The Agreement is a legally binding contract that is entered into by My Jobstream Pty Ltd ABN 79 167 100 610 of Level 17, 15 Blue Street, North Sydney NSW 2060 (My Jobstream) and the person or entity that registers to use the Marketplace (Participant). A reference to “Members” means all persons and entities that have registered to use the Marketplace, including the Participant.
Registration (and access) to the Marketplace will only be granted once My Jobstream confirms that the Participant has met any eligibility requirements (as determined by My Jobstream from time to time) and My Jobstream has accepted the Participant’s application to register for the Marketplace (which it may do in its absolute discretion). Subject to acceptance of the Participant’s registration by My Jobstream, the Agreement takes effect on the earlier of the date the Participant accepts these terms and conditions during the Marketplace registration process via the www.myjobstream.com.au or (if applicable) the date the Participant signs a document agreeing to be bound by the terms of this Agreement.
The Agreement governs the use of the Marketplace and related services provided by My Jobstream via the Marketplace.
The Agreement consists of the following parts:
the Fee Schedule; and
any attachments or documents incorporated by reference into any of the documents referred to in sub-clause (a) or (b).
In the event of any inconsistency between any parts of the Agreement, the document listed earlier in clause 1.4 prevails to the extent of the inconsistency.
My Jobstream may vary the terms of this Agreement from time to time by written notice to the Participant and the variations in the notice will become effective 30 days following the date of that notice (“variation effective date”). Except where clause 1.7 applies, the Participant is deemed to have agreed to any variations to this Agreement notified pursuant to this clause if it continues to access and log in to use the Marketplace following the variation effective date.
If a Participant does not agree with any variations to the Agreement, the Participant must:
notify My Jobstream in writing of its disagreement before the variation effective date and details of the specific concerns with the variation; and
unless My Jobstream and the Participant otherwise agree to different terms and conditions in writing, the Agreement will terminate on the variation effective date (or such later date agreed in writing by My Jobstream) and clause 15 applies.
This Agreement continues until terminated the Agreement in accordance with clause 14 (Term).
The “My Jobstream” online marketplace available via www.MyJobstream.com.au (Marketplace) assists Members who are seeking the provision of particular IT services (Clients) to find and connect with Members that are independent contractors with relevant IT expertise seeking work (Specialists).
Clients can, via the Marketplace, post a request for specific IT services (whether such services are required on site or are to be provided remotely) and may offer an hourly rate or fixed price for that work and specify any applicable requirements and conditions in relation to that work (each a “Project”). Specialists may apply for the Projects listed on the Marketplace.
If a Client and Specialist agree to proceed with a particular Project, a separate independent agreement is formed directly between the Client and the Specialist in relation to that Project on the terms and conditions agreed by the Client and Specialist (each a “Client Specialist Agreement”). See clause 3 for further details.
My Jobstream offers a range of related services to Members in connection with their use of the Marketplace, including as follows:
Automated Invoicing – the Marketplace will automatically generate invoices for Projects as required;
Online Time Sheets – a facility is available for Specialists to record the time they spend on Projects which is used to calculate the invoice amount (where such Projects are on a time and materials and not fixed fee basis).
Payment Services – My Jobstream currently uses PromisePay Pty Ltd as its third party service provider for payment services (e.g. to facilitate payments by Clients to Specialists for Projects and by Members to My Jobstream for any fees and other amounts payable to My Jobstream in connection with this Agreement, card acceptance services, merchant settlement and related services). If the Participant chooses to utilise the payment services and transacts via the Marketplace, the Participant:
consents and authorises My Jobstream and PromisePay Pty Ltd to share any information and payment instructions the Participant (or its Permitted Users) have provided with third party services providers (e.g. credit card merchants and financial institutions) to the minimum extent required to complete and fulfil transactions conducted via the Marketplace;
acknowledges that PromisePay Pty Ltd may contact the Participant for purposes related to the provision and fulfilment of transactions conducted via the Marketplace, including in relation to payment support queries, handling potential chargebacks and requesting more identity information to combat fraud or to meet any identification requirements;
agrees that PromisePay Pty Ltd may credit the Participant’s bank account for sales made and debit the Participant’s bank account for any necessary adjustments, and to otherwise hold, receive and disburse funds in accordance with this Agreement (e.g. to make payments to My Jobstream for any fees and costs that the Participant owes to My Jobstream or to any other Members in accordance with the terms of this Agreement); and
agrees, where it is the Client, that PromisePay Pty Ltd will hold funds for particular Projects in an escrow or custodian account which will be used to pay the Specialist on satisfactory performance of the Specialist Services and to satisfy any payments owed to My Jobstream by the Client in relation to the particular Project.
Further details regarding the Marketplace functionality and related services are also described on the Marketplace.
Changes to the Marketplace functionality, and the related services, may be made at any time and without notice to the Participant. Without limiting the foregoing, My Jobstream will use reasonable endeavour to provide Members with prior notice of any major changes to the Marketplace or related services which may adversely impact upon Members (such notice may be provided on the Marketplace).
The Participant must use the Marketplace and any related services in accordance with the terms of this Agreement, My Jobstream’s reasonable directions and any guidelines published on the Marketplace.
The Participant acknowledges and agrees that:
the Marketplace is a forum which enables Specialists to find additional work and through which Clients can find service providers with the necessary expertise;
My Jobstream is not an employee of any Specialist;
the relevant Specialist is solely responsible for providing the services in relation to the Project to the Client (Specialist Services);
it is solely responsible for negotiating the terms of any Client Specialist Agreement that it is considering entering in to in relation to a Project;
the terms of the relevant Client Specialist Agreement govern the relationship between the Client and the Specialist in relation to each Project;
My Jobstream has no control over the quality, performance or timeliness of the Specialist Services and the Participant is solely responsible for enforcing any rights it may have against any other Participant in connection with a Project under the relevant Client Specialist Agreement or at law; and
it will use best endeavours to diligently and promptly perform its obligations under a Client Specialist Agreement.
Where My Jobstream makes available Default Client Specialist Agreement Terms via the Marketplace:
the Client and Specialist may elect, in their absolute discretion, that the Default Client Specialist Agreement Terms are to be used as the Client Specialist Agreement for a Project; and
My Jobstream makes no representation and gives no warranties as to the suitability of the Default Client Specialist Agreement Terms for a particular Project or for a particular Participant, or that it adequately protects the interests of the Participant.
My Jobstream strongly recommends that all Members seek legal and tax advice before entering in to a Client Specialist Agreement relating to a Project whether using the Default Client Specialist Agreement Terms or otherwise.
Subject to clause 4.2, Clients and Specialists that are introduced to each other via the Marketplace must manage and arrange each Project and any further work they do together exclusively via the Marketplace.
The Participant is not in breach of clause 4.1 if prior to dealing with a Client or Specialist outside the Marketplace:
where the Participant is a Client, the Participant pays My Jobstream the Placement Fee in relation to the Specialist (in which case the Participant is free to deal with that particular Specialist outside the Marketplace without restriction or further payment to My Jobstream); and
where the Participant is a Specialist, the particular Client it wishes to deal with outside the Marketplace has paid the Placement Fee to My Jobstream (in which case the Participant is free to deal with that particular Client outside the Marketplace without restriction or further payment to My Jobstream).
The Participant must not entice, advise or encourage (directly or indirectly) any other Client or Specialist to engage in conduct which would breach clause 4.1 without payment of the Placement Fee in accordance with clause 4.2.
Without limiting My Jobstream’s other rights and remedies under the Agreement or at law, if a Participant is in breach of clause 4.1 or clause 4.3, the Participant must pay liquidated damages to My Jobstream which is determined as follows:
where the Participant was the Client – 10% of the annual salary of the specialist engaged, based on the hourly rate multiplied by 2000 hours.
where the Participant was the Specialist – 3% of the annual salary of the specialist engaged, based on the hourly rate multiplied by 2000 hours.
The Participant acknowledges that the liquidated damages amount payable under clause 4.4 is a genuine pre-estimate of the loss likely to be suffered by My Jobstream as a result of a breach of clause 4.1 or clause 4.3 (as applicable) and is reasonable.
If a Client (or any of its Related Bodies Corporate) makes an offer of employment to:
a Specialist, where that Specialist is an individual contractor; OR
an employee, director or individual contractor of a Specialist, where that Specialist is an entity,
that was introduced to the Client via the Marketplace (a “restricted individual”), and the employment offer is accepted by the restricted individual, the Client must pay My Jobstream the Placement Fee. This clause applies whether or not the restricted individual (or the particular Specialist entity) performed a Project for the Participant.
The Participant must notify My Jobstream if:
it becomes aware of any conduct by any other Members that would breach clause 4.1 or clause 4.3; or
it is involved in any employment arrangement to which clause 4.6 applies, whether as the Client, Specialist or otherwise.
The Participant agrees that clause 4 applies during the Term and for a period of six (6) months following termination of the Agreement.
My Jobstream authorises and licences the Participant on a non-exclusive, non-transferable, revocable basis to access and use the Marketplace and related services (and to permit Permitted Users to do so on behalf of the Participant) during the Term for the Participant’s internal business purposes, subject to the terms and conditions of this Agreement.
The Participant acknowledges that the Login Details are confidential and must not disclose the Login Details to any person other than its Permitted Users.
The Participant is solely responsible for any use (and any misuse) of the Marketplace and related services by its Permitted Users (or anyone that uses the Participant’s Login Details, whether or not authorised by the Participant) and must ensure that each Permitted User is aware of and complies with the terms of this Agreement.
If the Participant or any of its Permitted Users experience any issues accessing the Marketplace or any related services, or have any questions in relation to the use of the Marketplace, please contact the My Jobstream at [support@MyJobstream.com.au or 026245 1700] (My Jobstream Support).
If the Participant suspects its account has been accessed without its authorisation, it must immediately contact My Jobstream Support and must also change its Login Details.
My Jobstream reserves the right at any time to:
suspend, discontinue or modify any aspect of the Marketplace (including its functionality) without notice, including in order to conduct maintenance or to implement updates; and
suspend or limit (in full or in part) the Participant’s or any Permitted User’s access to the Marketplace at any time without liability or prior notice to the Participant, including if:
the Participant is in breach of this Agreement; or
My Jobstream is concerned by any feedback or low ratings the Participant is receiving in connection with any Projects.
The Participant must, and must ensure that its Permitted Users, only use the Marketplace:
where the Participant is a Client:
to post Projects;
to find and contact suitable Specialists and to negotiate and enter into Client Specialist Agreements with Specialists;
to review the timesheets submitted by Specialists in relation to a Project; and
to facilitate the payment of amounts owed to Specialists and My Jobstream;
where the Participant is a Specialist:
to look for and apply for Projects;
to find and contact suitable Clients and negotiate and enter into Client Specialist Agreements with Clients;
to record work performed (e.g. time sheets) in relation to a Project;
to issue invoices to Clients and collect payments in relation to Projects performed; and
to facilitate the payment of any applicable fees payable to My Jobstream;
to manage the relationship with other Members and My Jobstream;
submit reviews of and give ratings for the experience and dealings with other Members; and
for such other purposes approved by the My Jobstream in writing or otherwise stated on the Marketplace.
The Participant must, and must ensure that its Permitted Users:
only provide and upload information which is true and accurate;
promptly update any information uploaded to the Marketplace;
when submitting reviews or giving ratings of other Members which will be publicly available to other users of the Marketplace:
provide reasonable, truthful and accurate feedback and ratings in a professional manner; and
use reasonable endeavours to first raise any adverse issues or experiences with any other Members directly on a confidential basis before submitting negative reviews or ratings
only upload information to the Marketplace that it has permission and consent to disclose; and
comply with all laws and regulations.
The Participant must not, and must ensure that the Permitted Users do not:
sub-license, novate or assign its rights to the Marketplace to any person;
grant any person access to the Marketplace who is not a Permitted User;
use the Marketplace for or on behalf of or for the benefit of any person other than the Participant;
modify, adapt, publish, communicate to the public, copy, distribute, reproduce or create derivative works of the Marketplace (or any data or materials made available to the Participant via the Marketplace), or any part thereof;
disassemble, reverse engineer, decompile or attempt to derive the source code of the Marketplace or any of its contents (and must not permit any other person to do any of those things), except to the extent the Participant is permitted to do so by applicable law;
upload or permit to be introduced to the Marketplace any software viruses or disabling code;
use data mining or similar data gathering tools to copy any of the data available via the Marketplace;
interfere with or disrupt the integrity or performance of the Marketplace; or
remove any copyright or trade mark notices from any materials provided or made available to the Participant in connection with this Agreement.
The Participant must not, and must ensure that the Permitted Users do not, use the Marketplace to:
mislead or deceive others;
impersonate, or otherwise misrepresent the Participant’s identity or affiliation with any other person or entity;
harass any individual or send spam to other Members; or
upload any materials which are defamatory, obscene, unlawful or infringe the rights of any person (including privacy rights, obligations of confidentiality and Intellectual Property Rights).
The Participant is responsible for all costs associated with accessing and using the Marketplace, including all telecommunications access charges, network infrastructure, equipment and other software.
The Participant is solely responsible for determining whether to do business with a Client or Specialist and the Participant must make its own assessment (including by performing appropriate background and reference checks) and satisfy itself as to the accuracy, completeness, currency, and reliability of any information provided by other Members via the Marketplace and the legality of undertaking a particular Project.
Without limiting clause 6.6, the Client is solely responsible for determining whether the Specialist:
is suitable for the particular Project, including whether they have the skills, knowledge, qualifications, capacity and experience necessary for the Project; and
has a criminal record, is or has been insolvent, has appropriate insurances and is otherwise reputable and trustworthy.
Without limiting clause 6.6, the Specialist is solely responsible for determining whether the Client:
is reputable and someone they want to perform work for;
is solvent and able to pay the Specialist’s fees;
has a criminal record, is or has been insolvent or has appropriate insurances; and
will provide a safe working environment which complies with all relevant laws (including occupational health and safety laws).
The Participant acknowledges that My Jobstream has not performed any background, police or reference checks of any Members, checked whether any of the Members have been or currently subject to an Insolvency Event or checked the accuracy, currency or completeness of any information uploaded to the Marketplace by Members.
Nothing in this Agreement requires My Jobstream to independently confirm the accuracy, currency or completeness of materials or facts uploaded by the Participant or any other Members to the Marketplace. However, My Jobstream may (without liability or prior notice to the Participant) remove or modify any content uploaded by a Participant to the Marketplace which My Jobstream believes on reasonable grounds breaches this Agreement, any law or a third party’s rights.
The Participant must pay the fees to My Jobstream in connection with the use of the Marketplace and related services, as described in the Fee Schedule.
Any fees payable to My Jobstream under this Agreement are due within 7 days of receiving a valid invoice from My Jobstream (via the Marketplace) for the relevant fee.
Any fees owed by a Client to a Specialist in relation to a Project are to be determined in accordance with the particular Client Specialist Agreement for that Project, and may be a time and materials rate or a fixed fee. The Fee Schedule sets out additional payment and escrow terms and conditions.
If any amount payable to My Jobstream under this Agreement has not been paid by the Participant by the due date for payment, My Jobstream may (without limiting its other rights and remedies at law and under this Agreement) do one or both of the following:
charge interest on the amount outstanding (at the rate which is equal to 1% above the annual rate specified by the Commonwealth Bank of Australia as its corporate overdraft reference rate (or such replacement or equivalent rate) from time to time or if this is greater than permitted by law then the highest rate permitted by law) calculated from and including the due date for payment until such time as full payment of the outstanding amount is made by the Participant; and
suspend the Participant’s access to the Marketplace until payment (including any interest) is made.
Unless the context otherwise requires, expressions which are not defined, but which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), have the same meaning when used in this clause.
Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this document are exclusive of GST. If GST is imposed on any supply made under or in accordance with this document and the consideration is exclusive of GST, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply.
A party is not obliged to pay an amount for GST in respect of a taxable supply to it, until given a valid tax invoice for the supply.
The Participant acknowledges that My Jobstream is the owner or a licensee of the Intellectual Property Rights in the Marketplace and all content and data contained in or accessible via the Marketplace and any other materials provided by or on behalf of My Jobstream in connection with this Agreement (My Jobstream IP). The My Jobstream IP expressly excludes any Participant Material.
Except as expressly set out in this Agreement, no rights or licences in or to the My Jobstream IP is granted to the Participant and all such rights are expressly reserved by My Jobstream.
My Jobstream acknowledges that all Participant Material, and all Intellectual Property Rights in all Participant Material, is owned by the Participant. The Participant grants to My Jobstream a non-exclusive, royalty free licence during the Term to use, copy, modify and reproduce the Participant Material in connection with the Participant’s use of the Marketplace and related services and for My Jobstream’s internal business purposes (and may sub-licence those rights to its Related Bodies Corporate and third party service providers).
The Participant warrants that:
it has all necessary rights and consents to provide the Participant Material to My Jobstream; and
the Participant Material and its use by My Jobstream and publication on the Marketplace will not breach any laws or the rights of any person (including Intellectual Property Rights).
The Participant is solely responsible for procuring any third party software and materials required in order for the Participant and its Permitted Users to access and use the Marketplace (Third Party Items). The Participant agrees that it is solely liable for any fees and charges in connection with obtaining such Third Party Items and agrees to comply with the terms and conditions imposed by third parties in relation to the Third Party Items.
If the Participant provides My Jobstream with any suggestions for improvements to the Marketplace or related services (Improvements), My Jobstream may use and implement such improvements without restriction (and without payment, attribution or notice to the Participant). Participant hereby assigns all of its rights (including all Intellectual Property Rights) in and to the Improvements to My Jobstream and the Participant agrees to do all things and sign all documents reasonably required by My Jobstream to give effect to this clause.
The Participant agrees to keep the Confidential Information confidential and not use it except as required to use the Marketplace and related services as permitted by this Agreement.
The Participant may only disclose the Confidential Information:
to those Permitted Users who require access to the Confidential Information to make use of the Marketplace and related services as permitted under this Agreement (provided that each Permitted User agrees to comply with clause 10.1 and the other terms of this Agreement);
to its professional advisors who are bound by obligations of confidentiality, or
if required by applicable law or the rules of a stock exchange (in which case the Participant must use best endeavours to provide prior written notice to My Jobstream so that My Jobstream may have an opportunity to contest any such disclosure required by law).
My Jobstream will use reasonable efforts in accordance with industry standards to maintain the confidentiality of the Participant Material but provides no warranty that the Marketplace (and, accordingly, the Participant Material) will be secure from unauthorised access or that the integrity of the Participant Material will be maintained. My Jobstream is not responsible for any disclosure of Participant Material which occurs via unauthorised use of the Participant’s Login Details or any unauthorised use of or access to the Marketplace by third parties.
The obligations in clauses 10.1 and 10.3 do not apply to information that:
is or becomes generally known to the public without breach of any obligation of confidentiality; or
was independently developed by the other party without use of or access to that information.
The Participant agrees that My Jobstream may monitor and view all interactions, communications and emails it sends, receives or conducts via the Marketplace and the Participant’s use of the Marketplace and, without limiting its rights, My Jobstream may use any such information to enforce these terms and conditions or to comply with any law or government authority request.
My Jobstream may from time to time engage third parties, including third parties located overseas, to assist My Jobstream in the provision, development, maintenance, support and hosting of the Marketplace and the related services. The Participant consents to My Jobstream disclosing the Participant Material on a confidential basis to such third parties to the extent required so that they can perform these services for My Jobstream.
Subject to clause 11.2, the Participant consents to being contacted via the Marketplace by other Members. In particular:
Clients consent to being contacted by Specialists in relation to Projects they post via the Marketplace; and
Specialists consent to Clients contacting them regarding Projects they post.
The Participant must not contact any person or entity via the Marketplace if that person or entity has notified them that they do not wish to be contacted by the Participant.
Each Participant is responsible for providing any privacy and spam statements (and functional unsubscribe facilities) required by law to other Members that they make contact with via the Marketplace.
If the Participant or any Permitted User provides or permits any Personal Information to be uploaded to the Marketplace or otherwise provides Personal Information to My Jobstream or any other person in connection with this Agreement, the Participant warrants that:
it has all necessary rights and consents as required by law (including the Privacy Act 1988 (Cth)) to do so; and
My Jobstream’s use of that information as required in order to allow the Participant to have the benefit of and use the Marketplace and related services will not breach any law (including the Privacy Act 1988 (Cth)).
Where My Jobstream or any other person provides the Participant with access to any Personal Information (including via the Marketplace), the Participant must:
only use the Personal Information for the permitted purpose and in accordance with any directions given by My Jobstream (or the disclosing person) regarding the use of the Personal Information; and
comply with all laws (including the Privacy Act 1988 (Cth)) regarding the collection, use and disclosure of such Personal Information.
All express and implied terms, conditions, warranties and guarantees which otherwise might apply to, or arise out of, this Agreement are excluded other than:
as expressly stated in this Agreement; and
guarantees which by law cannot lawfully be excluded or modified by agreement including those under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)).
If My Jobstream is liable for a breach of a guarantee described in clause 12.1, and that liability cannot, by law, be excluded but can be limited, My Jobstream’s liability is, to the fullest extent permitted by law, limited to the following (at My Jobstream’s option):
in the case of goods, the payment of the cost of replacing the goods or of acquiring equivalent goods; and
in the case of services, supplying the services again or the payment of the cost of having the services supplied again.
Subject to clauses 12.1 and 12.2, the Marketplace is provided on an “as is” and “as available” basis and the Participant uses the Marketplace at its own risk and agrees that it has:
not relied on any statement, representation, warranty, conduct or undertaking made or given by My Jobstream or any person on its behalf, other than those set out in clauses 12.1;
relied on its own skill and judgment in deciding to use the Marketplace and enter into this Agreement; and
performed its own due diligence and inquiries to determine the suitability of any other Members with whom it interacts or otherwise does business with via the Marketplace.
Subject to clauses 12.1 and 12.2, My Jobstream provides no warranty or guarantee and makes no representation that the Marketplace and related services:
will be uninterrupted, error free or available at all times, or that any defects will be corrected;
are fit for a particular purpose;
are accurate, up to date or complete;
will be compatible with the Participant’s hardware, software and other systems;
will not impact the performance of other services, hardware software and systems and those of third parties;
will be secure from unauthorised access;
will not contain any viruses or disruptive code; and
will not infringe any person’s rights (including Intellectual Property Rights).
The Participant is responsible for all back-up of files and Participant Material and My Jobstream is not liable to the Participant for any loss of data (including the Participant Material).
The transmission of information over the internet is not completely secure or error free. The Participant must use discretion in deciding what information to upload to the Marketplace.
The Marketplace may contain links to other websites and may display content or information (including advertisements) from other websites. My Jobstream is not responsible or liable for that content and does not warrant the accuracy, completeness, currency or suitability of that content for any purpose.
Subject to clauses 12.1 and 12.2:
the My Jobstream Group is not liable for, and the Participant hereby releases the My Jobstream Group from, any loss, damage or expense (including, without limitation, loss of profits, loss of anticipated savings, loss of use, loss of reputation, loss of opportunity, loss of data, business interruption, cost of procurement of substitute goods or services, or any indirect, special or consequential loss) suffered or incurred by the Participant Group (including due to any person’s negligence) in connection with:
the use of the Marketplace;
the provision of the payment and escrow services by PromisePay Pty Ltd;
the provision or receipt of any Specialist Services or breach of any Client Specialist Agreement;
any decision by the Participant to deal with any other Members via the Marketplace;
the acts or omission of any other Members in connection with a Project or otherwise; and
any acts or omissions taken in reliance on the information contained on or omitted from the Marketplace,
except for any liability which cannot be excluded by law (in which case that liability is limited to the minimum allowable by law); and
the maximum cumulative liability of the My Jobstream Group for all loss, damage, liability and expense suffered or incurred by the Participant Group in connection with the Agreement and the other circumstances referred to in clause 13.1(a)(ii) to 13.1(a)(vii) inclusive, whether under contract, statute, in tort (including negligence) or otherwise, is limited to $1,000.
For the avoidance of doubt, clause 13.1 does not in any way limit PromisePay Pty Ltd’s obligation to remit to the Participant any amounts held in escrow which are required to be paid to the Participant in accordance with the Participant’s direct agreement with PromisePay Pty Ltd. My Jobstream’s sole obligation (and entire liability to the Participant) in connection with any Participant funds held in escrow by PromisePay Pty Ltd is to use reasonable endeavours to request PromisePay Pty Ltd to distribute the funds held in escrow for that Participant in accordance with the applicable payment directions for those funds.
The Participant indemnifies the My Jobstream Group from and against any action, claim, liability, loss, damage or expense (including legal costs) the My Jobstream Group may suffer or incur in connection with:
a breach by the Participant of this Agreement; or
any information or content provided by or on behalf of the Participant which infringes any person’s rights (including privacy rights or Intellectual Property Rights) or any law.
Where the Participant indemnifies a person that is not a party to this Agreement, My Jobstream holds the benefit of the indemnity on trust for that person and may enforce the indemnity against the Participant on behalf of that person.
My Jobstream is not liable for any delay or failure to perform its obligations if caused by a Force Majeure. My Jobstream has no control over communications networks and is not liable for any problems associated with them due to traffic congestion, technical malfunction or otherwise.
My Jobstream may terminate this Agreement for convenience and without liability on thirty (30) days written notice to the Participant. The foregoing does not limit My Jobstream’s obligation under clause 15.1(b).
The Participant may terminate this Agreement for convenience on thirty (30) days written notice to My Jobstream.
A party may terminate this Agreement with immediate effect by giving written notice of termination to the other party if:
the other party breaches a material term of this Agreement which cannot be remedied;
the other party is in breach of this Agreement and fails to remedy the breach within fourteen (14) days of receiving written notice requiring it to do so; or
the other party is subject to an Insolvency Event.
Without limiting clause 14.3, My Jobstream may also terminate the Agreement if:
the Participant is in breach of clause 4;
the parties fail to agree upon revised terms and conditions in accordance with clause 1.7(b); or
the Participant fails to pay any amount owing to My Jobstream under with Agreement by the due date within a further seven (7) days of receiving a reminder notice from My Jobstream requiring it to do so.
On termination of the Agreement:
the Participant must immediately pay all outstanding fees payable to My Jobstream without any set off, counterclaim or withholding;
the Participant is solely responsible for requesting the release of any amounts held by PromisePay Pty Ltd in escrow in relation to any transactions or Projects that the Participant is involved in pursuant to the payment directions associated with that Project;
the licence in clause 5.1 terminates and the Participant must immediately cease using and accessing the Marketplace;
the Participant must return or permanently delete (at My Jobstream’s election) all Confidential Information and any My Jobstream IP in the possession or control of the Participant Group;
My Jobstream will not use the Participant Material except to the extent required for its own internal business purposes; and
clauses 3.2(b), 4 (but subject to clause 4.8), 7.4, 9.6, 10, 10.4, 11.4, 11.5, 11.6, 12, 13, 15, and 18, and any other clauses which are expressed to or which by their nature survive termination of this Agreement, continue in full force and effect.
In the event of a dispute between a Client and Specialist regarding the performance of the Specialist Services or the Specialist Fees which cannot be resolved commercially, such dispute will be determined in accordance with:
any dispute procedure agreed by the parties in the particular Client Specialist Agreement to which the dispute relates; or
in the absence of a dispute process in the Client Specialist Agreement, the dispute resolution process set out in the PromisePay Pty Ltd Seller Agreement (www.promisepay.com/selleragreement).
If a Client has a genuine dispute with the Specialist regarding the performance of the Specialist Services, and communicates this to the Specialist via the Marketplace, the Participant acknowledges that My Jobstream and its third party suppliers may withhold payment of any disputed amount that is held in escrow in relation to the particular Project until it receives notice that the dispute has been resolved and how to process the claim.
My Jobstream has no obligation to intervene in or resolve any disputes or issues between the Participant and other Members or between the Participant and third parties (including PromisePay Pty Ltd).
Any notice or other communication under this Agreement must be given in writing and may be delivered by hand or sent by pre-paid post or email to the authorised representative of the other party and are effective upon receipt. The particulars for delivery of notices are initially as follows:
in respect of My Jobstream:
Level 17, 15 Blue Street, North Sydney NSW 2060
in respect of the Participant: the authorised representative, address and email address that was provided by the Participant in its application to register for the Marketplace.
A party may change its notice details from time to time via the Marketplace.
This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
My Jobstream may include the name and logo of the Participant in lists of users of the Marketplace in accordance with the Participant’s directions.
My Jobstream may assign or novate this Agreement (or any of its rights hereunder) to any other person on written notice to the Participant. The Participant must not assign, novate or sub-licence any of its rights or obligations under this Agreement to any person without My Jobstream’s prior written consent. Any purported dealing in breach of this clause is void and of no effect.
This Agreement is governed by and is to be construed in accordance with the laws applicable in Victoria, Australia. Each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts exercising jurisdiction in Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
Any disputes between the parties in connection with this Agreement must be first escalated to the senior management of each party for resolution. If the senior management of the parties are unable to resolve a dispute following such escalation, either party may take such action available to it at law.
This Agreement contains the entire understanding between the parties as to the subject matter of this document, unless My Jobstream otherwise agrees in writing to the contrary.
Except as expressly stated otherwise in this Agreement, a party may conditionally or unconditionally give or withhold any consent or approval to be given under this Agreement and is not obliged to give its reasons for doing so.
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.
The Participant agrees that My Jobstream may set off any amounts owed to it under this Agreement, including liquidated damages and amounts claimed under any indemnity in this Agreement, against:
any amounts that My Jobstream is required to pay to the Participant; and/ or
any amounts held in escrow by PromisePay Pty Ltd for the Participant (in which case the Participant irrevocably consents to My Jobstream directing PromisePay Pty Ltd to pay My Jobstream such amounts held in escrow for the Participant to My Jobstream for the purposes of this clause).
Unless expressed to the contrary, in this Agreement:
“includes” means includes without limitation;
“a party” means My Jobstream or the Participant, as the context requires, and a reference to “the parties” means both of them;
no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it;
a reference to:
time is to local time in Melbourne, Australia;
“$” or “dollars” is a reference to Australian currency;
a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; and
this or any other document includes the document as novated, varied or replaced and despite any change in the identity of the parties.
Unless otherwise expressly indicated, defined terms used in this Agreement have the meaning set out below:
Agreement has the meaning in clause 1.4, as may be varied from time to time in accordance with clause 1.6 and/or clause 1.7(b).
Client Specialist Agreement is defined in clause 2.3.
Clients is defined in clause 2.1.
Confidential Information means any information disclosed by My Jobstream in connection with this Agreement which is designated as confidential or which is, by its nature, confidential, and includes the My Jobstream IP.
Default Client Specialist Agreement Terms means a standard short form services contract that My Jobstream may make available from time to time via the Marketplace.
Fee Schedule means the schedule to this document titled “Fee Schedule”.
Force Majeure means any event beyond the reasonable control of My Jobstream, including any telecommunications failure, equipment failure or any failure by subcontractors (or other third parties) to provide services.
Improvements is defined in clause 9.6.
Insolvency Event means any of the following:
a person is or states that the person is unable to pay from the person’s own money all of the person’s debts as and when they become due and payable; or
a person enters or threatens to enter into bankruptcy, liquidation or any other form of insolvency, administration, management or receivership.
Intellectual Property Rights means all intellectual property rights including existing and future copyright, rights in designs, trade marks and patents, whether registered or unregistered, anywhere in the world.
Project is defined in clause 2.2.
Login Details means the username and password given to the Participant through which it and its Permitted Users can access and use the Marketplace.
Marketplace Fee is described in the Fee Schedule.
Marketplace is defined in clause 2.1.
Members is defined in clause 1.1.
My Jobstream is defined in clause 1.1.
My Jobstream Group means My Jobstream, its Related Bodies Corporate, and any of their employees, officers, directors, contractors and agents.
My Jobstream IP is defined in clause 9.1.
My Jobstream Support is defined in clause 5.4.
Participant is defined in clause 1.1.
Participant Group means the Participant, its Related Bodies Corporate, and any of their employees, officers, directors, contractors and agents (including all Permitted Users).
Participant Material means all data, information and materials submitted to the Marketplace by or on behalf of the Participant and any of the Permitted Users and includes the information referred to in clause 10.4, but excludes any Improvements.
Permitted Users means employees, officers, agents, and individual contractors of the Participant or of the Participant’s Related Bodies Corporate who use the Marketplace.
Personal Information means information or an opinion (including where forming part of a database), whether true or not, and whether recorded in a material form or not, about an identified individual, or an individual who is reasonably identifiable from the information or opinion.
Placement Fee means the amount set out in the Fee Schedule, unless otherwise agreed in writing by My Jobstream.
Related Bodies Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
Specialists is defined in clause 2.1.
Specialist Fees is described in the Fee Schedule.
Specialist Services is defined in clause 3.1(c).
Term is defined in clause 1.8.
Third Party Items is defined in clause 9.5.
Current as at 14 July 2014
|Fees and payment arrangements between Clients and Specialists|
The Specialist Fees are the amounts payable by a Client to a Specialist in relation to a particular Project, as agreed by the relevant Client and Specialist in the particular Client Specialist Agreement.
Escrow and payment requirements
Clients must deposit funds in escrow for the estimated amount of the Project for Specialist Fees (and the applicable Marketplace Fee), plus GST, prior to the start of the week to which the Specialist Fees relate.
Once the Specialist has performed the required work for the week in accordance with the requirements of the Client Specialist Agreement for the particular Project, an invoice will be sent via the Marketplace for the Specialist Fees applicable for the week’s work.
The applicable Specialist Fees must be paid by the Client within 7 days of receiving a valid invoice via the Marketplace (the “Specialist Fees due date”).
The Marketplace will automatically facilitate payment of the applicable Specialist Fees to the Specialist on the Specialist Fees due date from the amounts held in the Client’s escrow account unless the Client validly raises a dispute in accordance with the dispute procedure set out in clause 16 of the Agreement.
|Fees payable to My Jobstream|
Where the Participant is a Client, it must pay to My Jobstream a fee which is calculated as 10% of the value of the applicable Specialist Fees (GST exclusive) that it is required to pay to the Specialist in relation to a Project.
Payment is to be made at the same time the Specialist Fees are payable by the Client to the Specialist and the Marketplace will automatically facilitate payment of the Marketplace Fee to My Jobstream from the amounts held in escrow on the applicable Specialist Fees due date.
Payment Processing Fees
When a Specialist seeks to transfer funding from its escrow account to their own bank account, a 3% payment processing charge (on the funds to be transferred) is payable to My Jobstream. This payment is automatically paid to My Jobstream from the Participant’s escrow account at the time of the transfer.
$2,000 (ex GST), which is payable each time a Client wishes to deal with a Specialist outside the Marketplace (see clause 4.2) and each time a Client (or its related company) employees a Specialist (see clause 4.6). The obligation to pay this fee continues for six months following termination of the Agreement (see clause 4.8).