Urban You Pty Ltd Service Pro Terms and Conditions
1. BACKGROUND
Urban You Pty Ltd (ABN 83 164 125 562) (“UrbanYou”) operates a website, mobile applications and associated administrative services (together the “Platform”) through which customers (“Users”) can book a Business for the provision of household services such as cleaning, gardening and handyman services (“Services”), by submitting a booking request. Businesses then review the available Bookings and select those that meet Business’s preferred specifications. A Business is an independent service provider in the business of providing the Services and is not employed by UrbanYou or any of its affiliates.
These terms and conditions form a contract between UrbanYou and the Businesses (“Agreement”).
1.1. Business acknowledges that it is an independent service provider in the business of providing the Services and that it is not employed by UrbanYou or its affiliates.
1.2. The Business enters into two contractual relationships. The first contract being with UrbanYou, governing the access to and use of the Platform in accordance with the terms and conditions of this Agreement. The second contract being with the Customer for the provision of the Services (“Services Agreement”) as set out here as amended from time to time.
1.3. By accessing or using the Platform, the Business acknowledges that it has read, understood and agree to be bound by this Agreement and the Service Agreement.
1.4. By accepting a Booking Request and providing the Service, you have read, understood and agree to be bound by the terms of the Service Agreement.
2. DEFINITIONS AND INTERPRETATION
2.1. In the interpretation of this Agreement the following words shall have the following meanings unless the contrary intention is indicated.
(a) “Booking” has the meaning given to it in clause 4;
(b) “Booking Fee” has the meaning given to it in clause 6;
(c) “Booking System” means the system provided by UrbanYou which facilitates a Booking;
(d) “Job Fee” has the meaning given to it in clause 6; and
(e) “Service Fee” has the meaning given to it in the Service Agreement, being the total fee payable by the User for the provision of the Services.
3. RELATIONSHIP OF PARTIES
3.1. The Business provides the Services directly to Users strictly as an independent business, and not as an employee, contractor, agent, joint venture, partner or franchisee of UrbanYou or any User for any purpose. Business acknowledges that UrbanYou does not provide the Services and does not employ the Business or any of its employees or affiliates in performing any of the Services.
3.2. UrbanYou provides a website and a technology platform which is a referral tool service for Users and Businesses. Through the Booking System, UrbanYou facilitates the bookings and receipts of payments on behalf of the Business. By accepting a Booking, the Business irrevocably and unconditionally consents to UrbanYou collecting the Job Fee from the Users on its behalf.
3.3. The Business is an independent contractor and has not been engaged by UrbanYou to perform services on UrbanYou’s behalf. The Business has entered into this Agreement for the purpose of obtaining referrals to third parties in exchange for which it pays UrbanYou a fee, as described in the terms of this Agreement. This Agreement shall not be construed to create any association, partnership, joint venture, employee or agency relationship between Business and UrbanYou or any User for any purpose.
3.4. The Business is not an agent of UrbanYou and has no authority, express or otherwise implied, (and must not hold himself or herself out as having authority) to bind UrbanYou. The Business cannot, must not and will not enter into or make any agreements, arrangements, representations or warranties on UrbanYou’s behalf without UrbanYou’s prior written consent.
3.5. Business is an independent supplier and acknowledges that it is not entitled to or otherwise eligible to participate in any benefit plans offered to UrbanYou’s employees, including, but not limited to, annual leave, sick leave, health insurance, workers compensation, superannuation, profit sharing or any other fringe benefits or benefit plans offered by UrbanYou to its employees.
4. PLATFORM
4.1. From time to time, in their sole and complete discretion, Users will post Bookings on the Platform, setting out the nature of the Services required (the “Bookings”). Bookings posted will include a date, suburb where the Booking will take place and time frame (the “Scheduled Time”) in which Services are requested, and an estimate of time necessary to complete the work (the “Estimated Work Time”).
4.2. Scheduled Times will be displayed either as a specific time (i.e. “5:00 pm”) or as a range (i.e., “2:00 pm to 5:00 pm”). The Estimated Work Time will be displayed either as a specific time (i.e. “2 hours”) or as a range (i.e., “2-3 hours”).
4.3. Business will then have the opportunity to review the Bookings and select those Bookings in Business’s area of expertise that meet Business’s preferred specifications as to Scheduled Time, date, suburb and fees.
4.4. UrbanYou does not guarantee any minimum number of Bookings will be available to Service Provider at any point during the term of this Agreement.
4.5. Business is not obligated to review the Bookings posted or select any Bookings posted by any User at any time. Once a Business selects a Booking, UrbanYou will confirm in writing to the Business if it has been successful in booking the selected Booking, at which time the Booking is deemed booked by the Business. Once a Booking is booked, a contract is formed directly between the User and Business for Business to complete the Booking on the terms of the Services Agreement. Business agrees that Business’s name and phone number may be provided or made available to User by or on behalf of UrbanYou after the Booking is booked.
4.5. It is possible that a Business may claim a Scheduled Time and/or Estimated Work Time and receive a Booking that has a shorter Scheduled Time and Estimated Work Time (i.e., a Business may claim a Booking with a Scheduled Time of noon-3 pm and has an Estimated Work Time of 2-3 hours and receive a Booking that is at 1 pm and only 2 hours.) Business acknowledges and agrees that it understands that claiming a Booking that has a Scheduled Time and Estimated Work Time may result in receipt of a Booking of less than the maximum time set out in the Estimated Work Time.
5. THE SERVICES
5.1. The Business agrees and acknowledges that any Services provided must be made in accordance with the terms and conditions contained in the Service Agreement. The Business also acknowledges that it is solely responsible for the Services provided and agree to indemnify and hold UrbanYou harmless against any claim, action, damage, loss, liability, cost, charge, expense or payment which UrbanYou may pay, suffer, incur or are liable for, in respect of the Services or any breach of the Service Agreement by the Business.
5.2. Business shall be eligible to book Bookings through the UrbanYou Platform requesting any Services that Business is fully-licensed (to the extent required by applicable law) and qualified to provide as indicated by Business in the UrbanYou application form completed by Business (the “Application”). Business shall, upon request, provide proof to UrbanYou of valid Personnel police checks, and Business licences, permits and/or certifications before Business provides any such Services under this Agreement.
5.3. To ensure that the UrbanYou Platform remains a reliable source of referrals and to ensure all qualified Businesses are able to access available Bookings, once Business has been awarded the Booking, Business is contractually obligated to complete the Booking at the Scheduled Time specified by, and to the satisfaction of, the User. Cancellation by Business may result in a fee being charged to Business as advised in writing by UrbanYou from time to time. Business may reschedule a Booking without Business incurring a fee, provided the Booking is rescheduled more than 48 hours prior to the Scheduled Time. If User and Business agree to reschedule, Business agrees to notify UrbanYou as promptly as possible so that UrbanYou may make that Booking available to other Businesses. In the event that the User declines to reschedule, UrbanYou shall have the right to make the Booking available to other Businesses via the UrbanYou Platform.
5.4. Business understands and agrees that Business’s failure to complete a Booking in accordance with User’s specifications after he or she has booked that Booking using the Platform constitutes a material breach of this Agreement and could result in a fee being charged to Business as advised by UrbanYou from time to time. Similarly, Business may be entitled to a fee in the event a User cancels or reschedules a Booking as advised by UrbanYou from time to time.
5.5. By accepting this Agreement, Business authorises UrbanYou to withhold from the Business’s Job Fees the foregoing cancellation fees, and any other contractual penalty fees referenced in this Agreement or which are included in UrbanYou’s applicable policies and procedures as advised to Business from time to time.
5.6. UrbanYou shall not control or have any right to control the manner or means by which Business performs the Services, including but not limited to the time and place Business performs the Services, the Bookings Business selects, the tools and materials used by Business to complete the Bookings, the helpers, assistants, subcontractors or other personnel (if any) (the “Personnel”) used by Business to assist in completing Bookings, or the manner in which Business completes the Bookings. UrbanYou will not and has no right to, under any circumstances, inspect Business’s work for quality purposes. Those provisions of the Agreement reserving ultimate authority in UrbanYou have been inserted solely to achieve compliance with applicable laws, regulations, and interpretations of these.
5.7. Where approved in advance by the User, and except as otherwise provided in this Agreement, Business is not obligated to personally perform the Services. Business shall provide at his/her own discretion, selection, and expense any and all assistants, helpers, subcontractors or other personnel the Business deems necessary and appropriate to complete the Services. Business shall be solely responsible for the direction and control of any such Personnel. Business agrees that any Personnel used shall maintain a professional appearance consistent with industry standards while performing Services.
5.8. Business assumes full and sole responsibility for the payment of all compensation, benefits and expenses of any Personnel, and for all required payroll tax, income tax withholdings, and Workers Compensation as to Business and all persons engaged by Business in the performance of the Services.
6. FEES
6.1. User shall pay the Service Fee to UrbanYou for completed Bookings through the UrbanYou Platform at the rates quoted by UrbanYou at the time the Booking is posted on the Platform, which shall be based on the stated parameters of the Booking. Each Booking made available to Business on the Platform shall set out the Scheduled Time, Estimated Work Time, details about the Service requested, the Booking Rate, and the estimated fee the Business shall be entitled to upon completion of the Booking, as agreed with UrbanYou from time to time and as indicated in the email received by the Business confirming its acceptance of a Booking (the “Job Fee”). The difference between the Service Fee and the Job Fee shall be the fee owed to UrbanYou for referring the Booking and facilitating the payment from User to Business (“Booking Fee”).
6.2. By accepting this Agreement, Business consents and authorises UrbanYou to withhold UrbanYou’s Booking Fee from the payment made to the Business for each Booking.
6.3. UrbanYou reserves the right to determine final prevailing pricing that Users will be charged for the Services. UrbanYou may, at its sole discretion, make promotional offers with different features and different rates to any Users. These promotional offers, unless made to Business, shall have no bearing on Business’s offer or contract.
6.4. If a Booking booked by Business requires more time to complete than the Estimated Work Time, User and Business may, prior to Business providing any Services above and beyond the Estimated Work Time, negotiate an increase in Service Fees based on the estimated additional time needed to complete the Booking. Upon agreement to an increase in Service Fees, Business and User shall notify UrbanYou.
6.5. When a Booking is complete, Business will submit to the User and UrbanYou confirmation that the Booking is complete. So long as Business has completed the steps necessary to set up a direct deposit account and provided those details to UrbanYou, UrbanYou shall then remit payment to the Service Pro for each Booking via direct debit, less UrbanYou’s Booking Fee, in accordance with UrbanYou’s billing schedule as advised to Business from time to time.
6.6. Without limiting any other provision of this Agreement, UrbanYou may withhold and offset Job Fees by any amounts Business owes to UrbanYou or to a User in respect of any Services, including previous overpayments, refunds to Users, chargebacks, damages (including property damage) claimed by a User in respect of the Service Provider’s provision of a Service. In the event that UrbanYou refunds or pays amounts to Users in excess of its payment to Business, Business will pay UrbanYou for such amounts within 30 days of UrbanYou’s request.
6.7. Except as specifically set out in this Clause 6, UrbanYou will retain all revenues derived from or in connection with its services.
7. BUSINESS CONDUCT
7.1. Without limiting any other provision of this Agreement, in connection with Business’s use of the Platform and provision of the Services, Business may not and agrees that it will not:
(a) contact a User for any purpose other than in connection with a Booking;
(c) impersonate any person or entity, or falsify or otherwise misrepresent itself or its affiliation with any person or entity;
(d) use the Platform to find a User and then complete a Booking independent of the Platform in order to circumvent the obligation to pay the Booking Fee or any other fees related to UrbanYou’s provision of the Platform;
(e) accept direct payment from the User, or attempt to directly charge the user for any services in connection with a Booking;
(f) without the written consent of UrbanYou, directly contract to provide services to a User outside of the Platform (and thereby exclude UrbanYou). Where such a direct relationship is formed without the consent of the Company, the Business agrees to pay to the Company 25% of the Service Fees that would have applied to had those services been undertaken as Bookings.
8. REPRESENTATIONS AND WARRANTIES
Business represents and warrants to UrbanYou that: (a) Business has the legal right to provide the Services that are contemplated by this Agreement in Australia; (b) Business is fully-licenced (to the extent required by applicable law) and authorised to provide the Services contemplated by this Agreement within the jurisdiction in which Business intends to offer such Services, and has the required skill, experience, and qualifications to perform the Services; (c) Business shall perform the Services in a professional and diligent manner in accordance with best industry standards for similar services, including the completion of all Bookings referred to Business that it opts to book through the Platform; (d) Business shall perform the Services in accordance with all applicable laws, rules and regulations; and (e) all Personnel utilised in connection with the Services have the legal right to work in Australia. Business acknowledges that its failure to comply with this clause 8 shall constitute a material breach of this Agreement.
9. INDEMNIFICATION
9.1. Business shall defend, indemnify and hold harmless UrbanYou and its affiliates and their officers, directors, employees, agents, successors, and assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or resulting from: (a) bodily injury, death of any person, theft or damage to real or tangible, personal property resulting from Business’s acts or omissions; and (b) Business’s breach of any representation, warranty, or obligation under this Agreement and the Service Agreement.
9.2. The Services that Business provides pursuant the Service Agreement and are Business’s sole and absolute responsibility. UrbanYou is not responsible or liable for the actions or inactions of a User or other third party in relation to the Services provided by Business. Business acknowledges, therefore, that by using the UrbanYou Platform, Business may be introduced to third parties that may be potentially dangerous, and that Business uses the UrbanYou Platform and enter into any transactions with Users at its own risk.
10. INSURANCE
It is the sole responsibility of the Business to maintain in full force and effect adequate workers’ compensation, liability, and other forms of insurance, in each case with insurers reasonably acceptable to UrbanYou, with policy limits sufficient to protect and indemnify UrbanYou and its affiliates, and each of their officers, directors, agents, employees, subsidiaries, partners, members, controlling persons, and successors and assigns, from any losses resulting from the conduct, acts, or omissions of Business or Business’s Personnel, assistants, agents, contractors, servants, or employees.
11. TERM; TERMINATION
11.1. This Agreement shall be effective as of the date it is executed by Business and, except as stated in clause 10.4 below, shall remain in effect unless and until terminated as set forth in this clause 10 (the “Term”). Business understands that UrbanYou may temporarily deactivate Business’s profile on Platform in the event that Business is inactive on the Platform for more than 30 consecutive days. In such circumstances, UrbanYou shall reactivate Business’s profile upon request from Business.
11.2. The parties acknowledge that the term of this Agreement does not reflect an uninterrupted service arrangement, as this Agreement guarantees Business the right to choose when to make himself or herself available and each Booking referred and accepted is treated as a separate service arrangement.
11.3. Except as stated clause 10.4 below, UrbanYou and Business may terminate this Agreement, effective immediately upon written notice to the other party, in the event that other party materially breaches this Agreement. A material breach shall include, but not be limited to, the acts or omissions expressly defined in this Agreement as constituting a material breach, UrbanYou’s failure to timely remit Job Fees as described in these Terms, Business’s failure to complete a Booking he or she has booked on the Platform or if a Business cancels or reschedules two (2) or more Bookings he or she has booked on less than 2 hours’ notice prior to the applicable Booking start time within any twenty-eight (28) day period.
11.4. In addition to the foregoing, UrbanYou and Business may terminate the Agreement for any reason upon fifteen (15) days’ written notice.
10.5. Upon termination of this Agreement for any reason, Business shall complete any outstanding Bookings Business has booked.
11.6. Upon termination of this Agreement, UrbanYou shall remain liable to pay to Business any due and payable outstanding earned Job Fees.
11.7. Notwithstanding any other language in this Agreement, the terms and conditions of this clauses 11 and clauses 6, 7, 8, 9, 11.4, 11.5, 12, 13, 14, 15, 16 and 17 shall survive the expiration or termination of this Agreement.
12. OTHER BUSINESS ACTIVITIES
Business may be engaged or employed in any other business, trade, profession, or other activity, including providing Services to customers booked through means other than the UrbanYou Platform, including other web-based websites. However, Business shall not affirmatively solicit Users originally referred through the UrbanYou Platform to book Bookings through any means other than the UrbanYou Platform.
13. ASSIGNMENT
Business may not assign this Agreement, absent written authorisation by UrbanYou. UrbanYou may freely assign its rights and obligations under this Agreement at any time. This Agreement will inure to the benefit of, be binding on, and be enforceable against, each of the parties hereto and their respective successors and assigns.
14. PRIVACY
14.1. UrbanYou takes privacy seriously. Please see our Privacy Policy for information on how UrbanYou treats personal information that it collects and receive in connection with the Platform and the Services.
14.2. Business must abide by all relevant Australian Privacy Principles set out in the Privacy Act 1998 in its collection, use, disclosure and storage of Users’ Personal Information.
15. INTELLECTUAL PROPERTY
15.1. In this clause 15:
(a) “Platform Content” means all material, content and information made available on the Platform including but not limited to written text, graphics, images, photographs, logos, trademarks, audio material, video material and any other forms of expression; and
(b) “Intellectual Property Rights” means all present and future rights anywhere in the world in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights whether existing now or in the future.
15.2. The Platform Content is protected by copyright and UrbanYou reserves all Intellectual Property Rights which may subsist in the Platform Content and/or the Platform.
15.3. By entering into this Agreement, Business is granted a non-exclusive licence to:
(a) view the website www.urbanyou.com.au;
(b) print pages from the website www.urbanyou.com.au in its original form; and
(c) download any material from the website www.urbanyou.com.au for caching purposes only.
15.4. Business must not, without UrbanYou’s prior written consent which may be withheld at its absolute discretion:
(a) copy, republish, reproduce, duplicate or extract Platform Content;
(b) redistribute, sell, rent or licence any Platform Content; or
(c) edit, modify or vary the Platform Content.
15.5. Business acknowledges and agrees that some of the Platform Content may be provided by way of blogs or comments made by other users of the Platform, and that UrbanYou does not accept any liability for the accuracy of such information or your reliance on the same. The Platform Content is provided as general information only and is not intended to substitute or replace the advice of a duly qualified professional (where applicable).
16. USE OF PLATFORM
16.1. Business must not use, or cause this Platform to be used, in any way which:
(a) breaches this Agreement;
(b) infringes UrbanYou’s or any third party’s Intellectual Property Rights;
(c) is fraudulent, illegal or unlawful; or
(d) causes impairment of the availability or accessibility of the Platform.
16.2. Business must not use, or cause this Platform to be used, as a medium which stores, hosts, transmits sends or distributes any material which consists of spyware, computer viruses, Trojans, worms, keystroke loggers, or any other malicious computer software.
16.3. The use of this Platform is at your own risk. The Platform Content and everything from the Platform is provided on an “as is” and “as available” basis without warranty or condition of any kind.
16.4. None of UrbanYou’s affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors makes any express or implied representation or warranty about the Platform Content or website www.urbanyou.com.au.
16.5. The Platform and the Booking System are provided subject to limitations, delays, and other problems inherent in the use of the internet, mobile and electronic communications. UrbanYou is not responsible for any delays, delivery failures, or losses or damages suffered by Business, directly or indirectly, in using the Platform or the Booking System.
17. GENERAL PROVISIONS
17.1. Any provision of, or the application of any provision of these Terms which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
17.2. Any provision of, or the application of any provision of these Terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
17.3. If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in these Terms.
17.4. These Terms shall be governed by and construed in accordance with the law for the time being applicable to New South Wales, Australia and you agree to submit to the non-exclusive jurisdiction of the Courts of New South Wales, Australia.