Vendor Partner Terms & Conditions

This document sets out the agreement between Localisme Pty Ltd (ACN 652 730 188) of PO Box 635 Double Bay NSW 1360 (Happly) and a party creating an account on the Platform to provide moving and/or other related services (Vendor Partner) to customers and is deemed to be made on the date it is accepted by the Vendor Partner (Vendor Partner Terms) being the date the Vendor Partner creates an account on the Platform or agrees to the terms of this document in writing.

Details Schedule

1. Definitions and interpretation

1.1 In these Vendor Partner Terms, unless otherwise stated:

Confidential Information means in relation to a party, information that is by its nature confidential, is designated by that party as confidential, or the other party knows or ought reasonably to know is confidential and includes personal information and any information relating to the financial affairs, assets or liability of a party, or the internal management of a party, its personnel, policies, plans, strategies, customers, suppliers, products or services.

Customer means an end user of the Platform seeking to book the Services.

Deposit refers to a first instalment amount for the Vendor Partner’s services. This is to be agreed to in writing between Happly and the Vendor Partner and may be varied in writing from time to time.

Estimated Fee has the meaning given to it in clause 3.1.

Facilitation Fee means Happly’s fees for facilitating the booking of Services by Customers, as set out in the Details Schedule above, on the Platform or as otherwise agreed in writing between the parties to this document.

GST has the meaning given to it under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Happly IP means:

1. the Platform and all Intellectual Property Rights in the Platform; and
2. any other item in which Intellectual Property Rights subsist which is owned by or licensed to Happly, and which is directly or indirectly disclosed by Happly to the Vendor Partner in order to enable the Vendor Partner to provide the Services.

Improvements means any improvements, enhancements, adaptations and extensions to the Happly IP.

Intellectual Property Rights means all intellectual and industrial property rights and interests of whatever nature throughout the world conferred under statute, common law or equity, and includes rights in respect of, or in connection with, copyright, trademarks, service marks, domain names, designs, patents, semiconductor and circuit layout rights, confidential information, trade secrets, recipes, know-how, or other proprietary rights (whether registered, unregistered or not registrable) and any rights to register such rights, whether now existing or created after the date of these Vendor Partner Terms.

Personnel means any of the Vendor Partner’s employees, staff and other personnel within its employ and control.

Platform means the web-based platform where Customers can book moving and related services, located at www.happly.com.au.

Privacy Act means the Privacy Act 1988 (Cth).

Rate Card means the Vendor Partner’s standard rate for services as uploaded to the Platform.

Request has the meaning given to it in clause 3.1.

Services means the services provided by the Vendor Partner to Customers, as detailed on the Platform.

Services Contract has the meaning given to it in clause 3.3(a).

Standard Terms means the most recent version of the Vendor Partner’s standard terms and conditions for providing the Services provided by the Vendor Partner to Happly in writing.

1.2 In these Vendor Partner Terms, unless the context otherwise requires:

1. a reference to ‘$’ or ‘dollars’ means Australian Dollars;
2. the singular includes the plural and vice versa;
3. headings are for convenience only and do not affect the interpretation of these Vendor Partner Terms; and
4. the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not words of limitation.

2. Platform

2.1 Happly will use its reasonable endeavours to provide and maintain the Platform to enable Customers to book and manage various services related to moving homes, which may include the Services. Every effort is made to ensure the efficient operation of the Platform. However, Happly takes no responsibility, and will not be liable for the Platform becoming temporarily unavailable in the event of technical issues, for ongoing maintenance, or any associated problems arising from technical or other associated issues beyond Happly’s control.

2.2 The Platform is provided ‘as is’ and ‘as available’. To the maximum extent permitted by law, the Customer acknowledges and agrees that:

1. Happly excludes any representations, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of availability, security, accuracy, merchantability, or fitness for a particular purpose;
2. Happly reserves the right, but is not obliged, to require Customers and Vendor Partners to cancel any Services Contracts made on the basis of errors or inaccuracies in content on the Platform (including in respect of descriptions, pricing, promotions, charges, or availability of Services);
3. the Vendor Partner’s use of the Platform, and all Services Contracts entered into, is at the Vendor Partner’s own risk; and
4. Happly expressly excludes all liability which may arise in relation to the Vendor Partner’s access to, use or inability to use, or reliance on, the Platform.

2.3 In accessing and using the Platform, the Vendor Partner must not, and must not attempt to:

1. store or transmit:
   1. unlawful, defamatory, false, misleading, untrue, abusive, obscene or tortious material;
   2. material in violation of any third party rights; or
   3. harmful codes, malware or viruses;
2. interfere with or disrupt the integrity or performance of the Platform;
3. scrape, copy, modify, create derivative works of, reverse engineer, decompile or otherwise extract the source code of the Platform or any of its Content or gain unauthorised access to the Platform;
4. sell, rent, sub-licence, republish, redistribute or otherwise exploit the Platform or otherwise use the Platform to create a competing service; or
5. use the Platform for any unlawful purpose or in any way that would violate any law.

2.4 In order to offer the Services on the Platform, a Vendor Partner must provide to Happly:

1. its business and contact details;
2. its Rate Card;
3. a copy of its Standard Terms; and
4. a copy of the certificate of currency to Happly evidencing the insurances required under clause 5.6;
5. details of the Vendor Partner’s nominated Australian bank account;
6. all information which Happly may require for verifying the Vendor Partner’s identity; complying with applicable anti-money laundering obligations; managing settlement of transaction proceeds; and assessing fraud and risk; and
7. any updates to the above information.

2.5 The Vendor Partner authorises Happly to conduct such third party checks as reasonably necessary to verify the accuracy of such information provided to Happly. Happly reserves the right to remove the Vendor Partner from the Platform if Happly is unable to obtain or verify any of this information.

2.6 The Vendor Partner must provide to Happly all information and assistance reasonably required by Happly in connection with the booking and management of Services via the Platform in a timely manner.

3. Bookings

3.1 The Vendor Partner acknowledges and agrees that the booking process with a Customer will be as follows:

1. a Customer will request services via the Platform (Request);
2. the Platform will provide the Customer with a list of service Vendor Partners who have indicated that they are able provide the requested services on the dates requested and the estimated price for the services based on each Vendor Partner’s rate card (Estimated Fee);
3. if the Customer selects the Vendor Partner to provide the Services, Happly will provide the Customer with the Standard Terms for review;
4. once the Customer has accepted the Standard Terms in writing or via the Platform and authorised payment of the applicable fees, Happly will notify the Vendor Partner of the Request in writing or via the Platform; and
5. provided that the Request has not been withdrawn, the Vendor Partner must accept or reject the Request as soon as reasonably practicable. The Vendor Partner may accept or reject the Request via the Platform, separately in writing, or automatically if the Platform interacts with the Vendor Partner’s operational system (for instance by way of API).

3.2 Happly may withdraw a Request at any time before it is accepted by the Vendor Partner.

3.3 Upon the Vendor Partner’s acceptance of the Request, the Vendor Partner acknowledges and agrees that:

1. a binding contract is created between the Vendor Partner and the Customer on the terms of the Standard Terms subject to the provisions of these Vendor Partner Terms which take priority to the extent of any inconsistency (each, a Services Contract); and
2. the Vendor Partner undertakes to comply with the terms of the Services Contract.

4. Services Contracts

4.1 The Vendor Partner acknowledges and agrees that the Platform is a peer-to-peer service only and that each Services Contract is a contract for the provision of Services directly concluded between the Vendor Partner and a Customer. As a result, and to the maximum extent permitted by law, Happly:

1. is not a party to any Services Contract;
2. is not responsible for any actions or inactions of any Customer;
3. is not responsible for any disputes in respect of any Services or Services Contracts; and
4. excludes all liability in respect of any Services Contract.

4.2 The Vendor Partner agrees to allow a Customer may terminate a Services Contract without any financial consequence by giving the Vendor Partner at least 72 hours’ notice before first delivery of the Services. Happly will use its best endeavours to rebook the Customer with the Vendor Partner where possible.

4.3 If the Vendor Partner is unable to provide the Services under a Services Contract (Undelivered Services), the Vendor Partner must notify Happly and the Customer in writing as soon as possible, in which case:

1. Happly may assist the Customer in booking an alternative Vendor Partner for the Undelivered Services; and
2. the Vendor Partner must immediately repay to Happly any amount already paid to the Vendor Partner in respect of the Undelivered Services and if the Vendor Partner does not do so, Happly may offset such amount against any other monies payable to the Vendor Partner.

4.4 The Vendor Partner will from time to time notify Happly in writing or via the Platform where practicable after the Services have been provided in full:

1. that the Services have been successfully provided;
2. the final amount payable for the Services (Final Fee), if applicable; and
3. if there is any difference between the Estimated Fee and the Final Fee, made in accordance with the terms of the Services Contract, the reasons for that difference.

5. Vendor Partner obligations

5.1 The Vendor Partner undertakes to:

1. provide the Services with due skill, care and diligence, using suitable personnel, and in accordance with accepted professional and business practices, and are fit for their intended purpose;
2. comply with, and ensure that its Personnel, agents and contractors comply with, all applicable laws and regulations; and
3. maintain all authorisations, permits and licences required to perform the Services.

5.2 The Vendor Partner acknowledges and undertakes not to impose any deposit or upfront payment from a Customer under a Services Contract as this will be done by Happly.

5.3 The Vendor Partner must notify Happly of any changes to its Rate Card or Standard Terms in writing or by uploading the changes to the Platform and indicating the date on which such changes will take effect.

5.4 The Vendor Partner agrees:

1. not to approach, solicit or entice any Customer whose information the Vendor Partner obtained via the Platform and enter into a contract or agreement for services outside the Platform, or otherwise attempt to circumvent the Platform; and
2. not to directly or indirectly circumvent or avoid any amount to be paid to Happly under these Vendor Partner Terms.

5.5 If Happly reasonably suspects that the Vendor Partner is in breach of clause 5.4, Happly may, in its sole discretion, suspend or cancel the Vendor Partner’s account on the Platform.

5.6 The Vendor Partner must, at its own cost, maintain adequate insurances for the provision of the Services, including the following insurances:

1. public liability, personal injury, and property damage insurance;
2. workers’ compensation as required by law; and
3. any other insurance that would generally be considered to be required in the Vendor Partner’s industry.

6. Personnel

6.1 The Vendor Partner must ensure that each Personnel performing Services under these Vendor Partner Terms:

1. is suitably skilled, experienced and qualified to perform the responsibilities assigned to them; and
2. holds and will continue to comply with all necessary authorisations, visas, licences, approvals and permits.

6.2 The Vendor Partner must conduct a background check on any Personnel providing the Services and, at Happly’s request, confirm in writing to Happly, that:

1. the Personnel’s identity has been verified;
2. the Personnel meets the requirements of clause 5.1; and
3. a police check of the Personnel does not show any crime indicating fraud, dishonesty, or any other crime that could give rise to risks if that person was to perform Services.

6.3 In relation to each Personnel performing Services for the Customer, the Vendor Partner is liable for the acts and omissions of the Personnel as if any such act or omission was that of the Vendor Partner.

7. Fees

7.1 In consideration of the services provided by Happly to the Vendor Partner under these Vendor Partner Terms, the Vendor Partner must pay Happly the Facilitation Fee in accordance with clause 7.2.

7.2 Upon the creation of a Services Contract, the Vendor Partner authorises Happly to:

1. issue invoices to the relevant Customer on behalf of the Vendor Partner via the Platform;
2. collect payment of the Deposit or the Estimated Fee from that Customer on behalf of the Vendor Partner (method to be agreed in writing between the Vendor Partner and Happly);
3. retain the Facilitation Fee from the amounts collected from that Customer; and
4. refund that Customer any amounts paid in accordance with the Services Contract.

7.3 The Vendor Partner acknowledges and agrees that:

1. payment made by a Customer to Happly via the Platform or otherwise, will be deemed a payment made directly to the Vendor Partner by the Customer, and the Vendor Partner must provide the Services booked by the Customer in accordance with the Services Contract; and
2. Happly’s obligation to remit payment to the Vendor Partner is subject to and conditional upon successful receipt of the associated payments from the Customer.

7.4 All fees and other charges are exclusive of GST and all other taxes or duties, unless otherwise expressly stated.

8. Intellectual Property

8.1 The Vendor Partner acknowledges that, as between the parties, Happly owns all right and title in and to Happly IP.

8.2 The Vendor Partner hereby assigns to Happly all Intellectual Property Rights in any Improvements created by the Vendor Partner.

8.3 If, for any reason, the Vendor Partner (or a Personnel or contractor of the Vendor Partner) retains any Intellectual Property Rights in, or to, the Improvements which cannot be assigned under clause 8.2, the Vendor Partner hereby grants Happly an exclusive, perpetual, irrevocable, world-wide and royalty-free licence to such Intellectual Property Rights.

8.4 The Vendor Partner must procure from each of its Personnel or contractor who is an author for the purposes of Part IX of the Copyright Act 1968 (Cth) a consent to all acts or omissions done in relation to the Improvements by any entity which would, but for this clause, constitute an infringement of their moral rights.

8.5 The Vendor Partner must take all such steps as are necessary to give effect to this clause 8.

8.6 The Vendor Partner hereby grants Happly a limited, royalty free, non-exclusive, and non-transferable licence, to copy, store, configure, perform, display and transmit any material provided by the Vendor Partner (Vendor Partner Content) for the purpose of advertising, promoting and providing the Platform, the Vendor Partner’s Services (as relevant) and facilitating interactions with Customers.

8.7 The Vendor Partner warrants that Vendor Partner Content will not breach any law or infringe the rights, including intellectual property rights, of any third party. The Vendor Partner is solely responsible for all Vendor Partner Content and its accuracy.

9. Confidential Information

9.1 Subject to clause 9.2, a party must not use or disclose any of the other party’s Confidential Information.

9.2 A party may:

1. use the other party’s Confidential Information solely for the performance of its obligations and exercise of its rights under these Vendor Partner Terms;
2. use and disclose the other party’s Confidential Information in accordance with any written approval of the other party; and
3. use and disclose the other party’s Confidential Information to the extent required by law or the rules of any applicable stock exchange.

9.3 Each party must upon the other party’s request, return or destroy any of the other party’s Confidential Information in its possession, power or control when it is no longer required for the purposes of performing its obligations or exercising its rights under these Vendor Partner Terms.

9.4 Each party acknowledges that monetary damages may not be a sufficient remedy for any breach of this clause 9 and each party is entitled to seek specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach by the other party, in addition to any other remedies available at law or in equity.

10. Privacy

10.1 The parties acknowledge that they may gain access to personal information as defined in the Privacy Act in connection with these Vendor Partner Terms.

10.2 The parties must comply with all applicable laws, rules and regulations relating to privacy and data security including the Australian Privacy Principles contained in the Privacy Act when collecting, using, disclosing, retaining or otherwise processing personal information under these Vendor Partner Terms.

10.3 Where Happly provides the personal information of Customers to the Vendor Partner, the Vendor Partner must only use that personal information for the purposes of providing the Services to the Customer in accordance with the relevant Services Contract.

11. Liability

11.1 Nothing in these Vendor Partner Terms limit or exclude either party’s liability where liability cannot be limited or excluded by applicable laws. In particular, nothing in these Vendor Partner Terms excludes, restricts or modifies any consumer guarantee, right or remedy available to either party, including any available under Schedule 2 of the Competition and Consumer Act 2010 (Cth), or any other applicable law that cannot be excluded, restricted or modified by agreement.

11.2 Subject to clause 11.1:

1. neither party is liable to the other party, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, or any special, indirect or consequential loss arising in connection with these Vendor Partner Terms; and
2. other than liability related to personal injury, death and property damage, and liability for breach of clause 8, which is unlimited, each party’s total aggregate liability to the other party for all other losses arising in connection with these Vendor Partner Terms, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to the total sums paid by Happly to the Vendor Partner in the previous 12 months from the event giving rise to the claim.

12. Termination

12.1 Either party may terminate the Vendor Partner’s account on the Platform and these Vendor Partner Terms at any time for any reason.

12.2 Happly may immediately terminate the Vendor Partner’s account on the Platform and these Vendor Partner Terms by giving written notice to the Vendor Partner if the Vendor Partner commits or allows to be committed a breach of these Vendor Partner Terms and:

1. where the breach is capable of remedy, fails to remedy that breach within 14 days of receiving written notice from Happly describing the breach and asking for it to be remedied; or
2. the breach is not capable of being remedied.

12.3 Upon termination of these Vendor Partner Terms:

1. for any reason:
   1. clauses 2.2, 6.3, 8, 9, 10, 11, 12.3, 13 and 14 will survive and continue to apply; and
   2. any accrued rights or remedies of either party existing as at the effective date of termination will not be affected;
2. under clause 12.1, any Services Contract will not be affected, and these Vendor Partner Terms will continue to apply in respect of any such Services Contracts until they have been performed in full; and
3. under clause 12.2, Happly reserves the right to require the Vendor Partner to terminate any current Services Contract.

13. Dispute Resolution

13.1 In the event of a dispute between the Vendor Partner and Happly:

1. a party may not commence any court or arbitration proceedings relating to a dispute unless it complies with this clause, except where the party seeks urgent interlocutory relief;
2. if a dispute arises between the parties in relation to these Vendor Partner Terms, then the party claiming that a dispute has arisen must serve written notice of the dispute on the other party specifying the nature of the dispute; and
3. upon service of a notice of dispute, the parties must procure that a representative of each party meet in good faith to use all reasonable endeavours to resolve the dispute within 14 days after the notice has been issued.

13.2 In the event of a dispute between the Vendor Partner and a Customer (Customer Dispute), the Vendor Partner:

1. must deal with that Customer to resolve that Customer Dispute;
2. is solely liable for all costs incurred in resolving that Customer Dispute;
3. agrees to reimburse Happly for all third party expenses Happly incurs in respect of the Customer Dispute, including any chargebacks and direct debit reversals; and
4. agrees to cooperate with any Customer Dispute investigation Happly decides to undertake.

14. General

14.1 If a party is unable perform any of its obligations for reasons beyond its reasonable control, including acts of God or of any pertinent governmental authority, fires, floods, explosions or other catastrophes, epidemics, pandemics and quarantine restrictions, then the non-performing party will not be considered in breach during the period of non-performance, provided that the non-performing party: (a) notifies the other party; and (b) takes reasonable steps to resume performance as soon as possible.

14.2 Any term of these Vendor Partner Terms which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of these Vendor Partner Terms is not affected.

14.3 These Vendor Partner Terms are governed by the laws applicable in New South Wales, Australia and each party submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia.