Terms and Conditions

1) INTRODUCTION

• (a) These terms govern your use of the Skill Exchange marketplace (Marketplace). By using the Marketplace, you agree to be bound by these terms which forms a binding contractual agreement between you (you, your) and us, The Skill Xchange Australia Pty Ltd (ABN 31 646 693 861) (we, us, our).
• (b) The remainder of these terms are divided into 3 parts:
  • (i) Part A – which sets out terms that apply to all users of the Marketplace (User);
  • (ii) Part B – which sets out additional terms that apply to Users who are buying trade services from Sellers (Buyers); and
  • (iii) Part C – which sets out additional terms that apply to Users who are providing trade services (Sellers)
• (c) If you intend to use the Marketplace as a Buyer, only Parts A and B of these terms will apply to you.
• (d) If you intend to use the Marketplace as a Seller, only Parts A and C of these terms will apply to you.
• (e) Users can be both Buyers and Sellers.

2) MOBILE APP AND GOOGLE API

• (a) If you access or download our mobile application from (1) the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement and any Usage Rules in the App Store Terms of Service or (2) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google Apps Terms of Service.
• (b) We may use Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.

3) MARKETPLACE SUMMARY

• (a) The Marketplace is a platform where Buyers and Sellers can connect to buy and offer trade services.
• (b) Buyers can create listings to receive trade services (Listing);
• (c) Sellers can offer to provide trade services for Listings (Offers).
• (d) Buyers can then review all Offers and choose an Offer to accept via the Marketplace. Buyers and Sellers may communicate both on and off the Marketplace to clarify Listings and Offers as well as any additional terms and conditions that may apply (Additional Terms).
• (e) Once an Offer is accepted a binding contract is formed between the Buyer and Seller whereby the Buyer agrees to buy the agreed trade services (Agreed Services) from the Seller and the Seller agrees to provides the Agreed Services at the agreed price (Price).
• (f) Buyers and Sellers may agree to Additional Terms in addition to these terms provided the Additional Terms do not conflict with these terms and comply with applicable law.
• (g) Once an Offer is accepted our fees, calculated as a percentage of the Price (Fees), becomes payable by the Seller.
• (h) The Price can be paid via the Marketplace or off the Marketplace directly from the Buyer to the Seller. If:
  • (i) the Price is paid via the Marketplace, our Fees will be automatically taken from the Price when the Price is paid by the Buyer to the Seller; or
  • (ii) the Price is paid off the Marketplace, we will issue an invoice for our Fees to the Seller when the Seller starts to provide the Approved Services. The Seller must pay our Fees in accordance with any payment terms set out in any invoice issued by us for the Fees.

4) ELIGIBILITY

• (a) This Marketplace is intended as a business to business marketplace.
• (b) Please do not use the Marketplace if you are not a business and do not have a registered and current ABN.
• (c) If you use the Marketplace on behalf of a company or organisation you warrant that you have the necessary authority from that company or organisation to do so. If you are signing up not as an individual but on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then “you”, “your” and “User” means the Represented Entity and you are binding the Represented Entity to these terms. If you are accepting these terms on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.

5) ACCOUNTS

• (a) In order to use most of the functionality of the Marketplace, you are required to register for an account (Account).
• (b) As part of the Account registration process and as part of your continued use of the Marketplace, you are required to provide personal information and details, such as your business name, email address, first and last name, preferred username, a secure password, contact details (including address and mobile phone number), and other information as determined by us from time to time.
• (c) You warrant that any information you give to us while registering for an Account will always be accurate, honest, correct and up to date.
• (d) Once you complete the Account registration process, we may, in our discretion, provide you with an Account.
• (e) We reserve the right to contact you about any concerning behaviour by you, or to seek a resolution with you.
• (f) We may, in our discretion, suspend or cancel your Account for any reason, including for any failure to comply with these terms.

6) USER OBLIGATIONS

As a User, you agree:

• (a) not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment;
• (b) to not share your Account with any other person and that any use of your Account by any other person is strictly prohibited. You must immediately notify us of any unauthorised use of your Account, password or email, or any other breach or potential breach of the Marketplace’s security;
• (c) to not use the Marketplace for any purpose other than for the purpose of making arrangements to provide or receive trade services, including by not using the Marketplace:
  • (i) in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes); and
  • (ii) that is not for your own benefit and on behalf of a third party;
• (d) not to act in any way that may harm the reputation of us or associated or interested parties or do anything at all contrary to the interests of us or the Marketplace;
• (e) not to make any automated use of the Marketplace and you must not copy, reproduce, translate, adapt, vary or modify the Marketplace;
• (f) that we may change any features of the Marketplace at any time without notice to you;
• (g) that we take no responsibility for anything caused by any actions you take in reliance on information provided to you by another User.

7) POSTED MATERIALS

7.1   WARRANTIES

• By providing or posting any information, materials or other content on the Marketplace (Posted Material), you represent and warrant that:
• (a) you are authorised to provide the Posted Material;
• (b) the Posted Material is not “passing off” of any product or service and does not constitute unfair competition;
• (c) the Posted Material is accurate and true at the time it is provided;
• (d) the Posted Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
• (e) the Posted Material does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, confidential information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
• (f) the Posted Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Marketplace or any network or system; and
• (g) the Posted Material does not breach or infringe any applicable laws.

7.2   LICENCE

• (a) You grant to us a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Posted Material in order for us to use, exploit or otherwise enjoy the benefit of such Posted Material.
• (b) If it is determined that you retain moral rights (including rights of attribution or integrity) in any Posted Material, you forever release us from any and all claims that you could assert against us by virtue of any such moral rights.
• (c) You indemnify us against all damages, losses, costs and expenses incurred by us arising out of any third party claim that your Posted Material infringes any third party’s Intellectual Property Rights.

7.3   REMOVAL

• (a) We have no obligation to screen Posted Material in advance of it being posted. However, we may, in our discretion, review and remove any Posted Material at any time without giving any explanation or justification for removing the Posted Material.
• (b) You agree that you are responsible for keeping and maintaining records of Posted Material.

7.4   DEFINITION

• In this clause 7, “Intellectual Property Rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these terms both in Australia and throughout the world.

8) ADDITIONAL INFORMATION

• (a) We reserve the right to request for additional information and evidence in relation to any Listing, Offer, accepted Offer and Agreed Services as well as copies of any communications between Users.
• (b) You must promptly provide us with any information and evidence requested by us.

9) VERIFICATION

9.1   VERIFICATION

• (a) We require Users to verify certain details (including ABNs and any trade licences) using a third party verification service provider as applicable (Verification).

9.2   YOUR PERSONAL INFORMATION AND PRIVACY

• (a) We will collect your personal information in accordance with our Privacy Policy.
• (b) You acknowledge and agree that:
  • (i) we may contact and share your personal information with a third party verification service provider;
  • (ii) you consent to us receiving, sharing and using this information to enable us to carry out the Verification.

9.3   DISCLAIMER

• You acknowledge and agree that:
• (a) we are reliant on the information provided by Users; and
• (b) we are reliant on the information provided by the third party verification service provider and to the maximum extent possible by law, we disclaim all warranties that the Verification will be accurate or guarantees that Verification will ensure you contract with a suitable User.

10) PAYMENT PARTNER

• (a) We use a third-party online payment partner, currently Stripe (Payment Partner) to process payments on the Marketplace.
• (b) The processing of payments by the Payment Partner will be, in addition to these terms, subject to the terms, conditions and privacy policies of the Payment Partner.
• (c) We reserve the right to correct, or to instruct our Payment Partner to correct any errors or mistakes in processing any payment.

11) RATINGS AND REVIEWS

• (a) Sellers and Buyers may rate each other and/or provide reviews about each other (Feedback).
• (b) Feedback can be viewed by any User.
• (c) All Feedback must be true, fair and accurate.
• (d) You may only provide Feedback:
  • (i) in the case of a Seller, for a Buyer who accepted your Offer and you provided Agreed Services; or
  • (ii) in the case of a Buyer, for a Seller who you accepted their Offer and they provided you with Agreed Services.
• (e) You may only write about your own Experience.
• (e) If we consider any Feedback is untrue, unfair, inaccurate, offensive or inappropriate, we may delete Feedback. We do not undertake to review all Feedback. To the maximum extent permitted by law, we are not responsible for the content of any Feedback.

12) INTELLECTUAL PROPERTY

12.1   RETENTION AND LICENCE

• (a) We retain ownership of all materials developed or provided (or both, as the case may be) in connection with the Marketplace (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Marketplace Content) and reserves all rights in any Intellectual Property Rights owned or licensed by us and not expressly granted to you.
• (b) You may make a temporary electronic copy of all or part of the Marketplace Content for the sole purpose of viewing it and adapting it for the purpose of using the Marketplace. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish the Marketplace Content.

12.2   DEFINITION

• In this clause 12, “Intellectual Property Rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these terms both in Australia and throughout the world.

13) DISPUTES BETWEEN USERS

• (a) You should direct any issues, problems, complaints or dispute (Complaint) relating to another User to that User. Users must take all reasonable steps and act in good faith at all times to resolve any Complaint with another User with that User.
• (b) If any Complaint relating to the Marketplace remains unresolved after directing a Complaint to a relevant User, or if Complaint does not relate to another User, please notify us. We will assess the Complaint and at our discretion, attempt to assist to resolve the Complaint.
• (c) Any costs you incur in relation to a Complaint will be your responsibility.
• (d) We have the option to appoint an independent mediator if needed to mediate the Complaint. The cost of any mediator must be shared equally between each of the parties to the Complaint.
• (e) We reserve the right to hold funds in relation to a Complaint until the Complaint is resolved by the relevant parties or by a mediator.
• (f) If you have a Complaint about us, you agree to notify us first and enter into discussion or mediation with us for a minimum of a 30 day period before pursuing any other proceedings.
• (g) Notwithstanding any other provision of this clause 13 we may at any time, cancel your Account, or discontinue your use of the Marketplace.

14) SECURITY AND SERVICE LIMITATIONS

• (a) We do not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with your use of the Marketplace. You should take your own precautions to ensure that the process you employ to access the Marketplace does not expose you to the risk of viruses, malicious computer code or other forms of interference.
• (b) The Marketplace is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that we cannot and do not represent, warrant or guarantee that:
  • (i) the Marketplace will be free from errors or defects;
  • (ii) the Marketplace will be accessible at all times;
  • (iii) messages sent through the Marketplace will be delivered promptly, or delivered at all;
  • (iv) information you receive or supply through the Marketplace will be secure or confidential; or
  • (v) any information provided through the Marketplace is accurate or true.

15) DISCLAIMER

15.1   INTRODUCTORY SERVICES ONLY

• (a) The Marketplace is a platform that facilitates introductions between Sellers and Buyers for the purposes of buying and selling trade services.
• (b) We simply collect a fee for providing this introduction service and do not have any obligations or liabilities to, and is not a party to any contract between, Users in relation to any agreement between the Users or any other result from the introduction.
• (c) We do not endorse or recommend any User.
• (d) We are not a labour hire business and do not directly provide any labour for businesses.

15.2   ADDITIONAL TERMS

• Any Additional Terms agreed between Users are solely between the Users and do not involve us in any way except that they must not conflict with these terms and must comply with applicable law.

15.3   WARRANTIES

• All express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded.

16) LIABLITY AND INDEMNITY

16.1   CANCELLATIONS AND REFUNDS

• (a) Once an Offer has been accepted neither the Buyer nor the Seller may cancel the Approved Services unless the cancellation is in accordance with any Additional Terms agreed between the Users. If applicable, any refunds must also be paid in accordance with any Additional Terms.
• (b) We will have no liability or obligation to you if a User cancels after an Offer has been accepted and you will not be entitled to any compensation from us.

16.2   THIRD PARTY CONTENT

• The Marketplace contains text, images, data and other content provided by Users and other third parties (Third Party Content). We accept no responsibility for Third Party Content and make no representation, warranty or guarantee about the quality, suitability, accuracy, reliability, currency or completeness of Third Party Content.

16.3   LIMITATION OF LIABLITY

• To the maximum extent permitted by applicable law, we completely exclude all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the Marketplace, it’s use, in relation to the provision of any Agreed Services or any other interaction between Users. This includes the transmission of any computer virus.

16.4   INDEMNITY

• You agree to indemnify us and our employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from you or your representatives’:
• (a) breach of any term of these terms;
• (b) use of the Marketplace; or
• (c) your provision or receipt of trade services from another User.

16.5   CONSEQUENTIAL LOSS

• To the maximum extent permitted by law, under no circumstances will we be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the to the Marketplace, it’s use, in relation to the provision of any Agreed Services or any other interaction between Users.

17) AUSTRALIAN CONSUMER LAW

• Nothing in these terms are intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.

18) CONFIDENTIALITY

• You agree that:
  • (a) no information owned by us, including system operations, documents, marketing strategies, staff information and client information, may be disclosed or made available to any third parties; and
  • (b) all communications involving the details of other Users are confidential, and must be kept as such by you and must not be distributed nor disclosed to any third party.

19) PRIVACY

• You agree to be bound by the clauses outlined in our Privacy Policy, which can be accessed here

20) NOTICE REGARDING APPLE

• If you are accessing the Marketplace from the Apple, Inc. (Apple) iOS Store, you acknowledge and agree:
  • (a) these terms are between you and us and not with Apple. Apple is not responsible for the Services or any content available on the Marketplace;
  • (b) Apple has no obligation whatsoever to furnish any maintenance and support services for the Marketplace;
  • (c) in the event of any failure of us to conform to any applicable warranty, you may notify Apple, and Apple will refund the price for the Marketplace. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Marketplace, and any other claims, losses, liabilities, damages, costs of expenses attributable to any failure to conform to any warranty will be our responsibility;
  • (d) Apple is not responsible for addressing any claims by you or any third party relating to the Marketplace, including, but not limited to:
    • (i) product liability claims;
    • (ii) any claim that the Marketplace fails to conform to any applicable legal or regulatory requirement; and
    • (iii) claims arising under consumer protection, privacy, or similar legislation;
  • (e) in the event of any third party claim that the Marketplace or your use of the Marketplace infringes any third party’s intellectual property rights, Apple will not be responsible for the investigation, defence, settlement and discharge of any such claim;
  • (f) that you represent and warrant that:
    • (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting’” country; and
    • (ii) you are not listed on any U.S. Government list of prohibited or restricted parties;
  • (g) you must comply with applicable third party terms of these terms when using the Marketplace; and
  • (h) Apple, and Apple’s subsidiaries, are third party beneficiaries of these terms, and that, upon your acceptance of these terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms against you as a third party beneficiary.

21) SUSPENTION AND CANCELLATION OF ACCOUNT

21.1   CANCELLATION OF ACCOUNT

• (a) We reserve the right to suspend or cancel a User’s Account at any time without notice, for any reason.
• (b) In the event that a User’s Account is cancelled:
  • (i) the User’s access to their Account will be removed; and
  • (ii) all (as applicable) Listings and Offers will be removed from the Marketplace.
• (c) Users may cancel their Account at any time.

21.2   EXISTING ACCEPTED OFFERS

• Despite cancellation of your Account, you must complete any accepted Offers (whether by providing the Agreed Services or paying the Price (as relevant).

22) TAX

• You are responsible for the collection and remission of all taxes associated with the services you provide or receive using the Marketplace.

23) RECORDS

• To the extent permitted by law, we reserve the right to keep all records of any and all transactions and communications made through this Marketplace between you and other Users (including conversations, Listings, Offers, Feedback, cookies, and I.P. address information) for administration purposes and also holds the right to produce these records in the event of any legal dispute.

24) GENERAL

24.1   GOVERNING LAW AND JURISDICTION

• These terms are governed by the law applying in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with these terms. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

24.2   WAIVER

• No party to these terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

24.3   SEVERANCE

• Any term of these terms which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of these terms are not limited or otherwise affected.

24.4   JOINT AND SEVERAL LIABILITY

• An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

24.5   ASSIGNMENT

• A party cannot assign, novate or otherwise transfer any of its rights or obligations under these terms without the prior written consent of the other party.

24.6   INTERPRETATION

• (a) (singular and plural) words in the singular includes the plural (and vice versa);
• (b) (gender) words indicating a gender includes the corresponding words of any other gender;
• (c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
• (d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
• (e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
• (f) (these terms) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of these terms, and a reference to these terms includes all schedules, exhibits, attachments and annexures to it;
• (g) (document) a reference to a document (including these terms) is to that document as varied, novated, ratified or replaced from time to time;
• (h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
• (i) (includes) the word “includes” and similar words in any form is not a word of limitation; and
• (j) (adverse interpretation) no provision of these terms will be interpreted adversely to a party because that party was responsible for the preparation of these terms or that provision.

25) LISTINGS

• You acknowledge and agree that:
• (a) you must complete all required items when creating a Listing and also provide as much information as possible including (for example):
  • (i) the type of trade services required;
  • (ii) the scope of trade services required;
  • (iii) job site location; and
  • (iv) start date;
• (b) any information you supply in Listing must be true, timely and accurate;
• (c) Listings must be for your own business and not as a labour hirer
• (d) we may choose not to accept any Listing you submit to the Marketplace, and we may limit the number of Listing you can submit to the Marketplace; and
• (e) we do not guarantee that you will receive any Offers for Listings.

26) BINDING CONTRACT

• (a) You agree that when you accept and Offer this constitutes your acceptance of an offer to enter into a contract with a Seller where you will pay the Seller the Price in exchange for the Agreed Services. A contract is formed in this respect (between you and the Seller) when you accept an Offer.
• (b) You may communicate with Sellers to obtain additional information about Offers as well as agree on any Additional Terms.
• (c) Any Additional Terms are solely between you and the relevant Seller and do not involve us in any way, except that they must not be inconsistent with your or the Seller’s obligations under these terms and must comply with applicable law.

27) VARIATIONS TO LISTINGS

• Any variations to Listings (including changes to the Agreed Services and Price) (Variations) must:
• (a) be agreed between you and the Seller; and
• (b) be updated on the Listing on the Marketplace.

28) COMPLETION OF AGREED SERVICES OR PAYMENT OF PRICE

• You must promptly notify us as soon as a Seller has started providing the Approved Services or when you have paid the Price to the Seller (including payment for both on and off the Marketplace).

29) CANCELLATIONS

• (a) Once you have accepted an Offer, you may not cancel an accepted Offer unless the cancellation is in accordance with any Additional Terms agreed between you and the Seller.
• (b) You must ensure that any Additional Terms in relation to cancellation comply with all applicable laws.

30) BYPASSING

• You must not communicate with a Seller, or request or entice a Seller to communicate with you, outside the Marketplace for the purposes of bypassing the Marketplace. This includes for any Offers made for current Listings and (to the maximum extent possible by law) any future Listings.

31) NON-SOLICITATION

31.1   DEFINITIONS

• (a) In this clause 31:
  • (i) “Restraint Period” means:
    • (A) 12 months after the date your account is cancelled, or (if that duration is deemed unreasonable)
    • (B) 6 months after the date your account is cancelled, or (if that duration is deemed unreasonable);
    • (C) 4 months after the date your account is cancelled, or (if that duration is deemed unreasonable);
    • (D) 2 months after the date your account is cancelled.
  • (ii) “Restraint Area” means:
    • (A) Australia, or (if that area is deemed unreasonable);
    • (B) the States and/or Territories in which the Agreed Services were provided, or (if that area is deemed unreasonable);
    • (c) the metropolitan cities in which the in which the Agreed Services were provided.

31.2   NON-SOLICITATION

• (a) While you have an Account on this Marketplace and for the Restraint Period, you must not (whether inadvertently, directly or indirectly), within the Restraint Area, in relation to any Seller you interacted with on the Marketplace:
  • (i) induce or solicit (or attempt to induce or solicit) any of the Seller’s workers to leave their employment, agency or contractual arrangement with the Seller; or
  • (ii) employ or otherwise engage any of the Seller’s workers.
• (b) If you:
  • (i) want to employ or otherwise engage any of the Seller’s workers; or
  • (ii) propose to introduce the Seller’s worker to any third party (including any of your associated entities), for a potential engagement or employment of the worker,
  • you agree to notify the Seller of the proposed employment or engagement offer, or introduction to a third party before such a proposal is made or referral given. The Seller may consent to you offering employment to a worker of the Seller on the condition that if an offer of employment or engagement is accepted by the relevant worker, you will be liable to pay the Seller a fee of $10,000 (plus GST) per worker as an introduction fee. The introduction fee is a debt immediately due and payable upon the worker’s acceptance of the relevant offer.
• (c) You agree that this clause 31:
  • (i) is a valid exercise of the Seller’s rights in accordance with these terms;
  • (ii) does not unreasonably restrict your right to carry on your business, profession or trade; and
  • (iii) is fair and reasonable in the circumstances and goes no further than is reasonably necessary to protect the Seller’s commercial interests.

32) OFFERS

• By listing yourself as a Seller on the Marketplace, making an Offer or responding to a Listing, you represent and warrant that:
• (a) you are able to fulfil the requirements of the trade services specified in any Offer;
• (b) you are qualified and trained to provide any Agreed Services, including by holding any necessary qualifications and licences;
• (c) any Agreed Services will be provided with due care and skill in a professional, efficient, diligent and safe manner, and to the best industry standards; and
• (d) any Agreed Services will be provided will be in compliance with all applicable laws.

33) BINDING CONTRACT

• (a) You agree that by making an offer you are agreeing to enter into a binding contract with the Buyer where you will provide the Agreed Services in exchange for the Price.
• (b) A contract is formed in this respect (between you and the Buyer) when the Buyer accepts your Offer.
• (c) You may withdraw an Offer at anytime before it is accepted by the Buyer.
• (d) You may communicate with Buyers to obtain additional information about Listings as well as agree on any Additional Terms.
• (e) Any Additional Terms are solely between you and the relevant Buyer and do not involve us in any way, except that they must not be inconsistent with your or the Buyer’s obligations under these terms and must comply with applicable law.

34) FEES

• (a) Our Fee is calculated as a percentage of the Price and is payable by you, as the Seller.
• (b) The Fee becomes payable when a Buyer accepts your Offer.
• (c) If the Price is paid via the Marketplace our Fees will automatically be taken from the Price when the Buyer pays you.
• (d) If the Price is paid to you off the Marketplace, we will issue you with an invoice for the Fees when you start providing the Agreed Services. You must pay our invoice in accordance with the terms of the invoice.
• (e) You must promptly notify us as soon as you started providing the Agreed Services.
• (f) You acknowledge and agree that our Fee is by default always payable. This includes if an Offer is cancelled or otherwise terminated or the Agreed Services are not performed (including for reasons beyond your control) or the Price isn’t paid for any reason. Our Fee is payment for our introductory services and this service has been performed and completed in full on acceptance of an Offer by a Buyer.
• (g) Our Fee is by default always payable and non-refundable for change of mind. However, we may, in our discretion, wave or issue refunds of the Service Fee.

35) VARIATIONS TO LISTINGS

• (a) Any variations to Listings (including changes to the Agreed Services and Price) (Variations) must:
  • (i) be agreed between you and the Buyer; and
  • (ii) be updated on the Listing on the Marketplace.
• (b) If a Variation results in a change to the Price you must promptly notify us and provide us with evidence of the Variation. If we reasonably suspect the Variation is not legitimate and one of the purposes of the Variation is to reduce the amount of our Fee that is payable, you will be charged a Fee amount equal to the original Price before the Variation.

36) CANCELLATIONS

• (a) Once an Offer has been accepted, you may not cancel an accepted Offer unless the cancellation is in accordance with any Additional Terms agreed between you and the Buyer.
• (b) You must ensure that any Additional Terms in relation to cancellation comply with all applicable laws.
• (c) For clarity, if an Offer is cancelled or otherwise terminated or the Agreed Services are not performed (including for reasons beyond your control) or the Price isn’t paid for any reason, our Fees are still payable, and you agree to pay such Fees. The obligation to pay our Fees in this case, is on cancellation of the Offer.

37) PROVISION OF AGREED SERVICES

• You must ensure that all Agreed Services that you provide are:
• (a) in accordance with all applicable laws, regulations, tax obligations and industry standards;
• (b) with due care and skill and in a professional, punctual and diligent manner;
• (c) fit for their intended purpose; and
• (d) on the date and at the times as agreed.

38) CANCELLATIONS

• (a) We will have no liability or obligation to you if a Buyer cancels an Agreed Services after it has been agreed and you will not be entitled to any compensation from us in relation to any such cancellation, including any portion of the Service Fee.
• (b) If you wish to cancel services specified in an agreed Agreed Services, before the Buyer has performed them, you must contact the Buyer. If we decide to investigate your cancellation, you must provide assistance and information to us as reasonably requested.
• (c) If you cancel a service specified in an agreed Agreed Services, whether the relevant Quoted Amount paid by you is refundable will depend on the cancellation policy and refund policy of the relevant Buyer.

39) BYPASSING

• You must not communicate with a Buyer, or request or entice a Buyer to communicate with you, outside the Marketplace for the purposes of bypassing the Marketplace. This includes for avoiding payment of the Fees or to avoid compliance with any of these terms.

40) NON-SOLICITATION OF BUYER CUSTOMERS

40.1   DEFINITIONS

• (a) In this clause 40:
  • (i) “Restraint Period” means:
    • (A) 12 months after the date your account is cancelled, or (if that duration is deemed unreasonable)
    • (B) 6 months after the date your account is cancelled, or (if that duration is deemed unreasonable);
    • (C) 4 months after the date your account is cancelled, or (if that duration is deemed unreasonable);
    • (D) 2 months after the date your account is cancelled.
  • (ii) “Restraint Area” means:
    • (A) Australia, or (if that area is deemed unreasonable);
    • (B) the States and/or Territories in which the Agreed Services were provided, or (if that area is deemed unreasonable);
    • (c) the metropolitan cities in which the in which the Agreed Services were provided.

40.2   NON-SOLICITATION OF BUYER CUSTOMERS

• (a) While you have an Account on this Marketplace and for the Restraint Period, you must not and must ensure that any of your employees, contractors and agents do no (whether inadvertently, directly or indirectly), within the Restraint Area:
  • (i) induce or solicit a customer or client of the Buyer to leave the services of the Buyer; or
  • (ii) provide services, the same or similar to those provided by the Buyer, to a customer or client of the Buyer.
• (b) You agree that:
  • (i) the restrictions imposed by this clause are reasonable given the nature of the Buyer’s business, are necessary to protect the Buyer’s legitimate business interests and do not unreasonably restrict your right to carry on your profession or trade;
  • (ii) on request, you agree to provide the Buyer with evidence sufficient to enable the Buyer to confirm the your compliance with this clause 40; and
  • (iii) the Buyer shall be entitled to receive compensation equal to the value of the loss of revenue by the Buyer as a result of each instance of breach of this clause by you.
• (c) Where the Buyer suspects you have breached this clause 40, the Buyer shall give written notice to you and you must provide any information reasonably requested by the Buyer. It if is reasonably determined that you have breached this clause, you must pay the compensation amount set out in clause 40.2(b)(iii) as a debt immediately due and payable to the Buyer.