1. DEFINITIONS & INTERPRETATION
1.1 Definitions
In these Terms and Conditions, unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) Account: a User's online account to use our Services.
(b) ACL: means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(c) Applicable Laws: any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you, and any User you are interacting with are located or which in any way govern or affect the use of the Services, including the laws of the State.
(d) Application: the application under the name "B4T" or "Buddy4Travel" and its related services, products, websites, tools and applications.
(e) B4T/Buddy4Travel: B4T/Buddy4Travel (ACN 677 949 727).
(f) Care Seeker: any User who uses the Application to book a Carer.
(g) Care Services: any services provided by a Carer on the Application from time to time.
(h) Carer: any User who makes their Care Services available to be booked on the Application.
(i) Commission: the commission payable by Carers to B4T/Buddy4Travel in accordance with these Terms and Conditions.
(j) Content: includes any material, text, pictures, sound, graphics, video and other data whether in written form or otherwise uploaded to or stored on the Application by you, transmitted by the Application at your instigation, or supplied by you to us for uploading to, transmission by or storage on the Application.
(k) GST: has the meaning provided in the GST Act.
(l) GST Act: A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(m) Intellectual Property: means without limitation our copyright, trademarks, know-how, processes and concepts, including any content that we develop or publish, the look and feel of the Application, the Application itself and any other website or platform developed by Buddy4Travel/B4T and the source code for those systems and all intellectual property rights related to such, whether registered or unregistered and whether developed before or after the date of these Terms and Conditions.
(n) Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(o) our, us and we: B4T/Buddy4Travel.
(p) Related Parties: our related entities and related bodies corporate (as those terms are defined in the Corporations Act 2001 (Cth), our officers, directors, agents, and employees.
(q) Services: any services that we provide to you, including the Application.
(r) State: Victoria, Australia.
(s) User: any person who uses the Application, and includes a Carer and Care Seeker.
(t) you and your: a User, Care Seeker or Carer (as the case may be).
1.2 Interpretation
In these Terms and Conditions the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a) Headings and subheadings are for convenience only and do not affect the interpretation of these Terms and Conditions.
(b) References to a party to any agreement or document include that party's permitted assignees and successors, including executors and administrators and legal representatives.
(c) Words denoting the singular include the plural and words denoting the plural include the singular.
(d) The word 'person' includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any government agency.
(e) A reference to a body (other than a party to these Terms and Conditions), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(f) A reference to any agreement or document (including these Terms and Conditions) includes any amendments to or replacements of that document.
(g) A reference to a law includes:
(i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
(ii) any constitutional provision, treaty or decree;
(iii) any judgment;
(iv) any rule or principle of common law or equity,
and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
(h) No provision of these Terms and Conditions will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms and Conditions.
(i) Specifying anything in these Terms and Conditions after the terms 'include', 'including', 'includes', 'for example', 'such as' or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(j) A reference to writing or written includes email.
(k) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
2. USING THE APPLICATION
2.1 The Application is a medium that facilitates the introduction of Care Seekers and Carers for the purpose of arranging the Carer to be a travel buddy and provide Care Services to the Care Seeker.
2.2 We simply provide the Application to facilitate the introduction, and charge Carers a fee to be able to use the Application to provide Care Services. We do not have any obligations or liabilities to, and are not a party to any contract between Care Seekers and Carers in relation to such Care Services or otherwise resulting from the introduction.
2.3 Our Services are available only to, and may only be used by, persons who are at least 18 years of age and can form legally binding contracts under Applicable Laws. If you do not qualify, please do not use our Services.
2.4 Subject to you complying with these terms, we will provide our Services to you as set out in these terms.
3. YOUR ACCOUNT
3.1 In order to use most of the functionality of the Application, you may need to register with us and set up an Account with your email address, a password and other personal information. You are solely responsible for maintaining the confidentiality of your login details and you are liable for all activities (such as purchases) that happen under your Account, even if you do not authorise such activities.
3.2 If we enable you to connect to the Application with a third-party service (e.g. Facebook or Google+), you hereby grant us permission to access, store, and use your information from that service as permitted by that service and as may be described in our Privacy Policy. Please contact us immediately if you believe your Account has been compromised or misused in any way.
4. CARE SEEKERS
4.1 General
Care Seekers can access the Application to submit requests and book Carers to be a travel buddy and provide Care Services for a trip. If you are booking Carers or otherwise viewing the Application as a Care Seeker you agree to the Care Seeker Terms available on the Application. The Care Seeker Terms are part of these Terms and Conditions and are incorporated by reference.
5. CARERS
5.1 General
Carers will receive requests to provide Care Services for trips from us (on behalf of Care Seekers), after a Care Seeker submits their booking request. If you are using the Application as a Carer, you agree to the Carer Terms available on the Application. The Carer Terms are part of these Terms and Conditions and are incorporated by reference.
6. ARRANGEMENTS AND COMMUNICATIONS WITH OTHER USERS
6.1 You acknowledge that any arrangement or communication entered into with another User is solely at your own risk. We have no control, influence or involvement in such arrangements. Our responsibilities are limited to facilitating the availability of the Services.
6.2 Each User is a third party that is unrelated to us. When you enter into an arrangement for the booking and provision of Care Services, you are entering into a contract directly with another User. We are not a party to any contract between you and that other User and are not responsible for ensuring that that other User fulfills its obligations to you or complies with these Terms and Conditions or any other terms published by us or any Applicable Laws. Your legal rights in connection with the booking and provision of Care Services or any breach of any obligations by a User are against that relevant User and not us. For the avoidance of doubt, we have no liability or obligation to you if a User breaches any terms of the supply of the Care Services.
6.3 Although we may do limited background and credential checks to ensure a Carer has suitable qualifications, we do not guarantee or make any representation that any information provided about a Carer is correct or appropriately qualified. We give no warranty as to the suitability of the Carer. The Care Seeker must satisfy itself as to the suitability of the Carer, and it is the Care Seeker's sole responsibility to research and review the Carer's information and ensure that the Care Services are appropriate for them.
6.4 We do not supply, provide, manage or control the Users on the Application or any Care Services and are not responsible for their advertising or otherwise. The relevant Carer is solely responsible for the supply of the Care Services to you. We have no control over, and do not ensure, guarantee or provide any warranty or indemnity in respect of the quality, fitness for purpose, legality, accuracy, completeness or otherwise of:
(a) any Care Services (including without limitation that such Care Services will be suitable to your specific requirements or any advice or information provided by a Carer to a Care Seeker and the quality or suitability of any Care Services);
(b) any representations made or information provided by Users to each other (including without limitation any qualifications or knowledge that a Carer may share); or
(c) the ability of Users to undertake their respective obligations.
6.5 Because of the foregoing, in the event that you have a dispute with one or more Users, you release and hold us (and our Related Parties) harmless from actions, claims, demands and Losses of every kind arising out of or in any way connected with such disputes.
7. PROHIBITED USE
7.1 You must not access or use the Service or Application:
(a) in a way that violates these Terms and Conditions;
(b) for unlawful or dangerous activities or purposes;
(c) in a way that is fraudulent, inaccurate, false, misleading or deceptive;
(d) in a way that would infringe any third party's rights (including intellectual or other proprietary rights);
(e) in a way that is defamatory, trade libellous, unlawfully discriminatory, threatening or harassing;
(f) to post material that is obscene, abusive or indecent;
(g) in a way that damages the credibility of the Application or us or that creates liability for us;
(h) to distribute any virus, trojan horse, worms or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of the Application;
(i) to distribute or post spam, chain letters or pyramid schemes;
(j) in a way that uses any robot, spider, scraper, data mining tools, data gathering and extraction tools or other automated means to access our Services;
(k) bypass measures used to prevent or restrict access to the Application;
(l) to collect a User's information and harass them; or
(m) in a way that violates any Applicable Law (including those governing consumer protection, unfair competition, criminal law, antidiscrimination or trade practices law).
8. NON-CIRCUMVENTION
8.1 Users are strictly prohibited from directly or indirectly attempting to circumvent payment of our fees and Commission in any way.
8.2 This includes, for example, the following practices which are strictly prohibited:
(a) contacting another User with an intention to arrange the provision of Care Services outside of the Application;
(b) requesting and/or making payment outside the Application;
(c) exchanging contact information with the purpose of finding out about other Care Services outside of the Application;
(d) communication between Users outside of the Application with respect to Care Services and similar services provided by the Carer on the Application; and
(e) if a Carer supplies Care Services to a Care Seeker, the Carer must not subsequently supply another service to the Care Seeker (that is a service similar to Care Services) other than where a Care Services is booked through the Application.
9. ACCESS AND TERMINATION
9.1 We reserve the right, at any time and without prior notice to remove or disable:
(a) access to this Application or any part of it for any reason; and
(b) any Account or User that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms and Conditions or otherwise harmful to the Application or the interests of other Users,
and we will not be liable to you for any Loss that you incur in the event that we do this.
9.2 The termination of your access to the Application is without prejudice to the rights, liabilities and obligations of the parties that arose prior to the termination unless otherwise agreed by us.
10. INTELLECTUAL PROPERTY RIGHTS AND DATA
10.1 Intellectual property rights
You acknowledge and agree that:
(a) we own all right, title and interest in and to the Intellectual Property and no right, title or interest in any of the Intellectual Property is transferred or granted to you, except so far as expressly stated in these Terms and Conditions;
(b) you will not copy, reproduce, alter, modify, create derivative works, or publicly display our Intellectual Property except with our prior written permission or the appropriate third party authorised to grant such permission and when doing so you must adequately acknowledge us and, in the case of websites, include a link from your website to our Application;
(c) you grant to us a worldwide, perpetual, irrevocable, full paid-up, transferable, sublicensable, non-exclusive licence to use, reproduce, commercialise, modify, adapt and communicate any Content (such as reviews and testimonials) in order to provide our Services and to otherwise advertise and market our business and for incidental services;
(d) you warrant that any Content you provide us or otherwise transmit through the Application with will not infringe any intellectual property rights of any third party nor give rise to any liability to make royalty or other payments to any third party;
(e) we are not liable or responsible for any loss that you may experience in submitting Content to us or for our use of your Content in accordance with the licence granted; and
(f) you must not falsely express or imply a relationship between you and us.
11. SECURITY & ACCESS
11.1 You are solely responsible for any information that you transmit to us and the Application. Whilst we use our best endeavours to maintain the security of the Application to Australian standards, we do not guarantee the security of the Application, our records, or any information you submit to us.
11.2 We do not guarantee that the Application or any file downloaded from the Application will be free of any virus', trojan horses, worms or other computer programming routines that may or are intended to damage. We disclaim all liability for any computer virus or technological problems or other loss that you may suffer as a result of the browsing or downloading of any files from our Application, or from any data breach, compromise or misuse of your data that is provided to us in connection with the Application.
11.3 In order to use the Application, you need to connect to the internet and you are solely responsible for your connection and all fees associated with such connection/access.
12. EXCLUSION AND LIMITATION OF LIABILITY
12.1 Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.
12.2 Without limitation to clause 12.1, we will not be liable for any Loss to you or any other person, due to or arising directly or indirectly from:
(a) your use or inability to use this Application in any way;
(b) your reliance on the Application;
(c) any Care Services;
(d) any act, omission or default, whether negligent or otherwise of any User or third party;
(e) any Loss occasioned by any User or third party;
(f) any Content; or
(g) any action taken on your Account.
12.3 Subject to the other terms of this clause, our maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with these Terms and Conditions, including any breach by us of these Terms and Conditions, however arising, in contract, in tort (including negligence), under any statute, custom, law or on any other basis is limited to the actual amounts paid by you under these Terms and Conditions to us in the 3-month period preceding the matter or event giving rise to the claim (if any).
12.4 We exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with the Services.
12.5 Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
12.6 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option the resupply of the services or the payment of the cost of resupply.
12.7 Where you are or may be entitled to recover from a third party (such as an insurer) any sum in respect of any matter or event that could give rise to a claim under these Terms and Conditions, you must:
(a) use your best endeavours to recover that sum before making the claim;
(b) keep us informed of the conduct of such recovery; and
(c) reduce the amount of the claim to the extent that sums are recovered.
12.8 This limitation of liability applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms and Conditions or your use of our Services.
13. INDEMNITY
13.1 You agree to indemnify and hold us and our Related Parties, harmless from and against any actions, claims, demands, proceedings, Losses of every kind and claims made by third parties, due to or arising out of:
(a) your use or inability to use this Application in any way;
(b) any Care Services engaged or provided by you;
(c) any User's breach or negligent performance or failure or delay to provide any Care Services or perform their obligations under a relevant arrangement;
(d) if you are a Carer, any claim made against us by a third party arising out of or in connection with the Care Services;
(e) your disputes with Users;
(f) any Loss, damage or claim made against us by a third party:
(i) for actual or alleged infringement of a third party's intellectual property rights arising out of the supply or use of the Application by you;
(ii) for death, personal injury, illness or damage to property resulting from Care Services engaged or provided by you; or
(iii) to the extent that the claim results from the breach, negligent performance or failure or delay in performance of these Terms and Conditions by you;
(g) any fine or penalty imposed for a breach of any Applicable Law in connection with the supply of the Care Services by you;
(h) any breach of any of these Terms and Conditions or any act or omission by you; or
(i) any action taken on your Account.
13.2 Any amounts payable under this indemnity must be paid to us immediately on demand without set-off or counter claim.
13.3 If a payment due under this clause is subject to tax (whether by way of direct assessment or withholding at its source), we will be entitled to receive from you such amounts as will ensure that the net receipt, after tax, to us in respect of the payment is the same as it would have been were the payment not subject to tax.
13.4 Except where expressly stated to the contrary in these Terms and Conditions, the rights of a party under this clause are in addition to any other rights available to that party whether those rights are provided for under these Terms and Conditions or by law.
13.5 It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this clause.
13.6 The indemnities in this clause:
(a) are continuing obligations on you, independent from your other obligations under these Terms and Conditions and survive termination or expiry of these Terms and Conditions; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.
14. PRIVACY
We reserve the right to share any information provided by you to us with other Users where you contact another User or otherwise make an enquiry or offer to another User, and to store such conversations between you and other Users that occurs through the Application in accordance with our Privacy Policy.
15. REVIEWS
15.1 Reviews must be honest and accurate, and not contain unlawful or objectionable content, including but not limited to, reviews containing defamatory, libellous, abusive offensive or obscene language.
15.2 We reserve the right not to publish reviews, to amend content of reviews at any time and to remove reviews from the Application without notice in our discretion.
15.3 We are in no way responsible or liable for the information that is contained in any reviews published and do not make any representation or warranty as to the accuracy or reliability of any information or content that is published in the review. We are under no obligation to remove any review published by or about you, and you agree that we are not liable under any laws (including defamation and misleading and deceptive conduct) simply through the publication of reviews on the Application.
16. GENERAL PROVISIONS
16.1 No Waiver
No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms and Conditions unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
16.2 Assignment, Novation and Other Dealings
(a) Any rights of B4T/Buddy4Travel that arise out of or under these Terms and Conditions are assignable and capable of novation by that party in its discretion and without notice or your prior written consent.
(b) Any rights of any User that arise out of or under these Terms and Conditions are not assignable or capable of novation by the User without the prior written consent of B4T/Buddy4Travel.
16.3 Severability
(a) If the whole or any part of a provision of these Terms and Conditions is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
(b) Clause 16.3(a) does not apply if the severance of a provision of these Terms and Conditions in accordance with that clause would materially affect or alter the nature or effect of the parties' obligations under these Terms and Conditions as determined by B4T/Buddy4Travel.
16.4 No Merger
On completion or termination of these Terms and Conditions, the rights and obligations of the parties set out in these Terms and Conditions will not merge and any provision that has not been fulfilled remains in force.
16.5 Survival
Any clause which by its nature is intended to survive termination or expiry of these Terms and Conditions will survive such termination or expiry.
16.6 Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms and Conditions and the transactions contemplated by these Terms and Conditions.
16.7 Time of the Essence
Time is of the essence in these Terms and Conditions in respect of any date or time period and any obligation to pay money.
16.8 Relationship of the Parties
(a) Nothing in these Terms and Conditions gives a party authority to bind any other party in any way.
(b) Nothing in these Terms and Conditions imposes any fiduciary duties on a party in relation to any other party.
16.9 Remedies Cumulative
Except as provided in these Terms and Conditions and permitted by law, the rights, powers and remedies provided in these Terms and Conditions are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms and Conditions.
16.10 Entire Agreement
These Terms and Conditions states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
16.11 No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms and Conditions.
16.12 Governing Law and Jurisdiction
(a) These Terms and Conditions are governed by the law in force in the State.
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms and Conditions.
(c) Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 16.2(a) on the basis that:
(i) any proceeding arising out of or in connection with these Terms and Conditions has been brought in an inconvenient forum; or
(ii) the courts described in clause 16.2(a) do not have jurisdiction.