BUSINESS AGREEMENT BETWEEN
(1) Workers App Pty Ltd, “Workers.app” “Workers” (Company registration Number 2020/450582/07); and
(2) YOU, “the Business”
(A) Workers. app owns and operates the business of supplying workers as set out in this Agreement.
(B) The Business wishes to engage with the Workers. app and receive services through the use of the Workers’ website and App in accordance with the terms of this Agreement.
(C) Workers.app and the Business have agreed to enter into this Agreement to record the terms on which the services will be provided.
1.1 These terms set out the agreement between Workers.app and the Business for the supply of workers and personnel (“Workers”) with the use of the Worker’s website and App (the “Services”).
1.2 Subject to Clause 11, this Agreement will commence on the date that the Business’s account is activated and continue until it is terminated at any time on either party giving to the other not less than 2 weeks’ notice.
2. The Services
2.1 The Services shall include:
a. Providing an app (Workers.app) in which the Business will post a relevant Job Advert detailing the Business’s requirements for a Worker.
b. Posting the relevant Job Advert on Worker’s App so that a Worker can obtain more information about the Job Advert and “accept” or “refuse” the Job Advert.
2.2 The Workers will be under the absolute direction of Workers.app, and not the Business, at all times.
3.3 When the Job Advert has been posted, a Worker will then “accept” the Job Advert, and perform the work and tasks at the agreed time and date as described in the Job Advert.
3.4 Upon completion of the work and tasks, the Worker will then submit a signed off worksheet in accordance with the terms of the Job Advert to Workers.app which will then process this signed off worksheet in order to submit an invoice to the Business for payment as described in Clause 4 below.
5.3 In the event that any sums due are unpaid by the Business, the Business shall pay Workers.app interest at the rate of three percent (3%) above the prime lending rate of South Africa from time to time in respect of any sums due but unpaid from the due date until the date of actual payment, calculated on a daily basis.
5.4 If the Business engages a Worker on a permanent basis, known as temp-to-perm transition, the Business shall pay 8.5% of the worker’s annual salary, no later than one week after the permanent contract commencement date.
5.1 The Business shall provide the location and all necessary equipment for the Services to be carried out by a Worker, with such information being provided in the Job Advert.
5.2 The Business shall also provide any necessary training to the Workers in order for the Services to be carried out, at no additional expense to either the Worker or Workers.app
6.1 The Business warrants to Workers.app as follows:
a. The Business has obtained all necessary approvals and permissions for the executive of, in the performance of its obligation under, this Agreement; and
b. The Business will at all times comply with all applicable binding laws, rules, and regulations currently in force or subsequently enacted throughout the term of this Agreement, including without limitation, any such provisions of the POPIA in connection with the provision of the Services, and any of the rights and obligations contained herein.
6.2 The Business will indemnify Workers.app against all costs and losses suffered by a Worker as a result of any breach of the warranties set out in this Clause 6.
7.1 Workers.app warrants to the Business as follows:
a. Workers.app has obtained all necessary approvals and permissions for the execution of, in the performance of its obligation under, this Agreement
b. Workers.app will at all times comply with all binding laws, rules, and regulations relating to data protection in connection with the provision of the Services and in particular, all laws, rules, and regulations applicable to a “data controller” as that term is deﬁned in the POPIA.
c. Workers.app has ensured that each Worker has the necessary requirements in order to perform the Services in the Republic of South Africa.
7.2 Workers.app will indemnify the Business on demand against all costs and losses suffered by the Business as a result of any breach of the warranties set out in this Clause 7.
8.1 This Clause 8 sets out the entire ﬁnancial liability of the parties to each other in respect of any breach of contract, and any representation, statement or tortious act or omission (including negligence) arising under this Agreement.
8.2 Subject to clauses 8.3 and 8.4, neither party shall be responsible to the other for:
a. breach of contract
b. loss of use;
c. depletion of goodwill; and
d. any special, indirect, or consequential losses.
8.3 The maximum liability of either party to the other under this Agreement shall be 10% of the job price in respect of any claim or related series of claims.
8.4 Workers.app shall not be liable for any loss or damage that the Business suffers as a result of Workers.app or the Workers acting in accordance with any Job Advert.
8.5 For the duration of this Agreement, the Workers.app shall maintain in force professional indemnity insurance with a limit of at least R5m to cover its potential liabilities in connection with this Agreement.
8.6 Nothing in this Clause 8 shall serve to limit or exclude the liability of the parties to this Agreement for death or personal injury caused by negligence, fraud or fraudulent misrepresentation.
9.1 There shall be no liability on the Business or Workers.app for any travel and lodging expenses incurred by any Worker in respect of the Services.
9.2 The Business shall be fully and solely responsible for any travel expenses reasonably and necessarily incurred by any Worker during the course of any Job Advert.
10.1 Workers.app shall provide a “rating system” available on the Workers App for the Business to provide a rating to the Worker once it has completed his/her tasks and duties as detailed in the relevant Job Advert.
10.2 The Business warrants and undertakes to ensure that each rating provided for a Worker is a fair and accurate reﬂection on the work carried out by the Workers and will not contain any illegal, defamatory or unfairly critical comments of the Worker.
10.3 The Business shall notify Workers.app immediately if it believes that any Worker is unsuitable for a Job Advert or becomes aware of any matter that indicates that a Worker may be unsuitable for a Job Advert or is inconsistent with any information previously provided.
10.4 If a Worker does not turn up for work in accordance with the terms set out in the Job Advert, then the Business should immediately inform Workers.app of the fact and re-post the Job, and Workers.app will send a replacement the next day.
10.5 Nothing in this Agreement shall be deemed to create a contract of employment or engagement between the Business and any Worker and Workers.app shall be solely liable and responsible for all matters in relation to the Workers, including, but not limited to:
11. Early Termination
11.1 Without affecting any other right or remedy available to it, each party may terminate this agreement with immediate effect by giving written notice to the other if:
a. the other party commits a material breach of any term of this agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of receipt of notice in writing to do so;
b. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
c. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts as per the Insolvency Act of South Africa.
d. the other party suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business.
11.2 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
11.3 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
12.1 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
13.1 During this Agreement, the Business agrees to protect, indemnify, defend and hold harmless Workers.app, and to the extent required from time to time by Workers (or their successors) its ofﬁcers, agents, and employees, from and against any and all expenses, damages, claims (whether valid or invalid and whether deemed alleged or upheld), suits, losses, actions, judgments, liabilities, and costs whatsoever (including legal fees on a full indemnity basis) arising out of, connected with, or resulting from, the Business’s breach of any obligation to be performed by the Business under this Agreement.
13.2The provisions of this clause 13 shall survive termination of this agreement.
14.1 Each party undertakes that it shall not at any time during this agreement, disclose to any person any conﬁdential information concerning the business, affairs, customers, Business or suppliers of the other party, or any person placed at the Business, except as permitted by clause
14.2 Each party may disclose the other party’s conﬁdential information: a. to its employees, ofﬁcers, representatives, or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall ensure that its employees, ofﬁcers, representatives, or advisers to whom it discloses the other party’s conﬁdential information comply with this clause 14; and b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 No party shall use any other party’s conﬁdential information for any purpose other than to perform its obligations under this agreement.
15.1 All IPR in the Materials belongs to and shall irrevocably belong to the Business.
15.2 Where any IPR is created in the provision of the Services, such IPR belongs to and shall irrevocably belong to Workers.app and the Business hereby assign to the Workers.app all such IPR (including in the Documents) and hereby agrees that any IPR therein that come into existence after the date hereof shall vest absolutely immediately upon a guarantee for all purposes, applications and ﬁelds of use (including by way of present assignment of future rights in relation to rights not yet created) and free from all third party rights, all right, title and interest in and to the foregoing to Workers.app absolutely. The Business agrees to do all acts and execute all documents necessary to give effect to the provisions of this clause. The Business hereby unconditionally and irrevocably waives all moral rights in relation to the Documents.
15.3 The data that Workers.app collects shall belong to Workers.app.
15.4 The Business shall, on completion of this Agreement, deliver to Workers.app all Documents whether supplied by Workers.app or prepared by or on behalf of the Business in connection with this Agreement.
15.5 The Business agrees at the request of Workers.app to execute such formal documentation and/or perform such acts as may be necessary or desirable to record or effect ownership of the IPR.
15.6 The Business will indemnify fully and keep Workers.app fully indemniﬁed against any of the following:
a. all actions, proceedings, liabilities, claims, ﬁnes, and demands;
b. all losses or damages;
c. all reasonable out-goings, reasonable costs, reasonable expenses (including legal expenses); awarded against, paid by, taken incurred by or issued against Workers.app as a result of any breach by the Business of the provisions of this Clause 15, subject always to the proviso that Workers.app shall provide the Business with full information and documentation in respect of any action, proceedings, liabilities, claims, ﬁnes and/or demands in respect of this Clause 15 and allow the Business the reasonable opportunity to defend and/or respond to any such action at its own expense. For the avoidance of doubt, … conﬁrms that no payment under this indemnity shall be made without giving the Business the reasonable opportunity to defend any such action, proceedings, liabilities, claims, ﬁnes and demands.
16.1 Within this Clause 16, “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data” and “Processing” shall have the same meanings as in the POPIA and “Processed” and “Process” shall be construed in accordance with the deﬁnition of Processing.
16.2 Where Personal Data relating to a Worker is Processed by Workers.app (for the purpose of this Clause deﬁned as the “Data Processor”) or its agents, sub-contractors, or staff under or in connection with this Agreement as a Data Processor on the Business’s behalf (for the purpose of this Clause the Business is deﬁned as the “Data Controller”), Workers.app shall procure that its agents, sub-contractors and staff shall:
17.1 Subject to clause 17.2, neither party shall assign, transfer, mortgage, charge, declare a trust over, or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), save in respect of a holding.
17.2 Workers.app shall be entitled to sub-contract or delegate its obligations under this agreement to any holding and/or subsidiary company of Workers.app. The Business agrees that it shall not sub-contract or delegate its obligations under this agreement to any other third party or agent without the prior written consent of Workers.app. It shall be a condition of such consent that the sub-contractor signs and observes an agreement containing terms at least as onerous as those contained in this agreement. Without prejudice to this clause, the Business shall in all cases retain sole responsibility for the performance of the tasks assigned to it under this agreement, regardless of the use of authorized or unauthorized sub-contractors and the Business shall be liable for the acts and omissions of any sub-contractor (of any tier and authorized and unauthorized) or any intermediaries whatsoever as if they were the acts and omissions of the Business itself.
18. No Partnership or Agency
18.1 Nothing in this agreement is intended to or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party.
18.2 Each party conﬁrms it is acting on its own behalf and not for the beneﬁt of any other person.
19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
19.4 Nothing in this clause shall limit or exclude any liability for fraud.
20.1 No one other than a party to this agreement shall have any right to enforce any of its terms.
21.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
a. delivered by hand or by post or other next working day delivery service at its registered ofﬁce (if a company) or its principal place of business (in any other case); or
b. sent by email with a “Read Receipt” to info@Workers.app, or any other email address as notiﬁed to the Business from time to time.
21.2 Any notice shall be deemed to have been received:
a. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
b. if sent by post or other next working day delivery service, at 9.00 am on the second business day after posting [or at the time recorded by the delivery service; or
c. if sent by email, the date on which the “Read Receipt” is shown as being accepted.
21.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution
22.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of South Africa.
22.2 Each party irrevocably agrees that the courts of South Africa shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
22.3 The parties agree to refer any disputes to mediation and/or arbitration administered by McLarens Attorneys, before resorting to court action.
23.1 A reference to a company shall include any company, corporation, or other body corporate, wherever and however incorporated or established.
23.2 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as deﬁned in the Companies Act.
23.3 These terms and conditions may be amended by Workers.app and will be binding on the business immediately after being amended.
24.1 In this Agreement the following words and expressions shall have the following meanings:
“Documents/Documentation” means any documentation supplied by the Business to Workers.app in connection with this Agreement or developed or provided by Workers.app to the Business in connection with this Agreement (as the case may be required), in hard copy or electronic form;
“POPIA” means the Protection of Personal Information Act as amended or replaced;
“IPR” means all intellectual property rights of whatever nature including, all patents, utility models, and other rights in inventions; all copyright and database rights; all designed rights, registered design rights and other rights in designs; all trade names and logos and other rights in the nature of trademarks; all goodwill and all equivalent or similar rights arising anywhere in the world, whether registered, unregistered or the subject matter of an application for registration; and
“Materials” means any materials made available by the Business to Workers.app in connection with this Agreement, including any Documentation (together with any modiﬁcations, alterations, adaptations or changes to the Documentation);
This agreement has been entered into on the date the Business’s account was activated.