The Company provides the Workyard online marketplace connecting building contractors for work. Use of Workyard is subject to the terms of this Agreement.
The following terms are used regularly throughout this agreement and have a particular meaning:
- ABN means Australian Business Number.
- ACN means Australian Company Number.
- Agreement means the agreement formed between the Users and the Company under, and on the terms of, this Terms of Service.
- Booking Confirmation means the notification sent to a User when a Booking Notification for a Job has been confirmed for a Service Provider.
- Booking Notification means the notification sent to the Service Provider selected by the Customer to undertake a Job via Workyard.
- Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.
- Company means Workyard Pty Ltd ABN 23 604 306 854.
- Corporations Act means the Corporations Act 2001 (Cth).
- Customer means a registered User of Workyard that uses Workyard to seek a Service Provider for a Job as a customer.
- Equipment & Materials means any equipment (such as tools etc.) and materials (such as consumables, building, electrical, or painting materials, etc) necessary for a Job.
- Fee means a fee payable to the Company for use of Workyard.
- GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Intellectual Property means all copyright, patents, inventions, trade secrets, know- how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
- Job means any services to be provided by a Service Provider for a Customer arranged via Workyard.
- Job Fee means the Fee paid by the Service Provider for winning a Job, as described in a Job Listing.
- Job Listing means a listing posted by a Customer seeking a Service Provider for a Job.
- Job Terms means any terms that apply to a Job as may be agreed between a Customer and Service Provider.
- Location means the address where the Service Provider is to attend the Job.
- Privacy Act means the Privacy Act 1989 (Cth).
- Profile means a profile within Workyard created and managed by the User, whether as a Customer or a Service Provider;
- Project means a specific project or Job that the User has previously worked on.
- Start Date means the date a Job is scheduled to start.
- Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Terms of Service means the terms and conditions of using Workyard, as updated from time-to- time, which can be found at http://www.workyard.com/app/terms.
- User means any Customer or Service Provider that uses Workyard.
- User Content means images, information, documents or other data that is uploaded or input into Workyard by the User or that forms part of the User’s Intellectual Property.
- Workyard means:
- Workyard web service accessible from http://www.workyard.com; and/or
- Any Workyard mobile application.
1 Using Workyard
- To use Workyard, the User must log into Workyard and have set up their account.
- The User agrees that all use of Workyard, and all Jobs arranged through Workyard, are subject to the terms of this Agreement.
- When a Customer and Service Provider agree to a Job, that forms an independent agreement between the Service Provider and the Customer on the terms set out in this Agreement, and subject to any additional Job Terms.
- Anyone over the age of 18 may use Workyard to arrange Jobs.
- Only Service Providers that comply with this Agreement may undertake Jobs via Workyard.
- The Customer acknowledges that each Job is performed independently by the Service Provider, and that the Company does not provide any of the services in a Job directly to the Customer.
- At the Company’s discretion, any breach of the terms of this Agreement may result in the Company (without limitation):
- Suspending a User’s account;
- Removing a Listing; or.
- Terminating this Agreement.
- A User may use Workyard either as a Customer or as a Service Provider under the same account.
- Workyard enables all Users to:
- Manage their Workyard account;
- Create and edit their Profile;
- Add and edit Projects; and
- View the Projects, Profiles and Job Listings from other Users.
- Workyard enables Customers to:
- Create and close a Job Listing for a Job;
- Communicate with Service Providers regarding Jobs;
- Accept a Service Provider to undertake a Job by submitting a Booking Confirmation; and
- Leave reviews of Service Providers who have undertaken Jobs for them via Workyard.
- Workyard enables the Service Provider to:
- Apply for Jobs advertised in a Job Listing;
- Communicate with Customers regarding Jobs;
- Leave reviews of Customers for whom they have undertaken Jobs via Workyard; and
- View Job Fees (and make payment of Job Fees, if authorised by the Company).
2 Using Workyard
2.1 Profiles and Project
- The User is responsible for each Profile and Project Description that the User creates.
- Each Profile must accurately describe the User and their capabilities to perform Jobs including:
- The type of Jobs that the User is available to undertake as a Service Provider;
- The User’s qualifications and experience;
- Projects that the User has undertaken in the past;
- The service area where the User is available to undertake Jobs as a Service Provider; and
- Any other matter that may be relevant to a Job.
- Each Project must accurately describe the Project including:
- The scope of the Project;
- The User’s role in the Project;
- Images, video or other media of the Project;
- The other Service Providers involved in the Project.
- Customers may contact the Service Provider via the Service Provider’s Profile in order to discuss or arrange a Job with the Service Provider, including inviting the Service Provider to quote on a Job Listing.
2.2 User Content
- Each User is responsible for any User Content that they provide to Workyard, including any User Content contained in a Profile or Project, and warrants that the User Content does not infringe the Intellectual Property rights of any third party (such as using other people’s images without permission).
- The Company may remove User Content in the event that the Company determines in its sole discretion that any User Content is inaccurate, infringes any third party Intellectual Property Rights and/or is inappropriate for use within Workyard.
- Each User acknowledges and accepts that the Company may use any User Content for the purposes of promoting Workyard and/or the Company’s business. The User provides a perpetual, non-transferable worldwide licence to use any Intellectual Property in the User Content for this purpose.
2.3 Job Listings
- Each Job Listing must accurately describe the Job, including in relation to any of the following information provided by the Customer:
- The type of Service Providers being sought for the Job, including any qualifications and experience necessary;
- The location of the Job;
- The expected Start Date and duration of the Job;
- Equipment and Material’s the Service Provider will be expected to provide when undertaking a Job;
- Any Job Terms that the Customer may impose on a Service Provider that undertakes the Job;
- Estimated cost of a Service Provider’s services for the Job; and
- Any other matters that may be relevant to the Job.
- The Company may include information regarding the value of a Job Fee on each Job Listing, which shall be payable by the Service Provider that is booked by the Customer to undertake a Job. Customer consent shall not be required prior to posting a Job Fee on a Job Listing.
- Workyard may notify Service Providers of Job Listings that the Service Provider may be interested in.
- Service Providers may contact the Customer via a Job Listing in order to apply-for, discuss or arrange a Job with the Customer.
- Service Providers and Customers may negotiate any additional Job Terms that may apply to a Job.
- Job Listings may only be created for Jobs that a Customer offers on its own behalf, or for Jobs that the Customer is otherwise duly authorised to create on behalf of the person or entity responsible for the Job.
- In no event may a recruitment or labour hire business create a Job Listing whether on its own behalf, or on behalf of a client.
- Service Providers must only apply for Jobs that they are available, qualified, experienced or skilled enough to perform. A Service Provider must not mislead any Customer into booking the Service Provider for a Job.
- Where a Service Provider provides a quotation for a Job via Workyard, the Service Provider warrants that it is ready, willing and able to undertake the Job at that price, based on the information provided in the Job Listing.
- In order for the Customer to accept a Service Provider for a Job, the Customer must update the status of their Job Listing to “Booked”, which will initiate a Booking Notification notifying Workyard of:
- The Service Provider the Customer has selected to undertake the Job; and
- The Start Date of the Job.
- Workyard will then provide a Booking Notification to the Service Provider that has been selected by the Customer, and a Booking Confirmation to the Customer.
- The Service Provider must notify the Company via Workyard within 48 hours of receiving the Booking Notification if they are unable to undertake the Job for any of the following reasons:
- The Start Date for the Job is different from what was agreed to between the Service Provider and the Customer;
- The Service Provider did not apply for the Job;
- The Service Provider did not agree with the Customer to undertake the Job;
- The Service Provider is medically unable to undertake the Job; or
- The Service provider has other reasons outside the Service Provider’s control preventing the Service Provider from undertaking the Job.
- In the event that the Service Provider notifies Workyard that it is unable to undertake a Job pursuant to clause (c), the Company may require further information before declining the Customer’s Booking Notification.
- In the event that the Service Provider notifies Workyard that it is unable to undertake a Job pursuant to clause (c)v, the Company may refuse to decline the Booking Notification (and therefore provide a Booking Confirmation to the both the Customer and Service Provider) if the Company determines in its sole discretion that the Service Provider’s reasons for being unable to undertake the Job are within the Service Provider’s control, or otherwise unreasonable.
- In order to accept a Booking Notification the Service Provider may:
- Notify Workyard that it accepts the Booking Notification;
- Not decline the Booking Notification within 48 hours; or
- Attend the Job (if the Start Date is within 48 hours of the Booking Notification).
- The Service Provider agrees that it must not cancel a Job it has accepted later than 48 hours from the agreed start Date.
- The Service Provider shall pay the Company the Job Fee for winning a Job once Booked by a Customer in accordance with clause 3.
- Workyard will automatically provide the Service Provider with a Booking Confirmation:
- 24 hours prior to the Start Date of the Job; or
- On the day the job is booked if the Start Date is the same day.
- The Company is under no obligation to provide a Booking Notification or Booking Confirmation to a Service Provider for a Job with a Start Date within 48 Hours of the Job Booked by a Customer.
- The Service Provider must attend each Job subject to the Job Terms.
- The Service Provider agrees to arrive at the Location on time (being the time agreed with the Customer) for the duration of a Job.
- The Service Provider will undertake the Job to a professional standard, for the duration and/or agreed outcomes of the Job. Where a Job is not completed to a satisfactory standard (as determined by the Company, acting reasonably) the Service Provider will rectify the issue at the earliest availability.
- Where the Job Fee includes the provision of Equipment & Materials, the Service Provider will ensure they have those with them. Otherwise, the Customer must ensure they have all necessary Equipment & Materials for the Service Provider to perform the Job.
- The Customer must ensure that it provides the Service Provider with a safe working environment. Without limitation, the Customer agrees to ensure that all electrical equipment is in safe working order (and approved for use), there are no dangerous environments (such as live exposed electricity), and there are no other safety hazards at the Location.
- For the avoidance of doubt, nothing in this clause 2.5 shall be interpreted as imposing a duty of care on the Company with regard to the performance of a Job.
- The Customer must notify Workyard of any cancellation of a booked Job in accordance with this clause.
- The Customer may cancel any booked Job in Workyard prior to the time that a Job is scheduled to commence without penalty or charge.
- Cancellations made with less than 48 hours notice will incur a Cancellation Fee equal to the Job Fee.
- The Company shall not be liable to the Customer in the event a Service Provider cancels or does not attend a Job.
- The Customer may use the rating system inside Workyard to rate and provide feedback on the Service Provider.
- The Service Provider may use the rating system inside Workyard to rate and provide feedback on the Customer.
- Each User agrees to provide accurate information and to not unreasonably give another User a low rating.
- The User agrees that the Company is not responsible for any rating posted by another User, and releases the Company from any liability associated with a rating posted in Workyard.
- The Company reserves the right to remove any rating it determines in its absolute discretion without penalty or liability, with or without notice or explanation to any User.
3 Fees, Payments & Refunds
3.1 The Service Provider shall pay the Company the Job Fee for winning a Job once Booked by a Customer. The Company will issue a Tax Invoice to the Service Provider for the Job Fee on or about the Start Date via Workyard and/or email.
3.2 The company reserves the right to charge a Cancellation Fee to a Customer that cancels a Job. The Company will issue a Tax Invoice to the Customer for a Cancellation Fee via Workyard and/or email.
3.3 All payments for Job Fees shall be made through Workyard’s online payment system (or as otherwise directed by the Company) within the timeframe stated in the Tax Invoice, which in default shall be 21 days from the date of the Tax Invoice.
3.4 Job Fees shall be charged in accordance with the rates advertised on Workyard from time-to- time (including on a Job Listing), or as otherwise agreed with the Company.
3.5 Unless stated otherwise Fees shall be exclusive of GST.
3.6 The Company reserves the right to charge a late fee of 1.5% of the value of the relevant Tax Invoice per month (or part thereof), compounding weekly, for any fees that remain unpaid after the due date stipulated in the Tax Invoice.
3.7 The Company may suspend or terminate a User account for any fees remain unpaid, in its discretion.
3.8 No Refunds of Job Fees are offered except as required by law.
4 Direct Contracting Between Customers And Service Providers
4.1 Without the written consent of the Company, the Service Provider shall not directly contract to provide services to a Customer outside of Workyard except in relation to an accepted Job. Where such a direct relationship is formed without the consent of the Company, the Service Provider agrees to pay the Company an amount equal to 5% of the total amount the Service Provider will receive from the Customer for providing services related to the Job (being the maximum default amount that would have applied had that project been arranged via Workyard as a Job).
4.2 The prohibition on direct contracting between Customers and Service Providers in 4.1shall apply to each Service Provider that contacts a Customer via Workyard regarding aJob, and shall expire 12 months from the date that the Job Listing was submitted to Workyard.
4.3 The Company will issue a Tax Invoice to the Service Provider for all such fees payable to the Company under clause 4.1.
5.1 The parties agree that the Service Provider is an independent contractor to the Customer. Each Service Provider and Customer is responsible to each other with respect to each Job. The parties acknowledge and agree that:
- The Service Provider is not an employee or subcontractor of the Company, and the Service Provider does not provide any services to Customers on behalf of the Company;
- The Company is only the Service Provider’s agent for the purpose of arranging Jobs;
- The Service Provider is not an employee of the Customer or the Company; and
- The Company is not an agent of the Customer.
6 General Conditions
- By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use Workyard for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
- The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
- The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User.
6.2 Modifications of Terms
- The terms of this Agreement may be updated by the Company from time-to- time.
- Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms (typically by the continued ongoing use of Workyard after a certain date, as specified in the notice) in order to continue using Workyard.
6.3 Use of Software
- The User agrees and accepts that Workyard is:
- Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
- Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to Workyard is available to the User unless expressly agreed in writing.
- As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Workyard.
6.4 Service and Support
- The Company provides user support for Workyard within Workyard or via the email address 'email@example.com
- The Company may also provide customer service and support via telephone.
- Where a User contacts the Company via phone, the User agrees that their call may be recorded for training purposes and in order to improve the quality of services that the Company offers.
- The Company shall endeavour to respond to all support requests within 2 Business Days.
6.5 Use and Availability
- The User agrees that it shall only use Workyard for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
- The User is solely responsible for the security of its username and password for access to Workyard. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Workyard account.
- The User agrees that the Company shall provide access to Workyard to the best of its abilities, however:
- Access to Workyard may be prevented by issues outside of its control; and
- It accepts no responsibility for ongoing access to Workyard.
- Security. The Company takes the security of Workyard and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
- Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
- Storage. Data that is stored by the Company shall be stored according to accepted industry standards.
- Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.
6.8 Intellectual Property
- Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
- Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Workyard.
- The Workyard Application. The User agrees and accepts that Workyard is the Intellectual Property of the Company and the User further warrants that by using Workyard the User will not:
- Copy Workyard or the services that it provides for the User’s own commercial purposes; and
- Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Workyard or any documentation associated with it.
- Content. All content submitted to the Company, whether via Workyard or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Workyard.
6.9 Disclaimer of Third Party Services & Information
- The User acknowledges that Workyard is dependent on third-party services, including but not limited to:
- Banks, credit card providers and merchant gateway providers;
- Telecommunications services;
- Hosting services;
- Email services; and
- Analytics services.
- The User agrees that the Company shall not be responsible or liable in any way for:
- Interruptions to the availability of Workyard due to third-party services; or
- Information contained on any linked third party website.
6.10 Liability & Indemnity
- The User agrees that it uses Workyard at its own risk.
- The User acknowledges that Workyard does not offer or perform Jobs on its own behalf.
- The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
- The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Workyard, including any breach by the User of the terms of this Agreement.
- In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Workyard, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
- Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
- The re-supply of services or payment of the cost of re-supply of services; or
- The replacement or repair of goods or payment of the cost of replacement or repair.
- Either party may terminate this Agreement by giving the other party written notice.
- Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination, and the rights and obligations under clauses 6.10, 6.12 and 6.13 survive termination of this Agreement.
6.12 Dispute Resolution
- If any dispute arises between the parties in connection with this Agreement (Dispute), mthen either party may notify the other of the Dispute with a notice (Dispute Notice) which:
- Includes or is accompanied by full and detailed particulars of the Dispute; and
- Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
- Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
- Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
- Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
- Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
6.13 Electronic Communication, Amendment & Assignment
- The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
- The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to- time.
- The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time- to-time. It is the User’s responsibility to update its contact details as they change.
- A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
- Notices must be sent to the parties’ most recent known contact details.
- The User may not assign or otherwise create an interest in this Agreement.
- The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
- Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
- Prevalence. To the extent this Agreement is in conflict with, or inconsistent with any Special Conditions made under this Agreement, the terms of those Special Conditions shall prevail.
- Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
- Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
- Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
- Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
- Governing Law. This Agreement is governed by the laws of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.