Transport provider agreement
Town Around Pty Ltd (ABN 18 622 106 576) a body corporate established under the Corporations Act 2001 (Cth) with registered address at 8A Monterey Street, Nollamara 6061, Western Australia (the “Product Owner”);
The Transport Provider described within Item 1 of the Schedule (the “Transport Provider”); and
The Driver described within Item 2 of the Schedule (the “Driver”).
The Product Owner allows the public (or “customers”) to sign up to certain terms and place Orders to book taxi and shuttle transportation services (the "Service").
Orders for Services are placed by customers utilising either the Product Owner’s proprietary technology or the Product Owner’s service partners’ software technology either through the Product Owner’s website www.townaround.com.au, its applications or other platforms, or any other related equipment, applications, platforms or software of its service partners (together the "Product").
The Transport Provider operates a taxi and shuttle transportation service and seeks to obtain further customers via the Product Owner’s Product and as a result hereby agrees to the terms and conditions set out in this Agreement.
The legal contract for the Service is between the Transport Provider and the customers that place Orders for the Service through the Product. The Product Owner is not a party to any transaction or any agreement made between the Transport Provider and customers that place Orders for the Service through the Product.
In consideration of the mutual covenants contained herein, the Parties agree to comply with their respective obligations set out in this Agreement.
The Parties agree as follows:
1.DEFINITIONS AND INTERPRETATION
In this Agreement, the following expressions have the following meanings when they commence with a capital letter:
1.1.1 Agreement means this agreement, including any recitals, schedules and annexures, and any amendment to it agreed in writing by the Parties;
1.1.2 Business Day means any day except a Saturday, Sunday or a public holiday in Western Australia;
1.1.3 Commencement Date means the date set out in Item 3 of the Schedule;
1.1.4 Confidential Information means information that:
is by its nature confidential; or
is specified by either Party to be confidential; or
the recipient of the Confidential Information knows or ought to know is confidential;
1.1.5 Corporations Act means the Corporations Act 2001 (Cth);
1.1.6 Event of Default means in relation to a Party the occurrence of any of the following events:
the Party breaches a material obligation under this Agreement that cannot be remedied;
the Party breaches any other obligation under this Agreement and that breach is not remedied within 20 Business Days after the other Party gives a Notice requiring the breach to be remedied;
a representation or warranty made by the Party under this Agreement is or becomes materially untrue or is breached;
an Insolvency Event occurs in relation to the Transport Provider;
the Transport Provider ceases to carry on the business or activities for which the Product Owner is to provide the Services under this Agreement; or
the Transport Provider ceases to be registered or incorporated under the Corporations Act, the Associations Incorporation Act 1987 or any other law under which it is registered or incorporated at the date of this Agreement.
1.1.7 Expiry Date means the date set out in Item 4 of the Schedule;
1.1.8 Gross Order Value means the total amount charged by the Transport Provider to the customer for an Order, plus applicable taxes;
1.1.9 GST Act means A New Tax System (Goods and Project Tax) Act 1999 (Cth) and, where the context permits, includes the Commissioner of Taxation’s goods and services tax rulings and determinations and any other written law dealing with GST applying for the time being in Western Australia;
1.1.10 Insolvency Event means the happening of any of the following events:
an application is made to a court for an order (and is not stayed, withdrawn or dismissed within 7 days) or an order is made that a body corporate be wound up;
an application is made to a court for an order appointing a liquidator or provisional liquidator in respect of a body corporate (and is not stayed, withdrawn or dismissed within 7 days), or one of them is appointed, whether or not under an order;
except to reconstruct or amalgamate while solvent on terms approved by the Product Owner, a body corporate enters into, or resolves to enter into, a scheme of arrangement, deed of arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
except to reconstruct or amalgamate while solvent on terms approved by the Product Owner, a body corporate is wound up or dissolved or resolves to wind itself up or dissolve itself or gives notice of intention to wind itself up or dissolve itself;
a body corporate is insolvent or states that it is insolvent;
as a result of the operation of section 459F(1) of the Corporations Act, a body corporate is taken to have failed to comply with a statutory demand;
a body corporate is, or makes a statement from which it may be reasonably deduced by the Product Owner that the body corporate is, the subject of an event described in section 459C(2) or section 585 of the Corporations Act;
a body corporate takes any step to obtain protection from its creditors or is granted such protection, under any applicable legislation, or an administrator is appointed to a body corporate;
a person becomes insolvent under administration as defined in section 9 of the Corporations Act or action is taken which could result in that event;
a person dies, ceases to be of full legal capacity or becomes incapable of managing its own affairs for any reason; or
anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction;
1.1.11 IPR means all intellectual property rights including:
all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world but excluding moral rights and any similar rights that are by law non-assignable, and IP has a corresponding meaning in relation to intellectual property.
1.1.12 Orders means all customer orders placed via the Product and received by the Transport Provider or Driver from the Product Owner via the Product or via fax, phone or email ("Orders");
1.1.13 Party means the Product Owner, the Transport Provider, the Driver or any of them individually as the context requires, and Parties means all of them;
1.1.14 Personnel means all employees, agents, and subcontractors of the Transport Provider and all employees or agents of subcontractors engaged by the Transport Provider, in relation to the Services;
1.1.15 Special Conditions means the conditions set out in Item 9 of the Schedule; and
1.1.16 Term means the period commencing on the Commencement Date and expiring on the Expiry Date as outlined in Items 3 and 4 of the Schedule;
In this Agreement, unless the context otherwise requires:
1.2.1 the singular includes the plural and vice versa;
1.2.2 a reference to anything is a reference to the whole or any part of it and a reference to a group of things or persons is a reference to any one or more of them;
1.2.3 a reference to a gender includes other genders;
1.2.4 a reference to a person includes a Public Authority, a public body and an incorporated or unincorporated association or body of persons;
1.2.5 a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including a person taking by novation) and permitted assigns;
1.2.6 an agreement, representation or warranty on the part of, or in favour of, 2 or more persons binds, or is for the benefit of, them jointly and severally;
1.2.7 a reference to this Agreement or another instrument includes all variations and replacements of either of them despite any change of, or any change in the identity of, a Party;
1.2.8 a reference to a clause, schedule, attachment or appendix is a reference to a clause in, or a schedule, attachment or appendix to, this Agreement;
1.2.9 all the provisions in any schedule, attachment or appendix to this Agreement are incorporated in, and form part of, this Agreement and bind the Parties;
1.2.10 headings are included for convenience and do not affect the interpretation of this Agreement;
1.2.11 a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
1.2.12 no rule of interpretation is to be applied to disadvantage the Product Owner on the basis that it was responsible for preparing this Agreement;
1.2.13 if a word or phrase is defined, other grammatical forms of that word or phrase have a corresponding meaning;
1.2.14 if the word “including” or “includes” is used, the words “without limitation” are taken to immediately follow;
1.2.15 a reference to writing includes all means of representing or reproducing words in visible form including by electronic means such as facsimile transmission;
1.2.16 if a date stipulated for payment or for doing an act is not a Business Day, the payment must be made, or the act must be done, on the next Business Day; and
1.2.17 a reference to a monetary amount means that amount in Australian currency.
1. PRODUCT to be Provided by THE PRODUCT OWNER
1.1 During the Term of this Agreement the Product Owner will maintain the Product, to enable the general public (or “customers”) to place Orders using the Product and to enable Transport Providers and Drivers to sign up and access the Product to seek, receive and fulfil on-demand requests for transportation services.
1.2 By agreeing to this Agreement, the Transport Provider and Driver consent to the Product Owner setting up the Transport Provider or Driver’s access to the Product to facilitate delivery of the Service.
1.3 By agreeing to this Agreement, the Transport Provider and Driver agree to executing or delivering all Orders placed by customers via the Product in accordance with this Agreement.
1.4 By agreeing to this Agreement, the Transport Provider and Driver agree that the Product Owner is not a party to any transaction or any agreement for Services made between the Transport Provider and the person that places the Order for the Service through the Product.
2. Provision of Transportation Services
2.1 When the Product is active, Orders may appear in the Transport Provider’s Profile if the Transport Provider or Driver is available and in the vicinity of the customer. If the Transport Provider or Driver accepts a customer's Order, the Transport Provider or Driver will be provided with the customer’s first name and pickup location via the Product.
2.2 The Transport Provider and Driver acknowledge and agree that the Product or the Product Owner’s service partners may provide the customer with certain information about the Transport Provider or Driver, including the Driver’s first name, contact information, photo, location, vehicle make, model and license plate number. The Transport Provider and Driver shall not contact any customer or otherwise use any of their personal information other than for the purposes of fulfilling the Services.
2.3 The Transport Provider and Driver acknowledge and agree to choose the most effective and safe manner to perform each instance of the Service, and, except for the provision of the Product will need to provide (at the Transport Provider and/or Driver’s own expense) all necessary equipment, tools and other materials to perform the Services.
The Transport Provider and Driver shall have the sole responsibility for any obligations or liabilities to customers or third parties arising from the Services. The Transport Provider and Driver acknowledge and agree that the Transport Provider and Driver are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws) regarding any acts or omissions of a customer or third party. The Transport Provider and Driver acknowledge and agree that, unless consented to by a customer, the Transport Provider and Driver may not transport or allow inside the vehicle individuals other than a customer and any individuals authorized by such customer, during the performance of the Services. The Transport Provider and Driver acknowledge and agree that all customers should be transported directly to their specified destination, as directed by the customer, without unauthorized interruptions or stops.
1.CONTRACTUAL RELATIONSHIP WITH PRODUCT OWNER AND ITS AFFILIATES
1.1 The Transport Provider and Driver (“You”) acknowledge and agree that the Product Owner’s provision of the Product creates a legal and direct business relationship between the Product Owner and You. However, You also acknowledge and agree that the Product Owner shall not be deemed to direct or control You generally or in Your performance under this Agreement, including in connection with Your provision of Services, Your acts or omissions, or Your operation and maintenance of Your vehicle. Except as expressly set out herein, You retain the sole right to determine when and for how long You will utilize the Product or the Product Owner’s service partners’ services. You alone decide when, where and for how long You want to use the Product, and when to try to accept, decline or ignore an Order. You retain the complete right to engage in other business or income-generating activities and to use other ridesharing networks and apps in addition to the Product.
1.2 The Product Owner retains the right to, at any time at its sole discretion, restrict You from using the Product in the event of a violation of this Agreement or any relevant Town Around policy, Your disparagement of Town Around, or any of its affiliates, or Your act or omission that causes harm to Town Around’s or its affiliates’ brand, reputation or business as determined by Town Around in its sole discretion. Town Around also retains the right to restrict You from using the Product for any other reason at the sole and reasonable discretion of Town Around.
1.3 You acknowledge and agree that You may be subject to certain background, driving record and other checks from time to time. You acknowledge and agree that at all times You shall hold and maintain a valid driver’s license and all other required licenses, permits, work entitlements, approvals and authority to provide the Services. You acknowledge and agree that You will provide the Transportation Services with due skill, care and diligence and that You will maintain high standards of professionalism, service and courtesy. You acknowledge and agree that Your vehicle must meet the then-current Town Around requirements for a vehicle to provide the Services and must be authorised by the Product Owner for this use, be properly registered, licensed and generally suitable to operate as a passenger transportation vehicle, either owned or leased by You or otherwise in Your lawful possession, kept in a clean and sanitary condition, and maintained in good operating condition consistent with industry safety and maintenance standards for a vehicle of its kind and any additional standards or requirements in the applicable territory. You acknowledge and agree that Town Around reserves the right, at any time in its sole discretion to restrict You from using the Product, if You fail to meet the requirements in this Agreement.
1.4 To ensure Your compliance with all requirements in the above clause, upon request, You must provide Town Around (or its affiliates) with written copies of all such licenses, permits, work entitlements, approvals, authority, registrations and certifications (including renewals) prior to and during Your provision of any Services, and allow Town Around (or its affiliates) to review any of this documentation on an ongoing basis. You must notify Town Around immediately if You cease to hold any license, permit, work entitlements, approvals, authority, registration or certification or there are changes to the terms of any of those which would alter Your ability to provide the Services in accordance with applicable laws. Your failure to meet any of the requirements in this clause or the above clause shall constitute a material breach of this Agreement.
2. Fare CHARGE CALCUATIONS
2.1 The Transport Provider and Driver (“You”) can charge a fare ("Fare") to customers for each instance of completed Services that You provide to a customer obtained via the Product. Town Around will calculate a recommendation of the Fare that You can elect to charge customers (“Fare Calculation”). Currently the Fare Calculation is a base fare amount plus distance (as determined by Town Around using location-based services enabled through Your mobile device and/or time amounts, as detailed on the Product). You can also charge the customer for any applicable road, bridge, ferry, tunnel and airport charges and any other fees (including inner city congestion, environmental or miscellaneous charges as reasonably determined by the Product) ("Tolls"), taxes and/or fees incurred during the provision of the Services, whether charged by a third party or Town Around. Town Around reserves the right to change the Fare Calculation at any time at Town Around's discretion. Town Around will provide You with notice in the event that any such change would result in a change in the recommended Fare. Continued use of the Product after any such change shall constitute Your consent to such change. You appoint Town Around as Your limited payment collection agent solely to accept the Fare, applicable Tolls, and, depending on the region and/or if requested by You, applicable taxes and fees from the customer on Your behalf via the Product’s payment processing functionality, and agree that the customer’s payment to Town Around shall be considered the same as payment made directly by the customer to You. If a customer cancels their request for Services prior to Your arrival, Town Around may charge that customer a cancellation fee on Your behalf, and a Service Fee will be payable to Town Around.
2.2 The Parties acknowledge and agree that as between You and Town Around, the Fare Calculation is a recommended amount, and the primary purpose of the Fare Calculation is to act as the default Fare in the event You do not negotiate a different Fare. You shall always have the right to charge a Fare that is less than the pre-arranged Fare Calculation (“Negotiated Fare”). Town Around agrees to remit, or cause to be remitted, to You on at least a weekly basis, (a) the Fare less the applicable Service Fee and other fees charged by Town Around; (b) the Tolls (excluding applicable airport charges, which Town Around may pay to the airport on Your behalf); (c) any incentive payments made under promotions; and (d) depending on the region, certain taxes and ancillary fees (where applicable). If You have separately agreed to any other amounts being deducted from Your Fares (such as vehicle financing, lease payments, government fees and charges, etc), those amounts will be deducted before remittance to You, and Town Around will determine the order of any such deductions from the Fare (as between You and Town Around). Town Around reserves the right to adjust payment in relation to a particular Fare for reasons such as inefficient routes, failure to properly end a particular instance of Services in the Product, or technical error in the Product. In more serious situations, such as fraud, charges for Services that were not provided or customer complaints, Town Around may cancel a Fare entirely or if the Fare has already been paid, require reimbursement of the Fare from You. Town Around reserves the right, in its sole discretion, to seek reimbursement from You if Town Around discovers payment processing errors. Town Around may obtain reimbursement of any amounts owed by You to Town Around by deducting from future Fares owed to You, debiting Your card on file or Your bank account on record, or seeking reimbursement from You by any other lawful means. You authorise Town Around to use any or all of the above methods to seek reimbursement.
2.3 As part of the Services, Town Around provides You with a system for delivering receipts to customers for Services rendered. Upon Your completion of Services for a customer, Town Around prepares and issues a receipt to the customer via email on Your behalf. It includes a breakdown of amounts charged to the customer for Services and certain information about You (including Your name, contact information, photo and the route taken). Any corrections to a customer's receipt for Services must be submitted to Town Around in writing within 3 Business Days after the completion of such Services. Absent such a notice, Town Around shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Fare.
2.4 In consideration of Town Around’s provision of the Product to You, You agree to pay Town Around a service fee on a per Services transaction basis, which is calculated as a percentage of the Fare Calculation ("Service Fee") (regardless of any Negotiated Fare). Town Around will provide You with notice via email or via the Product, of the Service Fee that applies to each Service that You provide. You acknowledge that, unless regulations applicable to Your jurisdiction require otherwise, taxes (in particular GST) will be calculated and charged on the Fare, and Town Around shall calculate the Service Fee on an amount equal to the Fare Calculation plus the amount of such taxes (in particular GST) that would be calculated on the amount of the Fare Calculation. You acknowledge and agree that Town Around may, in its sole discretion: (i) adjust the Service Fee; or (ii) introduce a new model to determine the Service Fee payable by You. Town Around will provide You with at least 14 days' notice in the event of an increase to the Service Fee under (i) above or the introduction of a new Service Fee model under (ii) above. If either of these occurs, You have the right to terminate the Agreement immediately, without notice. Continued use of the Services after any such change in the Service Fee calculation shall constitute Your consent to such change.
3.1 The Transport Provider and Driver (“You”) acknowledge and agree that You are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to Your provision of Services as required by applicable law; and (b) provide Town Around with all relevant tax information requested of You by Town Around, and/or each of its affiliates (including a valid Australian Business Number (ABN) and/or Goods and Services Tax (GST) registration number under which You provide the Services, if obtaining such a valid ABN and/or GST registration number is required of You by applicable law). You further acknowledge and agree that You are responsible for taxes on Your own earnings arising from Your provision of Transportation Services, including without limitation, income tax and GST. Notwithstanding anything to the contrary in this Agreement, Town Around may in its reasonable discretion based on applicable tax and regulatory considerations, or as required under the law, collect and remit taxes resulting from Your provision of Services and/or provide any of the relevant tax and other information You have provided pursuant to the foregoing requirements in this clause directly to the applicable governmental tax authorities on Your behalf or otherwise.
3.2 Unless expressly stated otherwise in this Agreement, all amounts payable or consideration to be provided under this Agreement by You to Town Around are exclusive of GST. If GST is payable on any supply by Town Around made under this Agreement, for which the consideration is not expressly stated to include GST, You agree to pay Town Around an additional amount equal to the GST at the same time that the consideration for the supply, or the first part of the consideration for the supply (as the case may be), is to be provided. In this Agreement, GST that is payable by Town Around includes GST that is payable by the representative member of Town Around.
3.3 The parties agree that, for the purposes of the GST law, Town Around supplies to You the Services in sole consideration for the Service Fee. In addition, its service provider affiliates supply to You a licence to use the Product for no consideration.
4.1 The Transport Provider and Driver (“You”) are responsible for the acquisition, cost and maintenance of Your mobile device/s and any associated wireless data plans that You use to access the Product. Subject to this Agreement, Town Around grants You a personal, non-exclusive, nontransferable, non-sublicensable user right to install and use the Product on Your device solely for the purpose of providing the Services. This license shall immediately terminate in the event that You cease to provide Services using Your mobile device, and You must then delete the Product from Your mobile device. You agree not to give the Product or any associated data to anyone else. You agree that using the Product may consume very large amounts of data, and Town Around and its affiliates advise that Your mobile device should only be used under a data plan with unlimited, or at least very high, data usage limits. Neither Town Around, nor its affiliates, shall be responsible or liable for any fees, costs, or overage charges associated with any data plan.
5. CHANGES TO OWNERSHIP OR BANK ACCOUNT DETAILS
5.1 The Transport Provider and Driver must notify the Product Owner in writing prior to any change of ownership of the Transport Provider or any change to its bank account details, and in any case as soon as practicable following such change. Failure to notify the Product Owner may result in the Product Owner paying monies to a bank account controlled by the outgoing owner(s) or an incorrect bank account.
5.2 Indemnity: The Transport Provider and Driver shall fully indemnify the Product Owner and hold the Product Owner harmless against any losses, damages or claims made against the Product Owner by any new owner(s) of the Transport Provider or otherwise incurred by the Product Owner due to any failure by the Transport Provider or Driver to provide timely notification of a change in the Transport Provider’s ownership.
6. Transport Provider and Driver REVIEWS
6.1 General: The Transport Provider and Driver acknowledge and agree that the Product Owner may display on the Product ratings and comments ("Reviews") provided by customers regarding the Transport Provider or Driver or an Order.
6.2 Removal: The Product Owner will only remove those Reviews that the Product Owner determines in its sole discretion contain explicit, offensive or derogatory language or otherwise breach the Product Owner's review guidelines from time to time. The Transport Provider acknowledges that the Product Owner is under no obligation (but, subject to law, including the Australia Consumer Law, reserves the right and sole discretion at any time and for any reason) to remove or edit any other Reviews.
6.3 Reviews by Transport Provider and Driver: The Transport Provider agrees that it shall not itself provide or cause any other party to provide any Reviews that are fraudulent or otherwise breach the Product Owner's review guidelines.
6.4 Liability: To the fullest extent permitted by law, the Product Owner assumes no responsibility or liability to the Transport Provider or Driver for any Reviews.
7. CONSENTS & COMPLIANCE WITH LAWS
7.1 Product terms & conditions: The Transport Provider and Driver shall at all times comply with the Product terms and conditions (available on the Product, and as amended from time to time), and in particular (but not limited to) compliance with applicable security and privacy provisions when handling customer information or receiving, processing and delivering Orders. The Product terms and conditions are hereby incorporated into this Agreement. In the event of any conflict between this Agreement and any Product terms and conditions, the terms of this Agreement shall prevail.
7.2 Indemnity: The Transport Provider and Driver shall fully indemnify the Product Owner and hold the Product Owner harmless against any losses, damages or claims made against the Product Owner by the Transport Provider and Driver or any customer due to any failure of the Service or Product.
8. INSURANCES AND ACCIDENTS
8.1 The Transport Provider and Driver (“You”) agree to maintain during the term of this Agreement motor vehicle liability insurance on all vehicles which You operate at insurance levels that satisfy the minimum requirements to operate a private passenger vehicle on public roads within the jurisdiction within which you provide the Services, as well as any other minimum motor vehicle liability insurance cover which Town Around requests You hold. You agree to provide Town Around with a copy of the insurance policy, policy declarations, proof of insurance identification card and proof of premium payment for the insurance policy required in this clause upon request. Furthermore, You must provide Town Around with written notice of cancellation of any insurance policy required by Town Around. Town Around shall have no right to control Your selection or maintenance of Your policy. You must be a named insured or individually rated driver, for which a premium is charged, on the insurance policy required in this clause at all times. You understand and acknowledge that Your private passenger motor vehicle insurance policy, including any insurance coverage held via a commercial arrangement You have with a vehicle rental or leasing provider, may not afford liability, comprehensive, collision, medical payments, first or third party no fault personal injury protection, uninsured motorist, underinsured motorist or other coverage while You provide for any Services You provide pursuant to this Agreement. If You have any questions or concerns about the scope or applicability of Your own insurance coverage, it is Your responsibility, not Town Around’s, to resolve them with Your insurer(s). Town Around may maintain during the term of this Agreement insurance related to Your provision of Services as determined by Town Around in its reasonable discretion, provided that Town Around and its affiliates are not required to provide You with any specific insurance coverage for any loss to You or Your vehicle. Should Town Around procure insurance related to Your provision of Services, Town Around may cancel such coverage at its sole discretion at any time. You are required to promptly notify Town Around of any accidents that occur while providing Services and to cooperate and provide all necessary information.
8.2 In relation to the Services, You agree that You are not an employee, or a worker or a deemed worker for the purposes of any workers compensation laws and therefore acknowledge that Town Around does not, and is not required to, maintain or provide You with workers’ compensation insurance or maintain other occupational accident injury insurance on Your behalf. You agree to maintain at Your cost during the term of this Agreement workers’ compensation insurance or other occupational accident injury insurance (or the local equivalent) as required by any applicable law (provided that the foregoing shall have no impact on the mutual understanding between You and Town Around that You are a self-employed individual (including from a labour and social security perspective)) and otherwise comply with all statutory workers compensation requirements. If permitted by applicable law, You may choose to insure Yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, You may choose not to insure Yourself against industrial injuries at all, but do so at Your own risk.
9.1 Display of the Product Owner branding: Where the Transport Provider or Driver agrees to market the Product Owner and/or the Product through relevant advertising material, the Transport Provider or Driver agrees to do so in accordance with the Product Owner's guidelines and instructions.
9.2 Non-disparagement: The Transport Provider and Driver undertake to refer positively to the Product Owner in relation to any publicity regarding the Orders and the Product in accordance with guidelines provided by the Product Owner, and must not at any time actively encourage customers who have placed Orders to place a future Order directly with the Transport Provider or Driver, nor attempt to direct Orders placed with the Transport Provider or Driver through any website other than the Product.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Ownership of IPR: All IPR in or arising out of or in connection with the Product shall be owned by the Product Owner and nothing in this Agreement shall constitute a transfer of those IPR to the Transport Provider or Driver.
10.2 Licence of Transport Provider IPR: The Transport Provider grants the Product Owner a licence to use the Transport Provider's name (or variant thereof), logo and other IPR for the purposes of providing the Service (including use on internet search engines, use of the Transport Provider's name (or variant thereof) as an adword and any other advertising of the Product Owner or the Product Owner's business) for the duration of this Agreement.
10.3 Third-party IPR: The Transport Provider confirms irrevocably to the Product Owner that the Transport Provider’s name, logo and other material that the Transport Provider may provide to the Product Owner for inclusion on the Product do not violate, infringe or conflict with the IPR of any third party or any moral rights of a third party (including without limitation any licensor or franchisor).
10.4 Third-party IP claims: If a third party makes a claim against the Product Owner for the violation of the third party’s IPR or a third party's moral rights relating to the Transport Provider’s name, logo and/or other material provided by the Transport Provider, the Transport Provider and Driver shall fully indemnify and keep the Product Owner indemnified against any losses, damages or claims of any nature and all costs resulting therefrom.
11. THE Product Owner’S WEBSITE
11.1 The Product Owner intends to make the Product available and functional for 24 hours of the day but is under no obligation to do so.
11.2 The Product Owner is entitled to interrupt the access to the Product at any time and without notice in order to maintain and update the Product. In connection therewith, the Product Owner shall use reasonable endeavours to ensure that such interruption is as brief as possible and if possible takes place at a time when the number of Orders is at a minimum.
11.3 The Product Owner intends for the Product to comply with relevant and applicable laws and regulations from time to time, including the laws relating to the treatment of personal data. Should the Product Owner give the Transport Provider or Driver direct access to making changes on the Product, the Transport Provider and Driver shall be solely responsible for any such changes and shall fully indemnify the Product Owner for any losses, damages or claims made against or incurred by the Product Owner due to any act or omission of the Transport Provider or Driver.
12. BREACH OF OBLIGATIONS BY THE Transport Provider or Driver
12.1 If, in the Product Owner's sole opinion, the Transport Provider or Driver is in default of its obligations under this Agreement, commits an Event of Default or otherwise operates in a manner which is harmful to the Product Owner's business, goodwill or reputation, including without limitation by reasons of:
12.1.1 non-payment or late payment of amounts due from the Transport Provider or Driver to the Product Owner;
12.1.2 sub-standard customer service (e.g. Transport Provider employees being impolite to customers; the Transport Provider erring in the delivery of Orders; late deliveries of Orders etc.);
12.1.3 the Product Owner receiving allegations or evidence that the Transport Provider or Driver does not have the necessary Consents for the use and inclusion on the Product of its business, name, brand or logo;
then without limiting its other rights or remedies, the Product Owner may at any time suspend provision of the Product under this Agreement without any liability to the Product Owner. The suspension of the Product shall continue until the default or relevant issue has been remedied to the satisfaction of the Product Owner (acting reasonably).
13. TERM, TERMINATION & SURVIVAL OF OBLIGATIONS
13.1 Term: This Agreement comes into force when signed by or by ticking boxes and pressing submit button when included in online forms by both Parties and has an initial term of twelve months. Thereafter, it will automatically renew for successive twelve month periods unless terminated by any party on one month's notice prior to the end of the initial term or any subsequent period, or otherwise in accordance with its terms.
13.2 Termination by the Product Owner: Without prejudice to its other rights and remedies, the Product Owner may:
13.2.1 at any time terminate this Agreement by giving 30 days’ notice to the Transport Provider without further liability to the Transport Provider;
13.2.2 immediately terminate this Agreement by giving written notice to the Transport Provider without further liability to the Transport Provider if it believes that the Transport Provider or Driver:
(a)has breached this Agreement; or
(b)has a direct or indirect financial interest in any business that carries out Competing Activities to the Product Owner in Australia or New Zealand. Competing Activities means the same or similar Services that the Product Owner is providing to the Transport Provider under this Agreement, or other activities having similar purpose.
13.3Effect of termination: Upon termination of this Agreement in accordance with its terms, all outstanding amounts payable by the Transport Provider or Driver will become immediately due and payable. the Product Owner will send the Transport Provider or Driver a notice confirming the termination of the Service and final payment details, and either a payment for any outstanding monies owing by the Product Owner to the Transport Provider or a request to pay any outstanding monies owing to the Product Owner (as applicable).
13.4 Survival of certain rights & obligations: The rights and obligations of the parties under this Agreement which are intended to continue beyond the termination or expiry of this Agreement (including those under this clause 16) shall survive the termination or expiry of this Agreement.
14. LIMITATION OF LIABILITY & INDEMNITY
14.1 General: Nothing in this Agreement shall limit or exclude the Product Owner's or the Transport Provider’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; or any other liability that cannot be limited or excluded under applicable law, including the Australian Consumer Law.
14.2 Exclusion of the Product Owner's liability: To the extent permitted by law, including the Australian Consumer Law, and subject always to clause 17.1, the Product Owner shall not be liable to the Transport Provider or Driver, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any damages, costs, direct or indirect losses resulting from faults, breakdowns or other interruptions to the Product for any reason and including, without limitation, loss of profit or any loss not arising naturally or not arising according to the usual course of things from the relevant breach or acts or omissions.
14.3 Limitation of the Product Owner's liability: Subject always to clauses 17.1 and 17.2, and the Australian Consumer Law more generally, the Product Owner’s total liability to the Transport Provider or Driver in respect of all other losses arising under or in connection with this Agreement howsoever caused (and whether in contract, tort (including negligence), breach of statutory duty, or otherwise, and including losses caused by the Product Owner's repudiatory breach or a deliberate breach of the Agreement by the Product Owner, its employees, agents or subcontractors) shall never exceed the aggregate amount of charges paid to the Product Owner by the Transport Provider or Driver pursuant to this Agreement in the 12 months prior to the date that the liability arose.
14.4Indemnity: The Transport Provider or Driver jointly and severally, fully indemnify the Product Owner and will keep the Product Owner indemnified against any losses, damages or claims (and all related costs) made against the Product Owner by a customer or any third party in connection with the Transport Provider’s or Driver’s failure to deliver, or unsatisfactory delivery of an Order or the Transport Provider’s or Driver’s failure to comply with this Agreement and/or any applicable laws, including the Privacy Act 1988 (Cth) and the Australian Consumer Law, and rules and regulations in force at the relevant time.
14.5 Joinder: The Transport Provider or Driver shall accept and shall not object to being included by the Product Owner in any manner to any third party notice or otherwise in any proceedings instituted against the Product Owner, relating to the Transport Provider or Driver’s acts or omissions in connection with this Agreement.
15. FORCE MAJEURE
The Product Owner shall not be liable to the Transport Provider or Driver as a result of any delay or failure to perform its obligations under this Agreement because of a Force Majeure Event. A "Force Majeure Event" means an event beyond the reasonable control of the Product Owner including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Product Owner or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, import and export restrictions, faults, breakdowns or other operational interruptions.
16. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter, and no party shall have any claim for innocent or negligent misrepresentation based upon any statement in this Agreement.
Upon one month's prior written notice, the Product Owner may amend the terms of this Agreement. The Transport Provider or Driver shall be notified of such amendments in writing either by fax, email, or post. Unless the Transport Provider or Driver responds to such notification within two calendar weeks objecting to the amendments or terminates this Agreement in accordance with clause 16, such amendments shall thereafter be construed as forming part of this Agreement and accepted by the Transport Provider or Driver.
18.1 The Product Owner shall be entitled to assign all or any of its rights and obligations under this Agreement to any third party.
18.2 The Transport Provider or Driver may only assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement to a third party with the Product Owner’s express prior written consent.
The content of this Agreement and any information concerning the other party is to be treated as confidential and shall not be disclosed during the term of this Agreement or at any time thereafter save as required by law, provided that the Product Owner is entitled to use the Transport Provider’s name as a reference.
If any of the terms or conditions of this Agreement are declared wholly or partly invalid, illegal or unenforceable, the remainder of this Agreement shall remain in full force and effect and any wholly or partly invalid terms or conditions shall be modified to the minimum extent possible to make it valid, legal and enforceable.
21. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of the State of Western Australia. The Parties irrevocably submit to the non-exclusive jurisdiction of the courts of Western Australia.
A notice under this Agreement will be sent to the party concerned at the address described in this Agreement, personally, by email or by fax.
The parties consent to use an electronic signature service for the purposes of electronically executing this Agreement. The person executing this document warrants that they have sufficient authority to enter into this Agreement, and that authority is current and accurate as at the date of entering into this Agreement on behalf of the Transport Provider.
24. Dispute Resolution
24.1 If a Party gives the other Parties written notice of a dispute arising out of, or relating to, this Agreement (Notice), a dispute will be deemed to have arisen (Dispute), and the Parties must resolve the Dispute in accordance with the provisions of this clause. The Notice must give sufficient detail of the Dispute to allow each other Party to properly consider the Dispute and its resolution.
24.2 Subject to clause 27.6, compliance with the provisions of this clause 27 is a condition precedent to seeking relief in any court or tribunal in respect of the Dispute.
24.3 The Parties agree to negotiate in good faith and to use reasonable endeavours to resolve the Dispute.
24.4 If the Dispute is not resolved within 28 days of the receipt of the Notice referred to in clause 27.1, the Dispute must be immediately referred in the first instance to the business owner (or equivalent) of each Party, or their nominees, for the purposes of negotiating a resolution to the Dispute.
24.5 If the Dispute is not resolved within 28 days of the commencement of the process of negotiation referred to in clause 27.4, the Parties agree to then co-operate in seeking the assistance of a third party mediator conversant with the issues concerned to assist in resolving the Dispute.
24.6 Nothing in this clause 27 will prevent a Party from seeking interlocutory relief through courts of appropriate jurisdiction.
25.1 The Parties must do everything reasonably necessary, including signing further documents, to give full effect to this Agreement.
25.2 The rights, powers and remedies in this Agreement are in addition to, and not exclusive of, the rights, powers and remedies existing at law or in equity.
This Agreement supersedes all prior negotiations, understandings and agreements between the Parties relating to the matters covered by this Agreement. This Agreement constitutes the full and complete agreement between the Parties relating to the matters covered by this Agreement.
26. Acceptance of stripe service agreement.
Payment processing services for drivers partners on Town Around Pty. Ltd.and its apps, are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this agreement and these terms or continuing to operate as a driver partner on town around pty. ltd. apps, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Town Around pty. ltd. enabling payment processing services through Stripe, you agree to provide town around pty. ltd. accurate and complete information about you and your business, and you authorize town around pty. ltd. to share it and transaction information related to your use of the payment processing services provided by Stripe.
SCHEDULE 1 - Service fee
Transport Provider - Person signing/ Agreeing to the contract
Driver - Person signing/ Agreeing to the contract
Commencement Date - The date contract signed/agreed
Expiry Date - 12 months from the date of commencement & renews automatically unless dismissed
Bank Details - will be provided by person signing/agreeing to the contract
The Product Owner will charge the Transport Provider or Driver:
a 20% commission per Order via the Product (or such other commission as notified by the Product Owner to Transport Provider) charged on Gross Order Value; and
a 0% processing fee per Order via a Product link (or such other fee as notified by the Product Owner to the Transport Provider);
All fees and commissions are exclusive of GST and any other applicable taxes.
Contact for Notices - Product Owner
Contact for Notices - Transport Provider or Driver
SIGNED/AGREED AS AN AGREEMENT.