Zoom2u Pty Ltd Carrier Terms and Conditions
Licence Agreement with Zoom2u Pty Ltd (Zoom2u)
1. Introduction and grant of licence
1.1 This is a licence agreement between Zoom2u as the licensor and the Carrier as the licensee.
1.2 Zoom2u is a technology services provider that operates the Business which:
- enables Customers to make a Booking Request to a Carrier via the Platform to complete Carrier Services; and
- provides the Platform to the Carrier as a venue where Carriers and Customers can be connected.
1.3 On completion of the Boarding Process by the Carrier, Zoom2u grants to the Carrier a revocable, non-exclusive Licence for the Term to use and access the Platform for the permitted use of accepting Booking Requests and providing Carrier Services, on the terms and conditions of this Agreement.
1.4 Subject to clause 2.4, Zoom2u agrees to provide the Carriers with access to the Platform during the Term to enable the Carriers to have the opportunity to accept Booking Requests and provide the Carrier Services.
1.5 The Carrier acknowledges and agrees that:
- Zoom2u does not employ Carriers or contract with the Carrier other than by contracting with the Carrier pursuant to the licence arrangements contemplated by this Agreement;
- Zoom2u does not offer to or provide, perform or conduct Transportation Services nor does it act as a freight forwarder or broker;
- does not participate in the interaction between the Carrier and Customers except to the extent necessary to provide the Platform to facilitate the interaction, including the invoicing and processing of the Delivery Fee from behalf of Carriers.
1.6 By using the Platform, the Carrier agrees that the Carrier will observe and comply with all regulations relating to the Carrier’s engagement by Customers, including any applicable workplace laws.
1.7 Upon receiving a Booking Request from a Customer, Zoom2u will upload that Booking Request to the Platform (subject to the terms and conditions of this Agreement and the customer’s terms and conditions, available at https://www.zoom2u.com.au/).
1.8 As a condition to Zoom2u making Booking Requests available to the Carrier, the Carrier is required to at all times during the Term:
- have authorised access to a vehicle (in accordance with clause 11 of this Agreement) in order to provide Carrier Services;
- be registered as a Carrier through the Boarding Process; and
- accept and comply with the terms and conditions set out in this Agreement.
1.9 The Carrier may:
- perform a Booking directly;
- arrange for employees of the Carrier to perform a Booking; or
- engage another individual or company to act as an Assigned Carrier to perform a Booking, provided that the performance of the Booking is carried out in accordance with this Agreement.
1.10 Subject to any provision of this Agreement to the contrary, the Carrier must not sub-licence any of its rights under this Agreement without the prior written consent of Zoom2u.
2.1 By completing the Boarding Process, the Carrier accepts the terms and conditions of this Agreement.
2.2 This Agreement commences on the date that Zoom2u notifies the Carrier in writing that it has successfully completed the Boarding Process application.
2.3 This Agreement continues in force unless and until terminated in accordance with this Agreement.
2.4 Zoom2u is entitled to terminate this Agreement by notice in writing to the Carrier, at any time, with immediate effect, if:
- the Carrier does not provide to Zoom2u, upon request, evidence of the insurance which the Carrier is required to maintain in accordance with clause 10; or
- a Termination Event occurs.
2.5 Zoom2u acknowledges that the Carrier may not be available from time to time during the Term to accept Booking Requests and that it is at the absolute discretion of the Carrier whether the Carrier accepts a Booking Request.
2.6 Zoom2u acknowledges that the Carrier may not be available from time to time during the Term to use the Platform and that it is at the absolute discretion of the Carrier as to when the Carrier uses the Platform.
3.1 Zoom2u and the Carrier agree and acknowledge that:
- Zoom2u will during the Term allow the Carrier to access Booking Requests via the Platform under the terms of this Agreement;
- the Carrier may only accept a Booking Request by using the Platform and not through any other means, for example, by contacting a Customer by means other than through the Platform;
- it is at the Carrier’s absolute discretion as to whether the Carrier accepts a Booking Request;
- each Booking Request uploaded onto the Platform will be able to be viewed by all Carriers and will be open for acceptance by any Carrier on a ‘first come, first served’ basis (subject to the terms and conditions provided in this Agreement);
- Zoom2u will not be party to any contract that may arise between a Customer and a Carrier as a result of a Carrier accepting a Customer’s Booking Request/s;
- any and all communications, correspondence, verbal or written, or any warranties or representations made with regard to the Transportation Services, are not provided by Zoom2u and are specifically and solely made as between the Carrier and the Customer;
- Zoom2u makes no warranty or representation in relation to any Carrier and has no control over any aspect of any Consignment (including mass, dimension, load restraint, or pick-up, delivery or transit timing requirements) or the Carrier’s ability to transport items;
- Zoom2u does not have any responsibility for or control over the Carrier or the Customer. The Carrier is solely responsible for and has control over the delivery, quality or safety of the Transportation Services and Zoom2u is not responsible for the agreements or any other legal aspects relevant to the Transportation Services that are facilitated through the Platform, other than as may be required by law;
- Zoom2u does not guarantee any quantity of Booking Requests being made available for acceptance by a Carrier through the Platform, or that the Carrier will receive any particular amount of revenue as a result of entering into this Agreement;
- Zoom2u is entitled, at its discretion, to stop making the Platform available to the Carrier without notice, and Zoom2u is not required to provide a reason for not making the Platform available to that Carrier; and
- subject to this Agreement, the Carrier is solely responsible for controlling the manner in which it performs the Bookings.
3.2The Carrier acknowledges and agrees that it is the responsibility of the Carrier to login to the Platform to view available Booking Requests.
3.3The Platform provides a Specified Booking Request function that allows Customers to request a Specified Booking Request, subject to availability. In the event that a Customer makes a Specified Booking Request, the Carrier acknowledges and agrees that:
- Zoom2u may make the Specified Booking Request available for acceptance by the Applicable Carrier via the Platform;
- the Applicable Carrier will have a period of one (1) minute (or such other period specified in the Specified Booking Request) from the Specified Booking Request being made available for viewing on the Platform in which to accept the Specified Booking Request;
- if the Applicable Carrier accepts a Specified Booking Request, the Applicable Carrier guarantees to perform the Carrier Services as required by the Specified Booking Request; and
- if the Applicable Carrier does not accept the Specified Booking Request within the specified period, the Specified Booking Request will immediately convert into an ordinary Booking Request and be advertised on the Platform to all other available Carriers who have access to the Platform.
3.2Zoom2u may, at its discretion, place Booking Requests on the Platform on its own account.
3.2The Platform allows Customers to suggest a price when making a Booking Request on the Platform. If a Customer suggests a price then the Carrier acknowledges and agrees that:
- Carriers, based on proximity, will be notified through the Platform of the suggested price;
- the Carrier will have a period of thirty (30) seconds from when the suggested price is made available for viewing on the Platform in which to accept the suggested price or make a counter offer through the Platform;
- it is at the Carrier’s absolute discretion as to whether the Carrier accepts a suggested price booking;
- under the suggest a price function, the Platform will provide a chat screen facility to allow Carriers to negotiate the Delivery Fee, time and date of the delivery with the Customer;
- if the Carrier and the Customer both agree on a price for the delivery, the Carrier will perform the Carrier Services as agreed to between the Carrier and the Customer.
4. Delivery Fee Process
4.1The Carrier acknowledges that the Carrier is only entitled to receive the Delivery Fee in consideration of the completion of the Carrier Services in accordance with this Agreement.
4.2If the Carrier assigns the Booking to an Assigned Carrier, the Carrier is solely responsible for any payment or other benefits due to the Assigned Carrier and Zoom2u will not be liable to any Assigned Carrier in any way.
4.3Zoom2u does not participate in the interaction between Carriers and Customers, except to provide technology to facilitate the interaction, including the invoicing and receipting of the Delivery Fee from the Customers on behalf of Carriers.
4.4Zoom2u will receive and then hold the Delivery Fee on behalf of and as agent for the Carrier until each relevant Processing Date.
4.5On each Processing Date, Zoom2u will pay the Delivery Fee less the Licence Fee and less any other amount which Zoom2u is entitled to deduct under this Agreement by direct deposit to the Carrier’s nominated bank account. For the avoidance of doubt, if a Carrier has not completed any Bookings during any particular week, the Carrier will not be entitled to receive any Delivery Fees for that particular week.
4.6The total Delivery Fee payable to a Carrier on each Processing Date is calculated by reference to total value of tax invoices issued on behalf the Carrier through the Platform which have been paid by the relevant Customers, in respect of Bookings completed by the Carrier during the relevant week.
4.7The Carrier acknowledges and agrees that the Platform will generate tax invoices on behalf of the Carrier which will include the Carrier’s name (including any trading name), ABN, and other details that required by law or are otherwise reasonably necessary to include, on the invoices issued to Customers. The Carrier must at all times ensure that it has uploaded onto the Platform up to date details required by law to be included on any tax invoice issued to Customers.
4.8The Carrier acknowledges and agrees that Zoom2u may amend the process for the collection of Delivery Fees and payment of Delivery Fees under this clause 4 from time to time at its sole discretion without notice to the Carrier.
5. GST and Tax
5.1To make a Booking Request on the Platform, you will need to set up a User Account. The email address registered on your User Account be your username. The username and password are personal to you and are not transferable.
- the Delivery Fees are inclusive of any applicable GST and that the Carrier is solely responsible for the remission of any GST payable to the ATO.
- the Carrier will be responsible for the payment of all taxes arising out of the provision of the Carrier Services or assessed on any Delivery Fees payable or paid under this Agreement;
- the Carrier will be responsible for making any superannuation guarantee contributions to any employees of the Carrier or Assigned Carrier that is required by law;
- the Carrier hereby fully indemnifies Zoom2u for any and all liabilities for any tax or superannuation liability arising in respect of any payments it receives on behalf of, or makes to the Carrier; and
- Zoom2u may, in its discretion, charge Customers a booking fee, licence fee or any other fee for the use of the Platform, and Zoom2u will be entitled to any such fee absolutely.
6. Licence Fee
6.1In consideration of the grant of the Licence to the Carrier, the Carrier must pay the Licence Fee to Zoom2u on each Processing Date.
6.2Prior the Processing Date, Zoom2u will issue the Carrier with a tax invoice for the Licence Fee.
6.3The Carrier agrees and irrevocably directs that on each Processing Date, Zoom2u is to retain an amount equivalent to the Licence Fee payable to Zoom2u on that Processing Date from the Delivery Fee in payment of the Licence Fee.
7.1The Carrier acknowledges that it will be responsible for the payment of all costs and expenses incurred in performing the Carrier Services including without limitation, vehicle acquisition and maintenance, petrol, vehicle insurance and registration, toll fees and any and all other expenses.
7.2The Carrier further acknowledges that the Carrier is responsible for assessing whether it will make a profit in using the Platform and that Zoom2u makes no representation as to whether the Carrier will make a profit by using the Platform.
8. Ownership and Intellectual Property Rights
8.1Zoom2u retains ownership of the App and the Platform, including all Intellectual Property Rights in the App and the Platform, during the Term of the Licence.
8.2All existing goodwill in, or associated with the App and the Platform is owned by, and vested in, and all future goodwill arising out of the use by the Carrier of the App and the Platform will vest in, and remain the exclusive property of Zoom2u.
9. Damaged Consignments and Incomplete Bookings
9.1Goods the subject of a Booking Request are a “Consignment”. For the purposes of this clause 9, “Carrier” refers to the Carrier, an employee of the Carrier and/or the Assigned Carrier to whom the Carrier has assigned the relevant Booking.
9.2The Carrier acknowledges and agrees that he, she or it will be liable for any loss or damage caused to any Consignment whilst in the possession, or under the control, of the Carrier.
9.3In the event that Zoom2u is notified of any loss or damage in respect of any Consignment, Zoom2u must take reasonable steps, as directed by the Customer, to ascertain whether all or part of the loss or damage has been caused by the Carrier and the Carrier shall fully cooperate with Zoom2u in relation to any information required by Zoom2u.
9.4The Carrier acknowledges and agrees that, without limiting any other term of this Agreement, if Zoom2u determines all or part of the loss or damage was caused by the Carrier (including, but not limited to, a negligent act or omission or breach of this Agreement or any Booking with a Customer), Zoom2u may in its absolute discretion, in order to preserve the goodwill of the Company and the Platform, deduct from any Delivery Fee held by Zoom2u on behalf of the Carrier the amount which represents the cost of repairing and replacing that part of the Consignment as lost or damaged by the Carrier and any loss suffered by the Customer as a result of the loss or damage caused by the Carrier.
9.5To the extent that the Delivery Fee held by Zoom2u on behalf of the Carrier at the relevant point in time are not sufficient to cover the amount being deducted at clause 9.4, the Carrier acknowledges and agrees that the shortfall amount will be treated as a debt due and payable by the Carrier to the Customer and Zoom2u may issue an invoice to the Carrier on behalf of the Customer for the relevant amount which must be paid by the Carrier within 7 (seven) days of the date of the invoice.
9.6In the event that the Carrier fails to pick-up a Consignment or does not attempt delivery of a Consignment at all, any part of the Delivery Fee held on behalf of the Carrier may be refunded to the Customer.
9.7In the event that the Carrier does not complete a Booking by delivering the relevant Consignment to the correct destination or within the timeframe specified in the Booking Request, the Carrier will not be deemed to have successfully completed the Booking for the purposes of clause 4.1 above and Zoom2u will act in accordance with the directions of the Customer in determining whether the Carrier is entitled to be paid all or part of the Delivery Fee for the relevant Booking. Any decision made in this regard is final and not subject to review or negotiation. Further information may be requested from the Carrier in relation to the Booking (which may be based on information obtained by Zoom2u from data recorded via the Platform in relation to any Booking) before any determination is made in relation to the payment of the Delivery Fee. Any decision will be provided to the Carrier in writing through the Platform.
9.8In the event that a Customer cancels a Booking (which has been processed as a Booking Request, and accepted by the Carrier), but the Consignment has not yet been picked-up by the Carrier, no Delivery Fee will be payable by the Customer in relation to the relevant Booking.
9.9In the event that Zoom2u does not receive the full amount of the Delivery Fee from the Customer in respect of any Booking Request (at no fault of Zoom2u), Zoom2u can only direct to the Carrier, in respect of the relevant Booking, that part of the Delivery Fee which represents the same pro rata amount of the Delivery Fee actually received by Zoom2u from the Customer.
9.10Notwithstanding clause 9.6 above, if a Carrier has received a Delivery Fee in respect of a Booking Request but by reason of any act or omission of the Carrier Zoom2u must pay an amount to the Customer on behalf of the Carrier Zoom2u will be entitled, at its discretion and acting reasonably, to require the Carrier to reimburse Zoom2u for all or part of the amount paid to the Carrier.
10.1The Carrier must obtain and maintain any necessary and adequate insurance(s) throughout the Term, (including in relation to commercial vehicle insurance, workers’ compensation legislation (as relevant) and public liability insurance) on terms that are satisfactory to Zoom2u in Zoom2u’s absolute discretion, and otherwise comply with any other legislation as applicable. The Carrier must ensure that Zoom2u is nominated as an interested party on all relevant insurance policies.
10.2The Carrier will be obliged to produce to Zoom2u, at Zoom2u’s request, original documentation to confirm the validity of any and all necessary insurance policies required to be maintained by the Carrier pursuant to clause 10.1.
10.3The Carrier acknowledges it (including its Assigned Carriers, employees or agents) is not entitled to the benefit of any insurance policies (including for accidents, third party liability, workers’ compensation or other indemnity-based insurance) that Zoom2u may hold in relation to the Business.
10.4If the Platform contains a provision that Zoom2u may arrange insurance as agent for the Carrier, then the Carrier may at any time opt out of the insurance provided the Carrier always complies with the obligations of the Carrier under this clause 10.
10.5The Platform may recommend an insurance provider to the Carrier.
10.6The Carrier is under no obligation to use the recommended insurance provider. However if the Carrier does use the recommended insurance provider, the Carrier must contact the insurance provider directly for the product disclosure statement and in order to take out the insurance policies required to be maintained by the Carrier pursuant to clause 10.1.
11.1The Carrier acknowledges and agrees that it is expected to own, lease or otherwise have authorised access to a registered motor vehicle or bicycle to be used in the performance of the Bookings and that Zoom2u will not under any circumstances provide or arrange any mode of transport for the Carrier. The type of vehicle or bicycle used by the Carrier is at the Carrier’s discretion.
11.2The Carrier is responsible for any maintenance, up-keep and insurance of its vehicle(s) or bicycle(s) which it chooses to carry out and acknowledges that it will not be entitled to be reimbursed by Zoom2u for any expenses or costs relating to the vehicle(s) or bicycle, including in relation to any insurance which the Carrier may choose to obtain in respect of the vehicle or bicycle, or the costs associated with normal wear and tear.
12.1The Carrier is permitted to assign the completion of a Booking to an Assigned Carrier engaged by the Carrier on the basis that the Carrier acknowledges and agrees that the Carrier is responsible for:
- ensuring that the Assigned Carrier is made aware of this Agreement and the terms contained herein and is bound by this Agreement to the same extent as the Carrier;
- ensuring that the Assigned Carrier complies with the terms of this Agreement; and
- payment to the Assigned Carrier in respect of the provision of the Carrier Services performed by the Assigned Carrier.
12.2Further to clause 12.1, in no circumstances will Zoom2u be liable to make payment of any Delivery Fee (or part thereof) to an Assigned Carrier, including on behalf of the Carrier.
12.3The Carrier acknowledges and agrees the Carrier is liable for the acts or omissions of the Carrier’s employees as well as any Assigned Carriers (and any employees of the Assigned Carrier) in respect of the provision of the Carrier Services. A breach of any of the terms of this Agreement by an Assigned Carrier will be deemed to be a breach by the Carrier, and Zoom2u shall be entitled to exercise its rights (as relevant) against the Carrier in relation to any such breach.
12.2The Parties acknowledge and agree that the performance of Carrier Services by any employee of the Carrier is not considered to be an assignment for the purposes of this clause 12.
13.1The Carrier hereby warrants, represents and undertakes that the Carrier, and where relevant, its Assigned Carriers, employees or agents:
- has legal capacity, full right, power and authority to enter into this Agreement;
- is not subject to any legal restrictions preventing the Carrier from performing the Carrier Services;
- has a current and valid drivers’ licence and is duly qualified to perform the Carrier Services;
- will, in performing the Carrier Services, and in particular, in handling the Consignment, act with due care and skill;
- will be courteous and polite to Customers and any other person with whom the Carrier comes into contact in providing the Carrier Services;
- will not be under the influence of drugs or alcohol in performing the Carrier Services;
- will use the Carrier’s best endeavours to attend the pick-up address and drop-off address in respect of the Consignment within the timeframe specified in the Booking Request;
- will complete all accepted Booking Requests in accordance with this Agreement;
- will not denigrate, comment unfairly about or defame Zoom2u, its directors or employees, any other Carriers, any Customers and/or the Business either during or after the Term, including on any form of social media, and whether or not by identifying any particular person;
- will not, in providing the Carrier Services, participate or act in a manner contrary to the interests of Zoom2u or its Customers or otherwise commit any act which may bring Zoom2u into disrepute or which directly or indirectly damages Zoom2u’s reputation;
- will act lawfully and comply with any applicable licences, laws, regulations, industry codes of conduct, health and safety requirements and Australian standards in performing the Carrier Services;
- will comply with the provisions of any road rules and laws in force in the applicable state or territory from time to time;
- has complied with all applicable legislation, awards and industrial instruments in engaging or employing all persons or companies who will perform the Carrier Services on behalf of the Carrier in accordance with this Agreement;
- has a valid ABN and has advised Zoom2u of that ABN; and
- is registered for GST purposes (if applicable).
14.1The Carrier agrees, and must ensure that its Assigned Carriers, employees and agents agree, at all times during and for so long as is legally permissible after the Term to keep confidential the Confidential Information and will not (and will use best endeavours to ensure third parties do not) disclose, discuss, copy or transmit the same without the prior written approval of Zoom2u, except as required by law or to the extent necessary to perform any of his/her/its obligations under this Agreement or where the information is or becomes public knowledge (but not if it is because the Carrier has contravened a confidentiality obligation under this clause 14).
14.2The obligations under this clause will survive termination or expiry of this Agreement.
15.1In performing the Carrier Services, the Parties agree to comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
16. Health and Safety and Chain of Responsibility
16.1The Carrier acknowledges that it is solely responsible for its own safety and wellbeing in performing the Carrier Services and that Zoom2u has no ability to supervise the performance of the Carrier Services by the Carrier.
16.2Zoom2u does not carry out any training or arrange for the provision of any training to the Carrier (or its Assigned Carriers, employees or agents) in respect of the Carrier Services.
16.3If the Carrier considers that performing the Carrier Services could cause serious risk to the Carrier’s health or safety, the Carrier must, and agrees to, cease performing the Carrier Services.
16.4The Carrier must ensure that the vehicle it uses to perform the Carrier Services is in a safe and serviceable condition.
16.5The Carrier will promptly notify Zoom2u of any health and safety incidents that occur in relation to the provision of the Carrier Services, and/or of any involvement by health and safety officials in connection with the Carrier Services.
16.6The Carrier will at all times comply with its obligations under Zoom2u’s Chain of Responsibility Policy and Terms (as amended from time-to-time), which are incorporated into these Terms as if set out in full and are available at https://www.zoom2u.com.au/.
17. Modification, Suspension and Termination of the Platform
17.1The Carrier acknowledges Zoom2u may, at any time, and in its absolute discretion, with or without notice to the Carrier and without refund:
- modify or discontinue the Platform; and/or
- immediately modify, suspend or terminate the Carrier’s access to, or use of the Platform.
17.2The Carrier acknowledges and agrees Zoom2u will not be liable to the Carrier or any other party for any:
- suspension or termination of the Carrier’s access to the Platform;
- deletion of any information or materials contained on the Platform posted by the Carrier, or any information the Carrier provides to a Customer via the Platform; or
- modification or discontinuance of the Platform.
17.3Continued use of the Platform following notice to the Carrier of any modification to the Platform will indicate the Carrier’s acknowledgment of and agreement to such modifications.
18.1The Carrier has an obligation to maintain a standard of quality in using the Platform under the Licence.
18.2The Carrier agrees that it must, during the Term, as a condition of this Agreement:
- maintain a driver rating of ninety (90) percent or more when using the Platform;
- maintain a completion rating of ninety (90) percent or more when using the Platform; and
- comply with delivery instructions given by the Customer in the Booking Request.
18.3If any one or more of the Positive Obligations is breached Zoom2u may notify the relevant Carrier and require the breach to be remedied or an undertaking to be given that the breach will not occur again, in the discretion of Zoom2u. If the breach is not remedied or the undertaking not given (as the case may be) and any Positive Obligation is breached three (3) times during the Term then such breach will be a “Termination Event” pursuant to clause 19 of this Agreement.
19. Termination Events
19.1For the purpose of this Agreement, each of the following is a Termination Event:
- the Carrier has breached the same positive obligation in clause 18 of this Agreement, three (3) times during the Term;
- the breach or threatened breach by either Party of any of its material obligations under this Agreement;
- the Carrier partaking in unlawful and/or fraudulent behaviour;
- the Carrier creating an unsafe and/or antisocial environment for other Carriers or individuals or businesses associated with Zoom2u; or
- the Carrier becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.
19.2If a Termination Event occurs, this Agreement may be terminated by notice in writing by Zoom2u to the Carrier, with effect immediately.
19.3Upon termination of this Agreement:
- the Carrier must immediately:
- stop performing the Carrier Services and inform Zoom2u of any Bookings not yet performed so that Zoom2u can make alternative arrangements for the performance of such Bookings;
- cease to accept any new Booking Requests;
- return to Zoom2u all property, including Confidential Information, in its possession that belongs to Zoom2u; and
- pay or repay any sums lawfully owing to Zoom2u as provided for pursuant to this Agreement
- The Carrier acknowledges and agrees that if the Carrier does not pay or repay any sums lawfully owing to the Customer or to Zoom2u, Zoom2u will be entitled to deduct those sums from any amount payable to the Carrier in accordance with this clause 19.3; and
- Zoom2u must:
- pay to the Carrier any Delivery Fees which have been received by Zoom2u on behalf of the Carrier and have not yet been paid to the Carrier in respect of Bookings completed prior to the date of termination (less any deductions which Zoom2u is entitled to make pursuant to this Agreement or as otherwise agreed in writing between the parties, if relevant); and
- immediately return to the Carrier all property, including Confidential Information in its possession that belongs to the Carrier.
19.4Termination of this Agreement will not prejudice or impair any rights, remedies or continuous obligations that have already accrued to any Party under or in respect of any breach of this Agreement.
20. No Competition Restrictions
20.1The Carrier may engage in work during the Term provided that it does not conflict with the Carrier’s obligations under this Agreement. The Carrier will not be in breach of this clause by
- entering into another licence agreement to use a similar platform; or
- providing carrier or delivery services to the public; or
- operating its own carrier and delivery business.
20.2If the Carrier becomes aware of any conflict of interest between this Agreement and any other work it has been offered or proposes to undertake, it must inform Zoom2u immediately in writing and take all steps as reasonably agreed with Zoom2u to resolve the conflict.
20.3The Carrier must not:
- contact or engage with any Customer for employment or contracting for any business outside of the Platform; or
- contact Customers whose details are obtained from the Platform for any purpose other than for the purposes of carrying out the Carrier Services in accordance with this Agreement.
21. Relationship of the Parties
21.1No independent contractor, partnership, quasi-partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended to be created, between Zoom2u and the Carrier, by the Carrier using the Platform or by this Agreement.
21.2By using the Platform the Carrier warrants that it has made itself aware of the requirements under applicable workplace and occupational health and safety laws which may apply to the engagement between a Customer and Carrier and between a Carrier and its Assigned Carriers, employees or agents.
21.3Except as expressly authorised in writing, no Party will have (and must not represent that it has) any power, right or authority to bind the other Party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other or in the other’s name.
22. Liability and Indemnity
22.1The Carrier acknowledges and agrees that it is responsible for any losses, costs, expenses and damages to Zoom2u or any third party in respect of, arising out of or in connection with the Carrier Services that the Carrier provides, or negligence or any breach of this Agreement by the Carrier (or any of its Assigned Carriers, employees or agents).
22.2The Carrier hereby indemnifies and undertakes to keep Zoom2u indemnified from and against all and any Losses.
22.3Without limiting clause 22.2, the Carrier acknowledges that the indemnification in clause 22.2 applies to Losses arising from:
- the negligence of any Party or third party;
- the manner in which the Carrier Services are performed by the Carrier (or any of its Assigned Carriers, employees or agents), including but not limited to any act or omission by the Carrier in connection with the performance of the Carrier Services;
- the decision of any court, tribunal or other authority in respect of the classification of the Carrier (or any of its Assigned Carriers, employees or agents) as either an employee or contractor under common law or statute;
- deemed employees of the Carrier including in relation to employee entitlements; and
- any taxes, fees, charges and any other imposts.
22.4The indemnity in clause 22.2 is a continuing obligation which is separate and independent from any other obligations of the parties under this Agreement and it survives termination or expiry of this Agreement.
22.5The Carrier acknowledges and agrees that it is not necessary for Zoom2u to incur any expense or cost or make any payment before enforcing the indemnity in clause 22.2 and the Carrier must pay any money due to Zoom2u under that indemnity on demand by Zoom2u.
22.6Zoom2u does not warrant that the Platform will be uninterrupted or error-free and the Carrier agrees that Zoom2u will not be liable to the Carrier for any loss or damage, including loss of profit arising from any malfunction or bugs in respect of the Platform.
22.7To the maximum extent permitted by law, Zoom2u will not accept liability to the Carrier in respect of any loss or damage (including indirect, special, or consequential loss or damage) which may be suffered or incurred by the Carrier or which may arise directly or indirectly in respect of the Carrier using the Platform.
22.8To the maximum extent permitted by law, any condition or warranty by Zoom2u which would otherwise be implied into this Agreement is hereby excluded.
22.9The obligations under this clause will survive termination or expiry of this Agreement.
22.10For the avoidance of doubt, nothing in this Agreement limits or affects any agreement between the Carrier and the Customer as to liability for loss and damage to the Consignment.
23. Dispute Resolution
23.1In the event of a Dispute arising in connection with this Agreement, the Parties agree to the following dispute resolution procedure:
- the Complainant must provide a Dispute Notice to the Respondent.
- upon receipt of a Dispute Notice by the Respondent, the Parties will arrange to meet in good faith to seek to resolve the Dispute amicably by agreement between them; and
- if the Parties cannot agree on how to resolve the Dispute then the either Party can elect by notice in writing to the other Party to refer the Dispute to the Review Committee; and
- if the parties will not meet, or cannot agree on how to resolve the Dispute within 2 (two) weeks of the Dispute Notice having been received by the Respondent, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the Complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation recommended by the mediator, in good faith, to seek to resolve the Dispute through mediation.
23.2Each Party will bear their own legal costs in any Dispute.
23.3The cost of a mediator appointed pursuant to this clause 23 will be shared equally between each Party. .
23.4Any attempts made by the Parties to resolve a Dispute pursuant to this clause will be without prejudice to any other rights or entitlements of the parties under this Agreement, by law or in equity. For the avoidance of doubt, nothing in this clause prejudices the right of either party to seek urgent injunctive, interlocutory or declaratory relief from a court in connection with the Dispute without first having to attempt to resolve the Dispute in accordance with this clause 23.
24.1A notice or communication must be in writing in English and may be delivered by any electronic means, including emails to the email address the Carrier has registered on the Platform from time to time.
25.1Assignment: This Agreement is personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld). Any purported dealing in breach of this clause is of no effect. Zoom2u will be entitled to require any assignee of the Carrier to execute an assignment document under which the assignee acknowledges and agrees to be bound by this Agreement, as varied or amended from time to time, as if it were in place of the Carrier.
25.2Waiver or variation of rights: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
25.3Powers, rights and remedies: Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.
25.4Consents and approvals: Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.
25.5Further assurance: Each Party must from time to time and in a timely manner do all things reasonably required of it by the other Party to give effect to this Agreement.
25.6Entire agreement and understanding: In respect of the subject matter of this Agreement: this Agreement contains the entire understanding between the Parties; all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement; and each of the Parties has relied entirely on its own enquiries before entering into this Agreement.
25.7Governing law and jurisdiction: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the nonexclusive jurisdiction of the courts of New South Wales.
In this Agreement:
Agreement means this licence agreement.
App means the apple or android app titled ‘Zoom2u’ owned by Zoom2u.
Applicable Carrier means a specific carrier as requested in a Specific Booking Request.
Assigned Carrier means an individual or company to whom a Booking is assigned to by a Carrier.
ATO means the Australian Taxation Office
Boarding Process means the online registration process on the Platform available at https://www.zoom2u.com.au/
Booking means a booking placed by a Customer through the Platform for the provision of the Carrier Services which has been processed by Zoom2u and communicated to the Carrier via the Platform and accepted by the Carrier in accordance with clause 3 of this Agreement.
Booking Request means a delivery booking request made by a Customer for a Carrier to provide the Carrier Services on the Platform.
Business means the App and Website-based business under the trading name Zoom2u.
Business Day means a day which is not a Saturday, Sunday or bank or public holiday in the relevant state or territory in which the Carrier is resident.
Carrier means the individual (including a person trading under a business name), partnership or entity named in the Boarding Process application to be approved by Zoom2u to use the Platform under this Agreement, and includes any employee of such Party (who will also be deemed to be bound by these terms). The plural term Carriers refers to all carriers who have been granted a licence to use, and have access to the Platform, from time to time, on terms identical or substantially similar to this Agreement.
Carrier Services means the provision of services whereby a Carrier will pick-up a Consignment from one location and deliver to another location for a Customer in accordance with this Agreement.
Complainant means the Party who raises a Dispute pursuant to clause 23.
Confidential Informationmeans the terms of this Agreement and any information about Zoom2u, its operations, products, Business, Carrier Services and Customers and any information, the disclosure of which could be detrimental to the interests of Zoom2u, as acquired by the Carrier (or any of its Subcontracted Carriers, employees or agents) whilst, or as a result of, performing the Carrier Services which is not in the public domain, other than as a result of breach of confidence, and the confidential information of the Carrier which relates to the subject matter of this Agreement.
Consignment means the item or items which is/are carried by the Carrier in performing a Booking.
Customers means individuals or businesses that places a Booking Request for Carrier Services on the Platform.
Delivery Fee means the amount inclusive of GST displayed on the Platform as being payable by the Customer on completion of a Booking Request.
Dispute means a dispute, controversy or claim arising out of or in connection with this Agreement.
Dispute Notice means a written notice given to the Respondent that explains the nature of the Dispute, what outcome the Complainant wishes to achieve and what action the Complainant believes will settle the Dispute.
GST means Goods and Services Tax pursuant to A New Tax System (Goods & Services Tax) Act 1999 (Cth) and the related imposition Act of the Commonwealth.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, confidential information, trade secrets and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
Licence means the licence of the Platform granted to the Carrier pursuant to this Agreement.
Licence Fee means, in respect of each Processing Date, an amount inclusive of GST equal to twenty percent (20%) of the Delivery Fee, being the fee charged and invoiced by Zoom2u to the Carrier in consideration of the Licence.
Losses mean any and all actions, claims, proceedings, judgments, demands, liabilities, losses, costs (including reasonable legal costs), expenses, penalties, fines and damages which may be brought or awarded against Zoom2u or suffered, incurred or paid by Zoom2u (howsoever arising) in respect of, arising out of or in connection with the Carrier Services provided by that Carrier (or any of its Assigned Carriers, employees or agents), a violation of any law by the Carrier, or a breach of the terms, conditions, covenants, warranties and representations (express or implied) contained in this Agreement on the part of the Carrier (or any of its Assigned Carriers, employees or agents).
Parties means the parties to this Agreement and Party means any one of them.
Platform means the technology platform offered via the App or the Website.
Processing Date means the last Business Day of each calendar week for any Bookings completed by the Carrier up until 12.00am on that Business Day.
Respondent means the Party required to respond to the Complainant.
Review Committee means a committee nominated by Zoom2u that consists of independent Zoom2u Carriers and customer service staff of Zoom2u.
Specified Booking Request means a Booking Request made by a Customer that is offered to an Applicable Carrier
Taxes means income tax, payroll tax, stamp duty, GST, superannuation and all other applicable taxes.
Term means the period that commences as set out in clause 2.2 and ends when the Licence is terminated in accordance with this Agreement.
Termination Event has the meaning given to that term in clause 19.1.
Transportation Services means the on-demand transportation of Consignments by Carrier for Customer (including, if applicable, the loading and unloading of the Consignments under the instruction of Customer or receiver). For the avoidance of any doubt, these terms do not constitute an agreement for and Zoom2u does not offer to or provide any Transportation Services; and Zoom2u means Zoom2u Pty Ltd trading as Zoom2u and, for the purposes of any indemnities benefiting Zoom2u under this Agreement, includes the Directors, officers, employees, agents, subcontractors and representatives and any ‘related entity’ or related body corporate’ (both within the meaning of the Corporations Act 2001 (Cth)) of Zoom2u, but not including the Carrier.
Website means the website at the domain name https://www.zoom2u.com.au/ (or such other domain name as Zoom2u may use in relation to the Business from time to time).
- words in the singular include the plural and vice versa;
- headings are for convenience and do not affect the interpretation of this Agreement;
- a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Agreement;
- if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
- “includes” and similar words mean includes without limitation; and
- a reference to time is to local time in New South Wales.
Last updated 17th July 2019