Mont Fox Enterprises (T/A ‘The Exponential’) Terms of Service For Dedicated Staffing
Mont Fox Enterprises Pty Ltd – is an Australian registered company (ABN 26 164 225 325) which provides offshore outsourcing services in the Philippines and the buyer is the “client”. This entire agreement is subject to the Laws of Queensland, Australia and all parties agree to the jurisdiction of the courts of Queensland, Australia. All Amounts are in Australian dollars.
1 – Payments
Billing will be done in two (2) week cycles. You will be invoiced for the hours rendered in that previous two week period which may include paid leave, unpaid leave & overtime.
Payment will be made by either direct debit auto-renewal through third party payment processor ‘Paysmart’ by either credit card or bank deposit. You agree that ‘Mont Fox Enterprises’ do not and will not allow work to continue without payment.
2.1 – Salary Bond
You are required to pay an advance payment of the equivalent to four (4) weeks’ salary, which must be paid prior to commencement of working with your staff. Our Philippines Corporation ‘Protos Ezyva Pampanga Incorporated’ is obligated by law to pay the staff for a further two weeks if in the event of termination of employment, therefore it is insisted we have the first two weeks service paid in advance, then a further two weeks held in bond in case of non-payment or non-contact from you the client (in which case we will automatically terminate services). At the end of this employment contract, your regular invoice payments will be stopped & this salary bond will be used as credit for the remaining period of your service.
2.2 Failed (“skipped”) Payments – “We” reserve the right to cancel your services at any stage after two weeks of non-payment or non-contact from you the client. See point 11 for terms of cancellation. We also reserve the right to enforce a late fee penalty of 5% of your billing amount for any payments not made by the due date. Any accounts not in credit (owing) constitute being due for late fee.
2.3 – Refunds on Remaining Hours
If you have followed required protocol for cancelling account & you have credits unused, Mont Fox Enterprises will refund monies due by means only of the same method in which it was received. Refund timeframe is 2 to 3 weeks. Refunds will not be given under any circumstances if you have not followed protocol for cancelling the staff or account.
2.4 Exchange rates – Should the Philippine peso to the Australian dollar drop below 35:1, “We” reserve the right to change the price of your service by an amount that is equal to the percentage difference to that of 38 PHP: 1 AUD. The foreign currency website used for the calculation will be http://www.hifx.com.
3 – Phone Call Costs – You (the client) agree that you are responsible for any and all costs associated with any costs for telecommunications. If using Skype, you will pay direct for the service. If you choose to pay for a VOIP service connected through “us”, you will be invoiced for this service monthly. Any connection fees must be paid in advance. Non-payment will result in disconnection. Mont Fox Enterprises Pty Ltd and Protos Ezyva Pampanga Incorporated Philippines, cannot and will not be responsible for any damages or losses caused by interruptions to your telecommunications services.
4 – Staff solicitation – Should the ‘Client’ solicit the services of a staff member provided by, or employee of Mont Fox Enterprises Pty Ltd or Protos Ezyva Pampanga Incorporated Philippines, “We” reserve the right to charge a fee equivalent to 6 months of service. You the “client” authorizes Mont Fox Enterprises Pty Ltd to bill this to the Users nominated credit card or bank account.
5 – Virtual Employee(s) Working hours & Leave – You the “client” are responsible for the granting and paying of annual leave and sick days on behalf of the Virtual Employee. Your Virtual Employee is based in the Philippines and is contractually entitled to 15 paid days per annum to be given for annual leave and five days for sick leave. This paid leave is based on a full 40 hours per week engagement, so if this contract is set for less than 40 hours per week, you are only obliged to pay the pro-rata amount of that 40 hour per week employment. Annual leave accrues monthly. You as the client are required to pay for a full fifty two (52) weeks a year in which the staff is entitled to their accrued annual leave and sick leave at the usual contract rate. If the staff does not have accrued annual leave then you are not required to pay for any leave taken under these circumstances.
5.1 – Christmas / New Years / Extra Holidays Leave Terms
If the staff member has accrued anything less than 5 days annual holiday leave, the employer can insist on a maximum of 5 working days leave for Christmas/New year period (December 24 – January 2). Any extra time requested by the employer during this period or at any other time of year will be paid. If the staff member has accrued more than 5 days, the Employer can insist on the staff to take leave for a maximum up to and equal to the number of days accrued only. Any extra days taken off will be paid by you as the client unless the staff has filed for that leave.
5.2 – Public Holidays Off – Staff work only according to holidays & regulations of the Philippines. Certain holidays in the Philippines may not match with holidays in your location, therefore staff may be required to take these holidays by law. Due to labor laws contracting, the staff may be entitled to be paid on national holidays & you as the client are required to pay for that as per the rule of the client paying fifty two (52) weeks of the year.
5.3 – Public Holidays Working – If you require your staff to take work on a day that falls on a national holiday in Philippines, you are required to pay the holiday loading in accordance with Philippines law.
5.4 – Public Holidays (Required days off) – If you require your staff to take holidays in accordance with national holidays in your location, which does not also coincide with a holiday in Philippines, you are required to pay for that day off.
5.5 – Public Holidays (Reporting) – A report for all national holidays in Philippines & any extra payments for your staff working on Philippines holidays can be requested in advance to this contract or at any stage during.
6 – Over-time – Overtime will be automatically billed to the Users account. If you wish your staff to work anything above 40 hours per week, you will be liable to pay an overtime amount, no more than in accordance with the Philippines labor laws.
7 – Offshore Outsourcing Understanding
You the “client” acknowledges that Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines is providing an outsourced low cost labour service only. You the “client” acknowledges that “we” are not responsible for the creation or execution of any of the “clients” corporate strategies. The “client” acknowledges that “we” operate from The Philippines and as a result the “client” utilising the services of an offshore provider based in the Philippines is both viable and well executed. The “client” acknowledges that any phone calls made during the campaign will be made by Filipino’s that do not possess an Australian accent. The “client” understands this implicitly and confirms that the “clients” target audience will be receptive to a phone call from The Philippines.
8 – Responsibilities and acknowledgements of the Client (for individual and team staffing)
You the “client” acknowledges that you have requested Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines to hire a permanent staff member on your behalf.
You the “client” are responsible for training and daily mentoring of the Virtual Employee, unless otherwise negotiated with Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines.
8.1 – You the “client” are responsible for creating a job description, key performance metrics, daily task lists, and training files for the Virtual Employee.
8.2 – In co-ordination with your assigned Account Manager, you, the Client will conduct performance reviews for their Virtual Employee after 7, 21, 30 and 60 days and every month thereafter. At those points in time, you the “client” may issue either job warnings or performance bonuses. Any performance bonuses must be declared and coursed through Mont Fox Enterprises Pty Ltd Australia & Protos EzyVA Pampanga.
8.3 – Should the Virtual Employee fail to meet the performance criteria set out, job warnings may be issued during any of the performance reviews. Three (3) job warnings will result in termination of the Virtual Employee and the cancellation of this agreement. The “client” will send a “performance feedback” email to [email protected] and for the Virtual Employee, “we” will then present this to the staff during the performance meetings.
8.4 – The “client” agrees that this is the only way in which the staffing agreement between Mont Fox Enterprises and the client may be cancelled if the client is inside their minimum contract term.
9 – Training & Performance
The “client” acknowledges that this is a virtual employee service. As such, all Mont Fox Enterprises Pty Ltd Australia & Ezy Virtual Staffing Corporation Philippines staff work under the guidance and supervision of you the “client”. You the “client” acknowledge that the ultimate responsibility for outcomes and results are your responsibility.
Given the fact that your Virtual Employee is from a different culture, you will be required to invest 100-200% more time into training as set out below.
The client acknowledges that the following factors will have an impact on the quality of the output of their Virtual Employee(s):
The breadth and depth of training provided by the User to their Virtual Employee(s). We recommend the following training schedules:
Job description complexity | Initial training period | On-going training
Simple, repetitive tasks | 1-2 days | 1 hour per month
Complex, non-repetitive tasks | 3-5 days | 2-5 hours per month
The time invested by the “client” in regular one-on-one meetings Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines recommends the following meeting schedules per full time equivalent:
- 1-2 hours per week for job descriptions containing repetitive tasks that do not require frequent escalations
2-4 hours per week for job descriptions containing more complex, non- repetitive tasks that may require escalations
You the “client” agree that the following points will detrimentally affect the performance of your contracted staff.
- The User’s utilisation (or lack) of the task management system provided by Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines.
- A change in the Virtual Employee(s)’ job description without corresponding training.
Failure to provide clear, concise and unambiguous instructions
As a Virtual Employee, their performance will be formally reviewed every six months. This can result in a change to their salary which will be passed onto you to a maximum of 6% in any six month period.
10 – Changing Virtual Employees
Changes to the Users virtual employee(s) must be based on objective performance criteria. There will be no penalty or hours charged for any down time between working with staff. If in the case that a staff is being swapped, the minimum term does not restart, the accrued time will be applied to the minimum term outlined in Clause 1.
10.1 – Should the User wish to change their virtual employee based on circumstances outside of performance management, 14 business days notice is required in electronic writing to the Team Account Manager of your staff.
10.2 – If in the event that your initial selected staff in this agreement decides to discontinue their staff contract with Protos Ezy VA, a new staff will be sourced for you & chosen by you as per the normal interview & selection process. If for any reason Protos Ezy VA cannot find a suitable replacement, you as the client will not be charged for any downtime or gap in fulfillment, nor will the contract or minimum term be enforced. Mont Fox Enterprises will not charge when hours are not being rendered.
11 – Cancelling Your Account
This is a minimum term agreement that is not cancellable inside the minimum agreement term unless the User exercises their right to terminate the Virtual employees employment due to performance. Cancellation must be in writing. Should you the “client” attempt to cancel payments to Mont Fox Enterprises Pty Ltd Australia at any stage, you the “client” will pay a fee equivalent to two weeks service minus any monies held in bond.
11.1 Conditions
11.1.1 Job description is provided by the User with realistic key performance indicators must be given to the virtual employee.
11.1.2 At the end of each week, performance must be measured by the User against agreed key performance indicators. The User’s performance feedback must then be given to the virtual employee in writing at the end of each week. The instruction should cover objective and quantitative instructions for growth.
11.1.3 If key performance indicators are not achieved, the User qualifies for a trial period cancellation.
11.2 How to Cancel
11.2.1 The User should notify the virtual employee and “us” with a minimum of 14 days notice.
12 – Privacy Policy
In addition to reviewing this Agreement, it is recommended that the User reads the Privacy Policy in order to appreciate and better understand our commitment to maintaining your privacy as well as our use and disclosure of Confidential Information.
Mont Fox Enterprises Pty Ltd recognizes its obligations under Australian Privacy Law and the Privacy Act 1988 (‘Cth’) and associated federal and state legislation to the User and assures its adherence to such legislation during performance of the Services.
By agreeing to the terms of this Agreement, you the “client” is also agreeing to the terms of our Privacy Policy, the terms of which are incorporated herein, and agree that the terms of such policy are reasonable.
13 – Confidentiality
Both you the “client” and Mont Fox to keep the Confidential Information confidential and not disclose it to any person except with the consent of the disclosing party, or if required to do so by law. This obligation extends for the period of this agreement and does not merge upon termination.
Both you the “client” and Mont Fox Enterprises mutually agree that they will not do or permit any act or thing which might in any way impair the good will or rights that the other party has in relation to its trademarks and/or intellectual property, or which might otherwise prejudice or damage the reputation of either party, its trademarks or its intellectual property.
Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines recognises that all intellectual property including the trademarks or other trademarks, registered designs, patents and copyright belonging to the User remain the property of the User and, if required, Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines is granted a limited license in such intellectual property to allow it to carry out its obligations under this agreement.
For the avoidance of doubt, “we” shall have no ownership rights to your intellectual property or any improvements to the intellectual property including but not limited to any modifications, enhancements, or derivatives of the intellectual property developed and/or arising after the date hereof beyond the rights provided to Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines under this clause.
14 – Indemnity
The staff management website is sourced from a third-party and provided by “Us” to “you” at no charge for the User’s benefit.
Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines is not liable to the User for any losses, damages, expenses or costs of whatever nature which the User may incur or suffer as a result, whether directly or indirectly, of issues associated with the Project Management software.
The User agrees to release, indemnify, defend and hold harmless Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines and their related bodies corporate against all losses, damages, expenses, liabilities and costs of whatever nature (including legal costs on a Solicitor and own client basis) which it or they incur or suffer as a result, whether directly or indirectly, of any breach of this agreement by the User.
In addition to point 7.1 above, and for the avoidance of doubt in the event that Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines is threatened by suit or sued by a third party due to or arising out of the User’s breach of this Agreement and/or use of the services, or because the User has breached another agreement with a third party, while utilising the Services of Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated Philippines will rely upon this clause to seek indemnification for its legal fees in respect of such situation. For the avoidance of doubt, the User will be obliged to pay for legal counsel of our choice at the expense of the User.
15 – Termination
15.1 Effect of Termination
Upon termination of this Agreement and these Terms and Conditions, all rights granted to the User will terminate and revert to Mont Fox Enterprises as applicable. On expiration or termination of this Agreement, all monies due to Mont Fox Enterprises or Protos Ezyva Pampanga Incorporated under this Agreement shall become payable immediately to us.
15.2 Rights to Survive Termination
Termination of this Agreement shall not release either party from any liability or right of action which at the time of expiry or termination has already accrued to either party or which may thereafter accrue in respect of any act or omission prior to such expiry or termination. Such rights shall include but not be limited to the recovery of any monies due under this Agreement.
16 – Severability
These terms and conditions shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by applicable law, and such determination shall not affect the validity and enforceability of any other remaining provisions.
17 – Assignment
The rights of a party pursuant to this Agreement may not be assigned by a party nor may the obligations of a party be subcontracted.
18 – Waiver
Any waiver or forbearance by Mont Fox Enterprises Pty Ltd Australia in regard to the performance of the Terms and Conditions by the User shall not affect the existence and continued applicability of the provisions of these Terms and Conditions.
19 – Entire Agreement
19.1 This Agreement: Is the entire Agreement and understanding between the parties on everything connected with the subject matter of this Agreement; and supersedes any prior Agreement or understanding on anything connected with that subject matter; and supersedes any agreement that may be entered into by the user and a staff member of Mont Fox Enterprises Pty Ltd Australia & Protos Ezyva Pampanga Incorporated.
19.2 – For existing contracts prior to 2017 under ‘Ezy VA (still legally Mont Fox Entreprises)’, if payments are being made automatically via ‘Paysmart’ or manually by the client, this entire agreement is considered in place and legally binding as long as services are being rendered and the CLIENT has not requested cancellation.
19.3 – Under no circumstances can services being rendered be considered “out of contract”. As long as payments are being made the information in these terms & conditions are considered the legally binding policies guiding the agreement.
20 – Notices
Service of any notice under or relating to these Terms and Conditions shall be sufficiently served if sent by email to the last known email address of the User to be served and shall be deemed to have been duly served at the time such an email has been sent, provided that the sender does not receive a message that the email has failed to reach the recipient.
21 – Dispute Resolution (Australian Users)
Any dispute or difference whatsoever arising out of or in connection with this contract shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia ‘Mediation and Conciliation Rules.’ The legal forum for the dispute shall be deemed to be the state of Queensland. If the dispute or difference is not settled within 30 days of the submission to mediation (unless such period is extended by agreement of the parties), either party may proceed to litigate the matter in a Court of competent jurisdiction within the State of Queensland notwithstanding the existence of a dispute or difference each party shall continue to perform the Agreement
