Provider Terms & Conditions
A. Hit Blue is the creator and owner of the Hit Blue smartphone applications and website (the “Application”), being a phone application used by the User to source Providers which have signed up as service providers with Hit Blue and been vetted by Hit Blue. B. The application allows users to contract third party service providers and provide reviews on their goods and services.
C. Hit Blue owns all of the intellectual property in the Application.
D. The Application assists Users with the sourcing of Providers, including arranging quotes, attendances at worksites, scheduling of services and payment for goods and services provided by a Provider.
E. Hit Blue will provide the Application and the related services on the terms and conditions of this Agreement.
F. The Provider agrees and acknowledges any contract for services or products initiated through the Application is a contract between the User and the Provider and Hit Blue is merely providing a service as an introducing party via the Application.
AND THE PARTIES AGREE AS FOLLOWS:
Account means an Account created with Hit Blue by You.
Application means the Hit Blue smartphone, website and internet web-based applications to which this Agreement relates and any related applications and integrated services offered by Us.
Approved Individual means an individual authorised by Hit Blue to provide the Services to Customers in accordance with this Agreement, being the Approved Provider and / or its agents, directors, contractors or employees as the case requires;
Approved Provider means an individual or company that has been approved by Hit Blue as the provider of the Services being offered by You in the Application
Booking means each booking for a Service made by a Customer via the Application, being for a particular Service from a Provider;
Booking Fee means the fixed fee payable by the User to book the Services with a Provider via the Application;
Carrier means any service provider of broadband, telecommunications, or mobile telecommunications services that You, Hit Blue or the Provider use.
Commencement Date means the date of this Agreement, or the date the Provider activates their Account, whichever is later;
Commission means commission payable by You in accordance with this Agreement, calculated on the Service Fees paid via the Application and any Service Fees paid to You by the Customer as a result of the initial Booking, as noted in Item 3 of the Schedule;
Customer means a party introduced to the Service Provider via the App, who may create a Booking for Your Services via the Application;
Data means the data provided by You in Your application for an Account and data and information provided by You through Your use of the Application, as well as data within the Application provided by the Customer such as description of the services required and their personal information;
Device means any device which can utilise the Application or is used to access the Application and includes computers;
Direct Debit Agreement means an agreement between You and Hit Blue (allowing Hit Blue’s bank to debit any agreed fees from You as required from time to time), on terms and conditions as agreed from time to time;
Fees means the application fees, annual / monthly fees payable by the Provider per Item 1 of the Schedule and other fees noted in the Fee Schedule, as agreed from time to time;
Fee Schedule means the list of Fees as noted within the Application from time to time including the Booking Fee and Service Fees and includes Your schedule of Service Fees that you upload to the Application;
Force Majeure Event means and includes without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Our possession or reasonable control, unplanned maintenance and network intrusions or denial of service attacks;
GST means Goods and Services Tax;
Industry means the industry of the Provider to which the Services relate;
ISP means Internet Service Provider;
Provider means You, the service provider, who provides the Services to the Customer via the Application, on such terms as are agreed directly between the Customer and the Provider;
Region means a region of Western Australia and the Service Area shall be the whole or part of a Region.
Schedule means the schedule to this Agreement;
Service Area means the area allocated to You, on a non-exclusive basis, for the provision of the Services to the Customer;
Service Fees means the fees and charges payable by You to the Provider in exchange for the Provider providing the Services to You as agreed between You and the Provider and excludes GST unless otherwise expressly noted;
Services means any one or more of the products and / or services offered by You from time to time which the Customer can book and pay for via the Application;
Standards means any industry standards and / or Australian Standards that may apply to the products or services being offered and provided by You and in any event shall mean a level of quality that would be expected of the Provider in the ordinary course of their business;
Supported Mobile Platforms means those platforms which can support the Application and subject to variation from time to time;
Supported Browser Versions means those browser versions which can support the Application and subject to variation from time to time;
Term means the term of this Agreement, which shall be a yearly term from the Commencement Date, renewable each year on each anniversary of the Commencement Date, unless otherwise agreed or terminated in accordance with this Agreement;
User means You, the user of the Application;
We, Us and Our means Hit Blue Pty Ltd.
Website means Our website which can be found at www.HitBlue.com.au
2. YOUR ACCOUNT
2.1 Opening an Account
You may become an Approved Provider and / or Approved Individual by applying to Hit Blue to hold an Account and be referred to Customer’s, for Customers to book the Services with You.
Your appointment as an Approved Provider and / or Approved Individual will be subject to Hit Blue approving You, Your acceptance of this Agreement, by You downloading the Application, and Hit Blue creating an Account for You to use the Application and the Portal.
If We determine for any reason whatsoever that We do not wish to provide You with an Account or nominate you as an Approved Provider within the Application, We will refund any monies paid by You and this will terminate this Agreement forthwith.
2.2 User Name and Password
You must not allow third parties to access your Account and you must not share your user name and password with any third parties.
You will be responsible for all activities that occur with your Account, as if such actions have been completed by You, and therefore you should keep your password confidential. Any persons that You allow to use Your Account will be deemed to have Your authority at all times and You will be liable absolutely for their actions in relation to Your Account and the Application.
2.3 Eligibility for Account
You must be over the age of eighteen (18) years of age and approved by Hit Blue as a Provider.
2.4 Term of Agreement
This Agreement will remain in full force and effect between Us and You (and any of Our and Your successors and / or assigns) for the Term.
We have the right to terminate this Agreement, or suspend or terminate your access to the Application, effective upon sending notice to you at the email address you provide in your Account, if you have defaulted in relation to this Agreement. Immediate suspension of Your Account will occur in circumstances of gross misconduct or material breach of this Agreement on Your part, or within 14 days of a default notice being issued to you (which remains unremedied), should we determine, acting reasonably, the same is necessary,
Upon termination of this Agreement, Your Account and right to access and use the Application will terminate immediately. You agree that We will have no liability to You for any costs, losses, damages, or liabilities arising out of or related to our termination of this Agreement, providing that such loss or damage has not resulted from Our breach of this Agreement or Our negligent acts or omissions.
2.5 Fees and Commissions
(i) You will be liable for an Application Fee, payable upon execution of this Agreement, being for the costs associated with Hit Blue vetting the Provider and one individual, with the intention that the said parties are approved by Hit Blue and become an Approved Provider and Approved Individual. Additional fees may be payable if more than one individual seeks to apply to be an Approved Individual for the said Provider. The Application Fee shall also be the annual fee payable for the first year of this Agreement and shall be refunded if the Provider is not approved by Hit Blue.
(ii) Renewal fees will be payable on or before each anniversary date of the Commencement Date, being such fees as determined by Hit Blue from time to time.
(iii) There will be a Cancellation Fee payable by You for each Booking that is confirmed and subsequently terminated by You. This fee is not payable by You if the Customer cancels the Booking;
(iv) We will hold the Service Fees as an escrow agent for the parties until the Services pertaining to the particular Booking have been provided, in accordance with clause 6 of this Agreement, with escrow monies to be paid in accordance with this Agreement (noting Commission will be paid to Hit Blue from these monies). Your funds will be remitted to the account You nominate in the Application, as may be amended by You from time to time;
(v) We may discount our Fees and offer such incentives or promotions as we see fit, at our absolute discretion.
(vi) We reserve our rights to alter the Fees and we will notify you of the same in writing if there are changes. The Fees will in any event be confirmed at the time of the Booking and the creation of a Booking shall be acceptance of the Fees payable at that relevant time.
(vii) You agree that You will pay Us Commission on all Services performed by You for Customers including but not limited to Bookings that are made via the Application.
(viii) All Fees quoted in this Agreement are ex-GST and GST will be charged by Hit Blue as required.
(ix) Direct Debit Agreement:
a. We may allow you to enter into a Direct Debit Agreement with us in Our absolute discretion, the terms of which do not form part of this Agreement and will be determined by Hit Blue’s bank from time to time. There may be additional fees payable by You for the provision of a Direct Debit Agreement.
b. A Direct Debit Agreement will allow You to pay the Annual Fee and any other fees as agreed monthly (or periodically as may be agreed in the said Direct Debit Agreement).
c. You remain liable for the whole Annual Fee and other charges / fees as agreed and You acknowledge that if any direct debit is rejected by Your bank and not rectified within 3 business days, We have the right to revoke / terminate the Direct Debit Agreement and demand the balance of the Annual Fee in advance, failing which We may suspend or terminate Your Account with Us in accordance with this Agreement.
d. You will be liable for an administration fee of $70.00 plus GST for any payments not paid in accordance with the Direct Debit Agreement.
e. We may ask You to sign a new Direct Debit Agreement if Hit Blue changes their usual bank, or assign the Direct Debit Agreement to our new bank where We are able.
g. It is Your responsibility to ensure you have sufficient funds available to make payments as per the Direct Debit Agreement.
2.6 Account Information
You warrant that any information provided by You in the course of applying for an Account, applying to be an Approved Individual / Approved Provider and in the course of using the Application, is current, complete and accurate. You must maintain and update all information provided to Us and ensure that such information is current at all times. You must not apply to be an Approved Individual / Approved Provider under false identities or personas.
2.7 Security of Account Information
You are responsible for keeping Your Account, sign-in, information, including your passwords, secret questions and other personal information secure. Without limiting the foregoing, you agree:
(a) Not to permit any other person to use Your Account details;
(b) You agree to notify Us immediately of any unauthorised use of your user name or password or if you believe that a password linked to Your Account is no longer confidential;
(c) We reserve the right to require you to alter your user name and/or password if We believe that your Account is no longer secure; and
(d) We shall not be responsible for any losses arising out of the unauthorised use of your Account.
2.8 Electronic Communication
We will communicate with You via electronic means to the email address provided for your Account. For contractual purposes, You:
(a) Consent to receive communications from Us in an electronic form;
(b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that We provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in hardcopy writing;
(c) must ensure you take all necessary precautions to ensure Our electronic communication is received by You, including but not limited to editing spam filtering rules or adding Us as a trusted email source.
The foregoing does not affect your non-waivable rights.
2.9 Terminating Your Account – by Us
We may, at Our sole and absolute discretion (but acting reasonably), suspend Your ability to use the Application or Your Account or may terminate this Agreement effective immediately and without notice to you if you cause a material breach to this Agreement, including, but not limited to:
(a) We reasonably believe that there is fraudulent and / or illegal activity related to your Account (including, but not limited to) the misuse of the Application location settings;
(b) We have been informed by any government or related agency that the Services should not be provided to You; or
(c) We believe, acting reasonably, You have violated or acted inconsistently with the letter or the spirit of this Agreement.
We reserve the right to modify, suspend, or discontinue the Application or Services (or any part or content thereof) or cease allowing you access to the Application at any time with or without notice to You, and We will not be liable to You or to any third party should we exercise such rights.
2.10 Terminating Your Account – by You
Should you wish to terminate this Agreement you may deactivate your Account and delete the Application from your Device at any time, as well as notify Us that You no longer wish for Customers to make Bookings with You. We will make best endeavours to remove references to You in the Application as soon as possible.
2.11 Reactivating a Suspended or Terminated Account
After any suspension or termination of your Account, You may be required to respond to an authenticating message to reactivate your Account. You agree that We will not be liable to You for any termination of this Agreement or for any restricted access to the Application or Services, provided that we have acted reasonably in the circumstances.
3. THE APPLICATION
3.1 Requirements for Use of the Application
In order to use the Application and have Your Services advertised to Users, You will require:
(a) Approval by Hit Blue to hold a Service Provider’s account with Us;
(b) Acceptance of this Agreement and creation of an Account; and
(c) The Application installed on a compatible Device (in doing so accepting Apple’s & Google's respective standard EULAs for the iTunes App Store and Google Play respectively);
(d) Your insurance and license obligations to be maintained and details provided to Hit Blue as and when demanded by Hit Blue, being such items as detailed in Item 3 of the Schedule;
(e) To maintain satisfactory Ratings.
3.2 Services Available
We will provide a list of the Services You provide to Customers and an Account to you after you have been approved by us as an Approved Provider. Upon creation of your Account and the requirements of clause 3.1 of this Agreement being satisfied, You will be able to start using the Application and accepting Bookings from Customers.
We give no warranty or undertaking as to the quality or suitability of the Application or any ISPs, nor do We take any responsibility regarding the list of Services You provide or the relevant fees quoted within the Application. You are required to ensure the information about Your Services is true and correct and must ensure the Fees quoted in a Booking are correct before accepting the Booking.
3.3 Availability of Application
You acknowledge and agree that the availability of the Internet and your ability to use the Application is on an “AS lS” and “AS AVAILABLE” basis. You acknowledge availability of web-based services is not guaranteed. We are not responsible for any limitations of the Internet or the service provided by Your ISP, Our ISP and / or the Customer’s ISP. In the event Your ISP fails to deliver any communication to Us or the Customer, in a timely fashion, due to, but not limited to, ISP issues, Internet issues, mobile network failure or non-compatibility of your Device with the Application, you acknowledge and agree that We shall not be liable for any loss or damage. In addition and without limiting the foregoing in no event will We be liable for any error by You in using the Application.
You acknowledge that:
a) we do not and cannot warrant that the ISP used by Us, You or the Customer will be uninterrupted or error-free;
b) we cannot guarantee a timeframe for restoration of any internet service, should it fail; and
c) we are not liable to you for any loss or damage you may suffer as a result of using the Internet to send or receive data which may contain viruses or other harmful software.
3.4 Upgrading and Modification of the Application
We reserve the right, in Our sole discretion, to modify and / or upgrade the Application from time to time without notice to You. Such modifications may include removing, adding or modifying the Application as well as upgrades. We shall have no liability to You for any modification or discontinuation of the Services or Application providing that such loss or damage has not resulted from Our breach of this Agreement or Our negligent acts or omissions. Continued use of the Application following any such changes shall indicate your acknowledgment of such changes and satisfaction with the Services and Application as so modified.
You agree and acknowledge that as each Booking is made, only the active Providers who have the ability to assist you with the Services will be shown in the Application and the Fees indicated at the time of the Booking do not have to be paid by You unless You finalise the Booking.
3.5 Supply of Application
(a) We do not guarantee, represent, or warrant that your use of the Application will be uninterrupted or error-free, and You agree that from time to time we may remove the Application for indefinite periods of time, or cancel the Application at any time, without notice to you for maintenance or other reasonable issues. Any Bookings accepted by You will still be capable of completion by You irrespective of the availability of the Application, provided the Booking is confirmed. In this regard, the Customer may contact You directly and not via the Application if it is not accessible for any reason whatsoever.
(b) We will use commercially reasonable efforts to make the Application generally available 24 hours a day, 7 days a week, except for planned downtime (of which We shall endeavour to provide notice via the Application and which We shall schedule to the extent reasonably practicable outside of normal business hours, subject to any Force Majeure.
(c) The Application is to assist You with sourcing Customers to book Your Services via the Application. You are responsible for accepting any Booking, as well as verifying the details of the Job (including price) are correct prior to accepting and confirming a Booking. You are responsible for providing the Services to Customers in a timely and a tradesmanlike / professional manner in accordance with the Standards. We do not give any undertaking or warranties regarding the suitability of a Job or Customer, however we do welcome feedback in relation to the Customers, including reviews via the Application.
(d) We cannot guarantee that a Customer’s worksite or residence where the Services are to be provided are safe or as described in the Booking request. You agree and acknowledge that any Bookings made via the Application create an contractual arrangement between You and the Customer and We are not liable to You in contract, negligence, tort or any other way whatsoever, unless required by law.
3.6 Information Published in Application
You agree and acknowledge that Hit Blue is not the publisher of Your information noted in Your listing within the Application. Hit Blue serves as a platform / introductory service between You and the Customers. Any of Your information published on the Application is done with Your express consent and approval, or by You directly. Hit Blue is not liable for any actions or claims by You or against You for any information published in the Application with Your consent and You indemnify Hit Blue from any claims or losses Hit Blue may suffer as a result of any claims by third parties (including, but not limited to, Customers). Hit Blue reserves the absolute right to remove or alter any information within the Application that it deems breaches any of its standards and / or the law at any time, without prior notice to You.
3.7 Technical Support
You are entitled to standard support from Us consisting of telephone help desk or online support services, as outlined at www.HitBlue.com.au/support. This relates to the use of the Application only, such as reporting of bugs, and is not related to the Services.
4. USE OF THE APPLICATION
4.1 Content Availability
We reserve the right to change content options (including eligibility for particular features) without notice.
4.2 Usage Rules
(a) You shall use the Application and your Account in compliance with the usage rules in this clause 4 and in accordance with this Agreement.
(b) You shall not access or attempt to access an Account that you are not authorised to access.
(c) Violations of system or network security may result in civil or criminal liability.
4.3 Third-Party Materials
We may provide links to third-party websites within the Application from time to time as we see fit.
You agree that We are not responsible for examining or evaluating the content or accuracy of any third party information. You hereby release Us from any and all liability or responsibility resulting from any third-party Services or websites, or for any other materials, products, or services of third parties which you may use.
You agree that You will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that We are not in any way responsible for any such use by You.
4.4 Intellectual Property
(a) Hit Blue owns and / or licenses all proprietary and intellectual property rights in the Application (including text, graphics, logos, icons and sound recordings) and other material underlying and forming part of the Application and no term of this Agreement shall be treated as vesting, transferring or otherwise parting with possession or ownership of any of those said rights at any time.
(b) You may not without Our prior written permission (which may be withheld at our absolute discretion), in any form or by any means reproduce, copy, adapt, distribute, display, print, perform, publish or create derivative works from any part of the Website or Application or commercialise, copy, or on-sell any information, or items obtained from any part of the Website or Application.
(c) You agree that the Application, including but not limited to domains, products, graphics, user interface, audio clips, video clips, editorial content, and the scripts and software used in the Application to implement the Services, contains proprietary information and material that is owned by Us, and is protected by applicable intellectual property and other laws, including but not limited to copyright.
(d) You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Application in compliance with this Agreement. No portion of the Application or Website may be reproduced in any form or by any means, except as expressly permitted in these terms, or allowed in writing by Us. You agree not to exploit the Application in any unauthorised way whatsoever.
(e) Notwithstanding any other provision of this Agreement, We reserve the right to change, suspend, remove, or disable access to the Application, content, or other materials comprising a part of the Application at any time without notice. In no event will We be liable for making these changes. We may also impose limits on the use of or access to certain features or portions of the Application, in any case and without notice or liability.
(f) All copyrights in and to the Application (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources) and related software are owned by Us and We reserve all our rights in law and equity.
(g) You agree that the use of the Application, except for use of the Application as permitted in this Agreement, is strictly prohibited and infringes on the intellectual property rights of Hit Blue and others and may subject You to litigation, including possible monetary damages, for copyright infringement.
(h) Any of our trading names, trademarks, service marks, graphics, and logos used in connection with the Website and / or Application are trademarks or registered trademarks of Ours in Australia and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Application or Services may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
4.5 License to Use Application
(a) The Application made available through Us is provided to You under a license and is not sold to You. Your right to use the Application that you obtain through Us is subject to your prior acceptance of this Agreement in its entirety. We reserve all rights to the Application not expressly granted to you under this Agreement. Your use of the Application is deemed acceptance of this Agreement.
(b) Subject to the terms of this Agreement We grant to you a non-transferable, nonexclusive, royalty-free, fully paid, license (without the right to sublicense) to install and execute the Application.
(c) The license described herein shall terminate upon termination of this Agreement, howsoever caused.
4.6 Scope of License
This license granted to you for the Application by Us is limited to a non-transferable license to use the Application on any Supported Mobile Platforms and / or Supported Browser Versions as applicable that You own or control and as permitted pursuant to this Agreement. This license does not allow You to use the Application on any Device that You or a User does not own or control, and except as provided in the Usage Rules, you may not distribute the Application.
The rights granted to you in this Agreement are subject to the following restrictions:
(a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Application or make the Application available to any third party;
(b) you shall not modify, copy, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Application or support others' attempts, to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Application;
(c) You shall not access the Application in order to build a similar or competitive product or service;
(d) You shall not access any re-engineering code or source code of the Application;
(e) except as expressly stated herein, no part of the Application may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means;
(f) Any future release, update, or other addition to functionality of the Application provided by Us (if any) shall be subject to the terms of this Agreement unless We expressly states otherwise;
(g) You shall preserve all copyright and other proprietary rights notices on the Application and all copies thereof;
(h) If You sell your Device to a third party, you must remove the Application from the Device before doing so;
(i) You agree that We shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Applications any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You relating to the Services, Providers or Applications and hereby waive any claim to copyright of those ideas;
(j) The terms of this license will govern any upgrades provided by Us that replace and/or supplement the original Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will prevail.
4.8 Consent to Use of Data
5.1 Provision of the Services
You agree and acknowledge that You will provide the Services to the Customer in a fit and proper manner, in accordance with the Standards, and ensure only Approved Individuals complete Jobs booked via the Application.
You agree and acknowledge that Customers are booking jobs via the Application to ensure trusted and qualified tradesmen and service providers are completing the Services for them and Hit Blue’s reputation should at all times be considered by You when accepting Bookings and completing Jobs.
We make reasonable endeavours to verify that You are a fit and proper person to provide the Services, and We will take steps to act in good faith at all times, subject to Your compliance with this Agreement.
Any feedback provided by You or a Customer via the Application will be considered by Us and may instigate the review of a Provider and / or Customer or a transaction at our discretion.
Upon finalisation of a Booking, You will be prompted to mark the Booking as complete via the Application and notice will be provided to the Customer and Us.
5.2 Service Areas and Region
We will limit the number of service providers who hold accounts with Hit Blue who compete with the Provider in the industry of the Provider to which this Agreement relates. Hit Blue will consider the Industry, the Service Area, the Services provided and the amount of Customers within a Region and the service levels that a Customer may expect when determining, acting reasonably, how many service providers will be within a Region.
We may limit which Regions you may be authorised to accept Bookings, subject to the location of your business premises or Approved Individuals and expected response and service times.
You may have an Approved Individual approved in more than one Region.
Should unsatisfactory ratings of the Approved Provider or Approved Individual be received from Customers, Hit Blue may reduce the Regions serviceable by You in their discretion.
6. ESCROW AGENT AND DISPUTE RESOLUTION
(a) The Fees will be held by Hit Blue as escrow agent for the parties until 48 hours from confirmation the Booking has been completed.
(b) Any complaint must be lodged by the Customer via the Application, in writing, and supported by any evidence available such as photos.
(c) If no complaint is received regarding a Booking within 48 hours of the Booking being completed, the Fees will be released as required, being the Booking Fee and Commission to Hit Blue and the balance of the Service Fees to the Provider. You agree and acknowledge that Hit Blue will have no liability to You in relation to the monies held and / or paid. Your liability to the Customer is not impacted by this provision, however after the said 48 hours have lapsed with no complaint lodged, Hit Blue’s involvement with the dispute and / or escrow monies ceases.
(d) If a complaint is received via the Application prior to 48 hours after the Booking is finalised, Hit Blue agrees to hold the Service Fees in escrow for 30 days pending the parties resolving their dispute. Hit Blue or its delegate may assist the parties to negotiate an outcome if the parties are all willing and able, however is not required to assist and may exercise its absolute discretion in doing so.
(e) If a Customer lodges a complaint within the 48 hours as required, and no resolution has been agreed between You and the Customer within 30 days of the Booking being finalised, Hit Blue is irrevocably authorised to:
(i) Release the Service Fees to the Provider after 30 days from the date the Booking was completed, releasing Hit Blue from any liability whatsoever to all parties pertaining to the Service Fees and its acting as escrow agent; or
(ii) Release the Service Fees to a lawyer’s trust account, upon written notice from the said lawyer that they act for You or the Customer PROVIDED THAT said written notice / request for monies to be paid to trust is received by Hit Blue within 30 days of the Booking being finalised and with You agreeing that such lawyer is irrevocably authorised to hold these monies in protected trust as escrow agent until the dispute has been determined by agreement or court order.
7. FEEDBACK AND RATINGS
The Application allows You to provide feedback and ratings for the Customer and also allows the Customer to provide feedback and ratings on You and the Services completed by You.
We may or may not share this feedback with either party at our absolute discretion, and we may de-identify the said feedback as we see fit.
Any feedback resulting in consistent poor ratings of You (below a 3 star average) may result in your Account being deactivated, or You losing some of the exclusivity offered in relation to the Region in our absolute discretion.
We may assist the Customer and You in liaising with each other to discuss any feedback at our discretion.
You warrant that you have the legal right and authority to enter into this Agreement and to perform your obligations under this Agreement. You also warrant that any information provided by You is true and correct at all times.
You warrant that you will keep all licenses and insurances up to date and provide us with any updated licenses or insurance policies as amended or renewed from time to time, being those licenses and insurances as required and stated in Item 3 of the Schedule.
You warrant You will advise Us immediately upon any licenses or insurances noted in Item 3 of the Schedule being cancelled, terminated and / or revoked.
(a) You acknowledge that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, We give no warranty or representation that the Services will be wholly free from defects, errors and bugs.
(b) You acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, We give no warranty or representation that the Services will be entirely secure.
(c) You acknowledge that the Services are designed to be compatible only with the Supported Mobile Platforms and Devices and We do not warrant or represent that the Application will be compatible with any other software or systems.
10. FORCE MAJEURE EVENT
(a) If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
(b) A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(i) promptly notify the other; and
(ii) inform the other of the period for which it is estimated that such failure or delay will continue.
(c) A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
You acknowledge that we may actively monitor the use of Application and the Providers.
12. DATA MINING
You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Application.
13. HARMFUL SOFTWARE
(a) We will make best endeavours to ensure the Application and Website and any electronic communication from Us is virus free, but we cannot guarantee the same and You agree and acknowledge that You must have up to date virus protection programs in place to afford You the best protection while using the same.
(b) You must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
14.1 Events of Default
You will be in default of this Agreement if:
(a) You fail to maintain an average star rating of 3 or more, being an average over at least the 10 most recent Jobs completed by You;
(b) You do not pay any Fees owed to Hit Blue;
(c) You assign the rights and responsibilities under this Agreement to any third party without Our consent;
(d) You allow a person who is not an Approved Individual to provide any of the Services to Customers;
(e) Your licenses or insurances are terminated or lapse for any reason whatsoever;
(f) You become bankrupt or insolvent;
(g) You / the Approved Individual engage in conduct which Hit Blue determines, acting reasonably, is gross misconduct (including but not limited to criminal actions, safety concerns, any matter which Hit Blue considers results in You not being a fit and proper person, you publish defamatory and / or disparaging remarks or comments about Hit Blue or the Application).
(h) Agreed or professional standards of workmanship are not met
(i) work is not finished in an acceptable/ timely manner
(j) Over committing to work with inability to deliver adequate services
(k) Not maintaining adequate communication as required between Hit Blue and or clients
(l) Any behavior deemed to be inappropriate to clients
(m) You breach the restraints in clause 16 of this Agreement.
14.2 Consequences of Default
Hit Blue may terminate this Agreement and deactivate Your Account if you default in accordance with clause 14.1 of this Agreement and, upon service of notice to remedy the said default, you fail to remedy the said default within 10 business days of a default notice being provided to You.
14.3 Service of Default
We may issue any default notice contemplated by this clause by email to your nominated account (as advised by You to Us from time to time), with such notice to be considered served on you on the business day of transmission (or the following business day if sent outside usual business hours, being 9am to 5pm).
14.4 Default Costs
The Provider will be liable for all legal costs and administrative costs incurred by Hit Blue for the issue of a default notice to the Provider, on an indemnity basis.
14.5 Interest on Overdue Monies
If any monies are payable by the Provider to Hit Blue and are unpaid for 7 days after demand is made for payment, simple interest at 15% per annum shall be payable by the Provider on all overdue monies, from the date of the original demand for payment. This interest rate will also apply to any post-judgment interest, should Hit Blue obtain judgment against the Provider for damages suffered by Hit Blue as a consequence of a breach of this Agreement by the Provider or any Approved Individual.
The Agreement is effective until terminated by You or Us in accordance with this Agreement, whichever occurs sooner. Your rights under this Agreement will terminate automatically without notice from Us if You fail to comply with any terms of this Agreement. Upon termination of this Agreement, you shall cease all use of the Application.
If this Agreement is terminated whilst You have outstanding Jobs or payments due to You, We will ensure as far as is reasonable in the circumstances, to facilitate the finalisation of any Booking or payments EXCLUDING if this Agreement is terminated due to Your failure to be insured, hold licenses or be solvent, in which case all Bookings will be allocated to alternative Service Providers at Our discretion.
16. RESTRAINTS ON PROVIDER
(a) You agree that You are restrained from:
(i) Approaching a Customer directly and outside of the Application for any new, repeated or additional works / services to be provided by You, unless you report the same to Us and pay any applicable commissions to Us as per this Agreement;
(ii) Directing a Customer or other service providers to use any application of a competitor of Hit Blue;
(b) The restraints in clause 16(a) of this Agreement will survive termination of this Agreement and for a period of 6 months thereafter. (c) A breach of this clause 16 may trigger an automatic termination of this Agreement by Hit Blue.
17. LIMITATION OF LIABILITY
(a) You agree and acknowledge that Hit Blue is acting merely as an introductory party between You and the Customer, providing the Application for convenience. Hit Blue cannot be held liable for any arrangements between You and the Customer and You acknowledge You are contracting directly with the Customer at all times.
(b) Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
(c) Subject to there being no negligent acts on our part, we shall not be liable to You in respect of:
(i) any loss of profits or anticipated savings;
(ii) any loss of revenue or income;
(iii) any loss of business, contracts or opportunities;
(iv) any loss or corruption of any data; or
(v) any special, indirect or consequential loss or damage.
(d) To the extent not prohibited by law, in no event shall We be liable for personal injury or any incidental, special, indirect, or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss of data, business interruption, or any other commercial damages for your use of the Application, Services or transactions you enter into or losses, arising out of or related to your use or inability to use the Application, however caused, providing that such loss or damage has not resulted from Our negligent acts or omissions.
(e) In no case shall We, our directors, officers, employees, affiliates, agents, contractors, or licensors be liable for any direct, indirect, incidental, punitive, special, or consequential damages arising from your use of the Application or for any other claim related in any way to your use of the Application, including, but not limited to, any errors or omissions in any content or transaction, or any loss or damage of any kind incurred as a result of the use of any content (or product) posted, transmitted, or otherwise made available via the Application, even if advised of their possibility providing that such loss or damage has not resulted from Our negligent acts or omissions.
(g) If We fail to comply with any term of this Agreement, or are negligent, You may be entitled to recover compensation for any costs suffered. However, whilst You acknowledge that We accept liability for any losses required by law, We shall not be required to compensate You or any third party for any loss caused by anything beyond our reasonable control and therefore:
(i) as We have no control over the Data which can be transmitted by You or Customers and We do not examine the use to which You put into the Application or the nature of the Data You or the Customer are sending or uploading, We exclude all liability of any kind for:
a. the transmission or reception of any Data through the Application or accuracy or quality of any such Data;
b. any Data or any other material published or otherwise made available by You / User or any other person through the Site or Application;
c. the terms of any contract or other agreement concluded between You / User and any other subscriber;
(ii) We shall not be liable whether in contract, tort or otherwise for the acts or omissions of other providers of telecommunications services or for faults in or failures of their or Your ISP or Device.
We and our affiliates make no warranties, express or implied, with respect to content codes, allowances, the Website or the Application, including, without limitation, any express or implied warranty of merchantability or fitness for a particular purpose.
You expressly understand and agree that:
(a) Advertisements appearing on the Website or within the Application do not constitute a recommendation or endorsement of the advertised product or service by Us and We are not responsible for any representation made in connection with such advertisements.
(b) While we have systems in place to reduce the risk of credit card fraud, We are not responsible for protecting You from credit card fraud.
(a) By using the Application, You agree to indemnify and hold Us, our directors, officers, employees, affiliates, agents, contractors, and licensors harmless with respect to any claims arising:
(i) out of a material breach of this Agreement; or
(ii) Your use of the Application; or
(iii) any action taken by Us as part of our investigation of a suspected violation of this Agreement; or
(iv) as a result of our finding or decision that a violation of this Agreement has occurred.
(b) This means that you cannot sue or recover any damages from Us, Our directors, officers, employees, affiliates, agents, contractors, and licensors as a result of our decision to remove or refuse to process any information or content, to warn you, to suspend or terminate your Account, or to take any other action during the investigation of a suspected violation or as a result of Our conclusion that a serious violation of this agreement has occurred.
(c) You agree to indemnify and hold harmless Us and Our agents, employees, representatives, licensors, affiliates, officers from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable legal fees and court costs) resulting or arising from any third-party claim, providing that such loss or damage has not resulted from the Our breach of this Agreement or Our negligent act, omission, in connection with:
(i) any information You submit or transmit through the Application; or
(ii) Your use of or access to the Services; or
(iii) Your breach of this Agreement; or
(iv) Your violation of any rights of any third party, or
(v) Any viruses, trojan horses, worms, time bombs, cancel bots, spyware or other similar harmful or deleterious programming routines input by You into the Application or Webpage.
21. GENERAL PROVISIONS
21.1 Changes to Terms and Conditions
We may update this Agreement from time to time and any changes will be notified to you via the e-mail address provided by you in your Account or via a suitable announcement within the Application, such as a pop up or link to the new terms upon or prior to acceptance of a Booking. The changes will apply to the use of the Application after we have given notice. If you do not wish to accept the new Terms and Conditions you should not continue to use the Application and should cease accepting Bookings. If you continue to use the Application after the date on which the change comes into effect, your use of the Application indicates your agreement to be bound by the new terms and conditions.
21.2 Partial Invalidity
If any provision of this Agreement becomes or is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision shall be severed from the remaining terms and conditions which shall continue in full force and effect.
21.3 Governing Law
This Agreement is governed by the laws of Western Australia. You submit to the non-exclusive jurisdiction of the Courts of Western Australia and respective states or territories where accounts are maintained or orders transacted.
21.4 Jurisdiction of Use
The Site and Application is targeted at Australian Users only. If You are not a resident of or residing in Australia at the time of the use of the Application, You must not use the Application.
You agree and acknowledge that as the invoicing will be taking place through the Application, Hit Blue must charge GST on all transactions to the Customers, as well as GST to You. You should ensure You are registered for GST as required and make your own enquiries from a taxation professional in this regard.
21.6 Entire agreement
This Agreement supersedes all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitutes the entire agreement, between the parties, relating to the subject matter of this Agreement.
Item 1 – Fee
There are two options available for the provider fee:
Annual Fee = $990 excl. GST
Monthly Fee = $99 excl. GST
The above fees are inclusive of 1 Approved Individual and are pursuant to a Direct Debit Agreement.
Item 2 – Commission Rate
You agree to pay a Commission to Hit Blue for Services that are completed through the Application. The Commission rate is 9% (+GST), these fees are subject to change, however, you will be notified in writing.
Item 3 – Cancellation Fee
If You cancel an already confirmed job, you will be subject to a cancellation fee.
Item 3 – Licenses / Insurances / Qualifications Held and to be Maintained (as applicable to your service industry)
- Professional Indemnity insurance
- Public liability insurance
- Worker’s compensation insurance
- Licenses etc