Acceptance of these terms confirms appointment of the listed person as a Mindful Yoga Carer Level 1 contractor of Yogability Australia Pty Ltd if you have provided a minimum 200hr Yoga Teacher Training Certificate if 200hr not provided the MYCarer will be level 0 and be displayed as a Mindful Disability Support Worker unless otherwise specified. We confirm that the contractor named above (Contractor) has been appointed as an independent Contractor of Yogability Australia Pty Ltd (Company). We confirm the terms and conditions of the appointment are as follows:
1. Purpose of this agreement
a. The Company wishes to engage an independent contractor to provide Mindful Disability Support services to NDIS participant clients of the Company.
b. The Contractor possesses the necessary expertise to provide the Mindful Disability Support to clients of the Company.
c. The Company wishes to appoint the Contractor, and the Contractor is willing to accept such appointment, as Contractor for the Company on the terms and conditions set out in this agreement.
2. Engagement
The Company engages the Contractor to provide the Services described in Schedule 1 (Services) on the terms and subject to the conditions referred to in this agreement.
3. Duration
This agreement will commence on the date the Contractor signs the agreement and will continue until terminated in accordance with this agreement (Term).
4. Provision of services by the Contractor
4.1. Services
a. The Contractor will provide the services to the Company which are described in Schedule 1 (Services), in the manner set out in Schedule 1.
b. If the Company requests in writing, the Contractor may provide services in addition to the Services. The Contractor may make an additional charge for providing such additional services.
4.2. Contractor's equipment
Where the Contractor provides or uses their own equipment, the equipment must be suitable for the work and must be maintained by the Contractor in good working condition.
4.3. Supervisor and reporting
The Contractor will report to and perform the Services at the direction of Yogability Australia Pty Ltd or Marshall Gray or such other person as notified by the Company.
5. Fees
5.1. Fees
The Company must pay the fees to the Contractor as set out in Schedule 1 (Fees).
5.2. GST and invoicing
a. For the purposes of this clause, GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law, where GST Law means the same as in the A New Tax System
(Goods and Services Tax) Act 1999 (Cth).
b. The Fees are inclusive of GST. Where GST is payable on a supply made by the Contractor under this agreement, the Contractor may charge the Company an additional amount equal to the GST payable on that supply. (Noting that the supports the contractor will be providing are GST exempt services)
c. The Contractor must provide the Company with a tax invoice in accordance with the GST Law. The invoice must include the following details before payment can be approved and forwarded:
i. date(s) of performance of the Services;
ii. name of Designated Person performing the Services;
iii. description of Services provided;
iv. to whom the services were provided;
v. kilometers travelled;
vi. any other travel expenses;
vii. time of service delivery;
viii. the Contractors bank details; and
ix. the Contractor's name.
5.3. Payment
The Company must pay the Fees and any GST within 14 days of receiving an invoice from the Contractor, provided that the invoice is submitted correctly. The contractor is required to submit weekly support notes and billing invoices.
5.4. Variation of Fees
The Fees may be varied by the Company.
6. Obligations of Contractor
6.1. Performance of Services
a. The Contractor must perform the Services in a diligent and professional manner according to any standards that normally apply to the Services.
b. The Contractor must ensure that the Dedicated Persons have all the requested qualifications, skills and training and comply with relevant policies of the Company.
c. The Contractor must act in good faith in all dealings with the Company and must not do anything that may be harmful to the reputation or interests of the Company.
d. The Contractor must liaise with and report to the Company with respect to all aspects of the Services.
6.2. Insurances
The Contractor must take out all insurances required to be effected by law. Each policy must be maintained during the Term.
6.3. Expenses
The Contractor must provide the Services at its own cost and, unless specified in the Schedule, will not be reimbursed for any out of pocket expenses.
6.4. Payment of Contractor's workers
The Contractor may be offered the opportunity to pay for a team of workers within the Yogability Australia digital disability support education delivery and management system. If Contractor is given this capability within the system the Contractor will be responsible for paying their team and agents all remuneration and benefits to which they may be entitled, and for otherwise complying with current legislation. The Contractor must pay all amounts in respect of such remuneration and benefits to the workers. The amounts paid per hour need to include an allowance for superannuation. Contractors workers must be Contracted to Yogability Australia Pty Ltd, have a profile within Yogability Australia disability support delivery system, be inducted on Yogability Australia Policies and procedures, and be paid in accordance with the Mindful Yoga Carer fees structure. All contractors workers are required to have gone through Yogability Australia Pty Ltd Mindful Yoga Carer Screening process with the Contractor being limited to a maximum of 25 workers in the team unless a higher amount is specified in writing between Yogability Australia & the Contractor.
6.5. Compliance with laws
a. The Contractor must comply at its own cost and expense with all Acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, state and local government departments, bodies, and public authorities or other authority so far as these same may affect or apply to the Contractor or to the Services.
b. The Contractor indemnifies the Company from and against all actions, costs, charges, claims and demands in respect of any breach of sub-clause (a) of this clause.
6.6. Contractor's warranties
a. The Contractor warrants that the Contractor has no authority to engage the services of any person as an employee or agent of the Company.
b. Except with the prior written approval of the Company, the Contractor will not bind the Company to any contract, or create any liability against the Company in any way or for any purpose.
6.7. Claiming Obligations & Warranties
a. The Contractor warrants that claims will be inline with the terms of this agreement.
b. If claims are disputed by client or are required to be refunded by the Company due to overcharging or incorrect billing by the Contractor the Contractor will be liable for the Refundable credit to the client.
6.8. Survival of obligations
The obligations under this clause survive termination or expiry of this agreement.
7. Relationship between parties
a. The relationship between the Company and the Contractor is that of a principal and an independent contractor. Nothing in this agreement constitutes the relationship of partnership or employer and employee between the Company and the Contractor, or between the Company and the Designated Persons.
b. Nothing in this agreement constitutes or deems any Designated Persons to be employees of the Company. The Dedicated Persons are and will remain at all times employees, independent contractors or agents of the Contractor.
8. Conflict of interest
a. The Contractor warrants that it is not under any obligation or restriction which would in any way interfere with or conflict with the Contractor providing the Services under this agreement. The Contractor warrants that it will not assume any such obligation or restriction.
b. The Contractor may engage in any other work and assignments during the Term provided that such other work or assignments do not involve a conflict with its duties and responsibilities to the Company and does not bring the Company into disrepute.
9. Confidentiality
9.1. Confidential Information
Confidential Information includes, but is not limited to, any information that is:
a. marked as Confidential; or
b. received or developed by the Contractor during the Term or prior to the Contractor Term, which relates to processes, clients, equipment and techniques used by the Company in the course of the Company's business, including but not limited to all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and support plans, proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans, but does not include information which:
a. is generally available in the public domain otherwise than as a result of a breach of this agreement by the Contractor;
b. was known by the Contractor prior to the Company disclosing the information to the Contractor; or
c. the Contractor is required by law to disclose.
9.2. Confidentiality obligations
a. Unless it has previous written consent from the Company the Contractor must:
i. only use the Confidential Information for the purpose of performing the Services.
ii. not use or attempt to use any Confidential Information in any manner which may prejudice the Confidentiality of the Confidential Information or may injure or cause loss to the Company.
b. The Contractor must at all times store all Confidential Information safely and securely.
c. the Contractor must immediately notify the Company in writing of any actual, threatened or suspected unauthorised disclosure of any Confidential Information.
d. The Contractor's obligations with regard to the Confidential Information will continue for so long as this information is maintained on a Confidential basis:
i. by the Company, in the case of Confidential Information pertaining to the Company's business, or
ii. by the Company's client, in the case of Confidential Information pertaining to the business of the Company's client.
9.3. Indemnity and breach
a. The Contractor indemnies the Company against all liabilities, costs and expenses which the Company may incur as a result of any breach of this Confidentiality clause by the Contractor.
b. The Contractor acknowledges that damages may be an inadequate remedy for breach of this Confidentiality clause and that the Company may obtain injunctive relief against the Contractor for any breach of this Confidentiality clause.
9.4. Privacy
The Contractor will, comply with all privacy obligations under any law or regulation.
9.5. Survival of obligations
The obligations accepted by the Contractor under this clause survive termination or expiry of this agreement.
10. Intellectual Property - Disclosure and ownership
a. For the purposes of this clause, Intellectual Property includes but is not limited to trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.
b. The Contractor must disclose to the Company promptly and fully all discoveries, improvements and inventions made or conceived by the Contractor (either solely or jointly with others) in the course of performing the Services which are similar to the actual or anticipated business, work or investigations of the Company or which result from or are suggested by any work performed for the Company. Such inventions, whether or not they contain Intellectual Property rights capable of protection, shall be and remain the sole and exclusive property of the Company or its nominees.
c. The Contractor acknowledges that the Company owns all Intellectual Property created by the Contractor in connection with the Services, that now exists or that later comes into existence. The Contractor assigns all its rights in such Intellectual Property to the Company. The Contractor will do all things and execute all documents necessary to secure the Company's ownership of the Intellectual Property.
d. The Contractor agrees to indemnify the Company fully against all liabilities, costs and expenses which the Company may incur as a result of any breach of this clause by the Contractor.
e. The obligations under this clause survive termination or expiry of this agreement.
11. Termination of agreement
11.1. Termination by notice Either party may terminate this agreement by giving written notice to the other party at least 1 month in advance.
11.2. Termination for breach
a. If a party breaches any term of this agreement, the other party may give notice requiring that party to rectify the breach. If the notified party fails to rectify the breach to the satisfaction of the notifying party within 14 days of the notice, the notifying party may terminate this agreement by notice in writing.
b. The Company may terminate this agreement at any time without notice if the Contractor engages in:
a serious or material breach of this agreement.
c. The Company may terminate this agreement at any time by notice in writing to the Contractor if the Contractor:
i. is guilty of any dishonesty, serious misconduct or serious neglect of duty in connection with the provision of the Services; or
ii. engages in any act or omission that in the reasonable opinion of the Company has or will likely have the effect of causing material damage to the Company.
11.3. Termination for insolvency
Either party may terminate this agreement if:
a. the other party enters into a deed of arrangement or an order is made for it to be wound up;
b. an administrator, receiver or receiver/manager or a liquidator is appointed to the other party pursuant to the Corporations Act 2001 (Cth); or
c. the other party would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
11.4. Obligations upon termination
a. If at the end of this agreement the Contractor is owed any Fees, expenses or reimbursements, the Contractor may give the Company an invoice. The Company must pay the Contractor that amount (provided it is properly invoiced) within 2 weeks of receiving the invoice if the invoice is deemed valid by the Company.
12. Post-agreement restraints – non-solicit & non-compete
For a period of 24 months after the Contractor's engagement with the Company has been terminated for whatever reason, the Contractor agrees that it will not:
i. canvass, solicit or endeavour to entice from the Company any person or organisation that was a customer or supplier of the Company at the end of the Term (or whose business or custom the Company was cultivating at the end of the Term), in relation to whom the Contractor regularly dealt with during the Term;
ii. canvass, solicit or endeavour to entice any Mindful Yoga Carers, workers, employees or agent of the Company to terminate their contracts of engagement or agency with the Company;
iii. interfere or seek to interfere with the relationship between the Company and its customers, suppliers, Contractors and employees.
iv. induce any other person to perform any of the acts specified in sub-clauses(a)(i), (a)(ii) and (a)(iii) of this clause.
v. Attempt to use any knowledge gained whilst contracting to the Company to become an NDIS registered provider organisation or sole trader. The Contractor acknowledges that it will not attempt to create a competitor disability support organisation for a period of 24 months and that any breach by the Contractor of this clause could cause irreparable harm and significant damage to the Company and accordingly that the Company has the right to seek and obtain immediate injunctive relief in relation to any such breach. The Contractor acknowledges that the covenants in respect of non-competition contained in this clause are fair and reasonable and that the Company is relying upon this acknowledgement in entering into this agreement.
13. Contractor's Indemnity
13.1. Contractor's indemnity
a. The Contractor will be responsible for and indemnify the Company against liability for all loss, damage or injury to any person or property caused by the Contractor, in the course of providing the Services.
b. The amount of any claims, damages, interest, costs and expenses (including without limitation all related legal costs incurred by the Company) which may be paid, suffered or incurred by the Company in respect of such loss, damage or injury must be made good at the Contractor's expense and may be deducted from any moneys due or becoming due to the Contractor.
13.2. Limitation of liability
a. Subject to the Contractor' Indemnity clause above, your liability in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) in respect of any negligent act or omission of you in connection with your obligations under this agreement you will be liable for.
b. The Contractor' Indemnity clause above does not apply in relation to liability for personal injury or death, property damage, an infringement of confidentiality or Intellectual Property Rights, or a breach of the Compliance with laws clause contained in this agreement (if applicable).
13.3. Survival
This clause survives the termination of this agreement.
14. General
14.1. Assignment
This agreement may not be assigned without the consent of both parties.
14.2. Severability
The Company and the Contractor consider the covenants, obligations and restrictions contained within this agreement to be reasonable in all the circumstances of the agreement. Unenforceability of a provision of this agreement does not affect the enforceability of any other provision. If any provision is void, voidable or unenforceable, it shall be taken to be severed from the agreement.
14.3. Notices
Any notice, demand, consent, approval or communication under this deed (Notice) must be:
a. in writing, in English and signed by a person duly authorised by the sender; and
b. delivered by hand, registered mail, fax or email to the recipient's address for Notice specified in the Schedule, as varied by any Notice given by the recipient to the sender.
14.4. Variation
This agreement may be modified by Yogability Australia Pty Ltd upon notifying the Contractor of the changes.
14.5. Entire agreement
This agreement constitutes the entire agreement of the parties in respect of the matters dealt with in this agreement and supersedes all prior agreements, understandings, undertakings and negotiations in respect of the matters dealt with in this agreement.
14.6. Governing law
This agreement is governed by, and is to be construed and take effect in accordance with, the laws of New South Wales. Each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of New South Wales.
SCHEDULE 1
1. Services
The Services will include:
Traveling to participants homes to deliver MYCare disability support sessions that can include Yoga, meditation, making smoothies, travelling to nature spots to go on walks and providing healthy lifestyles skills education such as basic hygiene skills like washing hands, Preparing healthy snacks, Deliver Healthy lifestyles skills education programs using YA’s MYSchool platform, Participating in community activities with participants, Travelling with participants in community in your vehicle, Keeping track of shift times, travel distance & expenses, invoicing & submitting timesheets weekly for sessions delivered, Writing support notes on what was delivered in MYCare sessions, Sending weekly invoices, Abiding by Yogability Australia's policies & procedures; and, Possibly creating video content & assisting with YA program development
The Fees that the contractor will be paid for services delivered are as followed and may vary :
A maximum of 0.5hrs travel time will be paid at the hourly rate for travelling from your home to a participant or from a participant to another participant and upto a maximum of 0.5hrs travel from the last participant of a given day back to your home, unless otherwise specified inline with NDIS guidelines (Time needs to be recorded to 2 decimal places based on options in reporting system). Kilometres travelled to the participant or from participant to another participant and whilst with the participant can be billed unless otherwise specified inline with NDIS guidelines. Other travel expenses that are incurred during supports delivery such as tolls or parking fees form part of payable to the Contractor - Receipts need to be submitted with reports and invoices.
$100 per participant that the contractor refers to YA that signs on to receive our disability services $50 payable after the participant signs on then $50 after the participant receives 3 sessions with a MYCarer
$100 per Yoga Teacher that is referred to YA that goes on to sign up as a contractor with YA
$10 per weekdays session maximum reimbursement for miscellaneous items (such as tolls or parking whilst travelling with the participant, almond milk fruit for smoothies, almond milk or soy etc) that may be purchased in relation to session delivery. This reimbursement will be paid when receipts are provided from costs incurred by the MYCarer in relation to a session and the purchases are deemed reimbursable by YA. If costs are over $10 on a weekday YA may still reimburse if purchases have been pre-approved and depending on the circumstances.
$30 per weekend session maximum reimbursement for miscellaneous items (such as fruit for smoothies, tolls or parking whilst travelling with the participant, milk, an activity or healthy foods) that may be purchased for the participant in relation to session delivery. This reimbursement will be paid when receipts are provided from costs incurred by the MYCarer in relation to a session and the purchases are deemed reimbursable by YA. If costs are over the $30 on a weekend session YA may still reimburse if pre-approval has been requested and depending on the circumstances.
Yoga Centre Studios listed agree to allowing Yogability Australia carers to bring clients to public classes they have listed for a casual class fee upto a maximum of $30 to make Yoga more accessible to NDIS participants. Yogability Australia Carers can participate in the class free of charge if there is space to assisting the client as required. If there is no space the Carer will assist the client in the class. The studio could also allow Yogability Australia carers and clients to hire the space for a donation of upto $20 unless otherwise specified.