This Agreement constitutes a binding agreement between ANCI Pty Ltd t/a Anci (“Anci”) (ACN 613 288 243) and each User. By using the Anci Platform, User agrees to be bound by the terms of this Agreement with ANCI. (Updated 15 August 2017)
1. DEFINITIONS
In this Agreement the following terms have the following meanings:
“Anci Platform” means the lead generation and service provider referral system operated by Anci, and unless the context requires otherwise, includes the Anci mobile device app, the Anci website and all related software and services as may be developed or enhanced by Anci from time to time;
“ANCI Service Fee” means an amount equivalent to 15 per cent (or other percentage notified from time to time on the ANCI Platform) that ANCI shall be entitled to retain from funds received from a Customer in respect of a Fee, before remitting to Provider an amount equivalent to the balance in accordance with this Agreement;
“Assignment”, which is known as “Job” on the Anci Platform, means the provision of services (and to the extent applicable goods) by a Provider to a Customer pursuant to an Assignment Request;
“Assignment Request” means a request made by a Customer using the Anci Platform seeking the provision of services from Providers;
“Customer”, which is known as “Business” on the Anci Platform, means any person that uses the Anci Platform to seek/ and or acquire the provision of Provider Services;
“eWay” means the electronic payment service at www.eway.com.au and /or the provider of that service;
“Fee” means the amount payable by a Customer to a Provider in respect of an Assignment, which shall be remitted by Anci in accordance with this Agreement;
“Provider”, which is known as “Job Seeker” on the Anci Platform, means an individual, being a provider who is registered with Anci and who may submit an offer in respect of an Assignment Request;
“Provider Services” means the services that Provider purports to be able to provide and/or offers and/or provides through the Anci Platform; and
“User” means any person using the Anci Platform, and includes, without limitation each Provider and Customer.
2. REGISTRATION AND USE OF ACCOUNT
2.1 All Users acknowledge that the services of the Anci Platform are available only to persons aged 18 years and older. Users represent and warrant that they are aged 18 years or older. If a User operates through a company or other business entity, the person purporting to represent that business, represents and warrants that they have authority to bind the User’s entity to this Agreement and that all individuals associated with the acquisition of Provider Services will be 18 years old or older.
2.2 Anci retains discretion as to whether to allow or refuse any person to become a User of the Anci Platform.
2.3 A User’s ongoing participation in the Anci Platform is subject to and conditional upon User providing all information requested upon application for registration and Anci’s acceptance of a User’s application, whether as Provider or Customer.
2.4 Provider may only register an account in the name of an individual (natural person). Customer may register in the name of one or more individuals or a corporate entity. Each User’s registration is personal to that User and cannot be assigned or transferred.
2.5 Provider agrees to supply to Anci any documentation or information reasonably required by Anci to verify Provider’s qualifications and Provider’s ability to supply Provider Services. Customer agrees to supply to Anci any documentation or information reasonably required to verify Customer’s ability to make any payment required hereunder.
2.6 Despite clause 2.5, Anci makes no representation to any User regarding the true identity, qualifications, status or capacity of any User.
2.7 Upon registration, Users will be issued with an identification number and password to use and access the Anci Platform. User remains responsible for the security of User’s passwords, User ID and control of the use of User’s account. All activity carried out through User’s account shall be deemed to have been carried out by User unless Anci agrees otherwise. User agrees that Anci shall be entitled to assume that any person using the Anci Platform with User’s identification number and/or password is User or User’s authorised representative.
2.8 User must immediately notify Anci of any claim that is made against it, any actual or alleged breach of any law in respect of the provision or acquisition of Provider Services, any changes to User details and change in circumstances or any other fact or matter that would or might be a basis for disqualifying User from participating in the Anci Platform in any capacity.
3. HOW THE ANCI PLATFORM WORKS
3.1 The Anci Platform operates as a neutral facilitator seeking to match the needs of Customers with Providers. The Anci Platform enables Providers and Customers to enter into agreements with each other regarding the respective provision and acquisition of Provider Services and provides a gateway for payment and administration of Fees. Anci is not an employment or recruitment service.
3.2 Providers are not required to provide Provider Services exclusively for the benefit of Anci or Customers and free to provide such services to others as long as in doing so they do not contravene any provisions of this Agreement.
3.3 Users acknowledge and agree that Anci is not and will not be directly involved in the transactions and arrangements between Customers and Providers and that Anci only facilitates those agreements. Anci accepts no liability for any aspect of transactions between Users. Anci is not responsible for the truth or accuracy of descriptions of any Provider Services or of the nature of Customers’ business or requirements, nor for the nature or quality of the performance of any Provider Services and shall not be involved in any disputes between Customers and Providers.
3.4 There is no charge for a Customer posting an Assignment Request. Subject to any requirements or limitations that Anci imposes in respect of Assignment Request descriptions from time to time, Customers posting Assignment Requests must include an accurate description of the nature of the respective Assignment, the services required and the Fee and charging basis applicable to the successful Provider. Anci may require, by notification in advance through the Anci Platform, that any Assignment include a minimum fee which Providers are to be paid .
3.5 If a Provider wishes to accept an Assignment Request Provider must do so using the mechanism provided on the Anci Platform and such acceptance will constitute acceptance of the Assignment on the basis of the information disclosed in the Assignment Request, including information as to the applicable Fee to be paid by Customer for the Provider Services. In doing so, Provider represents and warrants to Customer that Provider is able, willing and competent to perform the respective Assignment.
3.6 Until such time as any given Assignment Request has been accepted by a Provider, a Customer may amend, update the details of or remove the Assignment Request. Once accepted both Provider and Customer are committed to proceed with performance of the Assignment. Customer and Provider will then be deemed to have entered into an agreement with each other. The terms of that agreement shall incorporate the terms of (and must not contain any terms that are inconsistent with) this Agreement to the extent that they are capable of applying to Customer and Provider. Provider and Customer may agree to vary the terms following acceptance of an Assignment (including through the use of Anci’s messaging platform) except to the extent that such variation is inconsistent with this Agreement, is intended to or likely to circumvent the Anci Platform, or is otherwise designed to or has the effect of reducing the amount of any Anci Service Fee that may be retained by Anci in relation to that Assignment.
4. FEES, ANCI SERVICE FEES AND PAYMENTS
4.1 Upon the acceptance by Provider of an Assignment Request, Customer must pay the Fee to Anci at the conclusion of the Assignment. Customer shall pay to Anci, through the eWay gateway mechanism provided at the Anci Portal, the total amount of the Fee applicable to the Assignment. Customer must provide complete and accurate details of an valid credit card of an accepted type, through eWay. Anci shall not store any credit card details. All transactions occur through eWay and eWay shall be responsible for the storage and handling of such information.
4.2 If for any reason an Assignment once accepted is cancelled or is otherwise not completed, ANCI shall charge the Customer a cancellation fee which has a value of $50 plus a minimum of 4 times the agreed hourly rate, which shall be deducted from the amount paid to ANCI by Customer in respect of the Assignment. For example, if the Assignment was listed for $30 per hour, the cancellation fee will be the sum of $50 and $120 (4 hours x $30 per hour).
4.3 Once Provider has completed an Assignment, Provider must provide notice, using the ANCI Platform, that the Assignment has been completed, setting out details of the hours taken using the timesheet functionality together with any other applicable and agreed fees and charges. Customer must within a period of 24 hours from the notification, either accept Provider’s account of the transaction unless reasonable grounds exist for disputing it, in which case it may request Provider submit a revised timesheet. Customer must provide a reasonable basis for alleging any discrepancy. Customer and Provider must act reasonably and in good faith towards each other in all respects, including in the accounting for and confirmation of completion of Assignments and the time taken and applicable Fees. Customer shall be deemed to have accepted Provider’s revised timesheet following any resubmission or original timesheet in the event of a failure to resubmit.
4.4 Failure to accept any account for payment reasonably and honestly owed to any Provider will constitute a material breach of this Agreement and a basis for prohibiting Customer from further use of the Anci Platform. Failure to honestly account for time taken and applicable charge by a Provider in respect of an Assignment will constitute a material breach of this Agreement and a basis for prohibiting Provider from further use of the Anci Platform.
4.5 Once Customer has accepted Provider’s account of the matters referred to in clause 4.3 or not disputed it within the time frame permitted, ANCI shall be deemed authorised to facilitate the payment of the amount of the Fee to Provider, subject to the retention of the ANCI Service Fee, using the eWay gateway. This shall occur within 48 hours of receipt of the payment from the Customer.
4.6 Provider and Customer agree that Anci shall be entitled to retain the Anci Service Fee and shall remit an amount equivalent to the remainder of the Fee to Provider following confirmation of applicable charges in accordance with clause 4.3.
4.7 User must not accept or otherwise enter into any agreement for any Assignment in any way that circumvents or obviates the need to make payments of the Fee through the Anci Platform.
4.8 Provider agrees that Customer shall be solely responsible for the payment to Provider of the Fee and any other charges for or associated with Provider Services and that except as set out otherwise in this Agreement Anci is not responsible for invoicing, collecting or remitting such payments, nor will it be involved in or mediate any disputes between any Provider and Customer. Provider and Customer agree that payment of all Fees shall be through the eWay payment facility accessible through the Anci Platform.
4.9 If GST is payable by a supplier on any supply made under this Agreement the recipient must pay to the supplier an amount equal to the GST payable on supply in addition to and at the same time as the net consideration for the supply.
4.10 Except if and to the extent set out to the contrary in this Agreement or required at law, including under any non-excludable condition under the Competition and Consumer Act 2010 (Cth) or similar legislation, Anci is not required to refund any payments made by a Customer to Anci, including for reasons of inadequate performance or non-performance by a Provider.
5. DISCLAIMER AND ACKNOWLEDGEMENTS
5.1 Anci provides Users with details of other Users on an ‘as is’ basis and without any warranty, express, implied or statutory as to the reliability, trustworthiness, creditworthiness or any other attribute or characteristic of any Customer.
5.2 While Anci endeavours to ensure that the Anci Platform is accessible at all times, it shall not be liable if it or any component is unavailable at any time or for any period. Users agree and acknowledge that the Anci Platform may experience interruptions and access difficulties from time to time and that Anci will not be responsible for such interruptions or access difficulties. To the fullest extent legally possible, Anci excludes any representation or warranty concerning Users, the Anci Platform or any third party’s goods or services or third party site or platform.
5.3 User acknowledges that:
(a) User is independent of and not an employee, partner or agent of Anci;
(b) Each Provider may be required to undergo or be the subject of a satisfactory police check or other reference check before Provider can provide Provider Services to Customers;
(c) Anci does not warrant to Users that anything on the Anci Platform is or will be accurate, reliable, timely, complete or up to date and makes no performance warranty whatsoever concerning anything on or implied from them;
(d) Anci does not offer or provide professional advice to Users on the fitness of any goods, services or information supplied by other Users or any third parties;
(e) Anci is not a party to any transactions between Customer and Provider and it is Customer (and, for the avoidance of doubt, not Anci) who is responsible for paying Provider for all Assignments. Anci cannot and will not guarantee the ability of any Customer to complete payment for any of Provider Services;
(f) Users shall be responsible for completing all transactions Users participate in (including monitoring the status and complying with all relevant legal obligations); and
(g) to the extent permitted at law, Anci shall not be liable for any loss or damage whether directly or indirectly incurred by a User or any third person as a result of any act or omission of any User or any failure or delay in Anci doing any thing, including, but not limited to liability arising out of any workplace injuries, the transmission of any information between Customers and Provider or removing any information from the Anci Platform or preventing any User from using the Anci Platform.
5.4 Users agree that to the extent permissible at law Anci and all affiliates and related entities of Anci shall have no responsibility to them for the legality or effects of the actions or omissions of other Users.
5.5 Anci shall have no right to and shall not control the manner in which Providers perform Provider Services. Each Provider shall be responsible for determining the best method for delivery and performance of those services in accordance with Customer requests and requirements. In the absence of any agreement otherwise with a Customer, each Provider shall be responsible for undertaking all acts and payment of all costs and expenses associated with or necessary for providing Provider Services, including, without limitation, maintaining necessary licences, qualifications and registrations, equipment costs, insurance coverage, travel expenses and other costs and expenses.
6. FEEDBACK FEATURE
6.1 User acknowledges and agrees that the Anci Platform includes a feedback feature, on which other Users may post ratings, comments, compliments, criticisms and other observations regarding Users on the Anci Platform. A User’s submission to this forum is a condition of their registration. Anci requires Users to only post ratings and comments that are honest, fair and reasonable, however Anci does not guarantee to any User or any other person that all comments and ratings will conform with this request.
6.2 User acknowledge and agree that any information or material submitted by Users to the Anci Platform for inclusion in the feedback Anci Platform may be treated by Anci as non‑confidential and non-proprietary and Anci may use such material without restriction.
6.3 In using the Anci Platform Users must not post or transmit any material which is offensive, defamatory, obscene, unlawful, vulgar, harmful, misleading, deceptive, threatening, abusive, harassing or otherwise reasonably objectionable.
6.4 Users must not impersonate any other person when posting material to or otherwise using the Anci Platform, or post false testimonials or ratings about User, any User or anyone else.
6.5 User acknowledges that any material User posts to the Anci Platform may be removed by Anci from the Anci Platform without notice to User at any time.
6.6 Without limiting any other provision of this Agreement, Anci may in its discretion terminate or restrict User’s registration and ability to use the Anci Platform if User (in the opinion of Anci) is the subject of consistent, frequent or otherwise substantially negative feedback or complaints.
7. WARRANTIES
7.1 Each User agrees and warrants to Anci that it:
(a) will comply with the terms of this agreement and all agreements relating to the completion of Assignments, all Anci policies and all applicable laws and regulations;
(b) will only post accurate information on the Anci Platform;
(c) will keep informed of the operation of any laws relating to the provision of and acquisition of Provider Services as relevant to them;
(d) is under no legal or other impediment that may prevent it fully carrying out its obligations under this Agreement or otherwise performing its obligation in relation to any Assignment;
(e) will comply with its obligations towards customers and clients as required at law;
(f) will comply with its tax obligations in relation to payments payable and received in respect of Assignments;
(g) will not use the Anci Platform for illegal purposes, including without limitation, by posting to the Anci Platform information encouraging conduct that would constitute a criminal offence or using the Anci Platform to transport illegal goods or provide illegal services;
(h) will not use any feature of the Anci Platform (or other information obtained through Provider’s use of it) to send unsolicited commercial messages;
(i) will not copy, translate, reproduce, communicate to the public, adapt, vary or modify anything on or any part of the Anci Platform without Anci’s prior written consent;
(j) will not use anything on the Anci Platform for or in connection with any business or enterprise (whether for profit or otherwise) that is in competition with Anci;
(k) will not post to the Anci Platform or otherwise propagate material of any kind which contains computer worms, viruses or other types of malicious or harmful programs;
(l) will not take any action that imposes an unreasonable or disproportionately large load on Anci’s infrastructure;
(m) will not damage, modify, interfere with, disrupt or destroy the files, data, passwords, devices or resources that belong to Anci or do anything that compromises the security of the Anci Platform;
(n) will not use the Anci Platform to engage in misleading or deceptive conduct;
(o) will not use the Anci Platform to transmit junk mail, spam, chain letters or engage in other flooding techniques or mass distribution of unsolicited email;
(p) will provide Anci with complete and accurate contact details when using the Anci Platform enabling Customers to contact Provider (and vice-versa) as requested; and
(q) will comply with all laws and regulations regarding the provision or acquisition of Provider Services as well as all laws and regulations relating to privacy.
7.2 In addition, Provider warrants to Anci and to Customers that:
(a) Provider is authorised, skilled, qualified and legally entitled (in Australia) to provide the Provider Services that it purports to provide/offer to provide and will exercise a high degree of skill, care, courtesy and professionalism in doing so;
(b) Provider will not be intoxicated or under the influence of any drugs when performing any Provider Services;
(c) Provider is the owner or lessee or are otherwise in lawful possession of equipment suitable for performing Provider Services and that such equipment conforms with all applicable laws and regulations;
(d) Provider has all insurance required of or otherwise desirable for a service provider in Provider’s position and area of practice; and
(e) Provider will ensure that all information (including but not limited to that set out in any application for registration as a provider) including information relating to Provider’s qualifications and capacity is and will remain true and correct in every respect and will be updated by Provider if and when it materially changes during the period of Provider’s use of the Anci Platform.
8. ANCI’S RESERVATION OF RIGHTS
8.1 Anci reserves the right to:
(a) remove or refuse to post or relay any information and/or materials (in whole or in part) that it, in its sole and absolute discretion, regards as in any way objectionable or in violation of any applicable law or this Agreement without notice to User; and
(b) modify or discontinue the Anci Platform or any other services Anci offers at any time.
9. INTELLECTUAL PROPERTY/USE OF MATERIAL
9.1 All intellectual property rights in information, data and materials used or appearing on the Anci Platform including (without limitation) all software, tools, know-how, processes, trade marks, logos and other materials shall remain the sole and exclusive property of Anci or its licensors. User acknowledge and agree that User shall not acquire any rights, title or interest in or to any of Anci’s intellectual property rights, and may not use them without Anci’s prior written approval. User may not, without Anci’s prior written approval, promote themself in any media as being associated with or a provider of services through the Anci Platform.
9.2 To the extent that User submit any information or material to Anci relating to an Assignment Request or for otherwise posting on the Anci Platform, User automatically grant Anci a licence to use the information or material for the purpose for which it is provided.
9.3 User agrees that information made available on this Anci Platform is for User’s own use only and may not be sold, used or redistributed for any other purpose.
9.4 User may not use screen scraping, data mining or any similar data gathering and extraction technological devices on this Anci Platform for the purpose of reproducing information contained on this Anci Platform on or through any other medium, except with Anci’s prior written consent.
9.5 Nothing in this Agreement shall be construed as requiring User to display Anci’s name, brands, marks, corporate colours upon or in respect of any materials.
10. DISCLAIMER AND LIMITATION OF LIABILITY
10.1 Nothing in these terms shall be construed as constituting any guarantee from Anci that Provider will receive any minimum number of Assignment Requests during any particular time period or at all.
10.2 To the extent permitted by law Anci excludes all liability to User and any other person for any loss claim or damage (whether arising in contract, negligence, tort, equity or otherwise for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including, without limitation any loss of profits, loss or corruption of data, or loss of or damages to reputation or goodwill) arising out of or in connection with any:
(a) the acts or omissions of any User including where the same results in a loss of or damage to any other User;
(b) use of the Anci Platform or information on or provided through the Anci Platform or any information or advice otherwise provided by Anci or a User; or
(c) removal or termination of User’s access to the Anci Platform.
10.3 To the extent permitted by law, Anci and all affiliates and related entities of Anci expressly limit their liability to User for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at Anci’s sole discretion):
(a) the re-supply of the services provided by Anci; or
(b) the payment of the cost of having those Anci provided services supplied again.
11. INDEMNITY
To the extent permissible at law, User indemnifies and hold Anci and its affiliates, officers, directors, agents and employees harmless from and against any claims, demands, proceedings, losses and damages (whether actual, special and consequential of every kind and nature including all legal fees) made or claimed by any User or third party arising out of or in any way related to User’s use of the Anci Platform, User’s breach of this Agreement, or User’s violation of any law or the rights of a third party.
12. CANCELLATION/BREACH/SUSPENSION/TERMINATION
12.1 User may cancel their registration with Anci upon notice to Anci. Such cancellation shall not entitle User to cancel or vary any agreement already in place to provide or acquire (as the case may be) Provider Services.
12.2 Without limiting other remedies available to Anci at law, in equity or under this Agreement, Anci may immediately issue a warning, temporarily suspend or indefinitely suspend User’s access to the Anci Platform and/or terminate this Agreement if:
(a) Anci, acting reasonably, believes that User has breached any terms of this Agreement;
(b) Anci is unable to verify or authenticate any information User provide to it; and/or
(c) Anci, acting reasonably believes that User’s actions may cause damage and/or legal liability for Anci or other Users.
12.3 Anci may terminate this Agreement with immediate effect if:
(a) User breaches any term of this Agreement and such breach is not rectified within seven (7) days of User being notified by Anci accordingly in writing or immediately if such breach is not capable of remedy; or
(b) User becomes subject to any kind of insolvency event.
13. CIRCUMSTANCES BEYOND ANCI’S CONTROL
Anci will not be liable for any failure or delay in the performance of its obligations to User if that failure or delay is due to circumstances beyond Anci’s reasonable control including, without limitation, any act of God or other cause including any mechanical, electronic, communications or third party supplier failure.
14. GENERAL
14.1 Governing Law
This Agreement shall be governed in all respects by the laws of the State of New South Wales, Australia. User irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia and to the Federal Court of Australia sitting in New South Wales.
14.2 Severability
The provisions of this Agreement are severable, and if any provision of this Agreement is held to be illegal, invalid or unenforceable, under present or future law, such provision may be removed and the remaining provisions shall be enforced.
14.3 No Waiver
Anci’s failure to take action with respect to a breach by User does not waive Anci’s right to take action with respect to subsequent or similar breaches.
14.4 Entire Agreement
This Agreement and those policies incorporated by reference herein set out the entire understanding and agreement between the parties with respect to the subject matter hereof.
14.5 No agency
User acknowledges and agrees that Anci is not User’s agent.
14.6 Survival
Those clauses capable of surviving termination of this Agreement shall do so.
14.7 Variation
Anci may modify this Agreement at any time and such modifications shall be effective immediately upon posting the new or revised terms on the Anci Platform.
