Background

A             GrubUp is in the business of running an online marketplace which permits Customers to view and search menus of Partners and/or place orders for food or other products from Partners which Partners receive through the Partner Platform. GrubUp software then notifies Captains that a delivery opportunity is available; after a rider communicates its acceptance of the delivery, the GrubUp software facilitates the Captain's completion of the delivery of the Partner Products to the Customer. GrubUp is not a merchant, food preparation business, reseller, or delivery service; it is an online marketing and connection platform.

B             The Captain, being a contractor, wishes to join GrubUp’s supplier pool, on and subject to the terms of this Agreement, and is able to meet the service standards GrubUp expects as more fully set out in the Schedule 1 – Captain Service Standards.

Agreed terms

1.1         Definitions

In this document:

 

Term	Definition
Agreement	means this agreement between the Parties (including any schedules).
Business Day	means a day that is not a Saturday, a Sunday or a public holiday in the state of New South Wales.
Captain	means the driver or rider, a party to this Agreement.
Commencement Date	means the date this Agreement is executed by both parties.
Confidential Information	means: (a)    personal data identifying or relating to any of GrubUp’s Customers (including but not limited to names, addresses and other personal information such as dietary requirements and details of other household members), suppliers or employees; (b)    training materials, and other confidential material provided to the Captain during the course of GrubUp’s onboarding process; (c)     details of relationships or arrangements with GrubUp’s other suppliers and business partners, including but not limited to Partners; (d)    details of GrubUp’s business methods, finances, pricing strategy, marketing or development plans or strategies; and (e)    any other information the Captain knows to have been divulged to the Captain by GrubUp, or by a third party in the course of performing the Services, in confidence.
Customer	means a user ordering the Ordered Items.
GrubUp	means Grubup Pty Ltd (ACN: 649 023 736) of 79/ 421 Pacific Highway, Asquith New South Wales, Australia 2077.
Ordered Items	means hot/cold food and/or drinks offered by GrubUp Partners via the GrubUp website, platform of app.
Parties	means the parties to this Agreement (and “party” shall be construed accordingly).
Partner	means the restaurant, bar, home chef, cafe or catering business from which Ordered Items may be ordered.
Services	means the collection and delivery by the Captain of Ordered Items from GrubUp partners.

1.2         Interpretation

In this document:

(a)          a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, this document and references to this document include any schedules or annexures;

(b)          a reference to a party to this document or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;

(c)          if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(d)          a reference to a document or agreement (including a reference to this document) is to that document or agreement as amended, supplemented, varied or replaced;

(e)          a reference to this document includes the agreement recorded by this document;

(f)           a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

(g)          if any day on or by which a person must do something under this document is not a Business Day, then the person must do it on or by the next Business Day;

(h)          a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity; and

(i)           a reference to ‘month’ means calendar month.

2.1         The Agreement shall commence on the Commencement Date and shall continue, unless otherwise terminated earlier in accordance with clause 12.

2.2         GrubUp appoints the Captain to perform Services for it from time to time on the terms set out in this Agreement.

2.3         The Captain shall be notified of the request for Ordered Items to be delivered through the GrubUp Captain app, and the delivery of such Order Items by any mode of transport that may have to be approved by GrubUp to GrubUp Customers at such locations as are notified to the Captain through the app, in accordance with Schedule 1 – Captain Service Standards.

3.1         The Captain is a self-employed supplier and therefore acknowledge that the Captain is neither an employee of GrubUp, nor a worker within the meaning of any employment rights legislation. For the avoidance of doubt, throughout the term of this Agreement the Captain is free to work for such third parties as the Captain chooses provided always this does not prevent the Captain from performing the Services in accordance with Schedule 1 – Captain Service Standards.

3.2         The Captain shall be under no obligation to accept to perform the Services, however after the performance of the Services is accepted by the Captain, the Captain shall be bound to complete the Services. The Captain agrees to fully perform the Services in a timely, efficient, safe, and lawful manner. GrubUP shall have no right to, and shall not, control the manner, method or means the Captain uses to perform the Services. The Captain shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Services, including determining the manner of pickup, delivery, and route selection.

3.3         The Captain further warrants that neither the Captain nor anyone acting on the Captain’s behalf will present any claim in the Fair Work Commission or any civil court in which it is contended that the Captain is either an employee or a worker.

3.4         If, despite clause 3.2 above, either the Captain or anyone acting on the Captain’s behalf (or the Captain’s substitute or anyone acting on the Captain’s substitute’s behalf) presents any claim in the Fair Work Commission or any civil court which would not be able to proceed unless it was successfully contended that the Captain (or the Captain’s substitute) is an employee or a worker within the meaning of any employment rights legislation, the Captain undertake to indemnify and keep indemnified GrubUp against costs (including legal costs) and expenses that it incurs in connection with those proceedings, and the Captain agrees that GrubUp may set off any sum owed to the Captain against any damages, compensation, costs or other sum that may be awarded to the Captain in those proceedings.

3.5         Unless expressly stated otherwise in this Agreement, the Captain is not required to (and does not) purchase, lease, or rent any products, equipment or services from GrubUP as a condition of doing business with GrubUP or entering into this Agreement.

3.6         Nothing in this Agreement shall make the Captain an agent of GrubUp and the Captain shall not have any right or power to enter into contracts on behalf of GrubUp with third parties. Unless specifically authorised to do so by GrubUp, the Captain shall not have any authority to incur any expenditure in the name of GrubUp.

4.1         GrubUp is under no circumstances whatsoever obliged to make available any minimum level or amount of work to the Captain, nor is the Captain obliged to perform any minimum level or amount of work.

4.2         Without prejudice to clause 4.1, when applying to join GrubUp’s supplier pool and at regular intervals thereafter the Captain will provide an indication of the time periods during the week in which the Captain typically expects to be available to work. GrubUp places reliance on such indications provided by suppliers in planning to meet customer demand. GrubUp accordingly expects the Captain to inform a member of the operations team if this changes materially, and reserve the right to terminate this Agreement if the Captain is no longer able to work at time periods which meet GrubUp’s needs.

4.3         During the Captain’s onboarding process, the Captain would have discussed with a member of the operations team the level of demand for suppliers within the Captain’s zone and consequently the level of availability to perform Services which GrubUp expects the Captain to provide. The Captain is expected to be as flexible as the Captain can to meet GrubUp’s needs.

4.4         When the Captain has confirmed the Captain’s availability to perform Services on an indicative basis during a particular time period, the Captain shall accept actively any orders in the Captain’s zone which the Captain is able to accept.

4.5         The Captain will ensure that the Captain performs the Services in accordance with Schedule 1 – Captain Service Standards, including the standards of dress contained there. However, and for the avoidance of doubt, the Captain will not be subject to the supervision, direction or control of GrubUp in performing the Services.

4.6         The Captain must immediately notify a member of the Operations team if the Captain becomes unable to work during a time period that the Captain has previously agreed to work on an indicative basis in accordance with clause 4.4, and explain the reasons for this. For the avoidance of doubt, no fee shall be payable in respect of such period.

5.1         The Captain will supply either an iPhone or Android smartphone (or such other make of phone as may subsequently be notified to the Captain by GrubUp) and ensure that it is sufficiently charged and subject to a current mobile phone subscription which enables the Captain to access voice and data services at all times while this Agreement is in force.

5.2         The Captain will download and install, or permit GrubUp to download and install, such applications as are required for the Captain to be able to perform the Services and will also apply any and all new versions, revisions and fixes to such software as may be required by GrubUp from time to time.

5.3         The Captain will supply its own mode of transportation, which may be subject to approval by GrubUp for the purposes of providing the Services. It is the Captain’s sole responsibility to ensure that such mode of transportation is in a good state of repair, is roadworthy and registered in the state or territory in which the Services shall be provided. Under no circumstances whatsoever shall GrubUp be liable for modes of transportation not meeting these requirements.

5.4         The Captain will not, at any time to perform the Services while under the influence of drugs or alcohol. The Captain acknowledges that it is solely responsible for all and any charges, penalties and fines relating to the Captain’s usage of the mode of transportation, including but not limited to parking charges, congestion charges and traffic offences.

5.5         The Captain will immediately inform a member of the Operations team if the Captain is involved in any accident when using the Captain’s mode of transportation while performing the Services or are arrested in respect of any offence whatsoever.

5.6         The Captain agrees that GrubUp equipment, and in particular the GrubUp box (if purchased by the Captain or provided by GrubUp), must never be used for any purpose other than performing the Services.

6.1         GrubUp will pay the Captain a fee for each completed delivery. This fee may be varied depending on the estimated driving distance, time to complete delivery, traffic route, day, time and location (the Transit Pay) and will be communicated after completion of delivery. In no cases, the fee would be less than 3 Australian Dollars. A delivery, for these purposes, being the collection of Order Items from a Partner and delivery to a Customer of GrubUp.

6.2         GrubUp will process payments made by consumers and transmit to Captains. Payments for all deliveries completed in a given week will be transferred via direct deposit into Captain’s bank account or such other payment method as agreed between the parties on a weekly basis unless it notifies Captain otherwise via email.

6.3         GrubUP may require the Captain to invoice fees weekly in respect of Services provided in the previous week. Each invoice must be accompanied by a description of the Services provided and such other information as GrubUp may reasonably require from time to time. GrubUp will make available to the Captain an electronic facility to enable the Captain to prepare and submit the Captain’s invoices to GrubUp in a timely manner. Subject to satisfactory and timely submission of invoices, GrubUp will pay the Captain’s fees by electronic transfer to the Captain’s nominated bank account or such other payment method as agreed between the parties.

6.4         Captain must hold and continue to hold an Australian Business Number (ABN) while providing the service.

6.5         Any petrol or ancillary expenses in connection with the Services shall be paid and incurred directly by the Captain.

6.6         The Captain may keep any tips or gratuities paid to the Captain directly by any of GrubUp’s Customers in respect of Services provided by the Captain under this Agreement.

6.7         The Captain will indemnify GrubUp and keep GrubUp indemnified against any claim or demand made against GrubUp in respect of any income tax, value added tax, any other tax or national insurance or social security contributions due on fees payable under this Agreement and against any interest or penalties imposed in connection with any such tax or contributions. GrubUp may at its option satisfy such indemnity in whole or in part by way of deductions from any payments owed to the Captain.

6.8         In the event Captain fails to fully perform any Delivery Service after acceptance due to Captain’s action or omission, Captain shall forfeit all or part of the agreed upon fee for that service. Penalty amount could be imposed on such failures at the discretion of GrubUP.

7.1         As strict conditions of this Agreement the Captain warrants that:

(a)          the Captain is a self-employed independent contractor in business on the Captain’s own account;

(b)          the Captain has the right to reside and work in Australia and have all necessary visas, licenses and permits allowing the Captain to do so;

(c)          the Captain holds, and will continue to hold, a clean driver’s license which permits the Captain to drive the mode of transportation which may have to be approved by GrubUp in Australia, and will notify GrubUp immediately should this cease to be the case;

(d)          the Captain holds, and will continue to hold, valid insurances in respect of the mode of transportation and will notify GrubUp immediately should this cease to be the case;

(e)          the Captain has never been convicted of any criminal offence and shall undergo mandatory police checks from time to time, as may be requested by GrubUp; and

(f)           the Captain will comply with Schedule 1 – Captain Service Standards.

8.1         The Captain will obtain at the Captain’s own cost appropriate insurance which shall remain in force in respect of the provision of the Services by the Captain throughout the life of this Agreement, either by availing the group insurance policy put in place by GrubUp, or obtaining equivalent cover on the Captain’s own account. The Captain shall, on request, supply copies of such policies together with evidence that the relevant premiums have been paid to GrubUp.

9.1         The Captain acknowledges and agrees that the Captain is personally responsible for the performance of the Services, regardless of whether actually performed by the Captain, and accordingly accept liability for any costs, claims, proceedings, damages, losses, expenses or other liabilities (including legal costs) (together, “Losses”) threatened, suffered or incurred by GrubUp as a result of the Captain’s negligent provision of the Services or failure to ensure that the Services are provided with a sufficient standard of care. The Captain agrees to indemnify and keep indemnified GrubUp against all such Losses. Captain agrees to indemnify, protect and hold harmless GrubUP, including all parent, subsidiary and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees.

10.1      While as a general rule the Captain is expected to perform the Services personally, the Captain does have the right, without the need to obtain GrubUp’s prior approval, to arrange with another registered GrubUp Captain for them to perform a particular delivery or deliveries on the Captain’s behalf. In such event the Captain acknowledges that this will be a private arrangement between the Captain and that individual and the Captain will continue to bear full responsibility for meeting the requirements under Schedule 1 – Captain Service Standards in relation to such delivery and all other obligations under this Agreement. The Captain will continue to invoice GrubUp in accordance with this Agreement, and shall be wholly responsible for the remuneration of the Captain’s substitute.

11.1      Both during the term of this Agreement and following its termination the Captain must not (unless required to do so by law, protected in doing so by a legal right of protected disclosure or doing so in properly providing the Services):

(a)          disclose any of GrubUp’s trade secrets or Confidential Information to any person; or

(b)          use any of GrubUp’s trade secrets or Confidential Information for any purposes other than GrubUp’s.

11.2      The Captain will not make, directly or indirectly, any detrimental or derogatory comments about GrubUp, its officers, employees, business partners (including Partners) or suppliers (including other Captains), either verbally or in writing, including in particular but not limited to on any social media platform or forum. A failure to comply with these obligations shall be considered a serious breach of this agreement.

12.1      GrubUp may terminate this Agreement at any time and for any reason on giving the Captain not less than one week’s notice in writing, and the Captain may terminate this agreement at any time and for any reason on giving GrubUp not less than two weeks’ notice in writing.

12.2      Without prejudice to 12.1 above, GrubUp also reserves the right to terminate this agreement with immediate effect in the event of any serious or material breach by the Captain of any obligation owed to GrubUp.

12.3      Upon termination of this Agreement, the Captain shall be entitled to invoice GrubUp in respect of Services performed by the Captain up to the date termination takes effect but the Captain acknowledges that the Captain has no other right to any further or final payments in respect of termination or severance or otherwise from us.

12.4      Upon termination of this Agreement for whatever reason, the Captain shall deliver to GrubUp all property belonging to GrubUp which is in the Captain’s possession or control, and permit GrubUp to disable and / or remove from the Captain’s smartphone any GrubUp application.

12.5      Following the termination of this Agreement the Captain will no longer represent itself as being connected in any way with the business of GrubUp, and in particular shall no longer wear any GrubUp branded apparel.

13.1      The Captain acknowledges that GrubUp may need to process personal data about the Captain for a variety of legal and administrative purposes. This data may include information relating to arrangements with the Captain and the Captain’s performance of the Services and for the purposes of record keeping and invoicing.

13.2      The Captain may have access to personal data about the employees, Customers and suppliers of GrubUp. If the performance of the Services involves the Captain processing personal data (whether as data controller or data processor), the Captain must:

(a)          act only on instructions from GrubUp or as set out in this Agreement; and

(b)          take appropriate technical and organisational measures to keep the data secure and protect against unauthorised or unlawful processing of such data and against accidental loss or destruction of, or damage to, such data.

14.1      Amendments

(a)          No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14.2      Waiver

(a)          No failure or delay by a party in exercising, or any single or partial exercise on an earlier occasion of, any right or remedy provided by law or under the Agreement shall impair the right or remedy, or operate as a waiver or variation of it, or preclude its exercise at any subsequent time or the exercise of any other right or remedy.

14.3      Set off

(a)          GrubUp may set off any amount owed by the Captain to GrubUp against any amount due to the Captain under the Agreement or any other agreement between the Captain and GrubUp.

14.4      Assignment

(a)          The Captain may not assign, transfer, charge or deal in any way with the benefit of, or any of its rights under or interest in, the Agreement without GrubUp’s prior written consent. GrubUp may assign the benefit of, and any of its rights under, the Agreement together with any cause of action arising in connection with any of them to its successor in title or to any purchaser or transferee.

14.5      Counterparts

(a)          This document may be signed in any number of counterparts.  All counterparts together make one instrument.

14.6      Entire agreement

(a)          This document supersedes all previous agreements about its subject matter.  This document embodies the entire agreement between the parties.

(b)          To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion, is withdrawn and has no effect except to the extent expressly set out or incorporated by reference in this document.

(c)          Each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into this document.

14.7      Further assurances

(a)          Each party must do all things reasonably necessary at its own cost to give effect to this document and the transactions contemplated by it.

14.8      Governing law and jurisdiction

(a)          The law of the state of New South Wales governs this document.

(b)          Each party irrevocably agrees that the courts of New South Wales, Australia shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.

14.9      Severability

(a)          A clause or part of a clause of this document that is illegal or unenforceable may be severed from this document and the remaining clauses or parts of the clause of this document continue in force.

14.10   Comprehension of this Agreement

(a)          The Captain acknowledges and agrees that by signing this Agreement, the Captain fully understand and comprehend all of the terms, obligations and conditions herein.

Schedule 1 – Captain Service Standards 

1.1         You will be expected to meet the following minimum Captain Service standards.

1.2         You will log into the Captain app and will promptly accept any orders in your zone which you are available to perform.

1.3         You will promptly answer calls from members of the operations team or, if you are unable to answer them for any reason (for example, because it would not be safe to do so), you will return them as soon as reasonably practicable.

1.4         Upon collecting an order from a Partner, you will click on the Captain app to confirm that you have done so. You will then click again when you have successfully delivered the meal to the customer.

1.5         You will be courteous in all of your dealings with GrubUp staff, fellow Captains, Partner personnel, customers and any other third parties with whom you interact while performing Services for GrubUp.

1.6         You will perform the Services with all due care, skill and ability and, in particular, will comply with all applicable laws regarding road safety and usage.

1.7         Captain agrees to maintain both a customer rating and a completion rate as notified by GrubUP from time to time.  Failure to satisfy this obligation constitutes a material breach of this Agreement

1.8         You will comply with the requirements of Health and Safety requirements from authorities for performing the service.