HOMYZE – Agreement for Pros
Effective Date: October 16th, 2018
1.1 We are HOMYZE Pty Ltd of Henley Cottage, 4 Victoria Road Gladesville 2111, provider of the HOMYZE service. Our ABN is ABN 78 625 751 420. We are referred to in these terms and conditions of use as “HOMYZE”. Any person registering as a provider of services on the HOMYZE service is referred to in these terms and conditions of use as “Pro”.
1.3 HOMYZE is a marketplace through which users insert details of work which they need doing, or request the services of trade professionals, and are introduced to Pros whose profiles appear to fit the task, based on their location, availability and other factors. HOMYZE acts as an agent for the Pro in promoting the Pro’s services and using a payment service provider to collect charges on behalf of the Pro. No contract exists between HOMYZE and the Pro, or HOMYZE and the Work Requester, for the fulfilment of any work, task or materials. HOMYZE is an intermediary for transactions and agreements between the Pro and the Work Requester. Apart from arranging the price, time and location of provision of the Work, all arrangements for the fulfilment of the Work are solely between the Pro and the Work Requester.
1.4 You should read these terms and conditions carefully before using the Service. In particular, you should be aware that:
1.4.1 Clause 5.11 contains a release from you to us in respect of any claims arising in respect of a contract with a Work Requester;
1.4.2 If you are a sole trader, you have the right to nominate a substitute under clause 6.10.
1.4.3 We may publish comments from Work Requesters in respect of your Work, or you or your staff under clause 13.7;
1.4.4 Clause 14 contains important limitations and exclusions of our liability to you.
1.5 If you do not agree with or accept any of these terms, you should stop using the Service immediately.
1.6 If you have any questions about the Service, please contact HOMYZE via email to firstname.lastname@example.org.
1.7 HOMYZE may revise the terms of the Agreement at any time by amending this page or the Code of Conduct at www.homyze.com/professionals/code. The Pro acknowledges that it is responsible for checking this page and the Code of Conduct from time to time to take notice of any changes made, as they are binding on the Pro from the date that they are made.
2.1 In this Agreement, unless otherwise provided:
1 Agreed Charges
means sums agreed and/or confirmed between a Pro and a Work Requester as being payable in respect of Work under a Contract, either pursuant to an Estimate (for Estimate Contracts) or as accepted by the Pro and the Work Requester by means of the Service (for On-Demand Contracts).
2 Bribery Laws
has the meaning set out in clause 10.
3 Australian Building Standards
the customary standards applied to construction work in Australia, and exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the construction sector.
4 Building Regulations
means any applicable statutory or regulatory requirements in respect of building works, including any statutory instruments made under the The Building Code of Australia and the Plumbing Code of Australia.
Up to 60% of Net Income, or such percentage of the Net Income for each Contract as the parties may agree by means of the Service, plus VAT as applicable. This amount may vary from time to time but the amount the Pro will be able to earn from Work Requests will be made available prior to their need to accept. Should the Pro have any questions on this, they should contact HOMYZE prior to accepting any Work Requests.
6 Confidential Information
has the meaning set out in clause 13.
a contract for the supply of Work entered into between the Pro and a Work Requester who was Introduced to the Pro by HOMYZE. Each Contract is either an On-Demand Contract or an Estimate Contract. The Contract will comprise the Agreed Charges, the time, location and nature of the Work, and any terms proposed by the Work Requester and communicated in any Introduction.
means an estimate for Work to be provided to the Work Requester by Pro, which the Work Requester shall be free to accept or reject.
9 Estimate Contract
means a Contract concluded by the Pro and the Work Requester on the basis of an Estimate provided by the Pro to the Work Requester by means of the Service
the provision to the Pro of the details of a Work Requester known to HOMYZE who may be interested in the Pro’s products and/or services, and details of the Work Requester’s requirement for Services. Introduce, Introduces and Introduced will be interpreted in accordance with Introduction.
11 Net Income
the charges made by the Pro (and received by means of the Payment Service Provider on the Pro’s behalf) for the Work under a Contract minus any Value Added Tax.
12 On-Demand Contract
means a Contract for Work to be provided at a rate accepted by the Pro by means of the Service, and does not include any Estimate Contract. On-Demand Contracts are either ‘Scheduled Contracts’, where an appointment is made with the Work Requester for some time in the future, or ‘Now Contracts’, where an appointment is made for the Work to be provided immediately.
13 Payment Service Provider
means Stripe, Inc. or such other person we notify to the Pro as having been appointed by HOMYZE to provide payment services to HOMYZE and the Pro for the purposes of processing payments from Work Requesters.
any information and materials provided to HOMYZE in connection with Pro’s registration for and use of the Service (including images, video, sounds and text) and any rights in the Pro’s likeness or image represented in that information or materials.
14 Work Requester Information
personal data of the Work Requester disclosed by the Work Requester by means of the Service in requesting the Work, and in the course of the Contract.
15 Work Requester
a person in the United Kingdom whose contact information, and information relating to their home improvement or home maintenance project, is provided by HOMYZE to the Pro.
all goods and services provided by the Pro to any Work Requester following any Introduction.
17 Working Day
8am to 5pm Monday – Friday excluding public holidays in Australia
3. The Service
3.1 The Pro appoints HOMYZE on a non-exclusive basis to find Work Requesters for the Pro in Australia and to make Introductions on the terms of this Agreement and HOMYZE accepts such appointment.
3.2 HOMYZE will use reasonable endeavours to make Introductions to the extent it considers in its absolute discretion to be appropriate to refer to the Pro. Pro acknowledges that other tradespeople who have also registered with the Service will likely also be notified of the same Work Requester and their requirements. HOMYZE shall be entitled to make Introductions in the United Kingdom on behalf of any of the Pro’s competitors.
3.3 HOMYZE may perform its duties as it sees fit, subject to this Agreement.
3.4 HOMYZE will have no authority and shall not hold itself out as being authorised to bind the Pro in any way except for the purposes of billing Work Requesters on the Pro's behald (see Clause 4 below). It shall not carry out any act that might reasonably create an impression that the Pro has authorised HOMYZE to bind the Pro in any way.
3.5 Before making any Introduction, HOMYZE has agreed with Work Requesters in its terms and conditions that it is not responsible for delivery of the Work and has no authority or ability to negotiate or vary the terms of any agreement or Contract once entered into on behalf of the Pro. Where terms need to be amended by either the Work Requester or the Pro, these must be effected via the HOMYZE platform.
3.6 The Pro agrees that HOMYZE shall be entitled to use the Pro’s name, trade marks or logo on any marketing material created for marketing HOMYZE’s services without first obtaining the Pro’s written approval.
3.7 HOMYZE is under no obligation to provide any Introductions to the Pro. The Pro is under no obligation to accept any Introduction.
3.8 Introductions are made at the same time to the Pro and to other tradespeople with a similar geographical area of activity and who claim relevant skills in respect of the Work requested. The first Pro to accept the Introduction by means of the Service will be connected with the Work Requester for the purposes of carrying out the Work. HOMYZE reserves the right to introduce Work Requesters to the Pro by other means as appropriate.
3.9 It may be possible to register with the Service using login information from a third party social network service. These may include Facebook, LinkedIn, Google and Twitter. If the Pro uses such social networking services to register, in doing so the Pro warrants that it is entitled to disclose to HOMYZE its login information for the social network service without breach of the terms and conditions of the service. By granting HOMYZE access to its social networking service account the Pro acknowledges that the Service will access certain information and may store and use this information.
3.10 A Contract is formed by HOMYZE notifying the Work Requester that the Pro has accepted a Work Request.
3.11 The Pro acknowledges that under applicable consumer laws Work Requesters who are consumers shall have the right to cancel Contracts, apart from Contracts for urgent repairs or maintenance. The Pro will accept any such cancellation.
3.12 Appointments made to provide an Estimate may be cancelled at any time.
3.13 Where a Now Contract is cancelled by a Work Requester within 5 minutes from the Work Requester being notified that the Pro has accepted the Contract, a Work Requester may cancel and receive a full refund of the agreed charges. In such event, the Pro acknowledges that it will not be entitled to any sums in respect of the cancelled Contract
3.14 Where a Now Contract is cancelled by a Work Requester after 5 minutes from the Work Requester being notified that the Pro has accepted the Contract, HOMYZE may require Work Requesters to pay the sum of a minimum one hour’s Agreed Charges as a sum representing the work done by the Pro in anticipation of attending the Work Requester’s premises. Once HOMYZE has received this payment, it will be passed on to the Pro, minus Commission.
3.15 Where a Scheduled Contract is cancelled by a Work Requester in excess of 24 hours before the scheduled time for the Work, a Work Requester may cancel and receive a full refund of the agreed charges. In such event, the Pro acknowledges that it will not be entitled to any sums in respect of the cancelled Contract.
3.16 Where a Scheduled Contract is cancelled by a Work Requester less than 24 hours before the scheduled time for the Work, HOMYZE may require Work Requesters to pay the sum of a minimum one hour’s Agreed Charges as a sum representing the work done by the Pro in anticipation of attending the Work Requester’s premises. Once HOMYZE has received this payment, it will be passed on to the Pro, minus Commission.
3.17 If The Pro arrives at the job location for an On-Demand Contract and is unable to contact the Work Requester or gain access to the job location the Pro will message and attempt to contact the Work Requester for 15 minutes. HOMYZE may retain the minimum fee of one hour’s Agreed Charges from the Work Requester and the Contract will be deemed to be terminated.
3.18 Unless otherwise agreed by HOMYZE in advance in writing, the charges agreed to by Pro in respect of any On-Demand Contract or Estimate Contract for all Work are exclusive of any GST, customs duty, excise tax or other tax that the Pro may be required to remit in connection with the Work or the Contract.
3.19 If a Pro considers that a Work Requester has acted in an inappropriate way towards them, including in a manner the Pro considers to be offensive, violent or sexually inappropriate the Pro should immediately make a report to the appropriate authorities and then to HOMYZE at email@example.com quoting the police report number and location. The Pro’s report may cause HOMYZE to investigate such behaviour but HOMYZE shall not be obligated to take action beyond that which is required by law, and will not be obliged to incur any additional liability or expense in doing so.
4. Payment and commission
4.1 The Agreed Charges for On-Demand Contracts shall be the sums agreed by means of the Service when the Pro accepts an Introduction. For Estimate Contracts, the Agreed Charges shall be as specified in any resulting Estimate.
4.2 HOMYZE will take the Commission from any Agreed Charges received if a Work Requester Introduced by HOMYZE enters into a Contract with the Pro and pays for the Work. Work must be paid for only by means of the Payment Service Provider. The Pro acknowledges and agrees its obligation to account to HOMYZE for the associated Commission, and that Pro is responsible for payment of any GST, duties and taxes in relation to any sums received by the Pro.
4.3 The Pro shall also keep detailed records in relation to its Contracts, including all expenses and other sums used to calculate the Agreed Charges, and shall provide copies to HOMYZE on request.
4.4 HOMYZE will send an email to the Pro confirming the Work performed, the Agreed Charges, the Commission, and any GST payable.
4.5 HOMYZE will instruct the Payment Service Provider to pay the Pro the Agreed Charges less the Commission or ensure that the Pro is paid by an appropriate means.
4.6 There may be occasions where HOMYZE feels it is appropriate to deduct some amount of the Agreed Charges as a result of, for example, damage to the Work Requester’s property or potentially or otherwise, the reputation of HOMYZE as a result of lateness, rudeness or these or any other such other action by the Pro as may be liable to reflect poorly on HOMYZE as Introducer. This is done solely at the HOMYZE’ discretion but details of this will be provided to the Pro at their request or sooner.
4.7 Each party must pay all sums which it owes to the other party under this Agreement free and clear without any set-off, counterclaim, deduction or withholding of any kind save as may be required by law save for as as specified in Clause 4.6 above.
4.8 Termination of this Agreement, however arising, shall not affect the Pro’s obligation to pay Commission under this Agreement.
4.9 HOMYZE may use the Payment Service Provider to facilitate payment card processing. HOMYZE requires that the Payment Services Provider complies with applicable financial services regulations, but will not be responsible for any acts or omissions of the Payment Service Provider. The Pro’s relationship with Stripe is separate from its relationship with HOMYZE and is governed by Stripe’s terms of service. As a condition of using the Service, the Pro must sign up for an account with Stripe and agree to abide by Stripe’s Terms of Service located at https://stripe.com/legal. The Pro must review those terms carefully and make sure it understands and agree to them.
4.10 The Pro shall not accept payment in respect of a Contract by any means other than through the Service.
4.11 The Pro shall be responsible for accounting for any GST arising under the Contract.
4.12 Payment terms for Estimated Contracts are subject to the terms of the agreed contract between the Work Requester and the Pro, but Pro shall require the Work Requester to pay all outstanding sums under the Estimated Contract within 5 days of the completion of the Work under the Estimated Contract. This payment will be facilitated by HOMYZE in conjunction with the Payment Services Provider and will be done on a strictly ‘best efforts’ basis. Any payments that fall outside of this timescale will not be a basis for any claims by the Pro against HOMYZE or the Work Requester. It may be necessary for HOMYZE to contact the client to ensure the work was all done satisfactorily and that, for example, no deductions may be required. HOMYZE will endeavour to do so as expediently as possible but in doing so may be unable to meet the deadlines above.
4.13 No Agreed Charges will be paid to the Pro unless the Work Requester indicates to HOMYZE that the job has been satisfactorily completed.
5. The Pro’s obligations
5.1 The Pro must act with good faith towards HOMYZE.
5.2 The Pro must immediately notify HOMYZE if it stops supplying the Work, whether temporarily or permanently.
5.3 The Pro is under no obligation to accept an Introduction made by HOMYZE or to enter into a Contract.
5.4 The Pro shall provide HOMYZE with any relevant information that HOMYZE reasonably needs to fulfil its obligations under this Agreement.
5.5 The Pro warrants and undertakes that all information provided by it to HOMYZE (including any information or documents provided as part of the registration process) is honest, accurate, genuine and complete. The Pro will promptly update such information as necessary to ensure it at all times remains honest, accurate, genuine and complete.
5.6 The Pro will not cover any costs incurred by HOMYZE in carrying out its obligations under this Agreement including in relation to any Contract.
5.7 At all times in relation to the Service, the Pro shall abide by all applicable laws and regulation and the HOMYZE Code of Conduct. www.homyze.com/professionals/code
5.8 During this Agreement, the Pro agrees not to accept or solicit for jobs from Work Requesters in respect of whom the Pro has previously received an Introduction. HOMYZE reserves the right to terminate this Agreement and Pro’s access to the Service in the event that the Pro enters into, or attempts to enter into any arrangement contrary to this clause 5.8 and may seek to recover such damages that HOMYZE deems appropriate from the Pro including by reducing payments made by Work Requesters to the Pro for any jobs completed by the Pro.
5.9 The Pro will not allow or permit its authentication details for the Service to be used by any other person
5.10 The Pro will keep confidential any password or other authentication for its use of the Services, and shall notify HOMYZE immediately on suspicion that any other person has obtained access to it. The Pro is solely and fully responsible for all activities that occur under its account for the Services, even if such activities are not authorised by the Pro.
5.11 Because HOMYZE is not involved in transactions between Work Requesters and Pros, if a dispute arises between Work Requester and Pro, the Pro releases HOMYZE (and its agents and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
5.12 In facilitating introductions and arranging for works to be undertaken by the Pro, it is necessary to provide Work Requester Information such as names, addresses and telephone numbers to the Pro. The Pro agrees not to store, copy or transmit this information for any reason whatsoever not related to performing the works arranged through HOMYZE. For the sake of clarification, this includes contacting the Work Requester for the purposes of marketing (see 5.13.2); regarding payment or any deductions from the payment; with respect to the quality of works undertaken by the Pro; or any other reason. As soon as is reasonably practicable, the Pro should remove the Work Requester's information from any means of storage so as to comply with any applicable laws, rules and regulations. Failure to do this or adhere to the requirements specified above in this clause may render the Pro liable to HOMYZE for the value of works done be the Pro or the relevant damages that could be sought by the Work Requester for misuse of this information, whichever is greater.
5.13 The Pro will not directly or indirectly:
5.13.1 disclose or convey any Work Requester Information except as necessary for it to perform its obligations under the Contract and provided that Pro ensures that every recipient uses the information only for that purpose;
5.13.2 use any Work Requester Information for any marketing or promotional purposes whatsoever, or in any way inconsistent with applicable law (including the Data Protection Act 1998).
5.14 The Pro warrants and undertakes that it is lawfully resident in the United Kingdom and is entitled to provide services to Work Requesters in the United Kingdom.
5.15 The Pro shall not:
5.15.1 have any authority to incur any expenditure in the name of or for the account of HOMYZE;
5.15.2 hold itself out as having authority to bind HOMYZE;
5.15.3 include in any Work or promotional materials any logo, trade mark or brand of HOMYZE; or
5.15.4 represent itself as an employee of HOMYZE or of any Work Requester.
5.16 The Pro shall be responsible for the supply and maintenance of all equipment and facilities needed by it to carry out the Services.
5.17 The Pro shall ensure that the Work fully complies with each requirement of the Contract, and is of a standard consistent with the skills and experience which the Pro has specified to HOMYZE when registering to be a Pro, for example through the HOMYZE “Code of Conduct”.
5.18 The Pro shall ensure that the Work fully complies with The Building Code of Australia and the Plumbing Code of Australia (as appropriate).
5.19 The Pro shall promptly correct within 5 Working Days any Work which HOMYZE or the Work Requester reasonably deem incorrect, incomplete, unsatisfactory, or not in accordance with the Contract.
5.20 The Pro agrees to advise and assist HOMYZE with respect to all aspects of the Services and comply with the reasonable requests of HOMYZE with respect to the performance of the Services.
5.21 In the event that in respect of a potential Estimate Contract, the Pro reasonably estimates that the Work will take more than 2.5 (two and a half) hours, the Pro will provide an estimate of time and costs for the Work to HOMYZE. HOMYZE will then decide whether to Introduce the Pro in respect of the Work for which that estimate is given, or to Introduce another tradesperson using the Service. In the event that the Pro is Introduced in respect of the Work, HOMYZE may pay to the Pro up to 10% of any Commission in respect of the Work. In the event that another tradesperson is Introduced in respect of the Work, HOMYZE may pay to the Pro up to 5% of any Commission in respect of the Work. The Pro shall not refer to any person other than HOMYZE any Work in respect of which it has been Introduced.
6. The Pro’s Status
6.1 The Pro acknowledges and agrees that the relationship between Pro and HOMYZE is that of independent contracting parties. The Pro is not a worker or employee of HOMYZE. The Pro does not have authority to enter into written or oral contracts on behalf of HOMYZE, of either an implied or express nature.
6.2 Except for the general requirements set out in the Code of Conduct applicable to all Pros, HOMYZE shall not, and shall not be entitled to direct, control or oversee a Pro’s work or require that it be performed in any particular manner. HOMYZE does not control a Pro’s manner of carrying out the Work, work hours, or length of time to complete the Contract. Where guidance as to the Work’s duration and Charges has been provided by HOMYZE to the Work Requester, this will also be provided to the Pro.
6.3 The Service is not an employment agency or employment business.
6.4 HOMYZE acknowledges that the Pro is providing the Services as part of its own business, and that the Pro shall be entitled to:
6.4.1 accept or reject any Contract and any rates applicable to it;
6.4.2 for Estimate Contracts, set its own hourly rate or standard charge, by means of the Service;
6.4.3 provide the Services at times of day convenient for it, providing that such times of day do not hinder the efficient provision of the Services;
6.4.4 organise its schedule of Contracts as it sees fit, provided that it meets the timetables agreed with Work Requesters in respect of any On-Demand Contracts; and
6.4.5 use any materials, equipment or tools selected by it which it is lawfully entitled to use and which are suitable for performance of the Services.
6.5 The Pro is solely responsible for providing any necessary equipment, materials and expertise necessary to meet its obligations under the Contract.
6.6 Subject to clause 5.8 above, nothing in these Terms shall prevent the Pro from being engaged, concerned or having any financial interest in any capacity in any other business, trade, profession or occupation during or after this Agreement.
6.7 HOMYZE will not be liable for any tax or withholding, including but not limited to National Insurance, employer’s liability, social security, PAYE or other payroll withholding tax in connection with a Work Requester’s use of a Pro’s services. Work Requester agrees to indemnify HOMYZE and its affiliates from any and all claims, liabilities and reasonable costs arising from or in connection with:
6.7.1 a Pro being classified by the Australian Tax Office (or any other government body) as a worker or employee;
6.7.2 any other relevant third-party claims under any employment-related laws, such as those relating to wrongful or unfair dismissal, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday pay, retirement benefits, or any other employee benefits.
6.8 The Pro alone is responsible for accepting or rejecting the level of Agreed Charges applicable to On-Demand Contracts and may vary at its discretion the rates quoted by it in respect of any Estimate.
6.9 The Pro agrees that it is responsible for its own accounting and tax affairs and that it will indemnify and hold HOMYZE entirely harmless from any claims from the Australian Tax Office or any other body in respect of any tax or monies payable in respect of any Contract.
6.10 If the Pro is a sole trader may, he/she may with the prior written approval of HOMYZE and subject to the following proviso, appoint a suitably qualified and skilled substitute to perform the Services on its behalf. To ensure maintenance of standards for the benefit of the Work Requester, the substitute must be subject to the same review and due diligence processes as applicable to the Pro on registering for the Service. The Pro shall continue to be the recipient of any payments from HOMYZE in accordance with this Agreement and shall be responsible for any payment due to the substitute. For the avoidance of doubt, the Pro will continue to be subject to all duties and obligations under these Terms for the duration of the appointment of the substitute.
7. Pro’s Content
7.1 You hereby grant HOMYZE a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully sub-licensable right to use and reproduce the Pro’s Content in any media.
7.2 The Pro warrants that the Pro’s Content will not:
7.2.1 infringe any third party’s copyright, trade mark, or other intellectual property rights. trademark, trade secret or other intellectual property right;
7.2.2 Infringe any third party’s rights of publicity or privacy;
7.2.3 will not be obscene or offensive or inappropriate to the nature of the Service;
7.2.4 will not contain any viruses or other malware.
7.3 The Pro must contain in its profile visible to Work Requesters the following information:
7.3.1 If the Pro is a limited company, the name, trading address, registered office and company number of the company;
7.3.2 If the Pro is registered for GST, its GST information.
8.1 The Pro shall keep HOMYZE indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered incurred by HOMYZE as a result of or in connection with:
8.1.1 any claim made against HOMYZE in respect of the Work or the Pro’s Content or any related matter, or any breach by Pro of its obligations under data protection legislation in respect of Work Requesters’ personal data (as defined in the Privacy Act and Privacy Law) ;
8.1.2 any claim made against HOMYZE by a third party for death, personal injury or damage to property arising out of, or in connection with the Work (except to the extent that the same is caused by to the negligence or wilful default of HOMYZE); and
8.1.3 any claim made against HOMYZE by a third party arising out of or in connection with the supply of the Work, whether or not such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Pro, its employees, agents or subcontractors.
8.2 This clause 8 shall survive termination of this Agreement.
9.1 During the term of this Agreement and for a period of 6 years thereafter, The Pro shall maintain in force (i) full and comprehensive public liability and employer’s liability insurance policies with a reputable insurer with a per incident cover of not less than $5,000,000 per claim; and (ii) if the Work includes any design element, a full and comprehensive professional indemnity insurance policy with a reputable insurer with a per incident cover of not less than $10,000,000. The Pro shall supply to HOMYZE copies of such insurance policies and evidence that the relevant premiums have been paid, as a condition of using the Service.
10. Anti-bribery compliance
10.1 In this clause 10, “Bribery Laws” means the Bribery Act 2010 and all other applicable UK legislation, regulations and codes in relation to bribery or corruption.
10.2 Each party shall comply with applicable Bribery Laws, including ensuring that it has in place adequate procedures to ensure compliance with the Bribery Laws and shall ensure that:
10.2.1 all of that party’s personnel
10.2.2 all others associated with that party, and
10.2.3 involved in performing this Agreement so comply. The expressions 'adequate procedures' and 'associated' shall be construed in accordance with the Anti-Bribery Laws in Australia.
10.3 Without limitation to the above sub-clause, neither party shall make or receive any bribe (as defined in the Anti-Bribery Laws) or other improper payment, or allow any such to be made or received on its behalf, either in Australia or elsewhere, and will implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
11. Commencement and term of agreement
11.1 This Agreement shall commence on the date on which the Pro registers for the Service, and shall continue until terminated in accordance with clause 12.
12.1 This Agreement can be terminated by either party at any time as follows:
12.1.1 In the event that Pro is terminating, with one week’s prior written notice;
12.1.2 In the event that HOMYZE is terminating, immediately on written notice.
12.2 This Agreement may be terminated forthwith at any time by either party on written notice to the other if:
12.2.1 the other commits a material breach, or series of breaches resulting in a material breach, of this Agreement;
12.2.2 the other: (i) suspends or threatens to suspend payment of its debts, (ii) is unable to pay its debts as they fall due or (iii) is unable to pay his/her/its debts within the meaning of Australian Insolvency Law
12.2.3 the other: (i) negotiates with its creditors for rescheduling of its debts, (ii) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction or (iii) makes an application to court for protection from its creditors generally
12.2.4 the other passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator is appointed in relation to the other, or a winding-up order is made in relation to the other, other than solely by way of solvent amalgamation or reconstruction
12.2.5 a receiver or administrative receiver may be or is appointed in relation to the other or any of its assets
12.2.6 any creditor of the other attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the other's assets, and such attachment or process is not discharged within 14 days
12.2.7 the other takes or suffers any action similar to any of the above in any jurisdiction
12.2.8 there is a material change in the management, ownership or control of the other
12.2.9 the other suspends trading, ceases to carry on business, or threatens to do either
12.2.10 the other (being an individual) dies or ceases to be capable of managing his own affairs
12.2.11 the other is subject to an event of Force Majeure under clause 15; or
12.2.12 the other fails to make any payment due under this Agreement by the due date for payment
13.1 Neither party will, without the other’s prior written consent, disclose (other than under clause 13.3):
13.1.1 any information relating to the customers, products, plans or otherwise to the business or affairs of the other party which is obviously confidential or has been identified by the other party as such, or
13.1.2 any information developed by either party in performing its obligations under, or otherwise pursuant to this Agreement, all such matters together Confidential Information.
13.2 Neither party will use the other's Confidential Information except as required to perform this Agreement.
13.3 Disclosure of Confidential Information may be made to a party's officers, employees, professional advisers and consultants and other agents, in each case on condition that the party disclosing is responsible for compliance with the obligations of confidence under this Agreement.
13.4 Confidential Information does not include information which:
13.4.1 is or becomes public other than by breach of this Agreement;
13.4.2 was before this Agreement, or becomes known to the other party without breach of confidence;
13.4.3 is independently developed by the other party without using information supplied by the first party, or
13.4.4 is required to be disclosed by law or regulatory authority.
13.5 A reasonable number of copies of Confidential Information may be made and used for the purposes of this Agreement and subject to this clause 13.
13.6 This clause will remain in force for a period of 2 years from termination of this Agreement.
13.7 Nothing in this clause 13 shall prevent HOMYZE from reproducing any comments or feedback from Work Requesters in relation to any Contract, the Pro or the Work done under any Contract. Such comments or feedback may identify the Pro or a member of its staff personally.
14. IMPORTANT – Limitation of Liability
14.1 Nothing in these Terms shall limit or exclude HOMYZE’s liability for:
14.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
14.1.2 fraud or fraudulent misrepresentation; or
14.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
14.2 Subject to clause 14.1:
14.2.1 HOMYZE shall under no circumstances whatever be liable to the Pro, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Service; and
14.2.2 our total liability to the Pro in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the Commission paid to HOMYZE by the Pro.
15. Force Majeure
15.1 Force Majeure means an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations hereunder. Inability to pay is not Force Majeure.
15.2 A party will not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
15.2.1 promptly notifies the other of the Force Majeure event and its expected duration, and
15.2.2 uses reasonable endeavours to minimise the effects of that event.
15.3 If, due to Force Majeure, a party:
15.3.1 is or will be unable to perform a material obligation, or
15.3.2 is delayed in or prevented from performing its obligations for a continuous period exceeding 30 days
the other party may, within 30 days, terminate this Agreement on immediate notice.
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other.
HOMYZE may amend these terms from time to time. The Pro should check these terms regularly to ensure understanding of the terms which will apply at any time. The changes will be binding on HOMYZE and the Pro from the date on which they are posted to the HOMYZE website or as notified to the Pro.
The unenforceability of any part of this Agreement will not affect the enforceability of any other part.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
16.5 Rights of Third Parties
This Agreement will bind and benefit each party's successors and personal representatives. Subject to that, this Agreement is not enforceable by any third party unless specifically allowed for under Australian Contract Law or otherwise.
HOMYZE will send all notices and other communications regarding this Agreement to the Pro at the e-mail address provided on registering, or by means of the Pro’s account area on the Service, or by any other means then specified by HOMYZE.
16.7 Entire Agreement
This Agreement which includes the HOMYZE Code of Conduct to be found at www.homyze.com/professionals/code is the entire agreement between the parties in relation to its subject. No other terms apply.
16.8 Governing Law & Jurisdiction
16.8.1 This Agreement will be governed by the laws of New South Wales, Australia.
16.8.2 Any dispute arising in relation to the subject matter of this Agreement will be submitted to the exclusive jurisdiction of the courts of Australia.