c/- WSC Group, Unit 11, 800-812 Illawarra Road, Menai NSW 2234, Australia.
In this agreement, unless the context otherwise requires:
(a) a reference to:
(i) the singular includes the plural and the plural includes the singular;
(ii) any contract (including this agreement) or other instrument includes any variation or replacement of it and as it may be assigned or novated;
(iii) a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority;
(iv) a person includes their legal personal representatives (including executors), administrators, successors, substitutes (including by way of novation) and permitted assigns;
(v) time is a reference to legal time in Sydney, New South Wales;
(vi) a reference to a day or a month means a calendar day or calendar month;
(vii) money (including ‘$’, ‘AUD’ or ‘dollars’) is to Australian currency;
(b) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, ‘for example’ or similar words are not words of limitation; and
(c) a provision of this agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this agreement or the inclusion of the provision in this agreement.
- This agreement governs any contract for the Services arising between you and us during the Term.
- This agreement commences on the date you accept the agreement via the Application and will continue to be in effect until terminated in accordance with clause 10.
- By accepting this agreement and using the Application, you have shown your interest in providing Services from time to time and agree that this agreement continues to apply to the provision of any of the Services from time to time.
- By ticking a box to indicate your acceptance of this agreement on the Application, you agree that this agreement and the scope of work provided to you for each Delivery Request will govern each contract for services that arises between us and you. You acknowledge and agree that you have had the opportunity to read, understand, and properly consider your obligations and the consequences arising under this agreement.
- While you are signed into the Application, we may make available a Delivery Request to you which you may accept. You are not obliged to accept any Delivery Request.
- Upon your acceptance of the Delivery Request, a Delivery Contract is formed and will become binding on us and you.
- A Delivery Contract will consist of:
(a) the terms of this agreement; and
(b) the Delivery Request.
1. From time to time, we may update the terms applicable to a Delivery Contract (including providing an updated version of the terms on the Application prior to acceptance of a Delivery Request).
- To the extent that there is an inconsistency between the terms of this agreement and the Delivery Request, the Delivery Request will prevail.
- You agree to provide the Services in a safe and competent manner in accordance with the level of professional care that would be observed by a prudent person rendering similar services and in accordance with this agreement.
- You are not contractually required to provide any particular volume of Services and we are not contractually required to provide you with any particular volume of business.
- If you accept a Delivery Request, you must deliver the Deliverables provided by us during the relevant Delivery Block.
- Subject to compliance with this agreement, you have the absolute discretion to control the manner in which the Services are provided.
- You are responsible for the rectification of any errors and omissions in the provision of the Services.
- In the event there is a Service Failure, you will not be entitled to payment, or part-payment, for any part of the Services affected by the Service Failure (at the absolute discretion of DIP).
4 INDEPENDENT CONTRACTOR RELATIONSHIP
- You warrant and represent that you operate independently to us and you are prepared to provide the delivery services on an independent basis.
- Nothing in this agreement and no verbal or written communication between the parties, creates a partnership, joint venture, agency, franchise, or employment relationship between us and you.
- You have no authority to bind us, and you will not make any representation identifying yourself as our employee or make any representations to any person or entity that you have any authority to bind us as an employee, partner, or otherwise.
- As an independent contractor that performs Services only during Delivery Blocks, this agreement applies to each Delivery Block but there will be no relationship between the parties after the end of one Delivery Block and before the start of any subsequent Delivery Block.
- You retain the right to provide services to or to undertake work for others and to hold yourself out to the general public as an independent business. This agreement does not restrict you from providing services or working for other businesses, customers or consumers at any time, even if that business directly competes with us, except during any Delivery Block.
- You acknowledge and agree that you are not entitled to receive from us, any wages, loadings, superannuation contributions, paid annual holidays, paid public holidays, long service leave, paid personal leave, PAYG payment summaries, workers compensation cover, or any other statutory or common law employment benefits.
5 DIP DELIVERER (DRIVER) REQUIREMENTS
(a) be over 18 years old;
(b) not have a relevant criminal record;
(c) have the right to work in Australia and are not working (including providing the Serviecs) in contravention of any visa conditions;
(d) hold all permits, licences and approvals which may be required under any local laws to provide the Services; and
(e) hold an Australian Business Number (ABN).
- If you use your own motor vehicle, bicycle or other means of personal transport to provide the Services, you must
(a) hold a driving or vehicle licence which is valid in the state you provide Services (as applicable);
(b) cease driving, providing the Services and inform us immediately if you are banned or suspended from driving;
(c) maintain suitable vehicle insurance (including compulsory third party (CTP) insurance) and any other insurances required by law or reasonably requested by us (which may include public liability insurance and comprehensive motor vehicle insurance); and
(d) ensure that your vehicle, bicycle or other means of personal transport:
(i) is validly registered (if required by law);
(ii) is in good condition and roadworthy; and
(iii) conforms to all vehicle laws relating to safety, insurance and operational capability.
- You must provide and maintain:
(a) a mobile device compatible with the Application;
(b) a vehicle compliant with the requirements of this clause 5 (if required to provide the Services); and
(c) any other equipment that you choose to use or that you need in order to provide the Services.
- You must provide us with all documents which we reasonably require, including certificates of currency, licences, permits and consents at our request. You must provide updated documents should any provided documents expire, or if they are revoked or cancelled for any reason. You expressly consent to us to verifying your documents through any means we consider reasonable.
- If your visa or immigration status changes, you must notify us immediately and provide full details and information in respect of your changed circumstances.
- You must provide complete and accurate responses to all questions related to the background screening, including questions on prior convictions. You may be required to submit to checks for records of criminal charges and convictions relating to you from time to time. You agree by entering into this agreement that you provide your consent for the results of any such checks to be provided to us (and if required, will provide such additional consents that we require) and, to the extent that any such checks are facilitated by us, you agree to provide us with any information and consents we may require for such purposes.
- You must not create any lien on our property or assets, including any Deliverables, and waive all rights to any lien.
- You must, at all times when providing the Services, comply with the DIP policies (including the DIP code of conduct), as those policies are updated and notified to you from time to time.
6 INTELLECTUAL PROPERTY
- All right, title and interest in the DIP Intellectual Property is owned by DIP throughout the term of this agreement. Subject to you complying with the terms of this agreement, DIP grants to you a non-exclusive, non-transferable, non-sublicensable and non-assignable licence to use the Application and the DIP Intellectual Property to the extent required to enjoy the Services for the term of this agreement. You may only use the Application and the DIP Intellectual Property in connection with your use of the Services pursuant to this agreement.
- Any Intellectual Property developed by you relating to the Application or the Services is owned by DIP. You hereby assign to DIP all rights, title and interest in such developed Intellectual Property, free of all encumbrances and third party rights and agree to deliver and procure the delivery of all further documents necessary to confirm or give effect to this clause 2.
- You agree that you must not:
(a) copy, distribute, disclose, use, modify, sub-licence or otherwise deal or purport to deal with any rights in the DIP Intellectual Property; or
(b) reverse engineer or attempt to extract the source code of the Application or any of DIP’s software, except to the extent permitted by applicable law,
except with DIP’s prior written consent or as expressly provided by this agreement.
- For the purposes of this clause 6:
(c) DIP Intellectual Property means the Intellectual Property created or developed or otherwise held by DIP (including in the Application); and
6.5 Intellectual Property means all current and future intellectual and industrial property rights and interests throughout the world, whether registered or unregistered, including trade marks, designs, patents, inventions, copyright and analogous rights, circuit layouts, confidential information, trade secrets, know-how and any right to apply for registration of, or any application for, such rights.
7 HEALTH, SAFETY AND STANDARDS
- You will be responsible for your compliance with all applicable work, health and safety legislation, as well as road and traffic laws including but not limited to your obligation to notify the relevant work health and safety regulator of any incidents.
- If you use a motorbike or scooter in the performance of the Services, you must wear an Australian Standards compliant motorcycle/scooter helmet and any other safety equipment required by law.
- You must immediately inform us if you are involved in any accident while providing the Services, if you are arrested or if you are issued with a fine in respect of an offence while providing Services, or if you are suspended or disqualified from driving.
- You must not provide any part of the Services at a time when you have consumed alcohol or taken any drugs or other substances that could affect your capacity to drive safely.
- You must behave respectfully and professionally when interacting with our customers, suppliers and other delivery deliverers (including but not limited to other DIP deliverers) while providing the Services.
- You must co-operate with us in the event that there is an investigation of any incident or accident.
- You must comply with our safety policies and codes of conduct provided to you from time to time by us (which can be found here [insert link]) or as notified to you through the Application from time to time.
8 SERVICE FEES AND CHARGES
- The Service Fees, unless otherwise expressly provided in this agreement or expressly provided in a Delivery Contract, will be your only fee for performing the Services.
- We will pay Service Fees to you into your nominated Australian bank account no later than 10 Business Days after completion of the Services as verified by QR code acknowledgement by our customer receiving the delivery.
- You are responsible for any expenses you may incur (such as costs of fuel, taxes, registration fees, insurance, permits of all types, and any other assessment, fine, or fee imposed or assessed against your vehicle or you by any applicable governmental authority or otherwise related to your equipment and its use).
- You may choose whether to drive on a tolled road, and incur toll expenses, and you must pay and are solely responsible for any tolls charged on roads used in the performance of the Services, unless otherwise agreed between you and us.
- We will generate a recipient created tax invoice (RCTI) on your behalf detailing the fees you will receive for providing the Services. You must pay the applicable GST to the Australian Tax Office immediately upon receipt of the RCTI. Our fees will be deducted prior to depositing the Service Fees into your account.
- You understand and acknowledge that:
(a) we will not withhold any income tax from any monies or fees paid to you; and
(b) you must hold and continue to hold an Australian Business Number (ABN) at all times during the Term.
- From time to time, DIP may have in place partner support insurance to cover eligible deliverers and service providers during their provision of the Services (subject at all times to the terms of such insurance policies).
- Where you are not covered by DIP’s partner support insurances, you:
(a) must ensure that you hold and are covered by insurances relevant to the provision of the Services; and
(b) release us from any claims (whether potential or actual) for liability or damage incurred by you during the provision of the Services to the extent that such liability or damage would ordinarily be covered by such insurance.
10 LIMITATION OF LIABILITY
- To the maximum extent permitted by law, our liability to you arising under or in connection with this agreement or the Services whether in contract, tort (negligence) or otherwise is limited to the Service Fees paid or payable to you for all Services under this agreement in the 6 month period prior to the Claim arising.
- Neither party will be liable for:
(a) consequential, special, punitive, or indirect damages of any kind;
(b) cost of cover, or recovery or recoupment of any investment made by the other party or its affiliates in connection with this agreement;
(c) or any loss of profit, revenue, business or data arising from or relating to this agreement, licensed materials, the program or the services and whether in contract, tort (negligence) or otherwise, and even if advised of the possibility of such damage.
- Despite any other term in this agreement, nothing in this agreement excludes, restricts or modifies any right or remedy you have in statute or otherwise to the extent that right or remedy cannot be excluded, restricted or modified under law.
- You agree that you will defend, indemnify and hold us harmless (including our officers, directors, members, employees) and any of our Related Entities from and against all Claims, costs, damages, Losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with:
(a) your breach of or failure to comply with this agreement;
(b) any applicable law or regulation, including any local laws or ordinances, whether or not referenced herein; and
(c) to the maximum extent permitted by law, your ownership, use or operation of a motor vehicle in connection with the Services,
except to the extent that liability or loss directly arises out of our negligent acts or omissions.
- Each indemnity is a continuing obligation separate and independent from other obligations and survives termination of this agreement.
- You will be solely responsible for any and all liability which results or is alleged as a result of the operation of your motor vehicle and your provision of the Services including, but not limited to personal injuries, death and property damages (whether caused by your negligence or otherwise).
- You agree to indemnify us for any and all liabilities, obligations, Claims, penalties or costs that we suffer or incur in relation to taxation, superannuation or employment matters related to you.
- Either party may terminate this agreement and end the relationship between you and us by giving the other party a notice of termination, in which case this Agreement will terminate one month after notice has been provided.
- If you terminate this agreement you will not be eligible to use the Application or enter into a new agreement with us for 12 months following the date of the termination notice.
- Without prejudice to any other right or remedy we may have against you, we may deactivate your account connected to the Application and/or terminate this agreement with immediate effect with no liability to make any further payment to you if:
(a) you breach the terms of this agreement;
(b) you are charged with any criminal or traffic offence;
(c) you breach any relevant laws or regulations;
(d) you commit any fraud or dishonesty;
(e) you acts in any manner which in our opinion brings or is likely to bring us into disrepute;
(f) you lose the right to work in Australia, or
(g) for other commercially reasonable cause.
- You must not perform Services while your account is deactivated including Delivery Blocks that you have accepted but did not perform prior to the deactivation, and those Delivery Blocks will be forfeited.
- If either you or we terminate this agreement, we may restrict your access to the Application via your account at any time without notice.
- You agree that you will assist us in the investigation of any customer complaints that may be made about you or in relation to any incident in which you may be able to assist.
- Termination of this agreement will not release you from liability in respect of any breach, non-performance of any obligation or any Service Failure by you prior to the date of termination.
13 DISPUTES AND GOVERNING LAW
- The laws of the State or Territory in which you provide the Services govern this agreement and any dispute of any sort that might arise between the parties. Any dispute relating in any way to this agreement will only be adjudicated in the courts of that State or Territory. Each party consents to exclusive jurisdiction and venue in these courts.
- Notwithstanding clause 11.1, either party may seek injunctive relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of such party’s, its affiliates’ or any third party’s intellectual property or other proprietary rights.
- The United Nations Convention of Contracts for the International Sale of Goods, and any local laws implementing the Convention of Contracts for the International Sale of Goods, do not apply to this agreement.
- To the maximum extent permitted by law, you hereby waive any rights that you may have to bring disputes for resolution before any other court, tribunal or forum.
- You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
14 GST AND TAXES
- Capitalised expressions which are not defined in this agreement but which have a defined meaning in the GST Act have the same meaning in this clause 12.
- Unless expressly provided otherwise, any sum payable or amount used in the calculation of a sum payable under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause.
- If any GST is payable on any taxable supply made under this agreement to the recipient by the supplier, the recipient must pay the GST to the supplier on the earlier of the time of making payment of any monetary consideration on which the GST is calculated and the issue of an invoice relating to the taxable supply.
- The supplier must provide as a precondition for payment by the recipient of the GST, a tax invoice or a document that the Commissioner will treat as a tax invoice.
- The amount recoverable on account of GST under this clause by the supplier will include any fines, penalties, interest and other charges incurred as a consequence of late payment or other default by the recipient under this clause.
- If a party provides a payment for or any satisfaction of a Claim or a right to Claim under or in connection with this agreement that gives rise to a liability for GST, the provider must pay, and indemnify the claimant on demand against, the amount of that GST.
- Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions) that are imposed on that party upon or with respect to the transactions and payments under this agreement.
(a) keep confidential, and not to use or disclose, other than as permitted by this agreement, any Confidential Information of the other party;
(b) use the other party’s Confidential Information solely for the purposes contemplated by this agreement and for no other purpose without the prior written consent of the other party;
(c) not publish, disseminate or otherwise disclose Confidential Information of the other to any third party without first obtaining the written consent of such other party;
(d) restrict the dissemination of the other party’s Confidential Information to only those persons who have a need to know, and must ensure that all of its directors, officers, employees, agents, representatives, subcontractors and advisors (collectively, Agents) are aware of this agreement and bound by confidentiality obligations consistent with or at least as restrictive as those stated in this agreement.
- Clause 13.1 will not apply to that part of a disclosing party’s Confidential Information which the receiving party is able to demonstrate by documentary evidence:
(a) was in the receiving party’s possession prior to receipt from the disclosing party or is independently developed by the receiving party;
(b) was in the public domain at the time of receipt from disclosing party;
(c) has been independently developed by the receiving party without reference to the disclosing party’s Confidential Information;
(d) subsequently becomes a part of the public domain through no fault of the receiving party or its Agents; or
(e) is lawfully received by the receiving party from a third party having a right of further disclosure.
- The non-disclosure obligations pursuant to this agreement will not apply to Confidential Information that a receiving party is required to disclose pursuant to any judicial action, order of the court or other governmental agency; provided, however, that the receiving party must make all reasonable efforts to notify the disclosing party prior to the disclosure of Confidential Information (applicable law permitting) and allow the disclosing party the opportunity to contest and avoid such disclosure, and the receiving party may disclose only that portion of such Confidential Information that it is legally required to disclose.
- Upon termination or expiration of this agreement or at the disclosing party’s earlier written request, the receiving party must return, and must cause its Agents to return, all documentary, electronic or other tangible forms of Confidential Information provided by the disclosing party including, without limitation, any and all copies thereof, or, at the disclosing party’s request, destroy all or such parts of the disclosing party’s Confidential Information as the disclosing party directs.
- You must not, under any circumstances, access or use any Personal Information for any purpose other than the sole purpose of providing the Services.
- You must at all times:
(a) comply with our instructions in respect of the processing of Personal Information;
(b) maintain the strict confidentiality of Personal Information and must not reveal, disclose or make known any Personal Information to any person; and
(c) maintain appropriate security measures to prevent unauthorised use or disclosure of Personal Information.
- You must securely destroy any and all Personal Information immediately after completing any Service the Personal Information relates to.
- You must immediately notify us if you become aware of any actual or possible breach of this clause 14.
- You indemnify us for any loss, damage, dispute or third-party claim incurred by us as a result of your breach of this clause 14.
- You are responsible for maintaining the integrity of information relating to your access and use of the Application, including any password, login or key information. You represent and warrant at all times that you will not share any such information with any third party.
- We may send you notices under this agreement via phone, text message, email, or notifications sent via the Application.
- It is your responsibility to keep your email address and phone number current by updating the information you have provided to us.
- If you want to provide notice under this agreement, including a notice of termination, you must do so by sending a communication to us through the Application.
- By providing us with your mobile number, and agreeing to this agreement, you are providing us with written consent to receive notifications and text messages from us in connection with this agreement.
- We may assign our rights and obligations under this agreement. You must not assign or deal with your rights under this agreement without our prior written consent.
- If a provision of this agreement is illegal or unenforceable in any relevant jurisdiction, it may be severed for the purposes of that jurisdiction without affecting the enforceability of the other provisions of this agreement.
- Each party must promptly do whatever any other party reasonably requires of it to give effect to this agreement and to perform its obligations under it.
- Except as expressly stated otherwise in this agreement, a party may conditionally or unconditionally give or withhold consent to be given under this agreement and is not obliged to give reasons for doing so.
- Except as expressly stated otherwise in this agreement, the rights of a party under this agreement are cumulative and are in addition to any other rights of that party.
- A single or partial exercise or waiver by a party of a right relating to this agreement does not prevent any other exercise of that right or the exercise of any other right. A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
- The rights and obligations of the parties do not merge on termination or expiration of this agreement.
- This agreement may only be varied or replaced by an agreement executed by the parties.
- This agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one agreement.
- This agreement contains the entire understanding between the parties as to the subject matter of this agreement. All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this agreement are merged in and superseded by this agreement and are of no effect. No party is liable to any other party in respect of those matters.
- This agreement will be accessible to you at any time via the Application.