Driving Instructor Terms and Conditions

Parties

This Job Referral Agreement is between

• Prestige Driver Training Services Pty. Ltd. (ABN 21 602 137 217) trading as Prestige Driving School ("Prestige"); and
• the driving instructor who has signed up as a Prestige instructor in accordance with this Agreement ("Instructor")

each as a Party and together the Parties.

1. Prestige provides client engagement and job referral services for independent driving instructors.
2. The Instructor operates a driver training business.
3. The Instructor wishes to appoint Prestige as the Instructor’s agent for sourcing clients and referring jobs for the Instructor’s business.

1.          DEFINITIONS

Agreement means this document including the attached Schedules and any other schedules and annexures.

Booking Calendar means the online calendar referred to in clause 4.4.

Claims means all or any claims, demands, debts, accounts, actions, expenses, costs, liens, liabilities and proceedings of any nature whatsoever (whether known or unknown).

Client means any individual or organisation introduced by Prestige to whom the Instructor provides Driver Training Services.

Confidential Information means all the information including trade secrets, Intellectual Property, marketing and business plans, client and supplier lists, computer software applications and programs, business contacts, data concerning a Party or any of its related entities or clients, finances, operating margins, prospect’s lists, and any materials provided by one Party to another Party and any information which a Party from time to time determines (and advises the other Parties) is confidential but does not include information in the public domain other than through a breach of an obligation of confidentiality.

Driver Training Services means any driver training, vehicle safety or ancillary services provided by the Instructor to any person for reward.

Fees means the amounts payable by the Instructor to Prestige with respect to the Referral Services, as set out in Item 1.

GST means goods and services tax, value added tax or similar levied or imposed in relation to a supply (or a deemed supply) of any goods, property, services or any other thing and includes GST as defined in the GST Legislation.

GST Legislation means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any associated legislation, regulations and rulings and all capitalised expressions in this Agreement that are defined in the GST Legislation but not in this Agreement have the meanings as defined in the GST Legislation.

Job means a specific booking by reference to date and time for the Instructor to provide Driver Training Services to a Client.

Vehicle means and includes each motor vehicle used by the Instructor in providing Driver Training Services.

Intellectual Property means all present and future copyright and analogous rights (including moral rights), all rights in relation to inventions (including patent rights), registered and unregistered trademarks (including service marks), registered designs, confidential information (including trade secrets), discoveries, inventions, know-how, circuit layouts and all other rights throughout the world resulting from intellectual activity in the industrial, scientific or artistic fields. These rights include all rights in all applications to register these rights and all renewals and extensions of these rights.

Item means a numbered item in Schedule 1.

Prestige Equipment means any equipment, signage, card readers, documents or any other property that is owned by Prestige or in relation to which Prestige has a right to possession, whether by virtue of a lease, licence, lien or other entitlement, including, but not limited to, the items (if any) described in Item 2.

Referral Services means the services described in this Agreement to be provided by Prestige to the Instructor.

2.          DURATION

2.1        Subject to any rights of early termination in this Agreement, it remains in force for three months from the date the Instructor appointed Prestige as its agent. ("Engagement Period")

2.2        Unless otherwise terminated in accordance with clause 15, the Engagement Period will be extended and the Agreement will continue to remain in force on a month-to-month basis after the end of the initial three-month period until either Prestige or the Instructor gives written notice of their intention to terminate the Agreement, in which case the Agreement will end at midnight on the last day of the month following the month in which notice of termination is given.

3.          ENGAGEMENT OF PRESTIGE

3.1        The Instructor appoints Prestige as its agent for providing the Referral Services and, in consideration for the Instructor agreeing to pay the Fees, Prestige accepts that appointment on the terms and conditions set out in this Agreement.

3.2        During the Engagement Period and at any time thereafter, Prestige may provide services similar to the Referral Services to other clients of Prestige, including other driving instructors.

4.          PRESTIGE’S OBLIGATIONS

4.1        During the Engagement Period Prestige will from time to time refer Jobs to the Instructor.

4.2        Prestige agrees that it will, at all times during the Engagement Period, advertise and market driver training services to the general public under the name of “Prestige Driving School”.

4.3        Prestige will use its best endeavours to ensure that it maintains a functional website at www.prestigedrivingschool.com.au at all times during the Engagement Period, on which it will offer driver training services in the area or areas serviced by the Instructor.

4.4        Prestige will maintain an online calendar, to which both Prestige and the Instructor will have access, for the purpose of recording Jobs for the Instructor. Prestige agrees that, where a Client wants to book the Instructor for a specific time or times, Prestige will check the Booking Calendar to ensure that the Instructor is available for that time prior to taking the Client’s booking.

4.4        To the maximum extent permitted by law, Prestige shall have no liability to the Instructor for any loss or corruption of data, or any scheduled or emergency maintenance that causes the website to be unavailable.

5.          INSTRUCTOR’S OBLIGATIONS

5.1        The Instructor acknowledges that it is in the best interests of the Instructor’s business that the goodwill associated with “Prestige Driving School” brand be developed and protected and that all the Instructor’s obligations under this Agreement are to be read and construed within that context.

5.2        The Instructor will ensure that details of all Jobs, including Client names and Job dates and times, are recorded in the Booking Calendar as soon as possible and in any event no later than 12 hours after the relevant Job has been accepted by the Instructor. If the Instructor fails to comply with this clause the Instructor shall be liable to pay liquidated damages to Prestige calculated in accordance with Item 3.

5.3        The Instructor warrants that the Instructor will, at all relevant times, hold all licences, qualifications, clearances, permits and visas legally required to perform the Driver Training Services, including, but not limited to:

and the Instructor will provide evidence of any of these to Prestige upon request.

5.4        The Instructor warrants that the Instructor, will at all times, comply with all applicable laws and will fully abide by the terms and conditions of Prestige’s policies and procedures relating to confidentiality, intellectual property, equal opportunity, bullying and harassment, modern slavery, work health and safety and regulatory compliance, including the rules, policies and procedures set out in Schedule 2.

5.5        The Instructor agrees to provide Driver Training Services in a competent, professional and courteous manner and in accordance with the Transport for New South Wales Code of Conduct for Driving Instructors and Assessors.

5.6        The Instructor must keep each Vehicle clean and tidy, well maintained and properly serviced in accordance with the Vehicle manufacturer’s specifications.

5.7        The Instructor must display “Prestige Driving School” signage on each Vehicle whenever a Job is being carried out, in the manner directed by Prestige, regardless of how the Job was referred to them.

5.8        The Instructor warrants that it will not do anything or make any statements at any time during or even after the Engagement Period that is reasonably likely to directly or indirectly:

(a)         give rise to a conflict of interest between the Instructor’s obligations to Prestige on the one hand and the Instructor’s own interests on the other; or

(b)         cause any detriment, harm or damage to the value, reputation or goodwill of the “Prestige Driving School” name or that of Prestige’s business.

If the Instructor fails to comply with this clause 5.8 the Instructor shall be liable to pay liquidated damages to Prestige in the amount specified in Item 3.

5.9        The Instructor warrants that it will not provide any Driver Training Services to any Client after the end of the Engagement Period.

5.10     If the Instructor provides any Driver Training Services to any Client at any time after the end of the Engagement Period, the Instructor shall be liable to pay to Prestige the liquidated damages set out in Item 3.

6.          NATURE OF THE RELATIONSHIP

6.1        The Instructor and Prestige, as independent contracting parties, are each responsible for remunerating and providing any monetary or non-monetary benefits that may become due to their own employees or their other personnel or to themselves as sole traders and for the payment of any resulting payroll tax liability and superannuation payments.

7.          FEES

7.1        In consideration for the provision of the Referral Services, and as long as Prestige remains the Instructor’s agent for providing the Referral Services, the Instructor agrees to pay Prestige the Fees.

8.          INVOICING AND PAYMENT

8.1        Any Fees calculated by reference to Jobs will become payable to Prestige immediately after the relevant Job has been provided.

8.2        Prestige will keep an account of all Fees payable, and all payments made in respect of those Fees (regardless of whether those Fees have been invoiced or not).

8.3        Prestige will submit a tax invoice and an account statement to the Instructor after the end of each billing cycle in respect of all Fees that became payable by the Instructor during that cycle.

8.4        The Instructor shall pay the full amount of each invoice issued by Prestige within 14 days after the date of the invoice.

8.5        The Instructor authorises Prestige to collect, on behalf of the Instructor, any fees payable by Clients to the Instructor in respect of Jobs. The Instructor acknowledges that Clients may from time to time pay those fees to Prestige in advance of the Jobs being completed.

8.6        Any fees received by Prestige pursuant to clause 8.5 may be retained by Prestige on account of any Fees that are or may become due and payable by the Instructor to Prestige. Prestige will remit any money held on account by Prestige in relation to any particular Job after the Instructor has completed that Job, less the amount of any Fees owing to Prestige in connection with that Job.

9.          GST

9.1        All monetary amounts referred to in this Agreement are expressed exclusive of GST, unless otherwise expressly stipulated.

9.2        The Instructor must pay to Prestige the amount of its GST Liability (if any) at the same time as the Instructor makes the payment to Prestige for any relevant Taxable Supply.

10.        VEHICLE AND EQUIPMENT

10.1     The Instructor is expected, at its own expense, to supply any equipment necessary to perform the Driver Training Services, including a registered Vehicle.

10.2     Prestige will provide the Instructor with the Prestige Equipment (if any) listed in Item 2, for use by the Instructor in providing Driver Training Services during the Engagement Period.

10.3     The Prestige Equipment remains the property of Prestige, however, the Instructor shall have a licence to possess and use any Prestige Equipment given by Prestige to the Instructor, in accordance with this Agreement for the Engagement Period.

10.4     All Prestige Equipment given to the Instructor shall be at the risk of the Instructor and the Instructor must protect and keep Prestige Equipment safe and secure at all times until it is returned to Prestige. The Instructor shall be liable for any loss, damage or destruction to the Prestige Equipment other than fair wear and tear, while the Prestige Equipment is at the risk of the Instructor.

10.5     Upon the termination or expiry of this Agreement or the end of the Engagement Period for whatever reason, the Instructor must promptly, and without further demand, return to Prestige all of the Prestige Equipment listed in Item 2 and any other Prestige Equipment in the Instructor’s possession.

10.6     If the Instructor fails to return any Prestige Equipment in accordance with this Agreement within a period of 2 weeks after the end of the Engagement Period or if any Prestige Equipment is returned damaged in breach of clause 10.4, the Instructor shall be liable to pay Prestige the amount of any relevant liquidated damages specified in Item 3.

11.        CONFIDENTIALITY

11.1     Each Party ("Recipient") agrees in relation to Confidential Information of another Party (both referred to as "Owner"):

(a)         to use the Confidential Information only for the purposes of this Agreement; and

(b)         to keep that Confidential Information confidential and not disclose it or allow it to be disclosed to any third party except with the written consent of the Owner.

11.2     The obligations of confidentiality under this Agreement do not extend to information that (whether before or after this Agreement is executed):

(a)         is disclosed to a Recipient under or in relation to this Agreement, but at the time of disclosure is rightfully known to or in the possession or control of the Recipient and not subject to an obligation of confidentiality on the Recipient; or

(b)         is public knowledge (otherwise than as a result of a breach of this Agreement); or

(c)         is required by law to be disclosed and the Recipient required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure and to limit, as far as reasonably possible.

11.3     On ceasing to be a Party and/or on the termination of this Agreement each Party must:

(a)         continue to keep confidential all Confidential Information of each other Owner; and

(b)         at each Owner’s option, return to that Owner or destroy and certify the destruction of that Owner’s Confidential Information.

11.4     The Parties agree that, notwithstanding anything else in this Agreement, all information relating to Clients, including the Client’s identity and personal information, shall be Confidential Information of Prestige and to the extent that the Instructor has any such information, the obligations contained in this clause 11 shall apply to the Instructor in their capacity as Recipient of that information.

12.        INTELLECTUAL PROPERTY

12.1     The parties acknowledge that:

(a)         Each party retains ownership of their Intellectual Property rights which are in existence at the date of execution of this Agreement or which come into existence after the date of execution of this Agreement otherwise than in connection with this Agreement and nothing in this Agreement is to be construed as creating or transferring any rights in relation to those Intellectual Property rights; and

(b)         except to the extent otherwise agreed between the Parties, ownership of any Intellectual Property created by the Instructor during the course of and in connection with this Agreement vests in Prestige. The Instructor must disclose to Prestige all Intellectual Property created by it during the course of this Agreement.

12.2     Prestige grants to the Instructor a royalty-free, non-exclusive licence to use Prestige’s Intellectual Property rights in any software, documents logos, business names or trademarks to the extent required for the purposes of providing Driver Training Services to Clients or for fulfilling any other obligations that the Instructor may have to Prestige under this Agreement.

12.3     If the Instructor breaches the terms of the licence given to it by clause 12.2, the Instructor shall be liable to pay Prestige the amount of any relevant liquidated damages specified in Item 3.

12.4     The Instructor must, both during and after the term of this Agreement, do all things necessary and sign all documents as reasonably required by Prestige to secure any of Prestige’s Intellectual Property, including any created during the course of this Agreement.

12.5     The Instructor acknowledges that if the Instructor breaches clause 12, then Prestige will be entitled to seek injunctive relief at the Instructor’s cost in respect of the breach.

13.        INSURANCE

13.1     The Instructor must obtain and maintain the following policies of insurance:

(a)         professional indemnity insurance with minimum coverage of $2m per occurrence; and

(b)         comprehensive motor vehicle insurance for each Vehicle; and

(c)         public liability insurance with minimum coverage of $20m per occurrence.

13.2     The insurance policies referred to in clause 13.1 must be maintained for the duration of this Agreement and for a period of 12 months or, in the case of professional indemnity insurance for a period of 6 years, after the end of this Agreement.

13.3     Where required by law, the Instructor must obtain and maintain for the duration of this Agreement a workers’ compensation and employer’s liability insurance policy covering liability for loss, damage, claims, and all direct or indirect costs and expenses arising at common law or under workers’ compensation or employer’s liability legislation in respect of persons employed or deemed to be employed by the Instructor.

13.4     The Instructor must provide Prestige on request with proof of all insurance policies required to be maintained by the Instructor.

14.        INDEMNITY

14.1     The Instructor indemnifies Prestige against:

(a)         any and all Claims that may be made by any person against Prestige or any of Prestige’s personnel to the extent that such Claim is caused or contributed to by any breach of this Agreement by the Instructor or by any negligent, malicious or unlawful act or omission on the part of the Instructor in connection with the provision of, or failure to provide, any Driver Training Services; and

(b)         any loss, damage, cost, expense or liability that may be suffered or incurred by Prestige as a result of any breach of this Agreement by the Instructor, including, but not limited to, any legal or debt collection costs or expenses incurred as a result of any action brought by Prestige to recover any money owing to it by the Instructor under this Agreement.

15.        TERMINATION OF AGREEMENT

15.1     Notwithstanding clause 2, the Engagement Period and this Agreement end if and when the Agreement is terminated in accordance with any provision of this clause 15.

15.2     Prestige may terminate this Agreement without notice in the event of a fundamental breach by the Instructor of this Agreement (including but not limited to a breach of any warranty or a repudiation of the Agreement by the Instructor), in which case the Instructor will be liable to pay any applicable liquidated damages set out in Item 3 in addition to any other amounts payable pursuant to clause 15.5.

15.3     Prestige may terminate this Agreement immediately if the Instructor, being an individual, is made bankrupt within the meaning of any applicable Australian law.

15.4     A termination of this Agreement for whatever reason will not release any Party from:

(a)         liability in respect of any breach or non-performance of any obligation under this Agreement; or

(b)         the Confidentiality and Intellectual Property obligations of this Agreement.

15.5     Upon termination of this Agreement for whatever reason the Instructor:

(a)      will be liable for payment of any Fees that became payable to Prestige up to and including the date of termination; and

(b)      will not be entitled to any notice of the termination or payment in lieu of notice of termination; and

(c)      will not be entitled to any compensation other than as specifically provided for in this Agreement.

16.        NOTICES

16.1     Unless expressly stated to the contrary in this Agreement, all notices under this Agreement are to be in writing and delivered to the other in a manner permitted or contemplated by clause 16.2.

16.2     A notice takes effect when taken to be received (or at a later time specified in it), and is taken to be received

(a)         if hand delivered, upon delivery;

(b)         if sent by prepaid post, on the fourth Business Day after the date of posting (or on the tenth Business Day after the date of posting if posted to or from a place outside Australia);

(c)         if sent by email, as soon as the email is shown as having been sent, so long as a send-error message is not subsequently received by the sender,

but if the delivery, receipt or transmission under paragraphs (a), (b) or (c) is not on a business day in the place to which the notice is sent or is after 5.00 pm (local time), the notice is taken to be received at 9.00 am on the next business day in that place.

17.        GENERAL

17.1     Prestige may amend this Agreement at any time, by providing written notice to Instructor.

17.2     If a clause, term or part of a term of this Agreement is void, illegal or unenforceable, it may be severed from this Agreement without affecting the enforceability of the other provisions in this Agreement.

17.3     A term of this Agreement that cannot by law be enforced against a Party remains enforceable against the other Party to whom the term applies.

17.4     Instructor may not assign to any third party the benefit of this Agreement without Prestige’s prior written consent.

17.5     Clauses 5.8, 5.9, 5.10, 8, 10.5, 10.6,  11, 12, 13, 14, and 15 of this Agreement and any other term which by its nature is intended to survive the termination or expiry of this Agreement survives the termination or expiry of this Agreement.

17.6     This Agreement is governed by the law of the State of New South Wales and the Parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and any court hearing appeals from those courts.

17.7     Each Party has been given the opportunity for legal advice in respect to this Agreement. All parties have executed the Agreement on their own free will without duress, coercion or any other undue influence.

17.8     This document may be executed in any number of counterparts and all the counterparts taken together will be regarded as constituting one legal document.