TERMS AND CONDITIONS
Super Nice Talent is a registered trading name for Super Nice Crunch Pty Ltd ABN 60 668 152 047.
Any agreement, advice, conversations or anything at all in connection with Supernice.au (in the context of Outsourcing) or Super Nice Talent or Super Nice Crunch Pty Ltd relate to Super Nice Crunch Pty Ltd ABN 60 668 152 047. This has no connection to Super Nice Advice Pty Ltd ABN 37 623 908 118.
Definitions
Additional Work means services or facilities not specified or otherwise contemplated in this Agreement or the Dedicated Staffing Proposal which SUPER NICE CRUNCH PTY LTD may agree in writing to provide to You from time-to-time and includes out-of-pocket expenses SUPER NICE CRUNCH PTY LTD incur on Your behalf.
Additional Work Charge means amounts payable by You to SUPER NICE CRUNCH PTY LTD for Additional Work.
Agreement means this Client Services Agreement including any Annexures and Dedicated Staffing Proposals.
PDPA means the Personal Data Privacy Act set out in the Personal Data Protection Act No 9 of 2022 of Sri Lanka & Philippines Jurisdiction.
Business Day means a day that is not a Saturday, a Sunday, or a public holiday or bank holiday in Sri Lanka & Philippines.
Commencement Date means the date the parties execute this Agreement.
Confidential Information means information relating to the business, customers/clients, products and affairs of either of the parties and their affiliates deemed confidential by the parties and their respective affiliates or which the parties know or ought reasonably to have known to be confidential, and trade secrets, including without limitation designs, processes, pricing policies, methods, inventions, technology, technical data, financial information and know-how relating to the business and activities of either of the parties and their affiliates.
Dedicated Staffing Proposal means such dedicated staffing proposal as may be agreed between the parties in writing from time to time.
Month means a calendar month.
Personnel means the employees who have been employed to undertake the Work exclusively for you and which:
Services means the facilities, off-shoring and outsourcing services provided by SUPER NICE CRUNCH PTY LTD to You.
Labour Recovery Charge means the pass-through
costs directly associated with the employment of
dedicated personnel.
Services Fee means the monthly fixed cost per Personnel for facility and support services provided by SUPER NICE CRUNCH PTY LTD.
Set-up Fee means the one-time cost to cover expenses of setup of the facilities to service Your requirements.
Total Services Fee means the total sum of the Services Fee, the Set-Up Fee, and the Labour Recovery Charge and any ancillary charges payable by You (including, but not limited to, ESP Charges and Additional Work Charges) for the Services.
Work means the day-to-day work and/or tasks to be undertaken by the Personnel for You.
You and Your means [insert client name].
Commencement
1. The Agreement commences on the Commencement Date.
Scope of Services
2. You engage SUPER NICE CRUNCH PTY LTD to provide You with the Services.
3. SUPER NICE CRUNCH PTY LTD will provide the Services to You during the term of this Agreement.
4. SUPER NICE CRUNCH PTY LTD agree to employ skilled Personnel for Your exclusive and dedicated use in the performance of the Work.
5. The Personnel will work exclusively for You or Your benefit, unless You agree otherwise in writing.
Term
6. This Agreement will continue until it is terminated.
7. You can terminate this Agreement:
(a) if you do not intend to employ the Personnel directly or indirectly through another service provider or other entity or mechanism, at any time by giving SUPER NICE CRUNCH PTY LTD 30 days written notice;
(b) if you intend to employ the Personnel directly or indirectly through another service provider or another entity or mechanism, after termination, at any time by giving SUPER NICE CRUNCH PTY LTD 90 days written notice.
8. In the event you terminate the Agreement pursuant to sub-clause 7(a) or the Agreement is terminated by SUPER NICE CRUNCH PTY LTD pursuant to the termination provisions set out in this Agreement, You agree:
(a) that SUPER NICE CRUNCH PTY LTD may continue to employ the Personnel; and
(b) that You will not in any way solicit the Personnel for the purposes of direct employment with You or employment through another service provider or other entity or mechanism for a period of 12 months from the termination date.
9. In the event You terminate the Agreement pursuant to sub-clause 7(b) or breach clause 8, You agree to pay SUPER NICE CRUNCH PTY LTD a break fee for each of the Personnel equal to the aggregate of six (6) months of their total monthly salary package and Services Fees.
Fees and payment terms
10. SUPER NICE CRUNCH PTY LTD will advice the Total Services Fee for the Services to be provided by SUPER NICE CRUNCH PTY LTD in the following month and/or for any other charges or Additional Work Charges payable (whichever the case may be).
11. You will pay in AUD via direct debit. In this regard, the terms set out in Annexure A will apply.
12. You agree to pay the amount stated:
13. If You do not pay Invoices as and when required by this Agreement and, as a result, one or more Invoices become overdue by more than 10 Business Days:
(a) SUPER NICE CRUNCH PTY LTD may charge interest of 7% per month on any overdue amount until the outstanding amount is paid in full and
(b) SUPER NICE CRUNCH PTY LTD may cease the provision of Services.
14. If, as a result of a change of law or regulation including, but not limited to, Sri Lanka & Philippines government mandated wage orders, it is necessary for SUPER NICE CRUNCH PTY LTD to vary the Labour Recovery Charge, SUPER NICE CRUNCH PTY LTD will provide You with 30 days written notice advising You of the required variation to the Labour Recovery Charge and the date from which the variation will commence. You agree to pay the varied Labour Recovery Charge from the commencement date notified by SUPER NICE CRUNCH PTY LTD.
15. SUPER NICE CRUNCH PTY LTD will increase the Services Fee annually by an amount calculated in accordance with the Sri Lanka & Philippines Consumer Price Index or 4%.
16. You agree that SUPER NICE CRUNCH PTY LTD may at any time set off any amounts You owe to SUPER NICE CRUNCH PTY LTD against any amounts SUPER NICE CRUNCH PTY LTD owe to You.
17. In the event of any dispute in relation to an Invoice amount, You agree to pay SUPER NICE CRUNCH PTY LTD any amount in the Invoice that is not subject to dispute.
Management of Work and Personnel
18. You are responsible for managing the Work and the Personnel and, for that purpose, may directly provide lawful and reasonable instructions and/or directions to the Personnel.
19. You will have access to the Personnel for the purposes of, among other things, training, reporting, meetings, and other discussions.
20. You agree that SUPER NICE CRUNCH PTY LTD will not be liable for any losses or damages suffered or claimed by You or any third party which arise from the performance (or lack thereof) of the Personnel and which are due to instructions and/or directions provided by You or a failure by You to provide appropriate (or any) instructions and/or directions to the Personnel.
21. Notwithstanding the above, SUPER NICE CRUNCH PTY LTD will have the sole right to discipline, suspend, or dismiss any of the Personnel. In this regard, You will report to SUPER NICE CRUNCH PTY LTD, for such action as SUPER NICE CRUNCH PTY LTD may consider in our absolute discretion appropriate, any untoward act or omission committed by any of the Personnel.
Ownership of Work Product
22. Any products or materials specifically produced or created by the Personnel because of Work undertaken (Work Product) will be Your property immediately upon the production or creation of the Work Product.
23. All products, inventions, ideas, original works of authorship (including but not limited to, any software, middleware, or code) in whole or in part conceived or made by the Personnel and that specifically relate to Work performed by them, will belong exclusively to You.
24. All materials provided to SUPER NICE CRUNCH PTY LTD by You or on Your behalf for SUPER NICE CRUNCH PTY LTD’s use in providing the Services will be owned or fully licensed by You, and You warrant that You have the right to provide such materials to SUPER NICE CRUNCH PTY LTD for use.
Warranties
25. SUPER NICE CRUNCH PTY LTD are a provider of outsourced labour and labour facilities and, in this regard, warrant that SUPER NICE CRUNCH PTY LTD have the necessary and required qualifications, licences and resources to provide the Services to You.
26. Except as expressly provided in this Agreement, SUPER NICE CRUNCH PTY LTD do not make or give any other representation or warranty or condition of any kind, whether such representation, warranty or condition be express or implied.
SUPER NICE CRUNCH PTY LTD’s obligations
27. SUPER NICE CRUNCH PTY LTD will provide the Services from SUPER NICE CRUNCH PTY LTD’s offices in the Sri Lanka & Philippines.
28. SUPER NICE CRUNCH PTY LTD (as the case may be) will release the Personnel to You for the purpose of training, reporting, meetings and other discussions between the Personnel and You, on request.
29. SUPER NICE CRUNCH PTY LTD (as the case may be) will be responsible for the Personnel’s individual time logs for recording actual attendance.
30. SUPER NICE CRUNCH PTY LTD (as the case may be) will engage the Personnel through a formal employment contract outlining both parties’ obligations.
31. SUPER NICE CRUNCH PTY LTD (as the case may be), as the employer of the Personnel, will:
(a) comply with all laws, rules, and regulations pertaining to labour and employment as may be applicable in the circumstances;
(b) pay all wages, salaries and other benefits, as may be applicable, agreed or necessary; and
(c) comply with all statutory and other obligations in respect of taxation, fringe benefits tax, other withholdings, imposts and obligations.
32. SUPER NICE CRUNCH PTY LTD (as the case may be) will not re-deploy the Personnel to other clients or projects without Your express written consent (which can be withheld in Your absolute discretion).
33. SUPER NICE CRUNCH PTY LTD will, if requested by You, provide You with a copy of documentation which evidences compliance with this Agreement, including, without limitation, copies of employment contracts for the Personnel.
34. SUPER NICE CRUNCH PTY LTD (as the case may be) will be responsible for taking care of tax implications, insurance, health benefits, and compliance with applicable laws in respect of the Personnel provided by SUPER NICE CRUNCH PTY LTD.
Your obligations
35. You will provide day-to-day reasonable instructions and/or directions (including in relation to compliance with Your policies and procedure) to the Personnel in respect of the Work.
36. You must not take any action in relation to the Personnel or provide any instructions and/or directions to Personnel that may cause Personnel to file grievances or labour cases against SUPER NICE CRUNCH PTY LTD. Any concerns or issues relevant to the employment of the Personnel must be directed to the SUPER NICE CRUNCH PTY LTD Customer Experience Manager assigned to You.
37. You will provide, at Your cost (including any costs of travel and accommodation), such training to the Personnel as may be necessary for them to perform the Work.
38. You will promptly notify SUPER NICE CRUNCH PTY LTD of any concerns or disputes You have concerning the provision of the Services.
39. You agree that SUPER NICE CRUNCH PTY LTD will be free to, without any impediment, exercise control and supervision over the Personnel, but subject always to the Personnel providing services.
40. You will extend full cooperation and provide SUPER NICE CRUNCH PTY LTD with access to, and use of, all information, data, and documentation that may be necessary to perform the Services.
41. As the Client, you acknowledge and agree that it is your sole responsibility to ensure the protection, confidentiality, and security of any data or information that you provide, access, or use in connection with our services.
42. You are responsible for backing up your data and ensuring the reliability of your backups. We shall not be held responsible or liable for any loss, corruption, or breach of the data that you provide.
43. You must employ suitable security measures, both technical and organizational, to protect against unauthorized access, disclosure, alteration, or destruction of data. This includes, but is not limited to, strong password policies, encryption techniques, and access controls.
44. If you decide to share your data or provide third-party access, it is your responsibility to ensure that such third parties adhere to appropriate data protection principles and laws. We are not responsible for the actions or inactions of any third parties with whom you choose to share your data.
45. You agree to indemnify, defend, and hold us harmless from and against any and all claims, losses, liabilities, damages, expenses, and costs (including attorney’s fees) arising from or related to your failure to comply with the obligations set forth.
Compliance with Privacy Laws
46. The parties will comply with the provisions of the PDPA.
47. You will ensure that Your systems, processes, and policies are, and will remain, compliant with the provisions of the PDPA and that Your staff and Personnel comply with the PDPA.
Termination
48. Either party may immediately terminate this Agreement, by notice in writing to the other, in the following instances:
(a) when the other party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
(b) when a court order is issued to wind up that other party or to place it under judicial management or a resolution is passed for its winding up or liquidation;
(c) when the other party ceases, or threatens to cease, to carry on its business or becomes insolvent, whether voluntarily or involuntarily;
(d) anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party;
(e) in case of fraud or criminal acts by the other party in relation to the activities of either party which could have an adverse effect on the other, whether directly or indirectly;
(f) in the event either party breaches this Agreement, and the relevant breach cannot be remedied.
49. If either party is in breach of this Agreement, and the breach can still be remedied, the non-breaching party may give the other party a notice specifying the breach and requiring the breaching party to rectify the breach within 10 Business Days from receipt of the notice. The non-breaching party may terminate this Agreement by notice in writing to the other party if the latter fails to rectify the breach within the 10-day period.
50. The termination of this Agreement is without prejudice to any rights that have accrued to a party before the date of termination. In this regard, SUPER NICE CRUNCH PTY LTD are entitled to recover payment for all Services provided/rendered through to the effective date of termination (including for any work in progress).
Employment of Personnel directly by You
51. In the event You wish to at any time employ any or all of the Personnel directly or indirectly through another service provider or other entity or mechanism, You may do so subject to:
(a) providing SUPER NICE CRUNCH PTY LTD with 90 days written notice of Your intention to do so; and
(b) paying SUPER NICE CRUNCH PTY LTD a break fee for each of the Personnel equal to the aggregate of six (6) months of their total monthly salary package and Services Fees.
Exclusion of partnership
52. Nothing in this Agreement will be construed as creating a relationship of principal and agent and/or employer-employee between You and SUPER NICE CRUNCH PTY LTD.
Confidentiality
53. No announcement, disclosure or public statement relating to the existence or subject matter of this Agreement, or any other matter ancillary to this Agreement, may be made by or on behalf of a party without the prior written approval of the other party, provided that nothing prevents a party making (even in the absence of the approval of the other party) any announcement or disclosure required by law.
54. SUPER NICE CRUNCH PTY LTD will ensure that any employment contract signed by Personnel includes a clause relating to the protection by them of Your Confidential Information.
55. The parties agree that they will not, during the term of this Agreement or any time thereafter, either directly or indirectly, disclose or use Confidential Information acquired during, and because of, this Agreement, except as necessary in order to perform the obligations of one to the other in accordance with this Agreement, or with the prior written consent of an authorized officer of the party whose Confidential Information is disclosed.
56. In the event of the failure of either party to comply with this provision, the injured party will be entitled to seek injunctive relief, in addition to all other remedies which may otherwise be available to that party and to such other and further relief as may be proper and necessary to ensure compliance with the confidentiality provisions of this Agreement, including, but not limited to a claim for damages, and the institution of civil or criminal actions, as may be appropriate.
57. Confidential Information will not include such information that is already part of the public domain prior to this Agreement being entered into or which, during the term of this Agreement, has become public knowledge, without the involvement, directly or indirectly, of the parties.
58. Confidential Information may be disclosed by either party, even without the consent of the other, when expressly required or mandated by law or when specifically required to be disclosed by any court of competent authority.
Dispute resolution
59. The parties must use their best endeavours to resolve any substantial dispute or claim about this Agreement or its performance (which, for the avoidance of doubt, does not include any dispute or claim by SUPER NICE CRUNCH PTY LTD in relation to overdue Invoices) (Dispute) in accordance with the following process (Dispute Process):
(a) a party may at any time give the other party notice of a Dispute (Dispute Notice);
(b) within 10 Business Days from the date on which the Dispute Notice is delivered to the other party (Dispute Notice Date), the other must deliver to the party that issued the Dispute Notice a written response (Answer);
(c) the Dispute Notice and Answer must each include a statement of the party’s position, a summary of arguments supporting that position, and what action (if any) that party thinks will resolve the Dispute;
(d) representatives of the parties who are authorised to resolve the Dispute must meet within 20 Business Days of the Dispute Notice Date negotiate in good faith to resolve the Dispute. For the avoidance of doubt, such meeting does not have to be conducted face-to-face.
60. The parties will not commence any Court proceedings (other than an application for an urgent interlocutory or declaratory relief) until the Dispute Process has been exhausted.
61. Notwithstanding the parties being in Dispute, each party must continue to perform its obligations under the Agreement.
Assignment
62. Neither party may assign its rights, obligations or undertakings under this Agreement without the prior written consent of the other party (consent not to be unreasonably withheld). Notwithstanding this, You may not at any time assign Your outstanding payment obligations to SUPER NICE CRUNCH PTY LTD to any other party.
Limitation of liability
63. Other than an obligation to pay any amount due pursuant to this Agreement, in no event will a party’s liability arising out of or in connection with this Agreement or the Services exceed, in the aggregate, the total fees paid by You to SUPER NICE CRUNCH PTY LTD for the particular Services to which such liability relates.
64. Nothing in this Agreement will make a party liable to the other party for indirect, special, consequential, exemplary, incidental loss or damage (including but not limited to loss of goodwill, loss of profit, loss of revenue, loss of expected savings, opportunity costs, loss of business, loss of reputation and business interruption) whether arising in contract, tort (including negligence), under any statute or otherwise arising from or related in any way to this Agreement or its subject matter.
Indemnity
65. Each party indemnifies and holds the other, its directors, officers and representatives, free and harmless, from and against any and all losses, damages, liabilities, actions, suits, proceedings and claims of whatever nature, including attorney’s fees or other expenses incurred, brought about by claims or charges from any individual, corporate entity, organizations, government agencies and instrumentalities or any other interested party, due to any act or omission or breach of any obligation in this Agreement, or the fault or negligence of a party, its directors, officers, representatives, employees, authorised representatives, contractors, and the Personnel, when undertaking to perform instructions from the other, whether in relation to the terms of this Agreement or not.
66. You indemnify SUPER NICE CRUNCH PTY LTD and its directors, officers and representatives, and hold it free and harmless, from and against any and all losses, damages, liabilities, actions, suits, proceedings and claims of whatever nature, including attorney’s fees or other expenses incurred, brought about by claims or charges from any individual, corporate entity, organizations, government agencies and instrumentalities or any other interested party, arising in any way as a result of instructions and/or directions provided by You to the Personnel or a failure by You to provide appropriate (or any) instructions and/or directions to Personnel.
67. The indemnity obligations referred to in the paragraphs above will continue to have full force and effect even after the termination of this Agreement.
Non-exclusivity
68. SUPER NICE CRUNCH PTY LTD will be free to offer and provide similar or the same services covered by this Agreement to other persons and companies.
Non-Waiver
69. No failure or delay on the part of either party in exercising any right, power, or remedy under this Agreement upon any breach by the other will impair such right power or remedy, nor will it be construed as a waiver thereof.
Severance clause
70. If any of the provision or stipulation contained in this Agreement or any document executed in connection herewith will be declared invalid, illegal or unenforceable by a competent court or agency, the remaining provisions contained herein will not be in any way affected or impaired.
Force majeure
71. Except for payment obligations, neither party will be liable for delay or failure to perform any obligation under this Agreement if the delay or failure is caused by any circumstances beyond defaulting party’s reasonable control, including but not limited to Acts of God, war, civil disorder or industrial disputes. If such delay or failure continues for a period of more than 30 days the party not subject to the force majeure will be entitled to terminate this Agreement by written notice to the other.
Notices
72. Any notice given by any of the parties will be served on the other party by personal delivery, email, post or facsimile transmission to the receiving party’s address set out in this Agreement or such subsequent addresses as may be notified by the parties to each other.
73. Any such notices will be deemed to be effectively served as follows:
(a) in the case of service by personal delivery or email immediately upon delivery if within the business hours of 9am – 4pm (Australian Eastern Standard Time) or otherwise at 9am on the next Business Day;
(b) in the case of service by post, ten Business Days after the date of posting;
(c) in the case of service by facsimile, immediately upon receiving a facsimile transmission notice confirming delivery, if within the business hours of 9am – 4pm (Australia Eastern Standard Time) or otherwise at 9am on the next Business Day.
Jurisdiction
74. This Agreement will be construed in accordance with the laws of QLD, Australia and will be subject to the exclusive jurisdiction of its Courts.
Entire agreement
75. This Agreement, including attachments hereto, constitutes the entire Agreement between You and SUPER NICE CRUNCH PTY LTD concerning the subject matter and supersedes all prior communications or Agreements, written or oral, and is intended to be a complete and exclusive statement of the terms and conditions between You and SUPER NICE CRUNCH PTY LTD.
Amendment
76. This Agreement may be amended only by the written agreement of the parties.
Counterparts & authority
77. This Agreement (and any other document contemplated by this Agreement) may be signed in counterparts. Each counterpart is taken to be all original. All counterparts together constitute one Agreement. Assigned counterpart may be delivered by facsimile or email.
78. A person signing this Agreement on behalf of a party warrants that they have authority to bind that party for that purpose.
ANNEXURE A
1. The Total Service Fee will be billed in AUD and the following will apply:
(a) SUPER NICE CRUNCH PTY LTD will monitor the AUD:LKR & AUD:PHP exchange rate in consecutive quarterly periods and the applicable exchange rate will be adjusted, rounded down to the nearest integer, based on the average benchmark foreign exchange rate for each quarterly period, as recorded and published by the most competitive of the big 4 Australian banks at that time.
(b) once the exchange rate is set, it will remain fixed for the applicable quarter;
(c) changes in the exchange rate will take effect on the first invoice period following the start of each new quarter and the adjustments will appear on the invoice for that period; and
(d) if You are an Australian entity, the Invoice will, if required by law, also be subject to goods and services tax pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
(e) payment is to be made at the discretion of Super Nice Crunch Pty Ltd
2. Taxes: Any Australian or Sri Lanka & Philippines taxes will be considered and may impact this arrangement. Super Nice Crunch Pty Ltd reserves the right to change the financial terms of this agreement if a reasonable person would believe it changes the commercial outcome of the agreement for Super Nice Crunch Pty Ltd.