FreightSeek Terms and Conditions - User Agreement
By using the System and/or the Site you, the User, agree to be bound by the terms of this Agreement with FREIGHT SEEK PTY LTD ACN 138 938 842 ("FREIGHT SEEK").
In this Agreement the following terms have the following meanings:
"Cancellation Request" means a request to cancel a job after the job has been provisioned to a Provider and after the User has paid a Deposit Fee to secure the Providers services.
"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 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;
"Provider" means any person or entity being a transport services provider who submits or may submit a bid offer in respect of a Job Request;
"Provider Services" means the freight (and any other) services that a Provider offers and/or supplies 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 Providers in their capacity as users of the Site.
2. User Eligibility
The User acknowledges and agrees that the System is available only to persons aged 18 years old and over. User represents and warrants that he/she is 18 years old or over. If you use the Site and System as a business entity, you represent that you have authority to bind the entity to this Agreement.
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 agreements regarding the provision of freight services by the Provider. Users may choose a Provider on the basis of price or one or more other factors. FREIGHT SEEK is as a neutral facilitator and the User acknowledges and agrees FREIGHT SEEK is not directly involved in the transactions and arrangements between Users and Providers. Such transactions and arrangements with Providers will be subject to the Provider's own terms and conditions (if any).
3.2 The User acknowledges that FREIGHT SEEK will not (absent special circumstances) reveal the identity and details of any Provider to a User prior to the time of entry of an agreement with a Provider for a Job, such identity to be revealed only upon (or just prior to) the entry of an agreement with that Provider for a Job.
4.1 The site is free to use for Users. When the user accepts a quote, a Deposit Fee (between 7% and 10% of bid amount) is payable. The Deposit Fee is deducted from balance payable to the Provider. Remaining balance of payment is made directly to Provider as set out under the Provider's Terms and Conditions.
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 the Provider can not fulfil the job as per the agreement with the User and the User is not at fault then the User is entitled to a full refund of the Deposit Fee. If the User is at fault or there is disagreement over the cancellation reason then FREIGHT SEEK will review the cancellation reasons provided and make a judgment as to whether a refund of the Deposit Fee will be provided to the User. It is completely at the discretion of FREIGHT SEEK as to whether the User is at fault or not, and whether the User is entitled to a refund of their Deposit Fee.
6. Disclaimer and Acknowledgments
6.1 FREIGHT SEEK provides the details of and introduction to Providers on an 'as is' basis and without any warranty, express, implied or statutory as to the quality, efficacy, reliability or other attribute or characteristic of any Provider.
6.2 While FREIGHT SEEK endeavours 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 User 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 Providers, the System, the Site or any third party Site referred to or connected via the Site.
6.3 Without limiting the foregoing, the User acknowledges that:
(a) FREIGHT SEEK does not check the truth or currency of the material or information that Providers provide or make available to it;
(b) FREIGHT SEEK does not undertake to prequalify or validate the claims of any Provider including with respect to their insurance (if any) or registration, nor does it endorse or recommend any Provider, nor control, endorse, approve or warrant to the User the merchantability or fitness for any particular purpose of any of the goods or services of third parties (including Providers) referred to at the Site or whose identities become known to User as a result of using the Site, the System or otherwise;
(c) to the extent permissible at law, FREIGHT SEEK excludes any warranty that anything on the Site or any third-party Site referred to or connected via the Site or System is accurate, complete or up to date, and makes no performance warranty whatsoever concerning anything on or implied from them;
(d) FREIGHT SEEK does not offer or provide professional advice on the fitness of any goods, services or information supplied by any third parties including Providers. The User should satisfy itself through its own enquiries as to the suitability of any Provider, Provider Services or any other goods and/or services supplied, offered by or recommended on behalf of a Provider. The User agrees to consult professionals for advice that is specifically tailored to the User's particular circumstances;
(e) FREIGHT SEEK is not a party to any transactions between the User and Providers and the User (and, for the avoidance of doubt, not FREIGHT SEEK) is and shall be responsible for paying the Provider for all Jobs;
(f) the User shall be responsible for completing all transactions it participates in (including monitoring the status and complying with all relevant legal obligations);
(g) FREIGHT SEEK excludes any warranty to the User that the Site or any information or communication it provides is or will be reliable, timely, error or fault free, complete or accurate;
(h) Providers may or may not have insurance - the User must determine this; and
(i) FREIGHT SEEK shall not be liable for any loss or damage whether directly or indirectly incurred by User or any third person as a result of 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 Provider from the System.
6.4 The User 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 other Users.
7. Feedback feature of Site
7.1 The User acknowledges and agrees that FREIGHT SEEK operates a user feedback system, on which the User may post comments, compliments, criticisms and other observations regarding Providers on the Site. The User may only post comments that are honest, fair and reasonable and which can be substantiated.
7.2 The User acknowledges and agrees that any information or material submitted by it to the Site for inclusion in the feedback system 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 The User 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 User 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 User agrees not to impersonate any other person when posting material to the Site.
7.6 The User 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 User that it or Providers will respond to questions or comments submitted by User to the Site.
8. User Warranties
8.1 The User agrees and warrants to FREIGHT SEEK that it will:
(a) 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;
(b) not use any feature of the Site to send unsolicited commercial emails to Users, whether individually or as a group;
(c) not copy, translate, reproduce, communicate to the public, adapt, vary or modify anything on the Site without FREIGHT SEEK's prior written consent;
(d) 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;
(e) 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;
(f) not take any action that imposes an unreasonable or disproportionately large load on FREIGHT SEEK's infrastructure;
(g) 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;
(h) not use the Site to engage in misleading or deceptive on-line marketing practices;
(i) not use the Site to transmit junk mail, spam, chain letters or engage in other flooding techniques or mass distribution of unsolicited email;
(j) provide FREIGHT SEEK with complete and accurate contact details when using the System enabling Providers to contact User as requested;
(k) complete and pay for any transaction agreed with a Provider using the Site and the System;
(l) not use the Site or System in relation to the actual or proposed transportation of any illegal or prohibited goods; and
(m) not use the Site or System to procure the handling of or the transportation of goods in respect of which 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 any information and/or materials (in whole or in part) that it, in its sole and absolute discretion, regards in any way objectionable or in violation of any applicable law or of this Agreement without notice to the User; 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 User 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 User submits any information or material to FREIGHT SEEK relating to a Job Request or for otherwise posting on the Site, the User automatically grants FREIGHT SEEK a licence to use the information or material for the purpose for which it is provided.
10.3 The User agrees that information contained on this Site is for personal use only and may not be sold, used or redistributed for any other purpose.
10.4 The User 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 User 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 Provider 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 Provider, even if FREIGHT SEEK has been advised of the possibility of such loss or damage; or
(c) the removal or termination of the User's access to the System and Site.
11.2 To the extent permitted by law, FREIGHT SEEK and all affiliates and related entities of FREIGHT SEEK expressly limit their liability to the User for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at 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.
To the extent permissible at law, the User 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 other User, third party or a Provider arising out of or in any way related to the User's use of the Site or the System, or its breach of this Agreement, or the User's violation of any law or the rights of a third party.
13.1 Without limiting other remedies available to FREIGHT SEEK at law, in equity or under this Agreement, FREIGHT SEEK may immediately issue a warning or temporarily or indefinitely suspend the User's access to the System and refuse to provide services to the User if:
(a) FREIGHT SEEK, acting reasonably, believes that the User has breached any terms of this Agreement;
(b) FREIGHT SEEK is unable to verify or authenticate any information that the User provides to it; and/or
(c) FREIGHT SEEK acting reasonably, believes that the User's actions may cause damage and/or legal liability for FREIGHT SEEK, Provider or other Users.
12.2 FREIGHT SEEK may terminate this Agreement with immediate effect if:
(a) the User 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 User becomes subject to any kind of insolvency event.
14. No Agency
The User acknowledges and agrees that neither FREIGHT SEEK nor the Provider is the User's agent. The User is free to accept or reject its appointment of a Provider at its sole discretion.
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 User 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.
(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 Law
This 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.
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 User 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.
Those clauses capable of surviving termination of this Agreement shall do so.
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.