Partner Terms and Conditions

Last updated: 01-Jul-2023

1. Definitions

In this Agreement, the following terms shall have the following meanings:

"Business Day" a day other than a Saturday, Sunday or public holiday in Australia when banks in Sydney are open for business.

"Commissions" means, in respect of each Job, agreed per cent. of the applicable Invoiced Amount, subject to any changes as notified by the Company to the Partner from time to time.

"Customers” means the individual or individuals who are the recipients or intended recipients of the trade services offered through the Platform, and to whom the Platform has introduced the Partner.

"Invoiced Amount”means the total revenue generated by a Job on the Platform.

"Job” means each trade service offered and accepted through the Platform, following a Job Acceptance, as confirmed through an email, SMS, or push notification from the Platform.

"Job Acceptance” means the confirmation by a Customer through the Platform communicating its acceptance of the Quote for a Job.

"Job Category” means the type, category, division, and/or specification of trade services which are proposed to be assigned to the Partner from time to time (for example, ‘plumbing’ or ‘gardening’) as notified by the Partner to the Company through the Platform from time to time.

"Normal Business Hours" means 8.00 am to 6.00 pm Sydney time, each Business Day.

"Order Terms" means any details, scope, specification, location, date and times for the applicable Job as agreed between the Partner and the CustomerPartnerPartner, substantially incorporating relevant industry standard terms (for example, the HIA Domestic Building Agreement) as the Company in its discretion deems suitable for the JobPartner.

"Payment Date"means, for Commissions accrued in each calendar month, the 1st day of the following calendar month.

"Platform" means the trades matching platform provided by the Company via localfox.com.au or via Local Fox mobile applications published on the Apple Store and/or the Google Play Store.

"Quote” means a final offer for a Job as submitted by a Partner through the Platform, detailing the proposed Invoiced Amount for the applicable Job.

"Service" means

the provision of access to the Platform (and the use of the functionalities and features thereon in relation to the advertisements, matching, requests and offers for Jobs) to the Partner;
the use of commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
1. planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am Sydney time; and
2. unscheduled maintenance performed outside normal business hours, provided that the Company has used reasonable endeavours to give the Partner at least 6 Normal Business Hours notice in advance;
the provision to the Partner of the Company's standard customer-support services during Normal Business Hours in accordance with the Company's policies in effect at the time that the Services are provided (for the avoidance of doubt, the Company may amend the policies in its sole and absolute discretion from time to time);
the issuance of invoices on behalf of the Partner to Customers as requested by the Partner in respect of a completed Job, and to receive payments of the Invoiced Amount; and
the taking of any action as the Partner may from time to time request to seek to collect the debts owing to the Partner by Customers.

"Termination Date" means the date specified on a validly served Termination Notice.

"Termination Notice" means a written notice delivered by either Party (whether in physical or electronic form) expressing the intent to terminate the Agreement between the Parties in accordance with clause 5 (Cancellation and Termination) hereto.

"Undertaking" means

the provision of accurate information on the Platform, including, for the avoidance of doubt, the Job Category most suited to the Partner's skills and expertise and any experience, certification, and/or licences the Partner holds relevant to such Job Category;
where the Company has introduced a prospective Customer to the Partner, the careful and reasonable consideration as to whether such Partner has the requisite skills, experience, or expertise to perform the proposed trade services before accepting such proposal;
where the Partner has accepted a proposal and is assigned the trade services, the punctual, professional, reasonable and good faith discussions with the prospective Customer on the proposed fees, times, locations and terms on which a Job is to be provided (including the attendance of the Customer's premises where necessary), and the submission of a Quote and other Job details through the Platform reflecting the outcome of such discussions;
the punctual attendance of the Jobs at the times and locations specified in the applicable Order Terms;
the performance of each Job in accordance with the specifications and requirements in the applicable Order Terms;
the use of all reasonable endeavours to accommodate any changes to the specifications and requirements to each Job as requested by Customers from time to time;
the performance of each Job with the requisite skill and standard of care prevailing in the industry, including (but not limited to) by taking adequate measures to protect the Customers’ safety;
the adherence to instructions and standards of safety as required by relevant industry bodies or trade associations, and refraining from engaging in high-risk actions, or actions otherwise contrary to the ordinary course of the Jobs (the "Safety Standards”);
the use of best endeavours to procure the adherence of Customers to the Safety Standards;
the compliance with any applicable laws that apply to the performance of the Jobs and the use of the Platform, including any consumer protection laws, employment laws and industrial relations laws that are relevant to the Partner;
the upholding of professional standards, courtesy, and respect for the safety, dignity, and rights of the Company, the Customers and potential Customers during any use of the Platform or the performance of the Job;
the submission of a request for an invoice (or the creation of a new request for an invoice) to be generated for completed Jobs through the Platform promptly following their completion;
the confirmation to the Company, through the Platform, that a Job is complete when it is complete; and
the cooperation with the Company as the need arises and the provision of any information relevant to the Jobs as required by the Company from time to time.

2. Services and undertakings

From the Effective Date until the Termination Date, the Company shall perform the Services subject to the terms of this Agreement.
From the Effective Date until the Termination Date, in consideration for the Company's performance of the Services, the Partner shall perform and provide the Undertakings and shall perform such other duties and tasks, or changes to the Undertakings, as may be agreed upon by the Parties from time to time.
The Partner authorises the Company to perform each Service (including, for the avoidance of doubt, to issue invoices and take debt recovery actions on the Partner's behalf).
The Partner undertakes to effect or maintain public liability insurance arranged by a reputable insurance company against risks usually covered by a comprehensive public liability insurance policy and to an amount not less than AUD 10 million.
The Partner undertakes not to provide any services to Customers, or potential Customers which have been introduced to the Partner by the Company, except pursuant to a Job booked through the Platform.
The Partner undertakes not to request or receive any payments from Customers in any manner except by appointing the Company as its payment collection agent in accordance with this Agreement.

3. Compensation

In relation to each completed Job, the Partner shall pay to the Company the Commissions, which shall become due to the Company at the completion of such Job.
Following the receipt of an Invoiced Amount from the Customer, the Company shall transfer to the Partner a sum equal to the Invoiced Amount, net of the Commissions, applicable ad valorem taxes (such as the GST) and any other deductions required by law on the following Payment Date.
The Company shall be responsible for calculating the Commissions and any sums payable to the Partner and shall do so in good faith.

4. Expenses

All costs and expenses incurred by the Partner in connection with the performance of the Undertakings shall be the sole responsibility of and paid by the Partner.

5. Cancellation and Termination

The Company's engagement with the Partner under the Agreement shall commence on the Effective Date. The Parties agree and acknowledge that the Company's obligations under the Agreement shall terminate on the Termination Date.
Either Party shall have the right to terminate the Agreement unilaterally by serving the other a Termination Notice no later than 30 calendar days before the Termination Date.
In the event the Partner breaches (or expresses its intention to breach) any of the terms, representations and/or warranties under the Agreement (including, for the avoidance of doubt, its obligations to attend any confirmed Jobs and its obligations under clauses 2(e) and 2(f)), the Company reserves the right to terminate the Agreement by serving a Termination Notice immediately. Under such circumstances, the Company reserves the right to retain any and all Invoiced Amounts for its own account.
The representations, warranties, and indemnities in this Agreement shall continue in full force and effect after the Termination Date.

6. Capacity

The Parties agree and acknowledge that each of the Partner and each employee, officer, manager, agent and adviser thereof (together, the ‘Independent Persons’) is an independent person and is not, for any purpose, an employee of the Company. None of the Independent Persons shall have any authority to enter into agreements or contracts on behalf of the Company and shall not represent that it possesses any such authority. The Independent Persons shall not be entitled to any of the Company's benefits, including, but not limited to, coverage under medical, dental, retirement or other plans. The Company shall not be obligated to pay worker's compensation insurance, unemployment compensation, social security tax, withholding tax or other taxes or withholdings for or on behalf of the Independent Persons in connection with the performance of the Undertakings under the Agreement. Nothing contained in the Agreement shall be deemed or construed by the Parties to create the relationship of a partnership, a joint venture or any other fiduciary relationship.
This agreement shall not prevent the Company from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
The Partner has no authority to enter into agreements or contracts on behalf of the Company and shall not represent that it possesses such authority.

7. Ownership

The Partner acknowledges and agrees that the Company (or its licensors) own all intellectual property rights in the Services and the Platform. Except as expressly stated herein, this agreement does not grant the Partner any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Platform.

8. Delegation

The obligations of the Partner under this Agreement are personal to the Partner and the Partner may not sub-contract or delegate the performance of any of the Undertakings to any other party.

9. Representations and Warranties.

Each Party represents and warrants that it has full power, authority and right to transact under the Agreement, has full power and authority to perform its obligations under the Agreement, and has taken all necessary action to authorise the transaction under the Agreement. No other consents are necessary to enter into or perform obligations under the Agreement.
The Partner represents and warrants that it has the requisite capacity, knowledge, experience, and ability to perform the Undertakings at the level of skill and care required under this Agreement.
The Partner represents and warrants that it has all necessary authorisations, consents, approvals, resolutions, licences, exemptions, filings or registrations for the performance of Jobs falling within the Job Category.
The Partner represents and warrants that it has all the rights in relation to any media or material it uploads onto the Platform or uses pursuant to any Jobs.

10. Liability and Indemnification.

The Parties shall indemnify and hold harmless each other from any damages, claims, liabilities, loss and expenses, including reasonable attorney’s fees, arising out of any act or omission of the Party in breach of the Agreement (including, for the avoidance of doubt, its respective representations and warranties).
Where the Partner provides any material to the Company, it shall fully indemnify and hold the Business harmless against all loss or liability arising from any third party intellectual property rights claims arising both from such material.
The Partner shall defend, indemnify and hold harmless the Company against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Partner's use of the Services, the Jobs, or any Undertaking which it performs, provided that:
1. the Partner is given prompt notice of any such claim;
2. the Company provides reasonable co-operation to the Partner in the defence and settlement of such claim, at the Partner's expense; and
3. the Partner is given sole authority to defend or settle the claim.
Except as expressly and specifically provided in this agreement:
1. the Partner assumes sole responsibility for results obtained from the use of the Services and the Platform by the Partner, and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Partner in connection with the Services, or any actions taken by the Company at the Partner's direction;
2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
3. the Services and the Platform are provided to the Partner on an "as is" basis.
The Partner assumes sole responsibility for any non-conformance which is caused by use of the Services or the Platform contrary to the Company's instructions, or modification or alteration of the Services or the Platform by any party other than the Company or the Company's duly authorised contractors or agents.
The Partner acknowledges that the Services may enable or assist it to communicate and transact with third parties (i.e. the Customers) and that it does so solely at its own risk. The Company makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the performance of any terms or the validity of any representations concerning the contractual relationship between the Partner and such third parties. Each Customer is fully liable for any contracts agreed between the Customer and the Partner.
The Partner acknowledges that it is solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Company's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Partner's network connections or telecommunications links or caused by the internet.
The Company does not warrant that:
1. the Customer's use of the Services will be uninterrupted or error-free;
2. that the Services and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
3. the Platform will be free from vulnerabilities.
The Company is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
Any liability of the Company arising under the Agreement shall be limited to the aggregate amount of the Commissions.
Notwithstanding anything to the contrary elsewhere in the Agreement, under no circumstances will the Company be liable to the Partner for any consequential loss (being loss of business, goodwill, opportunity or profit), even if advised of the possibility of such consequential loss.

11. Governing Law

The Agreement and the rights of the Parties hereto shall be governed exclusively by the laws of New South Wales.

12. Disputes

Any dispute arising from the Agreement shall be resolved through mediation. If the dispute cannot be resolved through mediation, then, at the Company's discretion, the dispute can be resolved through binding arbitration conducted in accordance with the rules of a reputable arbitral court at the Company's choosing.

13. Binding Effect

The Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

14. Assignment

The respective rights of each Party under the Agreement cannot be assigned, transferred or sold without the prior written consent of the other Party.

15. Entire Agreement.

The Agreement constitutes the entire agreement between the Parties hereto with respect the subject matter hereof, and supersedes all prior negotiations, understandings and agreements of the Parties.

16. Amendments

No supplement, modification or amendment of the Agreement will be binding unless agreed in writing by both of the Parties.

17. Notices

Any notice or other communication given or made to either Party under the Agreement shall be in writing and delivered by electronic mail or by hand, sent by overnight courier service or sent by certified or registered mail, return receipt requested, to the address as that Party may designate by notice, and shall be deemed given on the date of delivery.

18. Waiver

Neither Party shall be deemed to have waived any provision of the Agreement or the exercise of any rights held under the Agreement unless such waiver is made expressly and in writing. Waiver by either Party of a breach or violation of any provision of the Agreement shall not constitute a waiver of any subsequent or other breach or violation.

19. Further Assurance

If any provision of the Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in the Agreement.

20. Severability

21. Force Majeure

Neither Party shall be liable for any failure to perform under the Agreement when such failure is due to causes beyond that Party's reasonable control, including, but not limited to, acts of state or governmental authorities, any change of law, acts of terrorism, natural catastrophe, fire, storm, flood, earthquakes, accident, and prolonged shortage of energy. In the event of such disruption or delay, the date of delivery or time for completing the Services and the Undertakings will be extended by a period of time reasonably necessary by both Parties. If the disruption cannot be reasonably remedied by the Parties, or if the delay remains in effect for a period in excess of thirty days, the Company may terminate this Agreement immediately upon written notice to the Partner.

22. Confidentiality

The Partner shall not during the continuance of this Agreement or after its termination disclose to any person any information relating to the business, finances or other matters of a confidential nature of the Company or which it may have obtained as a result of its entry into this Agreement or otherwise.

23. Data Protection

a. Both Parties shall ensure that they, their employees, agents and sub-contractors shall observe the requirements of the Privacy Act 1988 and any other relevant and applicable data protection laws and any amendments or revisions thereto in the performance of the Services and the Undertakings (as applicable) and personal data processed under it and shall comply with any request made or direction given to the other which is directly due to the requirements of such Act.
b. The Partner shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all data relating to it.

24. Non-solicitation

The Partner understands and acknowledges that because of the Partner's experience with and relationship to the Company, the Partner will have access to and learn about the Company's Customer Information. "Customer Information" includes, but is not limited to, names, phone numbers, addresses, email addresses, job history, pricing information, and other information identifying facts and circumstances specific to the Customers and Prospective Customers.

The Partner understands and acknowledges that the loss of any such Customer relationship or goodwill will cause significant and irreparable harm to the Company.

The Partner agrees and covenants not to directly or indirectly solicit or contact, or attempt to solicit or contact, using any form of oral, written, or electronic communications, the Company's current, former, or prospective Customers with whom the Partner interacted/from or about whom the Partner received Customer Information for the purpose of soliciting trades services similar to or competitive with those offered through the Company for the Customers or any other individual or entity during the Partner's engagement with the Company under this Agreement and for 1 year immediately following the termination of this Agreement, regardless of the reason for the termination, unless such solicitation or contact is made pursuant to the Services provided by the Company.

Communications include, but are not limited to, email, regular mail, express mail, telephone, fax, instant message, or social media, including but not limited to Facebook, LinkedIn, Instagram, Twitter, TikTok, or any other social media platform, whether or not in existence at the time of entering into this agreement. However, it will not be deemed a violation of this Agreement if the Partner merely connects with a covered current, prospective, or former Customer on a social media platform without engaging in any other substantive communication, by social media or otherwise, that is prohibited by this section.