Terms of Service for Users Who Apply or Sign Up for Workable service.

1. Introduction

1. General: These terms of use (Terms) set out the terms applicable to the “Workable” platform (Platform) and related services available through the Platform (Services) provided by Workable Software Limited (Workable). Workable is a limited liability company (company number 8035348) incorporated under the laws of New Zealand.

2. Platform: The Platform provides a platform whereby an employer (Home Employer) may agree to lend out an employee (Employee) on a short-term basis to another employer (Host Employer) who wishes to engage that Employee on a short-term basis under a supply contract agreed between the Home Employer and the Host Employer.

3. Services: The Services include any services rendered by Workable including services provided through the Platform and the facilitation of connections between respective Home Employers and Host Employers.

4. Contracted Services: The services provided or to be provided by an Employee for a Host Employer are referred to in these Terms as “Contracted Services”.

5. Last update: These Terms were last updated on 31 May 2021.

2. Acceptance of Terms

1. Acceptance: These Terms form a legal contract between you and Workable. By registering to use, downloading, installing, and/or using the Platform and/or Services, you accept these Terms. If you do not accept these Terms, you must not register to use, download, install, or use the Platform or use the Services.

2. Changes: Workable may change these Terms at any time by updating them on the Platform and/or www.workable.co.nz (the Website). Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring that you are familiar with the latest Terms. If you do not wish to be bound by the revised Terms, you must cease to use the Platform and Services. Your continued use of the Platform and/or Services after the revised Terms become effective constitutes your agreement to be bound by the revised Terms.

3. Use: You may use the Platform and/or Services as:

1. both a Host Employer and a Home Employer, but in respect of single supply contract you may only act in a single capacity (i.e. as either a Host Employer or a Home Employer); or

2. an individual user associated with a particular Host Employer or Home Employer; or

3. a sole trader, whereby you as an individual are deemed to be a Home Employer and an Employee for the purposes of these Terms.

4. Authorised Person: Where a person is registering on the Platform on behalf of an organisation (Authorised Person), the Authorised Person warrants, undertakes, and represents that:

1. it has the authority from the organisation to agree to these Terms on behalf of the organisation and to access information and give instructions on the organisation’s behalf in relation to these Terms;

2. by registering to use the Platform and/or Services on behalf of the organisation, the Authorised Person binds the organisation to the performance of any and all obligations (including payment obligations) of the organisation under these Terms, without limiting the Authorised Person’s personal obligations under these Terms; and

3. Workable may rely upon and act in accordance with any instructions received from the Authorised Person, as if they had been made by the organisation and without checking the authority of the Authorised Person.

5. Reliance: Workable is not liable in respect of any act or omission of Workable in reliance on any notice or instructions given by the Authorised Person.

3. Registration Process

1. Registration information: To register on the Platform, you must provide Workable with all user account details and other information requested by Workable to allow Workable to verify your account, such information includes your name or company name, email address, physical address, and phone number.

2. Approval: Your registration on the Platform is subject to Workable’s approval, and Workable reserves the right to verify any information you provide. For the avoidance of doubt, Workable may, in its sole discretion, refuse to register an applicant and/or elect to verify an applicant or an account.

3. Accuracy: You agree to provide Workable with accurate, complete, and current information, and to maintain and update this information with Workable in a timely manner if and when it changes.

4. Warranty: By registering on the Platform, you represent and warrant that:

1. you have the right, authority and capacity to enter into these Terms and you commit to abide by all of the Terms; and

2. you have provided accurate and current personal information and other user account details when registering with us.

5. Security: You are responsible for maintaining the security of your login credentials and any other account information and agree to notify us promptly if at any point you become aware of any unauthorised use of such information or of any breach of security.

4. Offers and Supply Contracts

1. Employee and Contracted Service information: If a Home Employer wishes to make one or more of their Employees available on the Platform, the Home Employer will upload relevant information regarding each individual Employee as required on the Platform. You are solely responsible for all information and content you provide to Workable or make available on the Platform. In particular:

1. where you are a Home Employer, you are also solely responsible for information about each Employee; and

2. where you are a Host Employer, you are also solely responsible for information concerning any specific projects, work, or Contracted Services sought.

2. Offers: A Host Employer may make an offer to host a Home Employers’ Employee (Offer). No Home Employer is obliged to accept any Offer. If a Home Employer accepts an Offer, the Host Employer and Home Employer must enter into a binding supply contract for the supply of the relevant Employee reflecting the terms negotiated between the Host Employer and Home Employer (Supply Contract).

3. Terms of Supply Contract: Workable may provide an example form of Supply Contract, the Host Employer and Home Employer are not required to use that form. The Host Employer and Home Employer are responsible for agreeing the terms of the Supply Contract between them, and must ensure each Supply Contract includes:

1. the name of the Home Employer

2. the name of the Host Employer

3. the location(s) where the Employee is expected to be performing the Contracted Services;

4. a description of the Contracted Services, including any key accountabilities or expectations relating to the performance of such services;

5. all payments that may become due for the Contracted Services (Supply Payments); and

6. information regarding the Employee to be provided to the Host Employers.

4. Provision of Supply Contract: You must, upon request by Workable, provide a copy of any Supply Contract to verify compliance with these Terms.

5. Supply Payments: The Host Employer is responsible for payment of all Supply Payments to the Home Employer in accordance with the Supply Contract.

6. Non-payment: Workable may, at its sole discretion, assist the Home Employer in the collection of any outstanding Supply Payments but the Home Employer acknowledges and agrees that Workable has no obligation to do so and bears no responsibility for recovering unpaid Supply Payments on behalf of the Home Employer. The Host Employer agrees to indemnify, defend, and hold harmless Workable and its affiliates, successors and assigns from and against any and all claims, damages, liabilities, losses, costs, and expenses (including legal fees and court costs) which may arise out of or in relation to non-payment of Supply Payments.

7. Restrictions: During the provision of Contracted Services and for six months after any Contracted Services end, in consideration of the Services provided by Workable, the Home Employer and Host Employer must not, either directly or indirectly, enter into any agreement or arrangement that is not recorded or established via the Platform and/or Services if that agreement or arrangement materially relates to or concerns:

1. any connection made between any Home Employer and Host Employer through using the Platform or the Services; or

2. Contracted Services of a type described in a Supply Agreement between the Home Employer and Host Employer.

5. Fees and Payment

1. Payment to Workable: You agree to pay all fees for access to, or use of, the Platform and/or Services at the rate specified on the Platform and/or Website (Fees) as adjusted by Workable from time to time.

2. Invoicing: You authorise Workable to invoice and receive payment from you for all Fees. You must pay each invoice by the applicable due date. You will pay the Fees by [direct credit, direct debit, or electronic funds transfer]. We may require you to provide alternative payment methods.

3. Alternative payment: If your payment by one payment method fails, you acknowledge that we are authorised by you to take payment from the alternative payment method you have provided.

4. Taxes: The Fees are exclusive of all applicable taxes, duties, and levies (“taxes”). You agree to pay all applicable taxes at the relevant rate, upon invoice, in addition to the Fees, whether such applicable taxes are invoiced at the same time as the Fees or subsequently.

6. Use of the Platform and Services

1. Right to use: Subject to your paying the Fees when due and remaining in full compliance with these Terms, Workable grants you a non-exclusive right to dowt5nload, install, access and use the Platform and Services on any compatible device that you own or control, in accordance with these Terms. You must, at your own cost, maintain any equipment and connections necessary for you to access or use the Platform and/or Services.

2. Purpose of use: You may use the Platform and/or Services in accordance with these Terms solely for the purpose of connecting with Home Employers and/or Host Employers with the intention of sharing Employees and not for any unlawful purpose.

3. Use restrictions: When accessing or using the Platform and/or Services, you must:

1. not transfer or resell the Platform and/or Services to any third party, act as a service bureau in respect of the Platform and/or Services, or otherwise commercially exploit the Platform and/or Services;

2. not impersonate another person or misrepresent authorisation to act on behalf of others or us;

3. not attempt to undermine the security or integrity of any of Workable’s systems;

4. not use, or misuse, the Platform and/or Services in any way which may impair the ability of any other user to use the Platform and/or Services;

5. not attempt to view, access or copy any material or data other than that to which you are authorised to access; and

6. not use the Platform and/or Services in a manner, nor transmit, input or store any Data, that breaches any third party right (including intellectual property rights and privacy rights) or is objectionable, incorrect or misleading.

4. Availability: Workable does not provide any representation nor guarantee regarding the availability of Employees, Home Employers, or Host Employers on the Platform.

7. Specific Home Employer Obligations

1. No breach: The Home Employer represents and warrants, in relation to each Supply Contract, that:

1. seconding its Employee to the Host Employer will not result in the breach of any express or implied terms of any contract or agreement or other legally binding obligation;

2. the Employee’s employment agreement allows for them to be seconded to another organisation; and

3. the Employee’s performance of the Contracted Services do not present a conflict of interest.

2. Nature and role: The Home Employer agrees that it will only accept an Offer where the Employee’s performance of the Contracted Services relate to work about which the Employee is knowledgeable and trained or which are sufficiently simple as to not require any special knowledge or training to be performed.

3. Performance of Contracted Services: In relation to any Contracted Services performed under a Supply Contract, the Home Employer must:

1. procure that its Employees apply the standard of care and skill that can be reasonably expected of someone who regularly works on projects, tasks and duties described in the applicable Supply Contract;

2. procure that its Employees comply with any applicable policies and directions notified by the Host Employer; and

3. provide the agreed Employee to perform the Contracted Services (any no other Employee), except with the prior written agreement of the Host Employer.

8. Specific Host Employer Obligations

1. Nature and role: The Host Employer agrees to:

1. clearly, completely, and accurately describe on the Platform the nature of the Contracted Services sought; and

2. take all necessary steps to achieve a sufficient degree of certainty regarding the suitability of the Employee to meeting the Host Employer’s requirements and objectives.

2. Receipt of Contracted Services: In relation to any Contracted Services received under a Supply Contract, the Host Employer must:

1. comply with any and all relevant laws;

2. provide any health and safety policies, instructions or personal protective equipment (PPE) that the Employee may require, unless agreed otherwise in the Supply Agreement;

3. maintain its own appropriate insurance policies in respect of any Contracted Services; and

4. not knowingly procure, entice, solicit, or induce or do anything which causes the Home Employer’s Employee to breach any obligations the Employee may have with the Home Employer.

9. Changes, updates, and support

1. Changes: The Platform and the Services are dynamic in nature and Workable makes no representation that the Platform and the Services will stay the same. Workable may, at any time:

1. change, refine, or otherwise modify the features and functionality of the Platform and/or Services; or

2. cease, discontinue, or temporarily suspend the availability of the Platform and/or Services.

2. Additional terms: From time to time Workable may advise you of additional terms or restrictions that apply to a particular function or feature, or on your use of the Platform and/or Services. You must comply with all such additional terms and restrictions.

3. Updates: If Workable release an update to the Platform and you do not install that update, some or all of the functionality on the Platform and/or Services may not be available to you. You must always update to the latest version of the Platform as soon as reasonably practicable.

4. Unavailability: Certain Services may be unavailable from time to time to permit maintenance or other development activity to take place. Workable will use reasonable efforts to advise you in advance of any unavailability.

5. Support: Workable will use reasonable efforts to provide email support in the form of consultation and assistance. Workable are not required to provide support and/or may charge you additional fees for any support provided.

10. Confidentiality, Data, and Privacy

1. Confidentiality: You must not use, disclose, solicit, make available, or misappropriate any Confidential Information without the prior written consent of Workable. In this clause, “Confidential Information” means all information of a confidential nature directly or indirectly made available or exchanged by Workable, whether in paper form, electronically or orally, including through use of the Service.

2. Data: In order to use the Platform and/or the Services, data, content, and information (including personal information) will need to be input into the Platform by you or on your behalf (Data). Where the Data includes personal information, Workable’s Privacy Policy, as updated from time to time, applies to its collection, storage, use, and disclosure of such Data.

3. Use of Data: You acknowledge that Workable and its personnel require access to the Data to provide the Platform and/or Services, and to otherwise give effect to these Terms, and you agree Workable and its personnel may access and use the Data for this purpose. You must obtain and arrange all necessary consents and approvals for Workable and its personnel to access and use the Data for that purpose.

4. Third party claims: You indemnify Workable against any loss, cost, or damage arising from any claim by a third party that any Data infringes the rights of that third party (including intellectual property rights and privacy rights) or that the Data is objectionable, incorrect or misleading.

11. Intellectual Property

1. Licence to you: Workable grants you a limited, revocable at will, and non-exclusive right to download, install, and use the Platform in accordance with these Terms.

2. Ownership by Workable: You agree that title to, and all intellectual property rights in, the Platform and all information, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel forming part of the Platform and/or Services, and all underlying systems, are the property of Workable (and/or Workable’s licensors). Nothing in these Terms transfers that ownership and you agree to not dispute Workable’s ownership of such things at any time.

3. Data: Title to, and all intellectual property rights in, the Data (as between you and Workable) is your property. You grant Workable a worldwide, non-exclusive, fully paid up, transferable, perpetual, irrevocable, sub-licensable, licence to use, store, copy, modify, translate, make available and communicate the Data for any purpose connected with the exercise of Workable’s rights and performance of Workable’s obligations under these Terms.

4. Licence: To the extent not owned by Workable, you grant Workable a worldwide, non-exclusive, fully paid up, transferable, perpetual, irrevocable licence to use any know how, techniques, ideas, methodologies used or discovered by Workable in the provision of the Platform and/or Services.

5. Restrictions: You may not, without Workable’s prior written permission, in any form or by any means:

1. adopt, reproduce, copy, store, distribute, print, display, perform, publish or create derivative works from any part of the Platform and/or Services; or

2. commercialise, copy or on sell any information, or items obtained from any part of the Platform and/or Services except to the extent permitted by these Terms.

6. Intellectual property: Some Contracted Services may require the Home Employer or its Employee to provide deliverables or content to the Host Employer (Contracted Services IP). Unless otherwise agreed between the Home Employer and Host Employer (including in the Supply Contract), all intellectual property rights in the Contracted Services IP shall automatically vest in and be solely owned by the Host Employer. Any agreements or disputes relating to Confidential Information and/or intellectual property rights of the Home Employer or Host Employer are to be resolved between the Home Employer or Host Employer.

12. Non-Solicitation of Employee

1. General: Unless otherwise agreed between the Home Employer and Host Employer (including in the Supply Contract), during the provision of Contracted Services, and for a period of six months following the completion or cessation of any Contracted Services, the Host Employer, its employees, directors, agents and related entities must not, and undertake in favour of the Home Employer to not, whether directly or indirectly:

1. offer to employ, engage, solicit, induce, entice, or otherwise enter or attempt to engage the Employee of the Home Employer; and/or

2. otherwise interfere with the relationship between the Employee and their Home Employer other than to the extent that it is necessary to perform the Contracted Services.

2. Other restraints: Nothing in this clause 12 prevents the Home Employer and Host Employer choosing to enter into further and additional non-solicitation agreements in the relevant Supply Contract.

13. Disclaimers

1. General: You agree that your use of the Platform and/or Services is at your own risk. Workable makes no warranty nor representation that the Platform and/or Services will:

1. meet your requirements or be suitable or fit for any particular purpose; or

2. be secure, free of viruses or other harmful code, uninterrupted or error free.

2. Verification: You acknowledge, while Workable may (at its sole discretion) take steps to verify the credentials of users of the Platform (including Host Employers and Home Employers), Workable has no responsibility for, and provides no warranty regarding, any deliverables, work, opinion, information, documents, or the accuracy of such information or documents (including the Home Employer’s profiles, background, capabilities, experience, statements regarding it or its Employees).

3. Availability of roles or Employees: Workable is not responsible for and makes no warranty or representation regarding the frequency, type, or quantity of offers you may receive through the Platform, or which may be accepted by other parties, nor does it make any representation of the quantity of Employees who may be on the Platform at any given time.

4. No responsibility for Contracted Services: You acknowledge and agree that Workable does not employ the Employees, enter into the Supply Contract, or perform the Contracted Services and, therefore, Workable has no responsibility for, and provides no warranty regarding:

1. the Employees; the terms of or enforcement of the Supply Contract;

2. any other engagement between the Home Employer and Host Employer;

3. the performance of the Contracted Services; or

4. the quality of the deliverables or work relating to the Contracted Services.

5. Internet: You acknowledge that the Services and the Platform are provided over the Internet and mobile networks. Workable does not accept any responsibility for any inability to use the Platform and/or Services arising from an issue between you and your network or communication provider.

6. Other risks: Workable have endeavoured to ensure that appropriate systems are in place to reduce the risk of debit/credit card abuse and other forms of fraudulent activity. However, Workable do not accept responsibility for protecting Platform users from debit/credit card abuse or other forms of wrongdoing or other fraudulent activity by any third party.

7. Consumer law: You acknowledge and agree that the Platform and Services are provided for the purpose of your business and accordingly, to the maximum extent permitted by law, consumer protection laws (including the Consumer Guarantees Act 1993) will not apply.

8. No warranties: To the maximum extent permitted by law, Workable’s warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether express or implied by statute or otherwise (including any warranty under the Contract and Commercial Law Act 2017) are expressly excluded.

14. Liability

1. Exclusions: To the maximum extent permitted by law:

1. your access and use of the Platform and/or Services is at your own risk;

2. Workable are not liable to you for any loss of profit, use, revenue, data (including Data), savings, business, and/or goodwill, or indirect, consequential or incidental loss or damage, arising under these Terms or in connection with these Terms, your access and/or use of (or inability to access or use) the Platform and/or Services, nor any information derived from use of the Platform and/or Services; and

3. these exclusions apply regardless of whether Workable’s liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.

2. Liability: To the maximum extent permitted by law, Workable’s liability to you is limited to the aggregate Fees paid by you under these Terms in the [three] months immediately preceding the most recent event (or events) giving rise to liability.

3. Savings: Nothing in these terms has the effect of contracting out of or excluding or limiting liability that cannot, at law, be excluded or limited.

15. Indemnity

1. General: You agree to indemnify, defend, and hold harmless, Workable and its respective directors, employees and agents from and against any and all claims, damages, liabilities, losses, settlements, costs and expenses (including legal fees and court costs) which arise out of or relate to:

1. any act or omission (including negligent acts or omissions) by you (or your employees or agents) in the performance or receipt of any Contracted Services;

2. any dishonest, inaccurate, incomplete, fraudulent, negligent, wrongful, unlawful, or criminal act or omission by you in connection with your use of the Platform and/or Services, or your performance or receipt of the Contracted Services; or

3. your breach of these Terms.

2. Survival: This indemnity will survive the termination of these Terms and the cessation of any Contracted Services.

16. Termination and Suspension

1. Cancellation: You may cancel your user account for the Platform and Services at any time by giving Workable not less than [30] days’ written notice.

2. Breaches: Without limiting any other right or remedy available to Workable, Workable may immediately suspend your access to, or use of, the Platform and/Service, or terminate your user account, where Workable considers that you have:

1. not provided sufficient information to allow Workable to verify your account on registration;

2. undermined, or attempted to undermine, the security or integrity of the Platform and/or Services or any underlying system;

3. used, or attempted to use, the Platform and/or Services for an improper purpose or in a manner that reduces the operational performance of the Platform and/or Services; or

4. breached these Terms or any applicable law.

3. Termination by notice: Workable may terminate your user account on written notice to you at any time without giving any reason. Such termination will be effective at the time Workable elects, which may be immediately.

4. Deactivation: If your user account is cancelled or terminated, your user account will be deactivated and all of your rights granted under these Terms will immediately come to an end. Workable is not liable for any loss following, or as a result of, cancellation or termination of your user account.

5. Survival: Cancellation or termination of your user account does not affect:

1. clauses 12, 13, 14 and 15 which will survive cancellation or termination; or

2. any payment obligations you may have to Workable that arose prior to the date of termination or cancellation.

17. Disputes

1. General: Any disputes between the parties will be discussed in the spirit of goodwill. If a party has any dispute in connection with these Terms:

1. that party will promptly give full written particulars of the dispute to the other party;

2. the parties will promptly meet (including by phone or video conference) and try to resolve the dispute;

3. if the dispute is not resolved within 10 business days of written particulars being given (or any longer period agreed to by the parties), either party may refer the dispute to mediation; and

4. party must not commence other legal proceedings, except an application for urgent interlocutory relief, without using the mediation procedure first, and only if the dispute has not been resolved within 20 business days of the appointment of the mediator.

2. Urgent action: Nothing in this clause 17 precludes either party from taking immediate steps to seek urgent interlocutory or equitable relief before a court of competent jurisdiction.

18. Apple and Google

1. Apple: If you have downloaded the Platform from the Apple App Store, the following additional terms and conditions apply:

1. These Terms are solely between you and Workable, and not with Apple. Workable (and not Apple) are solely responsible for the Platform and its content (subject to these Terms). You acknowledge that Apple has no obligation to furnish any maintenance or support services to you in connection with the Platform.

2. In the event of any failure of the Platform to conform to any warranty that might be contained or implied into these Terms, you may notify Apple, and Apple will refund the purchase price (if any) for the Platform. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Platform.

3. Any claim in connection with the Platform related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation or intellectual property infringement are governed by these terms, and Apple is not responsible for such claims.

4. You must comply with the Apple App Store terms of use, including the Usage Rules.

5. Apple and its subsidiaries are third party beneficiaries to these terms and, upon your acceptance of them, Apple will have the right to enforce these terms against you.

6. All other terms and conditions of these terms apply to your use of the Platform.

2. Google: Where you have downloaded the Platform from the Google Play Store, you agree:

1. Your rights to install and use the Platform are subject to these terms and conditions and the relevant terms in the Google Play Store terms of service;

2. Google is not responsible for the Platform in any way, including any maintenance or support of the Platform; and

3. Workable (and not Google) are responsible for addressing any claims by you or a third party in connection with the Platform (including any claims by a third party that the Platform breaches that persons intellectual property rights).

3. Location: You represent and warrant that you are not and will not, be located in any country that is the subject of a US Government embargo or that has been designated by the US Government a “terrorist supporting” country, and that you are not listed on any US Government list of prohibited or restricted parties.

19. General

1. Relationship of Parties: Nothing in these Terms is intended to create any partnership, employment relationship, agency, or joint venture between you and Workable.

2. Waiver: Workable’s failure to enforce any right or provision of these Terms will not be deemed a waiver of that right or provision.

3. Severability: If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, the part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms and the remaining terms are binding.

4. Force majeure: Workable are not liable to you for any failure to provide the Platform and/or Services or to otherwise perform Workable’s obligations under these Terms to the extent the failure is caused by something beyond Workable’s reasonable control.

5. Assignment: You may not assign or transfer any right or obligation under these Terms without Workable’s prior written consent. Workable may, assign, transfer or novate any or all of its rights and obligations under these terms to any related or successor entity (including any entity that acquires all or any part of Workable’s business or assets) or any Home Employer or Host Employer.

6. Entire agreement: These Terms and the Privacy Policy set out everything agreed by the parties relating to your use of the Platform and/or Services and supersede anything else discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Platform and/or Services that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the date you first agreed to these Terms.

7. Governing law: The laws of New Zealand will govern any disputes arising out of or relating to use of the service or these Terms. You submit to the non-exclusive jurisdiction of the courts of New Zealand in relation to any dispute connected with these Terms or the Platform and/or Services.