1.1 Thank you for visiting www.jobsoutsourced.com (the “Website”), an online platform that:
(a) allows the posting of short term job offers (the “Jobs”) between:
(i) individual, business and corporate users of the Website who need jobs completed (the “Job Posters”); and
(ii) individual, business and corporate users of the Website who want to work on the Jobs on a freelance basis for a fee agreed to between the parties (the “Workers”);
(b) provides a variety of digital marketing packages to users of the Website to cater for their digital marketing needs (the “Packages”);
(c) upgrade the Jobs or Packages from time to time (the “Upgrades”); and
(d) provides opportunity to the individual, business and corporate users of the Website who want to sign up Job Posters on the Website for a commission fee (the “Affiliates”).
(collectively referred to as the “Services”)
1.2 The Website is operated by Jobs Outsource Pty Ltd (ACN 603 716 329) (“JO”). Access to and use of the Website, or any of its associated products or services, is provided by JO. Please read these terms and conditions (the “Terms”) carefully. By using, browsing and/or signing up for use of the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website immediately.
1.3 JO reserves the right to review and change any of the Terms by updating this page at its sole discretion. When JO updates the Terms, it will use reasonable endeavours to provide you with notice of same. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
2 Acceptance of the Terms
2.1 You accept the Terms by registering for the Services, making payment to JO, browsing the Website, interacting with a Worker or Job Poster found on the Website, or accepting the Terms by clicking to “accept” or “agree” to the Terms where and if this option is made available to you by JO in the user interface of the Website. Under no circumstances may the Worker perform the Services to the Job Poster without acceptance of the Terms.
3 Account registration
3.1 In order to access the Services, you are required to register for an account with JO (the “Account”).
3.2 In creating an Account, you may be provided with a variety of registration methods, which may include registration through the use of your Facebook or Google account (the “Third Party Registration”). You may also create the Account by registering manually through the Platform (the “Manual Registration”).
3.3 Where you create the Account by Third Party Registration, you acknowledge and agree that the Platform will utilise the personal information stored with third parties to verify your identity. You warrant that where you elect to register for an account by way of Third Party Registration, the information that you have previously provided to these third parties is accurate, correct and up to date and can be relied upon by JO.
3.4 Where you create the Account by Manual Registration, as part of the registration process or as part of your continued provision of the Services, you will be required to provide personal information about yourself (such as identification, contact details, academic results, qualifications, interests and past work history). You will also be requested to provide JO with:
(a) an email address; and
(b) password.
3.5 Once you have completed the registration process you will be a registered user of the Website (the “User”) and agree to be bound by the Terms.
3.6 You agree that any information you give to JO will always be accurate, correct and up to date. You must indemnity JO for any claim or loss that JO suffers as a result of any information that you provide to JO under the Terms.
3.7 You understand that by supplying JO with your address, email address and phone number, you may receive regular emails, newsletters, telephone calls or SMS updates from JO in order to keep you informed about JO activities. If you do not wish to receive updates from JO, you may contact JO at http://www.jobsoutsourced.com/support.
3.8 You may not use the Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with JO; or
(b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
4 Subscription Options
4.1 Once you have registered as a User, you will also be given the opportunity to purchase a subscription through the Website (the “Subscription”) through the payment of a monthly subscription fee (the “Subscription Fee”).
4.2 JO will provide a variety of Subscription options to you following your registration as a User. Each Subscription option will provide different benefits and will have a different Subscription Fee and in purchasing the Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription you elect to purchase is suitable for your use.
4.3 Both the Job Posters and the Workers acknowledge that while the purchase of a Subscription is not required to use the Services, it will affect the nature of the Services provided to you as a User, including but not limited to the Commission Fee (as set out in clause 7 and 8 of these Terms) paid to JO for their provision of the Services.
5 Account obligations
5.1 As a User, you agree to comply with the following:
(a) not to share your profile with any other person;
(b) use the Services only for purposes that are permitted by:
(i) the Terms; and
(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(c) not contact any party through the Services for the sole purpose of circumventing or manipulating the fee structure, subscription arrangements, or billing system of JO;
(d) you have sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
(e) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify JO of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(f) you must not expressly or impliedly impersonate another User or use the profile or password of another User at any time;
(g) not to harass, impersonate, stalk, threaten another User of the Website;
(h) not to post false, inaccurate, misleading, defamatory or offensive content on the Website;
(i) access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of providing the Services;
(j) not to use the Services or the Website to post content or items in inappropriate categories or areas on the Website;
(k) you will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
(l) you agree that you will not use the Service or the Website in such a way that you will expose them to viruses or other technologies that may harm JO;
(m) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from User profiles without notice and may result in termination of the Services. Appropriate legal action will be taken by JO for any illegal or unauthorised use of the Website;
(n) you acknowledge and agree that any automated use of the Website or its Services is prohibited; and
(o) communicate in a concise and clear manner within a reasonable period of time with the Worker and/or Job Poster.
5.2 You agree that as the Account owner you are solely responsible for any activities or actions that occur through your Account, whether or not you have authorised such activities or actions. JO is in no way responsible or liable for any activities or actions that occur through your Account as a result of your breach of your Account obligations.
6 Using the Services as a Job Poster
6.1 As a Job Poster, the Website provides you with the opportunity to:
(a) post and manage your Jobs (including identifying the time frames, duties, hours of work and opportunities presented to the Workers), view the profiles of Workers that may be suitable for the Jobs, and engage Workers to perform Jobs for you on an ad hoc basis for an agreed fee (the “Job Fee”);
(b) view Packages with varying benefits and services and purchase the Packages that are suitable for you for an agreed monthly fee (the “Package Fee”); and
(c) request the Worker to perform additional services which falls outside the scope of the Job or Package by purchasing an Upgrade and paying the agreed fee (the “Upgrade Fee”).
6.2 With respect to:
(a) the Jobs, the Job Fee must be transferred, in full to JO prior to the Job being listed on the Website;
(b) the Packages, the Package Fee must be paid monthly in advance prior to you being able to access the benefits under the Packages; and
(c) The Upgrades, the Upgrade Fee must be paid in advance prior to the commencement of the additional services purchased by way of the Upgrade.
6.3 Where agreed to by the parties, the Job and Job Fee can be separated into stages for completion (the “Job Completion Stages”) and released pursuant to the following confirmation process:
(a) on the proposed completion of the Job Completion Stage, the Worker can click the accept button on the Website to receive payment of the portion of the Job Fee allocated to that Job Completion Stage (the “Job Completion Stage Fee”) (or, where applicable, for the whole Job Fee if there are no separate Job Completion Stages);
(b) JO will then automatically send a notice to the Job Poster advising that the Worker wishes to have the Job Fee or Job Completion Stage Fee released to them;
(c) the Job Poster can, where they agree that the Job or Job Completion Stage has been completed, click the release funds button to release the relevant payment to the Worker; and
(d) If the Job Poster does not mark the Job as “complete” but the work has been completed, the Worker can request for the funds to be released. The Job Poster must consent to or reject the release of the funds within 48 hours of the request being made. If the Job Poster does not respond to the request within the time specified in this clause, then the Job Poster will be deemed to have consented to the release of the funds.
6.4 Within 7 days of the Job Poster being introduced to a Worker, the Job Poster will contact the Worker to discuss whether the Subscription is fit for the Job Poster’s purpose. The Job Poster and the Worker acknowledge and agree that the variety of services which are offered pursuant to the chosen Package may be varied, altered or amended from time to time by the Job Poster and Worker, based on the Job Poster’s disclosed requirements to the Worker (the “Variation”). By way of example, if a Job Poster purchases the Facebook & Instagram Advertising Gold Package, the Job Poster and Worker may vary the Gold Package to exclude the 2 x remarketing campaigns and allocate the estimated resources instead to the Facebook advertisement variations. The Worker acknowledges and agrees that JO is not responsible or liable to the Job Poster or Worker in the event of a Variation to the Job or Package from what is represented and found on the Website. In the event the resources which are allocated to a particular Job or Package are unable to be completed by way of the Variation, then the Worker will request, and the Job Poster must pay, the Upgrade Fee at the time of the purchase of the Upgrade.
6.5 As a Job Poster, you acknowledge and understand that the level of service provided to you by a Worker will depend on various factors such as:
(a) whether you are prompt and responsive to the Worker’s request for instruction, directions, information and/or approval;
(b) the complexity of the issues, strategy or your instructions and delivery of your materials to the Worker;
(c) the number and duration of telephone calls between you and the Worker;
(d) the number of email correspondences or messages you sent to the Worker to deliver your instructions;
(e) whether your instructions are varied;
(f) whether documents have to be revised in light of varied instructions; and
(g) the level of cooperation with the Worker.
6.6 Where you have purchased a Service which allocates a specific number of hours for the provision of a particular task or job, you understand that that allocation of hours is an estimate only. In the event that you are not in strict compliance with clause 6.5 above, or the material provided to the Worker is greater than what was disclosed during any representations made by you prior to purchasing the Services, then the Worker is not responsible to complete all of the Services within the Job, Subscription or Package purchased once you exhaust the number of hours allocated for the Service, even if all of the hours were exhausted for the completion of one particular task. For example, if you purchase the Infusionsoft CRM Foundation Silver Package, 15 hours per month are allocated to these Services. If during the first month, all 15 hours are allocated towards the preparation of the scoping document, then you will not be entitled to the provision of any further services during the same month.
7 Using the Services as a Worker
7.1 As a Worker, the Website provides you with the opportunity to:
(a) review Jobs posted by Job Posters;
(b) express an interest in specific Jobs for which you would like to be engaged;
(c) interacting with the Job Posters; and
(d) arrange to perform the Job for the Job Fee.
7.2 You acknowledge and agree that when reviewing the Jobs, interacting with the Job Poster, or completing the Job if engaged, or anytime thereafter; you will:
(a) comply with all laws and regulations which apply to the Job. This includes, but is not limited to:
(i) the Consumer Guarantees with respect to services, that being that the Job will completed with due care and skill; any work you provide will be fit for a particular purpose; and that the Job will be completed within a reasonable period of time if no time is set; and
(ii) you not misleading or deceiving the Job Posters regarding any facet of your experience or qualifications;
(b) comply with any licencing or permit requirements should you require a licence or permit to complete the Job;
(c) obtain professional indemnity insurance if the Job requires professional indemnity insurance;
(d) obtain public liability insurance if the Job is being held at a public location where no public liability insurance is held by the occupier;
(e) comply with all applicable tax, workplace and industrial relations laws to which you may be subject;
(f) provide the Job Poster with a copy of your professional liability or public liability insurance policy within seven (7) days upon request by JO or the Job Poster; and
(g) provide the Job Poster with evidence of your permit or licence number (if required by law) within seven (7) days upon request by the Job Poster.
7.3 As a Worker, you acknowledge that you:
(a) will be engaged by the Job Poster as an independent contractor and that you are solely responsible for taking this into consideration in respect to any tax or insurance obligations that you hold when engaging in the Services; and
(b) will only be paid for the provision of additional services requested by the Job Poster if you have requested the Job Poster to purchase an Upgrade and the Job Poster has paid the relevant Upgrade Fee.
8 Payment
8.1 By JO offering the Services to you, you agree that:
(a) the Job Poster will pay JO a commission for the provision of the Services (the “Commission Fee”), which will be calculated based on the Subscription, Job, Package and/or Upgrade purchased by the Job Poster (if any);
(b) The remaining Job Fee or Job Completion Stage Fee (the “Worker Payment”), will be held by JO pursuant to these terms and, where it is agreed that a Job or Job Completion Stage is completed, the Worker Payment will be transferred to the Worker minus any merchant banking service charges (the “Transaction Fee”) incurred in the course of transferring the Worker Payment.
8.2 All payments made in the course of your use of the Services are made using a third party payment gateway (the “Gateway”). In using the Website, the Services or when making any payment in relation to same, you warrant that you have read, understood and agree to be bound by the terms and conditions that are available on the Gateway’s website.
8.3 You agree and acknowledge that JO can vary the Package Fee, Subscription Fee and/or Upgrade Fee at any time by amending the relevant sections of the Website. The varied Package Fee, Subscription Fee and/or Upgrade Fee will come into effect following the conclusion of the existing Subscription Period and/or Package Period.
9 Non-Payment
9.1 In the event you elect to pay the Job Fee, Package Fee, Subscription Fee or Upgrade Fee by way of direct debit and/or credit card and there is a chargeback by your credit provider, JO may suspend or terminate the Services immediately. You will be charged the then current JO administration fee which will be no less than $150.00 plus GST ("Administration Fee") and may also be charged interest in the amount of the Cash Rate Target set by the Reserve Bank of Australia (the "Interest") on amounts which remain unpaid after thirty (30) days from the date of the tax invoice. Upon payment of the Administration Fee, Interest and Fees in accordance with the Terms, JO will reinstate the Services to you.
9.2 If you do not pay the Job Fee, Package Fee, Subscription Fee or Upgrade Fee in accordance with the Terms, JO will issue an overdue payment notice and you will be liable to make the payment immediately. In the event the amounts remain unpaid after seven (7) days from the date of the tax invoice, JO may proceed to recover the debt from you without further notice. If JO initiates debt recovery action against you, you acknowledge and agree that you will be and remain liable for all debt collection costs which includes any legal costs (on an indemnity basis), collection agency costs and any other expenses or disbursements, including but not limited to, Land and Property Information searches, Australian Securities and Investment Commission searches, process server fees, Expert Reports and court/tribunal fees. You will also be liable to pay the Interest and Administration Fee on the outstanding debt and JO may report the debt to a credit reporting agency.
9.3 JO reserves the right to terminate or suspend your access to the Services in the event that you fail to pay any payment pursuant to the Services or any invoice sent by JO from time to time. Time is of the essence.
10 Refund Policy
10.1 You acknowledge and agree that JO only facilitates the introductions between the Job Poster and the Worker and is not liable, in any capacity, for the actions of the Workers once engaged. You further acknowledge and agree that JO is entitled to the Commission Fee irrespective of whether or not the Worker completes the Job to a satisfactory standard, or at all, once engaged by the Job Poster.
10.2 Notwithstanding clause 10.1 above, where a Job Poster requests a refund of a Job Completion Stage Fee for a Job Completion Stage that has yet to be accepted by a Job Poster, then JO may elect to release the remainder of the money held by JO for a Job subject to the parties complying with the Dispute Resolution Process set out in clause 24 and 25 below.
10.3 If, for whatever reason, you are unsatisfied with the Services or believe you may be entitled to a refund with respect to the Commission Fee, then please contact JO outlining why you believe you are entitled to a refund of the Job Fee, Package Fee, Subscription Fee or Upgrade Fee so we are able to determine if same should occur.
10.4 Any refunds granted pursuant to this clause 10 will be at JO’s absolute discretion.
11 GST
Unless otherwise stated, all amounts, including out of pocket expenses, expressed and described on or in connection with the Terms, are listed in Australian Dollars (AUD) and are GST exclusive. GST is only applicable to subscribers situated in Australia.
12 Identify Verification
12.1 You acknowledge and agree that in light of the nature of the Services, JO may be required to verify your identity to ensure that you are not using the Services in an illegal or fraudulent manner.
12.2 You warrant that where JO advises you in writing that they require further verification of your identity then you will make all reasonable endeavours to comply with this request within seven (7) days of receipt of same.
12.3 You warrant that any information that you provide pursuant to this clause will be true and correct to the best of your knowledge and belief and failure to comply with this clause will warrant an immediate termination of the provision of the Services to you.
13 Engagement of the Worker as an Independent Contractor
13.1 You acknowledge and agree that in using the Services as a Worker, you are not employed by the Job Poster or JO in any capacity and are not entitled to any rights as an employee in relation to same.
13.2 You understand that, in performing the Job for the Job Poster you will be engaged solely as an Independent Contractor by the Job Poster and that this may, where applicable, carry with it certain obligations including but not limited to:
(a) obtaining an Australian Business Number or Australian Company Number;
(b) maintaining your own timesheets and records of work completed;
(c) providing and using your own tools;
(d) paying your own tax and superannuation payments; and
(e) paying for any professional indemnity or public liability insurances.
13.3 You warrant that in using the Services, you have taken all reasonable steps to ensure that you are able to be engaged as an Independent Contractor by the Job Poster.
14 Obligations of the Worker as an Independent Contractor
14.1 Non-Solicitation of Personnel
(a) During the course of the Job, the Worker will have access to commercially sensitive information and material of the Job Poster. The Worker will not during the period of the Job or after the Job during the Restraint Period, either directly or indirectly, without written consent from the Job Poster:
(i) Employ, canvas, solicit, entice or engage any of the Job Poster’s employees, servants, contractors, and/or agents (“Personnel”), to terminate their employment or contracted services with the Job Poster; and
(ii) Employ, engage, retain or source any of the Job Poster’s Personnel for any services that are of a competitive nature to the Job Poster’s business.
(b) For the purposes of this clause 14.1 the Restraint Period means 24 months, nonetheless:
(i) If the Courts determine that 24 months is unreasonable, the restraint will last for a period of 18 months; or
(ii) If the Courts determine that 18 months is unreasonable, the restraint will last for a period of 12 months; or
(iii) If the Courts determine that 12 months is unreasonable, the restraint will last for a period of 6 months.
(c) The Worker agrees that the restraints contained in this clause are reasonably necessary to protect the Job Poster’s business interests and the Worker acknowledges that this clause is fair and reasonable under the circumstances.
14.2 Non-Solicitation of Clients
(a) During the course of the Job, the Worker may have contact with, and access to, clients, prospective clients, client records and details of the Job Poster’s marketing efforts, strategies and plans that includes commercially sensitive information and material. The Worker will not during the period of the Job or after the Job during the Restraint Period, either directly or indirectly, without written consent from the Job Poster:
(i) Canvas, solicit, entice or engage any of the Job Poster’s clients, or prospective clients who the Job Poster has attempted to retain or in the process of engaging (the “Clients”); and
(ii) Directly or indirectly interfere with or engage, procure, endeavour to entice away, aid, abet or counsel any of the Clients for any services which are of a competitive nature to the Job Poster’s business.
(b) For the purposes of this clause 14.2 the Restraint Period means 24 months, nonetheless:
(i) If the Courts determine that 24 months is unreasonable, the restraint will last for a period of 18 months; or
(ii) If the Courts determine that 18 months is unreasonable, the restraint will last for a period of 12 months; or
(iii) If the Courts determine that 12 months is unreasonable, the restraint will last for a period of 6 months.
(c) The Worker agrees that the restraints contained in this clause are reasonably necessary to protect the Job Poster’s business interests and the Worker acknowledges that this clause is fair and reasonable under the circumstances.
14.3 Confidential Information
(a) By accepting these Terms, and arranging to perform a Job for the Job Poster through the Services, the Worker acknowledges and agrees that they will not, during the course of the Job or thereafter, except with the consent of the Job Poster, as required by law or in the performance of their duties, use or disclose confidential information relating to the business of the Job Poster, including but not limited client lists, trade secrets, client and supplier details, pricing structures, the Job Poster’s financial information or results, any information with respect to the Job Poster’s plans, strategies and forecasts and all documents created by the Worker during the course of the Job (the “Confidential Information”).
(b) The Confidential Information remains the sole property of the Job Poster. The Job shall not either during or after the Job, without the prior consent of the Job Poster, directly or indirectly divulge to any person or use the Confidential Information for his or her own or another’s benefit.
14.4 Intellectual Property
(a) In engaging with a Job Poster to perform the Job, the Worker may create or have access to Intellectual Property Rights in relation to the work performed as part of the Job. For the avoidance of doubt, Intellectual Property Rights means all past, present and future rights in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights, whether created directly or indirectly during the performance of the Job (the “Intellectual Property Rights”).
(b) The Worker recognises that all Intellectual Property Rights are the property of the Job Poster and the Worker agrees to take all such steps as practicable to ensure that the Intellectual Property Rights will vest in, and remain vested, in the Job Poster during and after the course of the Job with the Job Poster.
(c) The Worker assigns to the Job Poster all and any Intellectual Property Rights created, written, developed or otherwise brought into existence by the Worker during the course of the Job or whilst using the Job Poster’s facilities, or otherwise.
(d) The Worker warrants that the Job Poster’s owns the Intellectual Property created by the Worker in the course of the Job and hereby expressly authorises the Job Poster to use all or any such work and the Worker agrees that it does not have any right or interest in respect of any Intellectual Property currently being used or capable of being used in the Job Poster’s business.
(e) The Worker hereby indemnifies and agrees to keep indemnified the Job Poster against all liability, losses or expenses incurred by the Job Poster in relation to or in any way directly or indirectly connected with any breach of the Job.
(f) The Worker agrees to sign all documents and take all necessary steps to assign the Intellectual Property Rights to the Job Poster when requested to do so by the Job Poster.
14.5 Moral Rights
(a) To the extent that the Worker has Moral Rights in the Intellectual Property, the Worker gives Moral Rights Consent. For the purposes of the Job, “Moral Rights” means any moral rights including the rights described in Article 6 of the Berne Convention for protection of Literary and Artistic Works 1886 (as amended and revised from time to time) being “droit moral” or other analogous rights arising under any statute (including the Copyright Act 1968 (Cth) or any law of the Commonwealth of Australia), that exist or that may come to exist, anywhere in the world. A “Moral Rights Consent” means a waiver of Moral Rights to the extent permitted by law and an unconditional consent to any act or omission in relation to the Intellectual Property Rights by or on behalf of the Job Poster, its Personnel or any licensee or subsequent owner of copyright in the Material.
14.6 JO’s Intellectual Property
(a) Notwithstanding anything to the contrary, all services, products and related material of JO is subject to copyright. The material provided or made available to the Workers, the Job Posters and any other individual by JO is protected by copyright under the laws of Australia and through international treaties (the “JO Material”). All rights (including copyright) in the JO Material and the Website content and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, software, code, scripts, design elements and interactive features) are owned or controlled for these purposes and are reserved by JO or its contributors.
(b) All trademarks, service marks and trade names are owned and/or registered by JO;
(c) Whilst using the Website, JO grants you a worldwide, non-exclusive, royalty-free, revocable licence whilst you are a user of the Website to:
(i) download the JO Material;
(ii) use the JO Material for Jobs on the Website;
(iii) copy and store the JO Material contained on the Website;
(iv) print pages from the Website for your own personal use, and for commercial use only whilst you are a user of the Website.
(d) JO does not grant you any other rights whatsoever in relation to the JO Material. All other rights are expressly reserved by JO;
(e) JO retains all rights, title and interest in the JO Material and all related content. Nothing you do will transfer any interest in the JO Material to you, other than the grant of the licence to you in paragraph 14.6(c) above;
(f) You may not, without the prior written consent of JO and the permission of any other relevant rights owner: broadcast, republish, upload to a third party, transmit, post, distribute, show or display or publish in public, adapt or change in any way the JO Material for any purpose, other than for the purposes expressly allowed by these terms and conditions. This prohibition does not extend to JO Materials which are in the public domain.
15 Obligations of Job Posters
15.1 Non-Solicitation of Workers
(a) Where a Job Poster circumvent the Website after discovering a Worker through the Website and subsequently hires that Worker without going through the Website, the Job Poster will be liable to JO for a success fee equal to 25% of the amount paid to the Worker by the Job Poster (including GST and disbursements) over the 12-month period commencing on the date the Worker begins its Services to the Job Poster (the “Success Fee”).
(b) Where a Job Poster has engaged a Worker via the Website, the Job Poster and/or its employees, agents, representatives, related entities or associated entity (as defined in the Corporations Act 2001) will not, during the period of the Job Poster’s registration with JO and during the subsequent 12 months after first being introduced to the Worker by JO, either directly or indirectly, without written consent from JO, employ, solicit, or engage or attempt to engage with that Worker for performance of services, other than via the Website. If the Job Poster contravene this clause, the Job Poster will be liable to JO for an introduction fee equivalent to 20% of the services rendered, (including GST and disbursements), or 20% of the services which are anticipated to be rendered by the Worker during the following 12 months (the “Introduction Fee”).
(c) For the avoidance of doubt, a Job Poster must use the Website and/or Services as his/her/its exclusive method to engage a Worker unless JO agrees otherwise in writing. Under no circumstances will JO grant the Job Posters the right to employ, solicit or engage the Worker without JO receiving the Success Fee or Introduction Fee.
(d) Where JO agrees to release the Job Poster from this clause for consideration of the Success Fee or Introduction Fee, the Job Poster is required to pay JO the Success Fee or Introduction Fee in advance prior to the Worker performing services for the Job Poster.
(e) In the event of a Success Fee or Introduction Fee dispute and if the Job Poster can establish that the Job Poster had an Active Process (as defined in clause 15.1(f)) with the Worker before using the Website and/or Services, the Job Poster may be exempted from paying the Success Fee or Introduction Fee. However, the final determination as to whether a Success Fee or Introduction Fee is owed by the Job Poster will be at the sole discretion of JO.
(f) Active Process means continuous direct, interactive communication, where a decision to put a customer or supplier on hold or reject has not been made, within the three (3) months prior to using the Website and/or Services.
(g) If the Job Posters do not agree with any of these provisions, please terminate your account immediately and cease usage of the Website and Services. The Job Poster’s obligation to pay any Success Fee and/or Introduction shall survive any termination or modification of the Terms.
15.2 Confidential Information
(a) In this clause, “Confidential Information” means any documents or information created, received or obtained by the Job Poster from the Worker or any other party in respect of any consultation. In relation to JO, it also includes all non-public information pertaining to JO's business (including, without limitation, our pricing information, the identity or participation of specific Job Posters or Workers, and any content marked confidential) is Confidential Information.
(b) By accepting the Terms, the Job Posters acknowledge and agree that they will not, during the engagement or thereafter, use, disclose, solicit, or misappropriate any Confidential Information, trade secrets, or other proprietary information that belongs to any third-party, except with the prior written consent of that party or as required by law.
16 Rating and Review of Workers
16.1 As part of the Services, the Website provides Job Posters with the opportunity to rate and review the Workers. The ratings and reviews will be listed on the respective Worker profile.
16.2 The Job Posters may rate the Worker out of five stars. The rating for a Worker will then be calculated as an aggregate of all ratings provided by the Job Posters (the “Rating System”).
16.3 JO only facilitates the Rating System and is not responsible for any rating and/or review listed on your profile. If you have a complaint in relation to a rating and/or review made by a Job Poster, you must contact us at http://www.jobsoutsourced.com/support and identify which rating and/or review you wish to make a complaint about and provide JO with evidence why you believe that the rating and/or review is untrue or should be changed, altered or removed. Upon receipt of the complaint from you, JO may, at is absolute discretion, change, alter or remove the rating and/or review. However, if JO does not change, alter or remove the rating and/or review as requested by you, under no circumstances will JO be deemed to have published the rating and/or review and you acknowledge that the rating and/or review is User Content as defined in clause 17.2 and JO’s liability is limited in accordance with clause 20 of the Terms.
16.4 Rating and Review of Job Posters and/or Workers do not constitute a guarantee, warranty, or prediction regarding the performance or competency of the Job Posters and/or Workers.
16.5 JO will have no responsibility or liability of any kind for any content you encounter on or through the Website, and any use or reliance on the content is solely at your own risk. For the avoidance of doubt, under no circumstances does JO make any guarantee, warranty or representation that the Services provided to a Worker will result in any benefits to the Job Poster and JO expressly disclaims liability for any guarantee, warranty or representation which is may be any third party or a Worker.
17 Website Content
17.1 JO Content
You may read and copy the information on JO for your own needs but you may not publish, resell or sub-licence it. JO makes no guarantees, representations or warranties about the accuracy or legal correctness of any of the information on JO.
17.2 User Content
(a) In this clause, “User Content” means any and all information and content that an Affiliate, Job Poster, Worker or visitor of the Website, submits to or uses with the Website.
(b) JO does not claim ownership of your User Content. JO makes no guarantees about the User Content and JO does not endorse or accept any responsibility for the User Content.
(c) You are solely responsible for your User Content. You assume all risks associated with the use of your User Content, including any reliance on its accuracy or completeness.
(d) You represent and warrant that your User Content does not violate any third party licenses.
(e) By posting a content onto the Website, you expressly grant to JO and its successors an irrevocable, non-exclusive, transferrable, sub-licensable, perpetual, royalty-free, worldwide license to broadcast, republish, up-load to a third party, transmit, post, distribute, publicly display, and otherwise use and exploit your de-identifiable User Content. This license does not grant JO the right to on-sell User Content. You hereby irrevocably waive any claims and assertions of moral rights with respect to your User Content.
(f) JO reserves the right to review, remove or amend any User Content, but JO does not have the legal obligation to do so.
(g) Information on the Website is no substitute for professional legal advice. You should not delay or forgo seeking legal advice or disregard professional advice based on information provided by the Website.
17.3 Third Party Website
(a) JO works with a number of partners and affiliates whose websites are linked with JO and are controlled by parties other than JO (each a "Third Party Website").
(b) JO is not responsible for and does not endorse or accept any responsibility for the availability, contents, products, services or use of any Third Party Website, any website accessed from a Third Party Website or any changes or updates to such sites. JO makes no guarantees about the content or quality of the products or services provided by such sites. If you have purchased a package that includes any Third Party Services, the third party may contact you by email and/or phone with instructions on how to access your benefits and to keep you informed of their services. You may be required to accept additional terms located on the Third Party Website.
(c) Certain services made available on the JO Website are delivered by third parties. By using any product, service, or functionality originating from the JO Website, you are allowing JO to share information with any third party with whom JO has a pertinent contractual relationship – any information necessary to facilitate its provisions of products, services, or functionality to you.
18 Copyright and Intellectual Property
18.1 The Website, the Services and all of the related products of JO are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) (the “Content”) are owned or controlled for these purposes, and are reserved by JO or its contributors.
18.2 JO retains all rights, title and interest (including copyrights, patents and trade marks) in and to the Website, Services, products and all related content therein. Unless otherwise indicated, the Terms do not transfer to you any JO or third party’s right, title, and interest in copyrights, patents and trade marks.
18.3 You may not, without the prior written permission of JO and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party content for any purpose. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.
18.4 You acknowledge and agree that JO may use your logo, branding or other trademarks (the “Trademarks”) for JO’s marketing efforts. You grant to JO a non-exclusive, non-transferable, royalty free right to use the Trademarks. If you do not wish that your Trademarks be used, you may request for a removal of your Trademarks from JO’s marketing materials by contacting JO at http://www.jobsoutsourced.com/support. Upon receipt of the request, JO will use reasonable endeavours to remove the Trademarks from any future marketing material which is published 30 days from the date of the request.
19 Job Poster’s Third Party Environment
19.1 As a Job Poster you may be required to provide the Worker with access to your website, Facebook account, Instagram account, Linkedin account or other social media accounts (your “Media Accounts”). It is important that you install and maintain at all times computer virus scanning software (and regularly update the said software) onto all of your computers having access to your Media Accounts (the “Anti-Virus”).
19.2 In the event your Media Accounts are compromised or corrupted during the provision of the Services to you, prior to making any complaint or raising any dispute, you must first establish and prove that the Anti-Virus was installed, maintained and updated to the most recent version.
20 General Disclaimer
20.1 Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
(a) If you are not a Consumer (under the Australian Consumer Law), you agree that JO has no direct or indirect liability (including in negligence) to you in any way related to your use of JO.
(b) If you are a Consumer (under the Australian Consumer Law), JO limits all its direct and indirect liability (including in negligence) to you to the Consumer Guarantees under the Australian Consumer Law.
(c) Where there is a breach of the Consumer Guarantees, then to the maximum extent permitted by law, JO’s liability to you is limited at its option to:
(i) in the case of goods, replacement or repair of the goods or payment of the cost of replacing or repairing the goods; and
(ii) in the case of services, resupply of the services or payment of the cost of re-supplying the services.
20.2 Subject to this clause 20, and to the extent permitted by law:
(a) we exclude all representations, warranties or guarantees, whether express or implied, by statute, trade or otherwise; and
(b) we will not be liable for any liabilities, claims, costs and expenses (including legal costs), damage or injury or any special, direct, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or the Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
20.3 Use of the Website and the Services is at your own risk. Everything in relation to the Website and the Services are provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of JO make any express or implied representation or warranty about its Content or any products or Services (including the products or services of JO) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website, the Service, or any of its Content related products (including third party material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the Services or any of the products of JO;
(d) the Content or operation in respect to links which are provided for your convenience; or
(e) any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.
21 Limitation of liability
21.1 JO’s total liability arising out of or in connection with the Services or the Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
21.2 You expressly understand and agree that JO, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
21.3 JO is not responsible or liable in any manner for any content posted on the Website or in connection with the Services posted by the Workers or by any other third parties.
21.4 JO does not control and is not responsible for the behaviours and actions of its Users, Job Posters, their comments, posts or information that they upload. Accordingly, JO is not responsible for any offensive, inappropriate, obscene or unlawful content or actions that you may encounter on the Website or in connection with your use of the Services.
22 Indemnity
22.1 You agree to indemnify JO, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your Content;
(b) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or
(c) any breach of the Terms.
22.2 This indemnity will survive termination of the Terms.
23 Termination of Services
23.1 The Terms will continue to apply until terminated by either you or by JO as set out below.
23.2 If you want to terminate the Terms, you may do so by giving at least thirty (30) days’ written notice to JO at support@jobsoutsourced.com.
23.3 JO may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) JO is required to do so by law;
(c) the partner, if any, with whom JO offered the Services to you has terminated its relationship with JO or ceased to offer the Services to you;
(d) JO is transitioning to no longer providing the Services to Users in the country in which you are resident or from which you use the service; or
(e) the provision of the Services to you by JO is, in the opinion of JO, no longer commercially viable.
23.4 Subject to local applicable laws, JO reserves the right to discontinue or cancel your access to the Services at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts JO’s name or reputation or violates the rights of those of another party.
23.5 When the Terms come to an end, all of the legal rights, obligations and liabilities that you and JO have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
24 Dispute Resolution for dispute occurring within Australia
24.1 Compulsory Mediation
(a) If a dispute arises out of or relates to the Terms, the Services, the Website or any Job then no party may commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
(b) Where the Dispute arises between the Job Poster and the Worker, then the parties warrant that they will include JO in any correspondence between the parties to ensure that JO can:
(i) assist with the Dispute Resolution Process where possible;
(ii) hold any payments subject to the Dispute until such time that the Dispute is resolved; and
(iii) make an assessment whether they should terminate the Services to either of the parties to the Dispute.
24.2 Notice
A party claiming a dispute (“Dispute”) must, within thirty (30) days of becoming aware of the Dispute, complete the Dispute Resolution Policy and Complaint Form (the “Notice”) detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute and serve it on the other party. A copy of the Dispute Resolution Policy and Complaint Form can be made available to you upon your written request.
24.3 Response
Within fourteen (14) days of receipt of the Notice, the other party must complete a Response Form and serve it on the other party detailing their response to the Dispute and serve it on the other party. A copy of the Response Form can be made available to you upon your written request.
24.4 Resolution
On receipt of the Response by that other party, the parties to the Dispute (the “Parties”) must:
(a) Within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
(b) If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties acknowledge and agree that JO may refer the Dispute to a mediator or request that an appropriate mediator be appointed by the President of the Law Society of South Australia or his or her nominee.
(c) The mediation will be held in Adelaide, Australia.
24.5 Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
24.6 Termination of Mediation
If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
25 Dispute Resolution for dispute occurring outside Australia
25.1 Compulsory Mediation and Arbitration
(a) If a dispute arises out of or relates to the Terms outside of Australia, unless the parties has complied with clause 25, either party may not commence any arbitration or Court proceedings in relation to the dispute (except where urgent interlocutory relief is sought).
(b) Where the Dispute arises between the Job Poster and the Worker, then the parties warrant that they will include JO in any correspondence between the parties to ensure that JO can:
(i) assist with the Dispute Resolution Process where possible;
(ii) hold any payments subject to the Dispute until such time that the Dispute is resolved; and
(iii) make an assessment whether they should terminate the Services to either of the parties to the Dispute.
25.2 Notice
A party to the Terms claiming a dispute (“Dispute”) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
25.3 Mediation
On receipt of that notice (“Notice”) by that other party, the parties to the Terms (“Parties”) must:
(a) Within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
(b) If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of South Australia or his or her nominee.
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
(d) The mediation will be held in Adelaide, Australia.
25.4 Arbitration
In the event that the Dispute is not resolved at the conclusion of the mediation, both parties are prohibited from instituting legal proceedings concerning the subject matter of the Dispute and the Dispute, controversy or claim arising out of, relating to or in connection with the Terms and Conditions, including any question regarding its existence, validity or termination, will be resolved by arbitration in accordance with the ICC Rules of Arbitration (or any rules which supersede these rules). The seat of arbitration shall be Adelaide, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one. This clause may be used as a bar to legal proceedings issued in any Court in any country which has ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
25.5 Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
26 Venue and Jurisdiction
The Services offered by JO are intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of South Australia, Australia.
27 Governing Law
The Terms are governed by the laws of South Australia, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of South Australia, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
28 Notice
28.1 JO may provide any notice to you under the Terms by sending a message to the email address then associated with your account. The notice provided by JO to you by email shall be deemed to have been properly given on the date JO sends the email, regardless of whether you have received the email.
28.2 Unless specified otherwise, any notices provided by you to JO must be in writing and be delivered either in person, or via registered post to 1/339 Payneham Road, Marden South Australia 5070. Notices provided by registered post shall be deemed to have properly given three days after they are posted (if posted).
29 Severance
If any part of the Terms is found to be void or unenforceable, that part shall be severed and the rest of the Terms shall remain in force.
30 Waiver
30.1 A waiver of any right, power or remedy under this Agreement must be in writing signed by the party granting it.
30.2 A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
30.3 The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.
31 Assignment
31.1 JO may assign or transfer its rights or obligations under the Terms without your consent.
31.2 You may not assign or transfer your rights or obligations under the Terms without prior written consent of JO. A purported assignment without written consent will be deemed to be void and convey no rights.
These Terms have been prepared by MurdockCheng Legal Practice on behalf of JO.
32. Publications
By you registering as a User, posting a Job or performing services as a Worker, you acknowledge and agree that JO is granted an irrevocable, perpetual, worldwide, royalty free right to use your trade mark, logo or name for the purpose of promoting JO or the Services, now and in the future. This includes any promotion, marketing or advertising by way of online, in print, in social media, in competitions, advertisements, books and magazines, design publications and any other self-promotional or demonstrative purpose.
