FreightSeek Terms and Conditions - Provider Agreement
By using the System and/or the Site you, "the Provider", agree to be bound by the terms of this Agreement with FREIGHT SEEK PTY LTD ACN 138 938 842 ("FREIGHT SEEK").
1. Definitions
In this Agreement the following terms have the following meanings:"Deposit Fee" is the deposit the User pays to accept a bid and secure the services of a Provider who has placed a quote/bid to transport the Users freight."Job" means the provision of freight/transport services by a Provider (including the Provider) to a User that arises out of a Job Request;"Job Request" means a request made by the User using the System seeking offers for the provision of freight/transport services from Providers (including but not limited to the Provider);"Provider" as the context requires means you and or any other person or entity being a transport services provider who is registered with FREIGHT SEEK in accordance with this Agreement and who may submit a bid in respect of a Job Request; "Matching Fee" is the fee that is charged to the Provider when they have successfully been matched with a User for the provision of freight/transport services."Provider Services" means the freight (and any other) services that the Provider offers and/or provides to one or more Users;"Site" means the website operated by FREIGHT SEEK at www.freightseek.com.au;"System" means the system operated by FREIGHT SEEK as described in this Agreement, and as developed by FREIGHT SEEK from time to time; and"User" includes any person that uses the System and/or the Site, including the Provider in their use of the Site and System.
2. Registration
2.1 The Provider's participation in the System is subject to FREIGHT SEEK's acceptance of the Provider's application for registration as a Provider. Provider agrees to supply any documentation reasonably required by FREIGHT SEEK to verify Provider's qualifications and ability to supply the Provider Services. 2.2 The Provider acknowledges and agrees that the System is available only to persons aged 18 years old and over. The Provider represents and warrants that he/she is 18 years old or over. If the Provider is a company or other business entity, the person purporting to represent the Provider represents and warrants that they have authority to bind the entity to this Agreement. 2.3 Without limiting any other right or obligation of the parties, the Provider must immediately notify FREIGHT SEEK of any change in circumstances or any other fact or matter that would or might be a basis for disqualifying the Provider as a Provider. 2.4 Upon registration, the Provider will be issued with a user identification number and password to use and access the Site and System. The Provider agrees that FREIGHT SEEK shall be entitled to assume that any person using the Site with the Provider's user identification number and/or password is the Provider or its authorised representative.2.5 Registration, and hence entitlement to operate as a Provider, is personal to each Provider and cannot be assigned or transferred.
3. How the System Works
3.1 The System operates as both a finder and facilitator seeking to match the needs of Users with Providers. The System and Site acts as a forum for Users and Providers to bid and agree on prices and enter into agreement regarding the provision of freight services by the Provider. FREIGHT SEEK is as a neutral facilitator and the Provider acknowledges and agrees FREIGHT SEEK is not directly involved in the transactions and arrangements between Users and Providers. Such transactions and arrangements with any User will be subject to the Provider's own terms and conditions.3.2 The Provider must provide FREIGHT SEEK with the terms and conditions (in PDF format or such other format agreed between FREIGHT SEEK and the Provider) on which it is prepared to contract with Users in respect of the Provider Services. Such terms and conditions will be made available to the appropriate User for acceptance (or rejection if the User so determines) at the time of (or just prior to) the proposed entry of an agreement with the User for a Job.
4. Matching Fee
4.1 A Job is secured once the User accepts the Provider's quote and pays the Deposit Fee to the Provider. The Deposit Fee is paid into an account held by FREIGHT SEEK. The Deposit Fee is deducted from the balance payable to the Provider by the User. Remaining balance of payment is made directly to Provider by the User as set out under the Provider's Terms and Conditions. 4.2 FREIGHT SEEK charge a Matching Fee to successful Providers. This Matching Fee may be taken from the Deposit Fee paid by the User already held by FREIGHT SEEK.4.3 The Matching Fee is 7% of the total quoted transportation costs (Including GST) with a minimum of $10. 4.4 Provider bid amounts must be inclusive of GST and Matching Fee. No GST must be charged on top of your bid price once your bid has been accepted by the User.
5. Cancellations
5.1 Users and Providers can cancel a job prior to completion. When a Cancellation Request is made the other party is notified and asked to respond by either agreeing or disagreeing with the reason for the Cancellation Request. If the other party does not respond to the Cancellation Request within 48 hours, the cancellation reason will be automatically accepted and the Job cancelled. 5.2 If there is a disagreement over the cancellation then FREIGHT SEEK will review the information provided. If FREIGHT SEEK determines that a Provider has demonstrated poor conduct then FREIGHT SEEK may suspend or terminate the Providers account. 5.3 Providers waive their right to claim cancellation fees from FREIGHT SEEK or the User. 5.4 If the Job is cancelled for any reason then FREIGHT SEEK will review the cancellation reasons given by both the User and Provider and make a decision on whether to refund the User the Deposit Fee. 5.5 If FREIGHT SEEK decides the User should have their deposit returned, then FREIGHT SEEK will return the Deposit Fee to the User and will waive the Matching Fee for the Provider.5.6 If FREIGHT SEEK determines that loss has occurred to a Provider due to a cancellation by the customer then as a gesture of goodwill FREIGHT SEEK will waive the Matching Fee for the Provider and Pass the Deposit Fee to the Provider into an account nominated by the Provider.
6. Disclaimer and Acknowledgments
6.1 FREIGHT SEEK provides the details of and introductions to Users is on an 'as is' basis and without any warranty, express, implied or statutory as to the reliability, trustworthiness, creditworthiness or other attribute or characteristic of any User. 6.2 While FREIGHT SEEK endeavors to ensure that the Site is accessible at all times, it shall not be liable if it is unavailable at any time or for any period. The Provider agrees and acknowledges that the Site may experience interruptions and access difficulties from time to time and that FREIGHT SEEK will not be responsible for such interruptions or access difficulties. To the fullest extent legally possible, FREIGHT SEEK excludes any representation or warranty concerning Users, other Providers, the System, the Site or any third party Site referred to or connected via the Site.6.3 Without limiting the foregoing, the Provider acknowledges that:
(a) FREIGHT SEEK does not check the truth or currency of the material or information that Users provide or make available to it; (b) FREIGHT SEEK does not warrant to the Provider that anything on the Site or any third-party Site referred to or connected via the Site or System is or will be accurate, complete or up to date and makes no performance warranty whatsoever concerning anything on or implied from them;(c) FREIGHT SEEK does not offer or provide professional advice to Users on the fitness of any goods, services or information supplied by any third parties including the Provider;(d) FREIGHT SEEK is not a party to any transactions between User and Providers and it is the User (and, for the avoidance of doubt, not FREIGHT SEEK) who is responsible for paying the Provider for all Jobs and all Provider Services. FREIGHT SEEK cannot and will not guarantee the ability of Users to complete payment for any of the Provider Services;(e) the Provider shall be responsible for completing all transactions it participates in (including monitoring the status and complying with all relevant legal obligations);(f) FREIGHT SEEK does not warrant to the Provider that the Site or any information or communication it provides is or will be reliable, timely, error or fault free, complete or accurate; and(g) to the extent permitted at law, FREIGHT SEEK shall not be liable for any loss or damage whether directly or indirectly incurred by the Provider or any third person as a result of any act or omission of any User or any failure or delay in FREIGHT SEEK doing any thing, including, but not limited to transmitting any information between Users and Providers or removing any information from the Site or any User from the System.
6.4 The Provider agrees that to the extent permissible at law FREIGHT SEEK and all affiliates and related entities of FREIGHT SEEK shall have no responsibility for the legality of the actions of Users and other Providers.
7. Feedback feature of Site
7.1 The Provider acknowledges and agrees that FREIGHT SEEK operates a User feedback system, on which Users may post comments, compliments, criticisms and other observations regarding Providers on the Site. Submission to this forum is a condition of the Provider's registration. While Users are required to only post such comments that are honest, fair and reasonable and which can be substantiated, FREIGHT SEEK does not guarantee that all comments will comply with this requirement.7.2 The Provider acknowledges and agrees that any information or material submitted by it to the Site for inclusion in the feedback system (whether by Users or the Provider) is and will be treated by FREIGHT SEEK as non confidential and non-proprietary and FREIGHT SEEK may use such material without restriction.7.3 If and to extent that the Provider makes any comment on the Site the Provider must not post or transmit any material on the Site which is offensive, defamatory, obscene, unlawful, vulgar, harmful, threatening, abusive, harassing or otherwise reasonably objectionable.7.4 The Provider agrees not to disrupt the flow of dialogue or otherwise act in a manner which negatively effects other users of the Site.7.5 The Provider agrees not to impersonate any other person when posting material to the Site.7.6 The Provider acknowledges that any material it posts to the Site may be removed by FREIGHT SEEK from the Site without notice at any time.7.7 FREIGHT SEEK does not warrant to the Provider that it or Users will respond to questions or comments submitted by Users or the Provider to the Site.7.8 Without limiting any other provision of this Agreement, FREIGHT SEEK may in its discretion terminate or restrict the Provider's registration and ability to use the System and Site as a Provider, if the Provider is (in the opinion of FREIGHT SEEK) the subject of consistent, frequent or otherwise substantially negative feedback.
8. Provider Warranties
8.1 The Provider agrees and warrants to FREIGHT SEEK that it:
(a) is under no legal or other impediment that may prevent it fully carrying out its obligations under this Agreement;(b) will be in all respects able to fulfil completely any Job in respect of which it bids;(c) and any personnel it engages are and will at all times remain qualified to offer and perform the Provider Services;(d) and all personnel engaged by it will exercise a high degree of skill, care and professionalism in providing the Provider Services to Users;(e) [has all insurance required of or desirable for a service provider in the Provider's position and area of practice];(f) will ensure that all information (including but not limited to that set out in any application for registration as a Provider) including information relating to the Provider's qualifications and capacity is true and correct in every respect and will be updated by the Provider if and when it materially changes during the period of the Provider's use of the System;(g) will to the extent permissible at law, comply with its obligations towards Users as set out in the Provider's terms and conditions; (h) will not use the Site or System for illegal purposes, including without limitation, by posting to the Site information encouraging conduct that would constitute a criminal offence or using the System to transport illegal goods;(i) will not use any feature of the Site to send unsolicited commercial emails to Users, whether individually or as a group;(j) will not copy, translate, reproduce, communicate to the public, adapt, vary or modify anything on the Site without FREIGHT SEEK's prior written consent;(k) will not use anything on this Site for or in connection with any business or enterprise (whether for profit or otherwise) that is in competition with FREIGHT SEEK;(l) will not post to the Site or otherwise propagate material of any kind which contains computer worms, viruses or other types of malicious or harmful programs;(m) will not take any action that imposes an unreasonable or disproportionately large load on FREIGHT SEEK's infrastructure;(n) will not damage, modify, interfere with, disrupt or destroy the files, data, passwords, devices or resources that belong to FREIGHT SEEK or do anything that compromises the security of the Site;(o) will not use the Site to engage in misleading or deceptive on-line marketing practices;(p) will not use the Site to transmit junk mail, spam, chain letters or engage in other flooding techniques or mass distribution of unsolicited email;(q) will provide FREIGHT SEEK with complete and accurate contact details when using the System enabling Users to contact the Provider (and vice-versa) as requested;(r) will not use the Site or System in relation to the actual or proposed transportation of any illegal or prohibited goods; (s) will comply with all laws and regulations regarding the provision of the Provider Services as well as all laws and regulations relating to privacy; and(t) will not use the Site or System to procure the handling or the transportation of goods in respect of which the Provider knows, suspects or ought to know or suspect the User has no title or other right.
9. FREIGHT SEEK's Reservation of Rights
9.1 FREIGHT SEEK reserves the right to:
(a) remove or refuse to post or relay any information and/or materials (in whole or in part) that it, in its sole and absolute discretion, regards as in any way objectionable or in violation of any applicable law or this Agreement without notice to the Provider; and(b) modify or discontinue any services FREIGHT SEEK offers at any time.
10. Intellectual Property/Use of Material on Site
10.1 All intellectual property rights in information, data and materials used or appearing on the Site including (without limitation) all software, tools, know-how, processes, trade marks, logos and other materials shall remain the sole and exclusive property of FREIGHT SEEK or its licensors. The Provider acknowledges and agrees that it shall not acquire any rights, title or interest in or to any of FREIGHT SEEK's intellectual property rights. 10.2 To the extent that the Provider submits any information or material to FREIGHT SEEK relating to a Job Request or for otherwise posting on the Site, the Provider automatically grants FREIGHT SEEK a licence to use the information or material for the purpose for which it is provided.10.3 The Provider agrees that information contained on this Site is for their own use only and may not be sold, used or redistributed for any other purpose.10.4 The Provider may not use screen scraping, data mining or any similar data gathering and extraction technological devices on this Site for the purpose of reproducing information contained on this Site on or through any other medium, except with FREIGHT SEEK's prior written consent.
11. Limitation of Liability
11.1 To the extent permitted by law FREIGHT SEEK excludes all liability to the Provider or any other person for any loss claim or damage (whether arising in contract, negligence, tort, equity or otherwise for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including, without limitation any loss of profits, loss or corruption of data, or loss of or damages to reputation or goodwill) arising out of or in connection with any:
(a) the acts or omissions of any User including where the same results in a loss of or damage to goods;(b) use of the Site or the System or information on or provided through the Site or the System or any information or advice otherwise provided by FREIGHT SEEK or a User, even if FREIGHT SEEK has been advised of the possibility of such loss or damage; or(c) removal or termination of the Provider's access to the System and Site.10.2 To the extent permitted by law, FREIGHT SEEK and all affiliates and related entities of FREIGHT SEEK expressly limit their liability to the Provider for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at FREIGHT SEEK's sole discretion):(a) the re-supply of the services provided by FREIGHT SEEK; or(b) the payment of the cost of having those services supplied again.
12. Indemnity
To the extent permissible at law, the Provider indemnifies and holds FREIGHT SEEK and its parent, subsidiaries, affiliates, officers, directors, agents and employees harmless from and against any claims, demands, proceedings, losses and damages (whether actual, special and consequential of every kind and nature including all legal fees) made by any User or third party arising out of or in any way related to the Provider's use of the Site or the System, the Provider's breach of this Agreement, or the Provider's violation of any law or the rights of a third party.
13. Cancellation/ Breach/Suspension/Termination
13.1 The Provider may cancel its registration as a Provider upon notice to FREIGHT SEEK. Such cancellation shall not entitle the Provider to cancel or vary any agreement already in place to provide Provider Services to any User. 13.2 Without limiting other remedies available to FREIGHT SEEK at law, in equity or under this Agreement, FREIGHT SEEK may immediately issue a warning, temporarily suspend or indefinitely suspend the Provider's access to the System and refuse to provide services to the Provider if:
(a) FREIGHT SEEK, acting reasonably, believes that the Provider has breached any terms of this Agreement;(b) FREIGHT SEEK is unable to verify or authenticate any information the Provider provides to it; and/or(c) FREIGHT SEEK, acting reasonably believes that the Provider's actions may cause damage and/or legal liability for FREIGHT SEEK, other Providers or other Users.
13.3 FREIGHT SEEK may terminate this Agreement with immediate effect if:
(a) the Provider breaches any term of this Agreement and such breach is not rectified within seven (7) days of the User being notified by FREIGHT SEEK accordingly in writing or immediately if such breach is not capable of remedy; or(b) the Provider becomes subject to any kind of insolvency event.
14. No Agency
The Provider acknowledges and agrees that FREIGHT SEEK is not the Provider's nor any User's agent.
15. Circumstances beyond FREIGHT SEEK's control
FREIGHT SEEK will not be liable for any failure or delay in the performance of its obligations to the Provider if that failure or delay is due to circumstances beyond FREIGHT SEEK'S reasonable control including, without limitation, any act of God or other cause including any mechanical, electronic, communications or third party supplier failure.
16. Website Links
16.1 FREIGHT SEEK may provide links and pointers to websites maintained by third parties from its Site which websites are not under the control of FREIGHT SEEK and FREIGHT SEEK is not responsible for the contents of any linked website or any website link contained in any linked website.16.2 FREIGHT SEEK will not be liable for any damages or loss arising in any way out of or in connection with or incidental to any information or third party service provided by or through any linked websites whether linked to or from FREIGHT SEEK's Site.
17. General
17.1 Interpretation
(a) Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. (b) The singular includes the plural and vice-versa.(c) A reference to a person includes any corporation or body corporate.
17.2 Governing LawThis Agreement shall be governed in all respects by the laws of the State of Victoria, Australia. The User irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria, Australia and to the Federal Court of Australia sitting in Victoria.
17.3 Severability
The provisions of this Agreement are severable, and if any provision of this Agreement is held to be illegal, invalid or unenforceable, under present or future law, such provision may be removed and the remaining provisions shall be enforced.
17.4 No Waiver
FREIGHT SEEK's failure to take action with respect to a breach by the Provider does not waive FREIGHT SEEK's right to take action with respect to subsequent or similar breaches.
17.5 Entire Agreement
This Agreement and those policies incorporated by reference herein set out the entire understanding and agreement between the parties with respect to the subject matter hereof.
17.6 Survival
Those clauses capable of surviving termination of this Agreement shall do so.
17.7 Variation
FREIGHT SEEK may modify this Agreement at any time and such modifications shall be effective immediately upon posting the new or revised terms on the Site.