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Shopper Terms and Conditions

 

Independent Contractor Terms and Conditions of Undercover Customer Pty Ltd trading as
Mystery Shopper (hereinafter described as “the Principal”)
1. Application
These Terms and Conditions (T&Cs”), and no terms and conditions of the Contractor, will
apply to the supply of Services by the Contractor to the Principal.
2. Interpretation
These T&Cs are governed by the laws of New South Wales, and the parties, submit to the
non-exclusive jurisdiction of the courts of that state. In the interpretation of these T&Cs:
a) References to legislation or provisions of legislation include changes or re-enactments
of the legislation and statutory instruments and regulations issued under the legislation;
b) Words denoting the singular include the plural and vice versa, words denoting
individuals or persons include bodies corporate and vice versa, references to
documents or agreements also means those documents or agreements as changed,
novated or replaced, and words denoting one gender include all genders;
c) Grammatical forms of defined words or phrases have corresponding meanings;
d) Parties must perform their obligations on the dates and times fixed by reference to the
capital city of New South Wales;
e) Reference to an amount of money is a reference to the amount in the lawful currency of
the Commonwealth of Australia;
f) References to a party are intended to bind their executors, administrators and permitted
transferees; and
g) Obligations under this agreement affecting more than one party bind them jointly and
each of them severally.
3. Definitions
In these T&Cs:
“Assignment” means the services performed by the Contractor for the Principal
ABN” means Australian Business Number
“Claim” means any actual, contingent, present or future claim, demand, action, suit or
proceeding for any Liability, restitution, equitable compensation, account, injunctive relief,
specific performance or any other remedy of whatever nature and however arising, whether
direct or indirect, and whether in contract, tort (including but not limited to negligence) or
otherwise;
“Client” means a person or entity that has engaged the services of the Principal whether for
the purposes of the Assignment or otherwise.
“Confidential Information” means information, whether in visual, oral, documentary, electronic,
machine-readable, tangible, intangible or any other form, relating to the Principal and or its
client’s or any related entity of the Principal including but not limited to any information relating
to any business, products, markets, operations, processes, techniques, technology, forecasts,
strategies or any other matter;
“Contractor” means the independent contractor engaged by the Principal to undertake mystery
shopping visits, telephone calls, letters or emails as specified, as set out and defined in the
Principal’s Assignment.
GST” means Goods and Services Tax.
“Intellectual Property” means any present or future rights conferred by statute, common law or
equity in any part of the world in relation to any confidential information, copyright, trademarks,
service marks, designs, patents, circuit layouts, plant varieties, business names, domain
names, inventions, trade secrets or other results of intellectual activity in any industrial,
commercial, scientific, literary or artistic fields;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but
not limited to reasonable legal fees);
“Survey” means the information provided by the Contractor to the Principal evaluating the
Client in a form approved and provided to the Contractor by the Principal.
4. Independent Contractor
a) The Contractor’s services are rendered as an independent contractor.
b) Assignments involve the observation, evaluation and interaction with certain businesses
and products in accordance with the Principal’s client’s requirements for the
Assignments. These requirements will be communicated to the Contractor prior to the
Contractor’s acceptance of the Assignment. The Contractor agrees to perform a
thorough review of any and all instructions, certifications, and/or guidelines provided by
the Principal for each and every Assignment that the Contractor agrees to complete.
Within the bounds of the Assignment, the Contractor will control the time, the date and
manner of performing the Assignment.
c) The Contractor will be paid a predetermined fee for each Assignment that is
successfully completed.
d) The Contractor is not an employee of the Principal, and nothing contained herein shall
create the relationship of employer and employee, principal and agent or a relationship
of partnership.
e) The Principal will not withhold any amounts for income tax arising from the services
provided by the Contractor to the Principal.
f) The Principal has no obligation (insofar that the law permits) to pay the Contractor
annual leave, sick leave, long service leave, superannuation, or to cover the Contractor
for work-place insurance, personal accident insurance or any other form of insurance.
g) The Contractor acknowledges that there is no guarantee that they will be provided any
Assignments.
h) From time to time, when the Principal so requires, the Contractor will be notified via
email of Assignments in their nominated geographical area. The Contractor has no
obligation to accept or decline the Assignments. For the avoidance of doubt there is no
obligation whatsoever on either party. The Principal reserves its right to engage any
other party to provide similar and/or identical services in the same geographical area.
i) This agreement shall continue until the agreed work is completed or until terminated by
either party at any time.
j) The Contractor’s Assignments shall, so far as is possible, be scheduled in advance to
avoid conflict with any other responsibilities;
k) The Contractor agrees to complete the Assignments that it accepts and keep all and
any information gathered during the Assignment confidential as described herein.
5. Statutory Obligations, insurance and registrations
a) The Contractor will comply with their statutory obligations in respect of the services,
including but not limited to compliance with:
i. Any applicable industrial awards and agreements;
ii. Minimum terms and conditions of employment including those in respect
of long service leave, annual leave, parental leave and sick leave;
iii. Applicable industrial relations and anti-discrimination legislation; and
iv. Work health and safety and workers compensation legislation.
b) Prior to the date of this agreement the Contractor must obtain, and thereafter must
maintain during the period of this agreement, current policies of insurance, in respect of
the services, against:
i. All third party risks in relation to persons and property including public
liability insurance;
ii. Workers compensation claims; and
iii. Any negligent act performed by the Contractor.
c) The Contractor acknowledges they are solely responsible for all remuneration,
expenses, taxes, leave entitlements, superannuation, workers compensation and other
insurances in respect of them.
d) The Contractor will obtain and maintain until the termination of this agreement any
licences or registrations required for the Contractor to perform the services.
6. Payment of Fees and Expenses
a) The Contractor must provide its ABN to the Principal.
b) If a Contractor does not have an ABN, the Contractor acknowledges and agrees that
the supply of services is made to the Principal in the capacity of individual, and that the
supply is made in the course of an activity that is a private recreational pursuit or hobby.
c) The Principal will provide to the Contractor only the payment agreed to in advance, and
listed on the Assignment. The Contractor must pay for any other cost incurred while
completing the Assignment.
d) Unless otherwise indicated in writing, the Contractor agrees to supply at its own cost
any equipment and transport needed to complete the Assignment, in accordance with
the standards and guidelines prescribed by the Principal.
e) The Principal may withhold payment of the Contractor’s fee, and require the Contractor
to repeat the Assignment at its own expense if the Assignment in not completed in
accordance with the standards and guidelines prescribed by the Principal.
f) The Principal will not issue the Contractor with any payment summaries or supply
records of payment other than that that is expressed in the initial Assignment offer.
g) The Principal will issue a Contractor who has provided an ABN with a Recipient
Created Tax Invoice (RCTI) at their absolute discretion.
h) Under the Pay as you Go legislation and guidelines produced by the Australian Tax
Office, the Contractor acknowledges that the supply of services is made to the Principal
in the capacity of individual, and that the supply is made in the course of an activity that
is a private recreational pursuit or hobby.
i) The Contractor’s first Assignment is a trial. If the Survey is to the satisfaction of the
Principal the Contractor will receive payment for the Assignment. If the Survey is not to
the satisfaction of the Principal, the Principal will provide written notice to the Contractor
providing reasons as to why the Survey is unsatisfactory and will provide the Contractor
5 business days to submit another report. If the Contractor fails to submit a satisfactory
survey the Principal, at its absolute discretion, the Principal is entitled to not pay the
Contractor for the Assignment performed.
7. Miscellaneous Mystery Shopper Operations
a) The Contractor agrees to give immediate notice to the Principal if it is unable to
complete an Assignment by the date agreed to at the time of accepting the Assignment.
b) The Principal will, at its discretion, replace the Contractor if, without explanation, the
Contractor fails to complete an Assignment by the date agreed. The Principal has no
obligation to inform the Contractor that replacement has occurred.
c) The Contractor will not re-assign the Assignment to any other person without the written
consent of the Principal.
d) The Contractor will not use any technique that would not ordinarily be used in the
course of “everyday shopping”, unless otherwise indicated to do so by the Principal.
This clause prohibits the use of notebooks, clipboards and audio/visual recording
devices;
e) The Contractor agrees to retain the completed Survey for 30 days after the results have
been provided by the Contractor to the Principal;
f) The Contractor agrees not to directly contact the staff or management of a client
company of the Principal unless provided with express and written permission from the
Principal;
g) The Contractor agrees not to disrupt the normal flow of business operations of the
business being evaluated when performing the Assignment;
h) The Contractor agrees not to perform the Assignment under the influence of any
substance that would impair their ability to prepare an impartial and accurate report;
and
i) The Contractor agrees to notify the Principal if the Contractor knows someone who is
employed by a client company of the Principal and/ or has a personal grievance or
complaint against a client company or if any other conflict of interest could potentially
arise.
8. Confidentiality and Privacy
a) The Contractor agrees not to, at any time or for any reason, divulge any Confidential
Information to any third party and the Contractor thereby indemnifies the Principal
and/or Client’s and any related entity against any loss or damage suffered as a result of
the breach of confidentiality;
b) The Contractor agrees not to use the Confidential Information, for any other purpose
other than to perform the Assignment under these T&Cs.
c) The Contractor agrees not to disclose the names of the Principal’s client’s, the location
of the Assignment, or any other information gathered during the Assignment to any
other person other than a representative of the Principal.
9. Intellectual Property
a) The Contractor acknowledges that the Intellectual Property including all forms,
instructions, information, internet websites and other electronic forms of
communication, as well as data found within or any other information that the
Contractor obtains during the course of their retainment, are the absolute property of
the Principal or their related client’s.
10. Limitations of Liability
a) The Principal does not guarantee to supply Assignments to the Contractor. The
provision of Assignments to the Contractor are at the absolute discretion of the
Principal;
b) The Principal may at any time cease to offer the Contractor Assignments. The
Contractor acknowledges that they will have no rights, Claims or remedies against the
Principal.
c) A Client of the Principal may require the Contractor to purchase alcohol while on
Assignment. The Contractor required to make such a purchase is not to consume the
alcohol. Any consumption of the alcohol is at the Contractor’s own risk. An Assignment
that requires the purchase of alcohol will be indicated to the Contractor on the initial
Assignment offer. By accepting such Assignments the Contractor agrees that the
Principal is not liable for any Claim that may arise as a result of the consumption of
alcohol and the Contractor thereby indemnifies the Principal and any related entity
against any loss or damage suffered as a result of a breach of this clause.
d) A client of the Principal may require the Contractor to engage in gambling activities
while on Assignment. The Contractor required to make such a purchase is not to
conduct gambling activities at the premises assigned using any extra money that has
not been allocated by the Principal for the gambling activities. Any gambling activity
conducted with the use of money allocated by the Principal for the Assignment, the
Contractor’s own money or any other money, is at the Contractor’s own risk. An
Assignment that requires gambling activities to be undertaken will be indicated to the
Contractor on the Assignment instruction sheet. By accepting such Assignments the
Contractor agrees that the Principal is not liable for any Claim that may arise as a result
of the gambling activities and the Contractor thereby indemnifies the Principal and any
related entity against any loss or damage suffered as a result of a breach of this clause.
e) The Contractor acknowledges and warrants to the Principal that they are 18 years of
age or older.
f) The Contractor agrees that upon accepting an Assignment, they do so, entirely at their
own risk.
g) The Contractor agrees not to make any Claim against the Principal, its directors or staff
and agrees to hold the Principal, its directors and staff harmless and without liability for
damages, costs, expenses, liabilities or loss to any person, property or reputation
incurred by the Contractor in connection with an Assignment.
h) The Principal has no control over or involvement with the products or services of its
clients that the Contractor may purchase or utilize in the performance of an
Assignment. The Principal is not liable for any damage, cost or loss as a result of or in
connection with the products or services of the Principal’s clients and the Contractor
agrees not to make any Claim against the Principal for any such damage, cost or loss.
i) The Contractor agrees to indemnify the Principal from all losses, demands, Claims,
damages, expenses, judgments or liabilities, including solicitor’s fees, taxes, fines,
penalties, interest or other awards that may be imposed on, incurred by or asserted
against the Principal as a result of any Claim arising from or in connection with any
negligent, wrongful or unlawful act or omission on the Contractor’s part.
j) The Contractor agrees that they will not conduct themselves in any manner that would
serve to undermine the integrity and effectiveness of the client or damage the
reputation of the Principal. This would include, but is not limited to, advising the
Principal’s clients’ staff that the Contractor is performing an Assignment, seeking or
receiving reward from the Principals’ clients’ staff in exchange for a promise of a more
favourable survey, swearing or wearing inappropriate attire during the Assignment.
k) The Contractor agrees not to fabricate information or details or to provide, share,
release or discuss any forms, questions, instructions or directions with any person who
is not a representative of the Principal.
11. Limitations of Liability
a) In the event of any dispute arising between the Principal and the Contractor
as to any Party’s rights or obligations under these T&Cs or as to whether
either Party has breached or failed to meet its obligations then both Parties
agree attempt to resolve the dispute.
b) If notwithstanding this clause the dispute remains unresolved after fourteen
days, either Party may take such actions as it thinks fit to enforce its rights
against the other.