This is an agreement between you, a person or entity trying to locate goods or services (Customer), or you, a person or entity trying to sell goods or services (Provider) and Prozely Pty Ltd ABN 32 603 372 149 (Facilitator).
By using the website at www.prozely.com and/or www.prozely.com.au and/or www.prozely.co.nz (Website) or creating an account on the Website, the Customer or Provider (User) agrees to these terms and conditions. The Website is only available to legal entities and persons who are at least eighteen years old and are capable of forming legally binding contracts.
The User acknowledges and agrees that by clicking the "submit", "apply now" or any other button on the Website, or by using the Website, the User is agreeing to be bound by these terms and conditions. If the User does not accept these terms and conditions in their entirety, the User may not access or use the Website.
If the User agrees to these terms and conditions on behalf of an entity, the User represents and warrants that the User has the authority to bind that entity to these terms and conditions. In that event, the words "User", "Customer" or "Provider" will refer to and apply to that entity.
The Website allows Customers to identify Providers online, and allows Providers to advertise to Customers online, then facilitates agreement between Customers and Providers (Services). Under these terms and conditions, the Facilitator provides the Services to Users (which is the term used to describe both Customers and Providers).
The Services only include matching the Customer with Providers, or allowing Providers to advertise their goods and services to Customers. The Facilitator does not provide services to the Customer other than access to the database of businesses on the Website, and does not provide services to the Provider apart from a platform to advertise their business.
From time to time the Website will generate automated emails to Users, or Users will send emails and messages to one another through the Website. Emails sent by the Website or through the Website are considered a part of the Services and are covered by these terms and conditions.
The Services include facilitating the formation of contracts between Customers and Providers (Contracts), but the Services do not include managing disputes related to those Contracts. Subject to clause 6, if a Customer and a Provider agree on terms, a Contract is formed directly between the Customer and Provider.
The Facilitator collects payment from Customers upon submission of the Customers’ brief in relation to the services requested from the Provider. After deduction of the fees payable under clause 4 and satisfaction from the Customer as to the brief, Providers will receive payment from the Facilitator in connection with their delivery of services to the Customer.
If a Customer accesses the Website to view the offerings of Providers, no fees are payable. Fees will become payable under this clause 4 when a Contract is entered into between a Customer and Provider using the Website.
The Facilitator will charge a fee to Users entering into a Contract. These fees will be a percentage of income received through the Website (as advertised on the Website in the FAQ section) for the Contract and will be deducted from payments received by the Facilitator from Customers who have received goods and services from the Providers.
Where a Contract is formed between a Customer and a Provider, payment must be made under the terms of that Contract as outlined in the default terms in clause 6.
The Contract must provide for payment to be made by the Customer to the Facilitator, so that the Facilitator may deduct its fees.
When a payment is received by the Facilitator from a Customer, the Facilitator will deduct its fees and pay the balance to the Provider upon completion of the job to the satisfaction of the Customer. Providers are paid by the Facilitator on terms as advertised on the Website in the FAQ section.
Where a Contract has been created or facilitated through the Website, but payment is not made directly to the Facilitator by a Customer, the Provider must pay the fees set out on the Website to the Facilitator. Please refer to clause 9 for the Facilitator’s policies regarding non-circumvention and payment.
If a Customer makes any payment to the Facilitator in a foreign currency, the Facilitator may add a conversion fee of 1.5% to the spot rate quoted by its foreign exchange vendor.
In clause 5, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
Any consideration to be paid or provided for a supply made under or in connection with these terms and conditions is GST inclusive unless specified otherwise.
All payment will be in Australian dollars. The User agrees that the User is responsible for the collection and/or payment of all Taxes which the User may be liable for in any jurisdiction arising from the sale or purchase of any of the Services via the Website or in connection with a Contract. The Facilitator is not responsible for collecting, reporting, paying, or remitting to you any such Taxes. "Taxes" means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect of a transaction contemplated by these terms and conditions.
If a User has an Australian Business Number (ABN), it is the User’s responsibility to collect and pay for Taxes in accordance with the ABN, including any registration required for GST.
If a Provider is GST registered, the Provider must disclose this to the Facilitator. All Providers who are GST registered, and all Customers, authorise the Facilitator to issue a Recipient Created Tax Invoice in relation to the Services provided by a Provider who is GST registered.
Unless otherwise agreed to in writing between Users and the Facilitator, the terms and conditions of any Contract between Users which has been facilitated by the Website or the Services will be governed by the terms of this clause 6. Users may not make any contract which binds the Facilitator except as provided for under these terms and conditions.
Clauses, 4, 5, 8, 10, 11, 12, 13, 14 and 15 are incorporated into these default terms as if the Provider were the Facilitator and the Customer were the User, Customer or Provider under those clauses.
The Customer and Provider agree to provide and receive the goods or services as advertised on the Website (or as otherwise indicated in writing) for the fees that have been agreed in writing between the Customer and Provider.
Payment of the fees agreed between the Users will be made to the Facilitator in accordance with these terms and conditions and the FAQ section of the Website. The Facilitator will deduct its fees from this payment before making payment to the Provider.
Intellectual property of each User remains the intellectual property of that User unless otherwise agreed in writing via the Contract. To the extent required for the goods or services to be properly provided under this Contract, the Users agree that the intellectual property of the Provider is transferred to the Customer with an irrevocable, royalty-free, worldwide perpetual licence upon receipt of payment to the Provider for the Services.
The term of the Contract between the Users commences when the Customer agrees to receive goods and services in exchange for valuable consideration and the Provider agrees to provide those goods or services in exchange for valuable consideration. The term of the Contract ends when the goods or services have been provided and payment is made by the Customer to the Facilitator, and payment by the Facilitator to the Provider has been completed, or the agreement is terminated. The agreement may be terminated by notice in writing by either party at any time.
The Facilitator takes plagiarism seriously and reserves its rights to use a variety of different methods to ensure that the Services of a Provider are original. The Provider agrees that the Services it provides to the Customer contain the Provider’s original work and are not plagiarised. Plagiarism includes but is not limited to stealing and passing off the ideas or words of another as one's own, using another's production without crediting the source, committing literary theft, and presenting as new and original an idea or product derived from an existing source. Please see http://www.ipaustralia.gov.au/ and http://www.copyright.org.au/ for more information on Australia’s laws that protect against plagiarism.
The Provider agrees that, except as expressly authorised in writing by the Customer, the Provider will:
(a) not use or permit the use of Confidential Information (as defined below) in any manner or for any purpose not expressly set forth in these terms and conditions;
(b) will not disclose or publish any Confidential Information to any third party without first obtaining the Customer’s express written consent on a case-by-case basis; and
(c) will limit access to Confidential Information to personnel who need to know such information in connection with their work for Customer.
"Confidential Information" means all information related to the Customer’s business and its actual or anticipated research and development or related to the Services, including but not limited to (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; and (iii) information designated by the Customer, in writing, as Confidential Information. Notwithstanding the foregoing, it is understood that the Provider is free to use information that is generally known in the trade or industry, information that is not gained as a result of a breach of these terms and conditions, and the Customer’s own skill, knowledge, know-how, and experience. Confidential Information shall not include information that was known to the Provider prior to the Customer’s disclosure hereunder or that becomes publicly available through no fault of the Provider.
The Facilitator does not represent, warrant or guarantee that:
(a) any User is reputable, or will act in good faith, or according to their terms of engagement;
(b) any information on the Website will be complete, reliable or accurate; or
(c) the User’s access to the Website will be secure, available or uninterrupted.
The User warrants to the Facilitator that the User has the full right, authority and ability to enter into these terms and conditions, and that the User will not post information to the Website or use the Website or the Services to do anything, or for any purpose, that is:
(a) a breach of:
(i) the Competition and Consumer Law Act 2010 (Cth), Privacy Act 1988 (Cth) or Spam Act 2003 (Cth) or any other law which deals with commerce online; or
(ii) the Copyright Act 1968 (Cth), Trade Marks Act 1995 (Cth), Designs Act 2003 (Cth), Patents Act 1990 (Cth), or any other law which deals with intellectual property;
(b) a breach of any law of the Commonwealth of Australia, or any state or territory of Australia which binds the Customer, Provider or the Facilitator, including criminal, personal injury, civil liability and defamation laws; or
(c) may bring the Facilitator into disrepute or otherwise negatively impact on the reputation or business of the Facilitator.
The User agrees to indemnify the Facilitator for any loss suffered or cost incurred by the Facilitator as a result of the User’s breach of the warranties given in this clause 7.
Information, opinions, statements and content on the Website are provided for information purposes only and are not legal, financial, taxation, technical or expert advice. They must not be relied on by a User without first obtaining independent advice.
The User releases the Facilitator and its directors, agents or employees of any liability arising (whether directly or indirectly) out of the information provided on the Website or through the Website or any errors in, or omissions from information on the Website.
The Facilitator will not be liable under any circumstances for any special, consequential, incidental, exemplary or indirect costs or damages, litigation costs, installation and removal costs, or loss of data, production or profit. The Facilitator will also not be liable under any circumstances for any loss arising out of reliance on the information on or provided to the User through the Website or provided to a User by another User on the Website, nor any interruption, delay or impairment in the functioning, operation or availability of the Website, exposure to or transmission of any computer virus, internet access difficulties in connection with the Website, or malfunction in equipment or software.
Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified. However, to the extent permitted by law, the parties agree that any implied terms are excluded from these terms and conditions.
The liability of the Facilitator to any User for any claim under these terms and conditions must not exceed the lower of:
(a) the amount of fees received by the Facilitator from the Customer;
(b) the cost of the Facilitator re-supplying the Services; or
(c) the cost of the Facilitator repairing the Services.
The limitations under this clause 8 apply to any liability, arising from any cause of action whatsoever, whether in contract, tort (including negligence), strict liability or otherwise, even if advised of the possibility of such costs or damages and even if the limited remedies provided in these terms and conditions fail of their essential purpose.
By agreeing to these terms and conditions, the User also agrees to the Facilitator’s other policies, as posted on the Website from time to time.
If the Facilitator runs a competition or promotion, the User will need to agree to the terms and conditions of that competition or promotion in addition to these terms and conditions.
To use the Website the User may be required to nominate a username and password. The username must be a valid email address. The User is entirely responsible for all activities that occur under that username and password and must ensure these remain confidential at all times.
The User must notify the Facilitator immediately if they become aware of any unauthorised use of their username and password. Each username and password must be used by a single individual and is not transferrable.
The User agrees not to share contact information or communicate outside of the Website’s platform. The User agrees that no correspondence, message, order descriptions or communication will offer personal or professional email addresses, phone numbers, first name and last name, links or references to websites or any such information that would facilitate direct communication of the Provider and the Customer outside of the Website’s platform. The Users agree that all communication regarding orders, questions, correspondence and any such communication shall solely use the Website’s platform for such communication. Any violation of these restrictions and terms may result in immediate termination of membership and may be subject to damage claims for the Services performed and Contracts entered into outside of the Website’s platform. The User agrees to notify the Facilitator with any alleged improprieties from any User.
The User acknowledges and agrees that a substantial portion of the compensation the Facilitator receives for making the Website available to the User is collected as fees deducted from the Services and the Contracts. Therefore, for 24 months from the time you meet any party through the Website (the "Exclusivity Period"), the User must use the Services as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the "Prozely Relationship"). A User may opt-out of this obligation only if a Customer or prospective Customer pays the Facilitator an "Opt-Out Fee" computed to be the greater of the following amounts:
(a) AUD$2,500; or
(b) 15% of the cost to the Customer of the Services to be performed in the Prozely Relationship during the Exclusivity Period, as estimated in good faith by the Customer or prospective Customer.
To pay the Opt-Out Fee, a User must request instructions by sending an email message to email@example.com.
The User agrees not to circumvent the payment methods offered by the Website. By way of illustration and not in limitation of the foregoing, the User must not:
(a) Submit proposals or solicit parties identified through the Website to contact, hire, manage, or pay outside the Website.
(b) Accept proposals or solicit parties identified through the Website to contact, deliver services, invoice, or receive payment outside the Website.
(c) Cancel any Services for the purpose of contracting separately with a Provider who a Customer meets through the Website.
(d) Invoice or report on the Website or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between the Customer and the Provider.
The User agrees to notify the Facilitator immediately if another person improperly contacts the User or suggests making or receiving payments outside of the Site. If a User is aware of a breach or potential breach of this non-circumvention policy, the User must submit a confidential report to us by sending an email message to: firstname.lastname@example.org.
The term of these terms and conditions is from the date that the User first accesses the Website or uses the Services until the agreement is terminated in accordance with this clause.
The Facilitator may terminate these terms and conditions at any time and for any reason by suspending, terminating, deleting or otherwise restricting the User’s access to the Website or the Services.
The User may terminate these terms and conditions at any time and for any reason by ceasing to access the Website, or suspending, terminating, deleting or otherwise ceasing to use the Services.
Unless otherwise agreed in writing, termination of these terms and conditions does not terminate any accrued rights of the parties prior to termination. Unless otherwise agreed in writing, a party must pay any amounts to another party which became due for payment under these terms and conditions prior to the date of termination.
A party must not start court proceedings (except proceedings seeking interlocutory relief) unless it has complied with clause 11.
A party claiming that a dispute, difference or question arising out of these terms and conditions, including a question as to whether certain Services are in scope or not, has arisen (Dispute) must give the other party notice of the details of the Dispute (Dispute Notice).
When a Dispute Notice is given, the parties must refer the Dispute to the Chief Executive Officers, Managing Directors or other senior officers of each party for discussion and negotiation. If the parties cannot resolve a Dispute in accordance with this escalation procedure, either party may commence court proceedings.
The parties must continue to perform their respective obligations under these terms and conditions pending the resolution of a Dispute. Each party must pay its own costs of complying with this clause 11.
Any notice, demand, consent, approval or communication under these terms and conditions must be in writing, in English and sent by email to email@example.com or to the User’s email address provided.
The Website may display advertisements, which may or may not contain hyperlinks or buttons which take the User to websites operated by third parties. The Facilitator does not endorse or recommend its advertisers, their products or services, or the information, products or services of any website linked to the Website.
If the User contacts a third party through the Website, including via email, the Facilitator accepts no responsibility for any actions taken by that third party in connection with the User as user of that third party’s services. Any interactions with a third party website are not part of the Website or included in the Services.
From time to time, the Facilitator may post updated terms and conditions to the Website. Those updated terms and conditions will apply to all use of the Website from the time of posting onwards, and continuing use of the Website will be taken to constitute agreement to the revised terms and conditions. Otherwise these terms and conditions may be altered only in writing signed by each party.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
Except where these terms and conditions expressly state otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under these terms and conditions.
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to these terms and conditions and the transactions contemplated by it.
Neither party may assign its rights or obligations under these terms and conditions without the prior written consent of the other party which may not be unreasonably withheld. Any assignment will only be effective if it is made by way of a deed of assignment and assumption between the assigning party, the continuing party and the incoming party.
A term or part of a term of these terms and conditions that is illegal or unenforceable may be severed from these terms and conditions and the remaining terms or parts of the term of these terms and conditions continue in force.
Any indemnity or any obligation of confidence under these terms and conditions is independent and survives termination of these terms and conditions. Any other term by its nature intended to survive termination of these terms and conditions survives termination of these terms and conditions.
These terms and conditions consists of these terms and conditions and the details negotiated between the Customer and Provider, and constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on the subject matter.
If there is an inconsistency between any provision of the details negotiated between the Customer and Provider and these terms and conditions, these terms and conditions will prevail to the extent of the inconsistency.
Except where these terms and conditions expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
Unless otherwise stated, the rights, powers and remedies provided in these terms and conditions are in addition to and not exclusive of the rights, powers and remedies given by law independently of these terms and conditions.
If force majeure prevents a party from fully or partly performing any obligation under these terms and conditions (except an obligation to pay money), the affected party’s obligation to perform that obligation is suspended while the force majeure continues.
These terms and conditions may be executed and/or accepted in counterparts. All counterparts when taken together are to be taken to constitute one instrument.
These terms and conditions are governed by the law of the State of New South Wales and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.
In these terms and conditions, except where the context otherwise requires:
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a clause or schedule is to a clause of, or schedule to, these terms and conditions, and a reference to these terms and conditions includes any schedule;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to dollars, $ is to Australian currency;
(f) a reference to a party is to a party to these terms and conditions, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
(g) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(h) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(i) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(j) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
(k) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; and
(l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these terms and conditions or any part of it.
Headings are for ease of reference only and do not affect interpretation.
© Copyright 2015 Prozely Pty Ltd ABN 32 603 372 149