Global Staffing Solutions and Advisory - Product-Specific Terms
1. Appointment
1.1 The Customer hereby appoints EPG Group to provide Employer of Record services (Product) in the relevant territory identified in the Order.
1.2 EPG Group or its nominee will act as the employer of record for the Customer and will be responsible for direct employment of the Personnel pursuant to the terms of the Employment Contract applicable in the territory in which Personnel is based.
1.3 EPG Group reserves the right to use a member of its group or third parties (agents or partners, being locally registered entities) to provide the Product to the Customer, either in whole or in part.
2. Obligations of EPG Group
2.1 EPG Group or its nominee may, as requested by the Customer in the Order, provide any or all of the following to the Customer:
(a) payment of wages to Personnel, as agreed with the Customer, through EPG Group’s payroll or that of its nominee, including that EPG Group or its nominee will make all the required deductions and withholdings as required by local law;
(b) reporting and remitting payroll taxes and other mandatory social security and/or retirement charges, in compliance with all local tax and employment requirements in respect of wages paid to Personnel;
(c) providing and administering benefits (e.g. health and welfare benefits) that the Customer requests from time to time;
(d) providing the Customer with workplace policies that comply with local laws in the locations where Personnel are based; and
(e) maintaining all employee-related records, as may be required by local law.
2.2 The Customer agrees:
(a) to complete an Order form that specifies the terms and conditions of employment of each Personnel, including without limitation the rate of pay, start date, end date (if applicable), job title, a brief description of their duties, classification under any industrial instrument, work location, hours of work and any other information as requested by EPG Group from time to time.
(b) that it has responsibility for the day-to-day control and supervision of the Personnel including in respect of work location, working times, working practices, equipment and monitoring of all matters concerning performance of work, in a manner consistent with the Employment Contract;
(c) to provide EPG Group or its nominee with such information and assistance as it reasonably requires in order to carry out its obligations as the employer of record of the Personnel;
(d) that it will consult with EPG Group before approving any holiday request made by any Personnel;
(e) that it will carry out performance reviews in respect of the Personnel on a regular basis and at least one month prior to the expiry of any applicable probationary period. Upon the completion of such reviews, the Customer must provide written reports to EPG Group which contain sufficient detail regarding the review process, the steps taken by the Customer to support the Personnel, any specific objectives the Personnel is required to achieve and the review period;
(f) to notify EPG Group in the event that it proposes to commence a formal performance or conduct improvement process with any Personnel and clearly outline the reasons for such proposal;
(g) to provide all required equipment for Personnel (hardware, software, stationery, tools, etc.) and that it will be solely responsible for collecting all such equipment and other property belonging to it (e.g. business information) from Personnel in the event of a termination of employment or termination of the Platform Agreement;
(h) that Personnel are entitled to any and all statutory benefits provided to employees in the Territory of the Personnel’s employment and any contractual benefits provided in the Employment Contract;
(i) to consult with EPG Group regarding any changes to location, business activity and right to work status for Personnel;
(j) that the Personnel will not be required to perform work outside the Territory for a period of time that would impact the Personnel’s compliance or tax status;
(k) to immediately notify EPG Group of any act by the Personnel which may entitle EPG Group to terminate the employment of the Personnel immediately and without notice of termination;
(l) to maintain detailed and accurate records regarding time worked by the Personnel and to provide information to EPG Group in a timely manner and by no later than agreed in the Order, including in relation to:
a. wages and regular rate of pay;
b. overtime;
c. commissions;
d. bonuses;
e. paid leave;
f. unpaid leave; and
g. any other payments or deductions which should be made to Personnel for the relevant pay period;
(m) that it will not induce the Personnel to breach the Employment Contract;
(n) that it will not make any representations to the Personnel in relation to the terms of the Employment Contract and is not otherwise authorised to make any variations to its terms;
(o) to maintain, at its own expense, such licenses and permits as may be reasonably required by applicable law and regulation in order to carry on its business in the Territories;
(p) to immediately inform EPG Group if it has any knowledge of any actual or potential employment-related claim regarding the Personnel, including but not limited to any complaints (oral or written), allegations or claims made by the Personnel; and
(q) that it will not give any directions or instructions to EPG Group or its nominee that would render either EPG Group or its nominee in breach of any local laws. In the event of any refusal by EPG GROUP or its nominee to carry out an unlawful direction or instruction given by the Customer, the Customer agrees and confirms that it will continue to be liable for all payments and fees due to EPG Group or its nominee.
3. Management Issues
3.1 In this clause, Management Issues means all those matters arising from the employment of Personnel or under the Employment Contract which require action and/or investigation by the Customer including appraisals, performance issues, salary reviews and the award of other discretionary payments and benefits under the Employment Contract, periods of leave or other absence, complaints, concerns or grievances by or involving the Personnel (whether formal or otherwise).
3.2 If any Management Issues arise during the term, then the Customer agrees that it will notify EPG Group of the Management Issues in writing as soon as reasonably practicable.
3.3 The Customer must then consult with EPG Group before taking further action relating to the Management Issues, and agrees to follow any reasonable directions or guidance given by EPG Group about the Management Issues arising from these consultations.
3.4 The Customer must ensure that EPG Group or its Nominee has the option to attend all meetings with or involving the Personnel about the Management Issues and any meetings with third party advisors including legal advisors.
3.5 The Customer agrees to provide any information and ongoing assistance requested by EPG Group or its Nominee relating to the Management Issues and the Personnel, which may include providing witness evidence and other legal assistance.
4. Fees and payment terms
4.1 Customer Fees and invoicing
(a) The Customer agrees to pay all amounts owing under this agreement including Total Payroll Costs, Subscription Fees and any Additional fees[, together with (if applicable) a banking service fee equal to 1% of all amounts owing under this agreement].
(b) The Subscription Fees payable by the Customer for the Product will be set out in each Order. Any Additional Fees will be agreed between the parties when agreeing Additional Services.
(c) An additional month’s Subscription Fee will be charged in the event that Personnel are terminated at the Customer’s discretion (ie not resignations) within 6 months of commencement.
(d) EPG Group will typically invoice the Customer for the Fees in the second week of each month, however this may vary where onboarding, offboarding, local payroll information, processing of payroll updates and foreign exchange delays EPG Group’s ability to issue an invoice.
(e) Invoices are payable strictly within 7 days of their date of issue.
4.2 Taxes
(a) All payment obligations in this agreement are exclusive of any applicable sales taxes (for example, GST or VAT).
(b) If sales tax is or becomes payable on a supply made under or in connection with this agreement, an additional amount is payable by the party with the payment obligation equal to the amount of sales tax payable on that supply in accordance with relevant tax Law. EPG Group will include any applicable sales taxes on invoices issued to the Customer under this agreement.
4.3 Foreign exchange
The foreign exchange (FX) rates applied to amounts payable under this agreement are subject to change and are determined based on the prevailing rates at the time of invoicing. EPG Group will attempt to ensure accuracy and fairness in transactions by utilising the most up-to-date rates from reputable sources. However, the parties acknowledge that the FX market is dynamic and unpredictable, and fluctuations in rates may occur.
4.4 Customer deposit
The Customer agrees that during the term of this agreement, it will continue to maintain a deposit with EPG Group or its Nominee (at the direction of EPG Group) equal in value to the previous month’s Total Payroll Cost, including any commissions, bonuses or ancillary payments (Deposit). The Customer agrees to make a payment to EPG Group for the Deposit amount within 7 days of the invoice date.
4.5 Statutory or other employment costs relating to the Personnel
(a) The Customer agrees that it is liable to pay any additional costs relating to EPG Group or its Nominee’s employment of the Personnel that must be paid under the Employment Contract or applicable Law. These may include: a. any payments for costs (including legal costs), severance or similar payments, compensation, settlement payments, indemnities, bank or administration fees from third parties or any other such payments relating to the termination of Personnel under their Employment Contract and applicable Law;b. changes to any such additional costs due to a change in Law, social costs or other factors beyond EPG Group or its Nominee’s control;c. any additional statutory costs or fees applied by Law to any additional compensation (including allowances, commissions or bonuses) paid to Personnel.
(b) Where such costs are payable by the Customer, EPG Group will provide supporting documentation for these costs on request.
4.6 Accruals and additional benefits
(a) If applicable, accruals are collected based on fixed statutory costs and are provided to the Personnel based on applicable Law, or at termination if not used before termination.
(b) Additional benefits above the relevant statutory minimums will be paid directly to the Personnel as an ‘allowance’. The Customer will be responsible for considering and will be liable for any tax consequences of any such payments.
4.7 Late payments
(a) Where the Customer fails to make a payment when due under this agreement, then EPG Group or its Nominee may: a. charge the Customer a late payment fee equal to the lower of $50 per day that the payment is late and the maximum amount permitted by Law; andb. follow the process for terminating this agreement under clause 8.2.
(b) The Customer acknowledges that its failure to make payments to EPG Group when due under this agreement may result in delays in EPG Group processing payroll for Personnel.
4.8 Changes to the Fees
(a) On and from 1 July each year after the first anniversary of this agreement, and by providing at least 1 month’s notice in writing to the Customer, EPG Group may increase the Subscription Fees by an amount equal to the greater of: a. the consumer price index published by the Australian Bureau of Statistics for the year immediately before such increase; and b. 5% of the Fees payable immediately before such increase.
5. Confidential information
5.1 Both EPG Group and the Customer may be given access to or acquire information which is proprietary or confidential to the other party or its Group, clients and customers. Any and all such information obtained by the other party shall be deemed to be confidential and proprietary information and must not be disclosed to anyone without the prior written approval of the other party.
5.2 Both parties agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purpose whatsoever other than the providing the Product under this Product-Specific Agreement. EPG Group may also disclose the Customer’s confidential information to other members of its Group for the purpose of providing the Product.
6. Intellectual property
EPG Group agrees that (subject to local employment law restrictions) all work performed by the Personnel pursuant to the Employment Contract, including all intellectual property rights, moral rights and other tangible rights in and to that work, will belong or be transferred to the Customer. EPG Group will include a term to the effect of this clause in the Employment Contract of the Personnel.
7. Termination of Personnel’s employment
7.1 The Customer must provide notice to EPG Group before any proposed termination of Personnel
(a) If the Customer proposes to require EPG Group to terminate the employment of any Personnel, then it must provide EPG Group with prior written notice of the proposed termination (a Proposed Termination Notice) before communicating with the Personnel: a. in the case of termination for serious misconduct or other material breach of the Employment Contract that allows for the Employment Contract to be terminated without notice, as soon as reasonably practical before the date on which the termination is proposed to be communicated to the Personnel; or b. in any other case, at least 30 days before the date on which the termination is proposed to be communicated to the Personnel (note this does not remove the requirement for adequate notice of termination to be given to the Personnel under law).
(b) The Proposed Termination Notice must follow any template questionnaire provided by EPG Group for this purpose, but in any event provide a reasonable level of detail about:a. the reasons for terminating the Personnel’s employment under applicable Law or the Employment Contract;b. any steps the Customer has taken in relation to the reasons for termination, including any investigations or internal reviews, performance management processes, prior warnings, consultations in respect of any redundancies, considerations of the possibility of redeployment or any similar actions; andc. any outstanding payments to be made to the Personnel under the Employment Contract or as part of the termination at Law.
7.2 EPG Group will provide direction on the Proposed Termination NoticeAs soon as practicable (having regard to the urgency of the request) after receiving the Proposed Termination Notice, EPG Group will provide guidance to the Customer on how the termination of the Personnel’s employment must be carried out so that it complies with applicable Law in the Territory (the Termination Plan) and will discuss this with the Customer in good faith. For the avoidance of doubt, the Termination Plan may depart from the proposed termination process or timing provided for in the Proposed Termination Notice, and outline alternative processes for terminating the Personnel’s employment.
7.3 Customer and EPG Group to give effect to Termination Plan
(a) The Customer must strictly follow the Termination Plan provided to it by EPG Group or its Nominee under this agreement. The parties (and if applicable, the Nominee) must work towards giving effect to the Termination Plan in good faith, having regard to the timelines and actions of each party outlined in the Termination Plan.
(b) The Customer agrees to be responsible for any claims, demands or costs arising out of the Personnel’s employment, employment contract or termination including payments to the Personnel as required by Law or the Employment Contract, and to continue to pay the Fees for the period until termination of the Personnel’s employment is complete.
7.4 Effect of terminating employment of Personnel
(a) Termination of the employment of one member of the Personnel will not give rise to a termination of this agreement or any other Personnel.
(b) Notwithstanding the termination of an Employment Contract for any reason, the Personnel may still be affiliated with EPG Group and continue to use the Xemplo platform (eg EPG retaining employment records).
8. Termination of this Product-Specific Agreement
8.1 Either party may terminate the Product Specific Agreement in the event of:
(a) a material breach of this agreement by the other party which, if capable of remedy, is not remedied by the defaulting party within 14 days of its receipt of written notice of the breach from the non-defaulting party;
(b) fraud or wilful default of the other party; or
(c) the other party becoming insolvent or unable to pay its debts as and when they fall due or has a liquidator or receiver appointed to it, or a winding up order instituted against it.
8.2 In the event that this Product Specific Agreement is terminated in accordance with clause 8.1 above, then:(a) for at least 5 Business Days in the Territory after the date of termination, the parties will cooperate in good faith to agree to:a. effect the transfer of the employment of all Personnel in each Territory and their Employment Contracts to an entity nominated by the Customer, with such transfer to be on terms equivalent to a transfer under clause 11.5(b); orb. terminate the Personnel’s Employment Contract for reason of redundancy and in such case, the Customer agrees to pay to EPG Group or its Nominee any and all costs associated with such termination, including without limitation, notice, leave entitlements, redundancy and severance pay; or(b) if the parties fail to agree in good faith to proceed under clause 8.2(a), EPG Group may in its absolute discretion (and may on behalf of any member of the EPG Group or its Nominee):a. terminate the Personnel’s Employment Contract for reason of redundancy, and in such case, the Customer agrees to pay to EPG Group or its Nominee any and all costs associated with such termination, including without limitation, notice, leave entitlements, redundancy and severance pay; orb. require the Customer to, as soon as reasonably possible, effect the transfer of the employment of all Personnel in each Territory and their Employment Contracts to the Customer or another entity that it nominates, including to facilitate the transfer of all accrued leave entitlements from EPG Group or its nominee to the Customer’s nominated entity and to make a direct offer of employment to the Personnel, which offer must:i. be on the same terms and conditions as the Employment Contract;ii. be made to the Personnel within 3 days of the termination of the employment of the Personnel from EPG Group or its Nominee; andiii. recognise prior service of the Personnel with EPG Group or its Nominee, including for the purpose of all leave and service-based entitlements; and(c) in the case of (a) or (b) above, the Customer agrees to pay all fees or costs payable under this agreement (including Subscription Fees and any Additional Fees that apply) in respect of each member of the Personnel for the period ending on the date on which that person’s Employment Contract is terminated or their employment is transferred under this clause.
9. Customer Indemnity
(a) The Customer will indemnify and hold EPG Group, each member of the EPG Group and its Nominee, and each of their directors, officers, employees, agents and licensors (Indemnified Parties), harmless from expenses, losses, damages and costs that they may sustain or incur as a result, whether directly or indirectly, of any of the following:a. breach of this agreement by the Customer;b. negligent or wilful act or omission of the Customer;c. claims or demands brought by the Personnel (or on their behalf) against EPG Group, a member of the EPG Group or its Nominee as the employer arising out of: i. their employment and / or any Management Issues to the extent that the Customer is not following directions provided by EPG Group or its Nominee; orii. the Employment Contract or its termination; andiii. all personal, property injury or damages incurred, suffered or caused by Personnel during any engagement with the Customer.(b) Should any claims arise against the Indemnified Parties as a direct or indirect result of EPG Group or its nominee following the Customer’s direction or instructions, the Customer shall take all reasonable steps to mitigate and cover the costs of any and all damages, liabilities, expenses, claims, fines and losses of any type, including without limitation reasonable legal fees, in connection with, arising out of or relating to, in whole or in part, of any such claim against the Indemnified Parties.
10. Warranties
10.1 The Customer warrants that:
(a) It will provide any information and assistance reasonably requested by EPG Group to enable EPG Group to meet its obligations under this agreement, and will ensure that any information provided to EPG Group is accurate in all material respects;
(b) in engaging EPG Group to provide Services, none of the materials or documentation provided to EPG Group by the Customer will infringe any Intellectual Property Right of any person; and
(c) when engaging or managing Personnel, the Customer will comply with any applicable Laws relating to anti-discrimination and fair hiring.10.2 EPG Group warrants that:(d) it and its Nominees are suitably qualified to provide the Product;
(e) all Products will be provided with due care and skill and in compliance with applicable Laws;
(f) Personnel will be, and remain for the term of their employment, the direct employees of EPG Group or its Nominee, subject to the terms of an Employment Contract;
(g) EPG Group or its Nominee (as applicable) will be solely responsible for the payment of wages, overtime, leave entitlements, applicable taxes, expenses and benefits under the Employment Contract relating to each member of the Personnel;
(h) in providing the Product neither EPG Group or its Nominees will be in breach of any obligation owed to any person or infringe any Intellectual Property Rights of any person.
11. Limitation on Liability
To the fullest extent permitted by law, EPG Group disclaims any liability (as between EPG Group and Customer and its clients etc) in relation to the actual work product produced by any Personnel while on assignment with Customer.
12. Definitions
In this Product-Specific Agreement:
Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in New South Wales, Australia
Confidential Information means the terms of this agreement and any information relating to the party disclosing information or any of its Affiliates in any form (including oral, written or electronic form) that:(a) by its nature confidential;
(b) a reasonable person would understand to be confidential to the Discloser; or
(c) the Discloser has designated as confidential or proprietary,
and that is made available by or on behalf of the disclosing party to the Recipient, directly or indirectly, before or after the date of this agreement, but does not include information that:
(d) is or becomes publicly available other than through a breach of this agreement by the Recipient or its Representatives;
(e) is developed independently by the Recipient or any of its Representatives without use of the Confidential Information; or
(f) is or becomes, before or after such information was disclosed by the Discloser, in the Recipient’s possession and that was lawfully obtained from a third party without any restriction as to use or disclosure.
Employment Contract means the contract of employment entered into between EPG GROUP or its Nominee and each member of the Personnel.
Fees means the Subscription Fees together with any Additional Fees that are payable for Services provided under this agreement.
Insolvency Event means the occurrence of any one or more of the following events in relation to a party:
(a) an order is made or an effective resolution is passed for winding up or dissolution without winding up (otherwise than for the purposes of reconstruction or amalgamation) of that party and the order or resolution remains in effect for a continuous period of 7 Business Days;
(b) a receiver, receiver and manager, official manager, administrator, provisional liquidator, liquidator, or like official is appointed over the whole or substantial part of the undertaking and property of that party and the appointment remains in effect for a continuous period of 7 Business Days;
(c) a holder of an encumbrance takes possession of the whole or any substantial part of the undertaking and property of that party;
(d) that party is unable to pay its debts as they fall due; or
(e) that party becomes insolvent or is deemed to become insolvent under any applicable Law.
Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world including rights in respect of or in connection with any Confidential Information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trade marks, service marks, designs and circuit layouts whether or not now existing and whether or not registered or registrable including any right to apply for the registration of such rights and all renewals and extensions.
Law means (whether in Australia or any other relevant jurisdiction) all laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory and mandatory codes of conduct, writs, orders, injunctions, judgments, Australian generally accepted accounting principles in force or as applicable from time to time.
Subscription Fee means the amount payable to EPG GROUP in respect of the Product provided by EPG Group’s or its Nominee, excluding any salary, wages and benefits costs payable to Personnel under their Employment Contract and amounts remitted in respect of taxes relating to their employment.
Nominee means an EPG Group entity other than EPG Group or a third party agent or partner that is not a member of the EPG Group, that is engaged by EPG Group to provide some or all of the Services on EPG Group’s behalf.
Personnel means the people that EPG Group or its Nominee employ at the direction of the Customer under an Employee Schedule.
Territory in respect of each member of the Personnel, means the country in which that member of the Personnel is employed by EPG Group or its Nominee and in which the Personnel provides services to the Customer.
Total Payroll Cost means any amount due in respect of Personnel under or arising in respect of the applicable Employment Contract, including in respect of wages, overtime, commissions, bonuses, leave payments and accruals, penalties, allowances, loadings, benefits, superannuation, pension or other social security charges and any on-costs such as taxes and insurances which may apply pursuant to applicable Laws in the relevant Territory.
