Carrier Agreement with Zoom2u Pty Ltd
1.1 Zoom2u is a directory service that operates an App and Website-based business under the trading name Zoom2u (“Business”), which enables Customers to make a booking request for a carrier (“Booking Request”) via the Zoom2u App or the Website (together the “Platform”). Zoom2u also operates under the Freight Match, Same Day Express Couriers, Urgent Express Courier and goParcel business names.
1.2 Zoom2u only provides to the Carrier the directory service and Platform as set out in these Terms. Zoom2u does not employ or contract Carriers. The Carrier acknowledges and agrees that Zoom2u is a technology services provider which provides the Platform as a neutral venue where Carriers and Customers can be connected. Zoom2u does not offer to or provide, perform or conduct Transportation Services nor does it act as a freight forwarder or broker.Zoom2u does not participate in the interaction between Carriers and Customers, except to provide technology to facilitate the interaction, including in relation to the processing of payments on behalf of Customers to Registered Carriers.
1.3 By using the Platform Carriers agree that they will observe and comply with all regulations relating to their engagement by Customers, including any applicable workplace laws. For more information, see https://www.fairwork.gov.au/about-us/legislation and http://www.safeworkaustralia.gov.au/sites/SWA.
1.4 Upon receiving a Booking Request from a Customer, Zoom2u agrees to upload that Booking Request to the Platform (subject to the terms and conditions of this Agreement and Zoom2u customer terms and conditions, available at https://www.zoom2u.com.au/customer-terms/.
1.5 As a condition to Zoom2u making Booking Requests available to Carriers, Carriers are required to:
(a) have authorised access to a vehicle (in accordance with clause 8 of this Agreement) in order to provide Carrier Services;
(b) register to become carriers via the Boarding Process; and
(c) accept and comply with the terms and conditions set out in this Agreement.
1.6 Subject to clause 2.4, Zoom2u agrees to provide Carriers with the opportunity to accept Booking Requests from time to time.
1.7 The Carrier may:
(a) perform a Booking him or herself;
(b) have his, her or its employees perform a Booking; or
(c) engage another individual or company to act as a Subcontracted Carrier to perform a Booking,
provided that the performance of the Booking is in accordance with this Agreement.
2. ENGAGEMENT AND TERM
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 the Carrier completes the Boarding Process and Zoom2u notifies the Carrier that it has accepted the Carrier’s 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 at any time if:
(a) Zoom2u does not receive a satisfactory police record check in relation to the Carrier, an employee of the Carrier or any Subcontracted Carrier, such checks may be carried out from time to time during the Term at Zoom2u’s discretion; or
(b) the Carrier does not provide to Zoom2u, upon request, evidence of the insurance which the Carrier is required to maintain in accordance with clause 7 below.
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 he, she or it accepts a Booking Request.
3.1 The Carrier acknowledges that:
(a) Zoom2u may at its discretion, from time to time, make Booking Requests available to the Carrier via the Platform;
(b) the Carrier may only accept a Booking Request by using the Platform;
(c) it is at the Carrier’s absolute discretion as to whether the Carrier accepts a Booking Request;
(d) 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);
(e) 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;
(f) 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 between the Carrier and the Customer;
(g)Zoom2u makes no warranty or representation in relation to anyCarrier 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;
(h) 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;
(i) Zoom2u does not guarantee any quantity of Booking Requests being made available for acceptance by a Carrier, or that the Carrier will receive any particular amount of revenue as a result of entering into this Agreement; and
(j) Zoom2u shall be entitled, at its discretion, to stop making Booking Requests available to the Carrier without notice, and that Zoom2u is not required to provide a reason for not making Booking Requests available to that Carrier.
(h) subject to this Agreement, the Carrier is solely responsible for controlling the manner in which it perform the Bookings.
3.2 The Carrier acknowledges and agrees that it is his, her or its responsibility to login to the Platform to view available Booking Requests.
3.3 Zoom2u may allow Customers to request that a Booking Request is first offered to a particular Carrier, subject to availability. In the event that a Customer makes such a request (“Specified Booking Request”) the following shall apply:
(a) Zoom2u may make the Specified Booking Request available for acceptance by the applicable Carrier via the Platform;
(b) the Carrier will have a period of 1 (one) 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;
(c) if the Carrier accepts a Specified Booking Request, the Carrier guarantees to perform the Carrier Services as required by the Specified Booking Request; and
(d) if the Carrier does not accept the Specified Booking Request within the specified period, the Specified Booking Request shall immediately convert into an ordinary Booking Request and be advertised on the Platform to all other available Carriers.
4. FEES AND TAXES
4.1 The Carrier acknowledges that the only payment which the Carrier is entitled to receive in consideration for the provision of the Carrier Services will be the applicable fee described as being payable to the Carrier in the relevant Booking Request (“Fee”). The Fee is only payable if the Booking is successfully completed by the Carrier in accordance with this Agreement.
4.2 If the Carrier subcontracts with a Subcontracted Carrier in relation to a Booking, the Carrier is solely responsible for any payment or other benefits due to the Subcontracted Carrier and Zoom2u shall not be liable to any Subcontracted Carrier in any way.
4.3 Zoom2u does not participate in the interaction between Carriers and Customers, except to provide technology to facilitate the interaction, including in relation to the processing of payments on behalf of Customers to Carriers.
4.4 For operational and administrative reasons, Zoom2u will make payment of any Fees due to the Carrier (if any) on the last Business Day of each calendar week for any Bookings completed by the Carrier up until midnight on the Business Day immediately prior to such last Business Day, by direct deposit into the Carrier’s nominated bank account. For the avoidance of doubt, if the Carrier has not completed any Bookings during any particular week, the Carrier will not receive any Fees for that particular week.
4.5 Zoom2u will calculate the Fees due to the Carrier (if any) for a particular week by reference to the invoices issued by Zoom2u to Customers in respect of Bookings completed by the Carrier during the relevant week. The Carrier acknowledges and agrees that Zoom2u shall include the Carrier’s name (including any trading name), ABN, and other details that are reasonably necessary to include, on the invoices issued to Customers.
4.6 The Carrier acknowledges and agrees Zoom2u’s pricing structure or payment methods may be amended from time to time at its sole discretion.
4.7 The Carrier acknowledges and agrees:
(a) the Fees shall be inclusive of any applicable Goods and Services Tax (“GST”) and that the Carrier is responsible for the remission of any GST payable to the Australian Taxation Office (“ATO”);
(b) the Carrier will be responsible for the payment of all taxes arising out of the provision of the Carrier Services or assessed on any Fees payable or paid under this Agreement;
(c) the Carrier will be responsible for making any superannuation guarantee contributions to any employee or Subcontracted Carrier that is required by law; and
(d) the Carrier hereby fully indemnifies Zoom2u for any liability for any tax or superannuation liability arising in respect of any payments it makes to the Carrier.
4.8 The Carrier acknowledges that it will be responsible for the payment of all costs and expenses incurred in performing the Carrier Services including without limitation petrol, vehicle insurance and registration, toll fees and any and all other expenses.
4.9 The Carrier further acknowledges that the Carrier is responsible for assessing whether it will make a profit in performing the Carrier Services and that Zoom2u makes no representation as to whether the Carrier will make a profit by providing the Carrier Services.
5. ADDITIONAL CONSIDERATION FOR MARKETING
5.1 From time to time, Zoom2u may wish to use Carriers to promote its brand (“Brand”) and may request Carriers to assist in the promotion of the Brand.
5.2 Under no circumstances is being offered a Booking Request, or being able to accept a Booking Request, contingent upon the Carrier promoting the Brand.
5.3 Under no circumstances will any preference be given to Carriers who agree to promote the Brand, from time to time.
5.4 However, for additional consideration, as specified from time to time by Zoom2u, Zoom2u may make available Brand materials and encourage Carriers to use those materials in connection with performing Carrier Services.
6. DAMAGED CONSIGNMENTS AND INCOMPLETE BOOKINGS
6.1 Goods the subject of a Booking Request are a “Consignment”. For the purposes of this clause 6, “Carrier” refers to the Carrier, an employee of the Carrier and/or the Subcontracted Carrier to whom the Carrier has subcontracted the relevant Booking.
6.2 The Carrier acknowledges that he, she or it shall be liable for any loss or damage caused to any Consignment whilst in the possession, or under the control, of the Carrier.
6.3 In the event that Zoom2u is notified of any loss or damage in respect of any Consignment, Zoom2u shall 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.
6.4 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 shall deduct from any Fees payable to 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 Zoom2u as a result of the loss or damage caused by the Carrier. To the extent that the Fees payable to the Carrier at the relevant point in time are not sufficient to cover such amount, the Carrier acknowledges and agrees that the shortfall amount shall be treated as a debt due and payable by the Carrier to the Customer and Zoom2u shall 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.
6.5 In the event that the Carrier fails to pick-up a Consignment or does not attempt delivery of a Consignment at all, the Carrier shall not be entitled to any part of the Fee.
6.6 In 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 shall act in accordance with the directions of the Customer in determining whether the Carrier is entitled to be paid all or part of the 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 Fee. Any decision shall be provided to the Carrier in writing through the Platform.
6.7 In 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 Fee shall be payable in relation to the relevant Booking.
6.8 In the event that Zoom2u does not receive from the Customer the full amount of the relevant fee charged to the Customer in respect of any Requested Booking (at no fault of Zoom2u), Zoom2u shall be entitled, at its discretion to pay to the Carrier, in respect of the relevant Booking, only that part of the Fee which represents the same pro rata amount of the fee actually received by Zoom2u from the Customer.
6.9 Notwithstanding clause 6.6 above, in the event that the Customer is entitled to a refund of all or part of the fee payable to Zoom2u in respect of a Booking Request, by reason of any act or omission of the Carrier, Zoom2u shall be entitled, at its discretion and acting reasonably, to require the Carrier to reimburse Zoom2u for all or part of the Fee paid to the Carrier.
7.1 The Carrier is required to 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), 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.
7.2 The 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 maintained by the Carrier pursuant to clause 7.1.
7.3 The Carrier acknowledges it (including its Subcontracted 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.
8.1 The Carrier acknowledges 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.
8.2 The 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 shall not 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.
9.1 The Carrier is permitted to subcontract the performance of a Booking to a Subcontracted Carrier engaged by the Carrier on the basis that the Carrier acknowledges and agrees that the Carrier is responsible for:
(a) ensuring that the Subcontracted 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;
(b) ensuring that the Subcontracted Carrier complies with the terms of this Agreement; and
(c) payment to the Subcontracted Carrier in respect of the provision of the Carrier Services performed by the Subcontracted Carrier.
9.2 Further to clause 9.1, in no circumstances will Zoom2u be liable to make payment of any Fee (or part thereof) to a Subcontracted Carrier, including on behalf of the Carrier.
9.3 The Carrier acknowledges the Carrier shall be liable for the acts or omissions of the Carrier’s employees as well as any Subcontracted Carriers (and any employees of the Subcontracted Carrier) in respect of the provision of the Carrier Services. A breach of any of the terms of this Agreement by a Subcontracted Carrier shall 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.
9.4 It is noted that the performance of Carrier Services by any employee of the Carrier is not considered to be subcontracting for the purposes of this clause 9.
10. COURIER WARRANTIES
10.1 The Carrier hereby warrants, represents and undertakes that the Carrier, and where relevant, its Subcontracted Carriers, employees or agents:
(a) has legal capacity, full right, power and authority to enter into this Agreement;
(b) is not subject to any legal restrictions preventing the Carrier from performing the Carrier Services;
(c) has a current and valid drivers’ licence and is duly qualified to perform the Carrier Services;
(d) will, in performing the Carrier Services, and in particular, in handling the Consignment, act with due care and skill;
(e) will be courteous and polite to Customers and any other person with whom the Carrier comes into contact in providing the Carrier Services;
(f) will not be under the influence of drugs or alcohol in performing the Carrier Services;
(g) 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;
(h) will complete all accepted Booking Requests in accordance with this Agreement;
(i) 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;
(j) 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;
(k) will act lawfully and comply with any applicable licenses, laws (including the HVNL), regulations, industry codes of conduct, health and safety requirements and Australian standards in performing the Carrier Services;
(l) will comply with the provisions of any Road Rules in force in the applicable state or territory from time to time ;
(m) 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;
(n) has a valid ABN and has advised Zoom2u of that ABN; and
(o) is registered for GST purposes (if applicable).
11.1 The Carrier agrees, and shall ensure that its Subcontracted 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 Carrierhas contravened a confidentiality obligation under this clause 11).
11.2 The obligations under this clause will survive termination of this Agreement.
12.1 In 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.
12.3 I understand and authorise Zoom2U to submit a National Police History Check on my behalf before I am allowed to enter the carrier marketplace. Please note that this is an obligation under our terms of service as a police check can only be used for this purpose/position.
13. HEALTH AND SAFETY AND CHAIN OF RESPONSIBILITY
13.1 The 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.
13.2 Zoom2u is not under any obligation to carry out any training or arrange for the provision of any training to the Carrier (or its Subcontracted Carriers, employees or agents) in respect of the Carrier Services.
13.3 If the Carrier considers that performing the Carrier Services could cause serious risk to the Carrier’s health or safety, the Carrier should, and agrees to, cease performing the Carrier Services.
13.4 The Carrier must ensure that the vehicle it uses to perform the Carrier Services is in a safe and serviceable condition.
13.5 The 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.
13.6 The Carrierwill at all times comply with its obligations under the HVNLand 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 www.zoom2u.com.au
14 MODIFICATION, SUSPENSION AND TERMINATION OF THE PLATFORM
14.1 The Carrier acknowledges Zoom2u may, at any time, and in its absolute discretion, with or without notice to the Carrier and without refund:
(a) modify or discontinue the Platform; and/or
(b) immediately modify, suspend or terminate that Carrier’s access or use of the Platform.
14.2 The Carrier acknowledges and agrees Zoom2u will not be liable to the Carrier or any other party for any:
(a) suspension or termination of the Carrier’s access to the Platform;
(b) 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
(c) modification or discontinuance of the Platform.
14.3 Continued use of the Platform following notice to the Carrier of any modification to the Platform will indicate the Carrier’s acknowledgment of such modifications and satisfaction with the Platform as so modified.
15. TERM AND TERMINATION
15.1 Zoom2u may terminate this Agreement immediately upon written notice in the event of any breach by the Carrier of any term of this Agreement (including but not limited to the Carrier not completing any Booking in accordance with this Agreement, any breach of any law by the Carrier and the Carrier failing to pay any sum required to be paid by it to Zoom2u under this Agreement upon demand). Either Party may terminate this Agreement for any reason or no reason by giving the other Party one (1) weeks’ notice in writing.
15.2 Upon termination of this Agreement:
(a) the Carrier must immediately:
(i) 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;
(ii) cease to accept any new Booking Requests;
(iii) return to Zoom2u all property, including Confidential Information, in its possession that belongs to Zoom2u; and
(iv) pay or repay any sums lawfully owing to Zoom2u as provided for pursuant to this Agreement
(b) 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 15.2; and
(c) Zoom2u must:
(i) pay to the Carrier any Fees which have accrued to the Carrier and have not yet been paid to the Carrier in respect of Bookings completed prior to the date of termination (together with any other reimbursements as may have been expressly agreed in writing between the Parties, if relevant); and
(ii) immediately return to the Carrier all property, including Confidential Information in its possession that belongs to the Carrier.
15.3 Termination 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.
16.1 The Carrier may engage in other 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 providing carrier or delivery services to the public, or by operating its own carrier and delivery business, under a registered company name, trading name or partnership which is made known to Zoom2u on or about the commencement date.
16.2 If 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.
16.3 The Carrier must not:
(a) contact or engage with any Customer for employment or contracting for any business outside of the Platform; or
(b) contact Customers whose details are obtained from the Platform for any purpose other than in accordance with this Agreement.
17. RELATIONSHIP OF THE PARTIES
17.1 No independent contractor, partnership, quasi-partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended to be created, between Zoom2u and a Carrier, by a Carrierusing the Platform or by this Agreement.
17.2 Zoom2u does not involve itself in regulating or managing these issues and by 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 Subcontracted Carriers, employees or agents.
17.3 Zoom2u recommends the Carrier have recourse to the website of the Fair Work Ombudsman, https://www.fairwork.gov.au/, if the Carrier has any queries as to the relationship between the Parties or between the Carrier and a Customer.
17.4 Except 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.
18. LIABILITY AND INDEMNITY
18.1 The 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 Subcontracted Carriers, employees or agents).
18.2 The Carrier hereby indemnifies and undertakes to keep Zoom2u indemnified from and against 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) (“Losses”) in respect of, arising out of or in connection with the Carrier Services provided by that Carrier (or any of its Subcontracted Carriers, employees or agents), a violation of any law (including the HVNL) 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 Subcontracted Carriers, employees or agents).
18.3 Without limiting clause 18.2, the Carrier acknowledges that the indemnification in clause 18.2 applies to Losses arising from:
(a) the manner in which the Carrier Services are performed by the Carrier (or any of its Subcontracted 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;
(b) the decision of any court, tribunal or other authority in respect of the classification of the Carrier (or any of its Subcontracted Carriers, employees or agents) as either an employee or contractor under common law or statute;
(c) deemed employees of the Carrier including in relation to employee entitlements; and
(d) any taxes, fees, charges and any other imposts.
18.4 The indemnity in clause 18.2 is a continuing obligation which is separate and independent from any other obligations of the parties under this Agreement and it survives termination, completion or expiration of this Agreement.
18.5 The 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 18.2 above and the Carrier will pay any money due to Zoom2u under that indemnity on the request of Zoom2u.
18.6 Zoom2u does not warrant that the Platform will be uninterrupted or error-free and the Carrier agrees that Zoom2u shall 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.
18.7 To the maximum extent permitted by law, Zoom2u will not accept liability to you in respect of any loss or damage (including indirect, special, or consequential loss or damage) which may be suffered or incurred by you or which may arise directly or indirectly in respect of you using the Platform.
18.8 To the maximum extent permitted by law, any condition or warranty which would otherwise be implied into these Terms is hereby excluded. If legislation implies any condition or warranty, and that legislation prohibits Zoom2u from excluding or modifying the application of, or Zoom2u’s liability under, any such condition or warranty, that condition or warranty will be deemed included but Zoom2u’s liability will be limited for a breach of that condition or warranty to one or more of the following at Zoom2u’s selection insofar as the law permits:
(a) the supplying of the Platform or any service under these terms again; or
(b) payment or refund of any Fee paid or payable to the Carrier in respect of any Booking; or
(c) payment of the cost of supplying of the Platform or any service under these terms again.
18.9 The obligations under this clause will survive termination of this Agreement.
18.10 For 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.
19. DISPUTE RESOLUTION
19.1 In the event of a dispute, controversy or claim (“Dispute”), arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, the parties agree to the following dispute resolution procedure:
(a) the complainant who raises a Dispute must tell the respondent in writing, the nature of the Dispute, what outcome the complainant wants and what action the complainant believes will settle the Dispute (“Dispute Notice”);
(b) 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
(c) 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 or other alternative dispute resolution processes.
19.2 Any attempts made by the Parties to resolve a Dispute pursuant to this clause shall 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 19.
20.1 A notice or other communication must be in writing in English and may be:
(a) delivered personally;
(b) given by an agent of the sender;
(c) left at a Party’s delivery address for notices as set out below (or to such other address as either Party may designate to the other by written notice),
PO box 1413, North Sydney, 2059
(d) sent via the Platform (to the extent enabled by the Platform); or
(e) sent by prepaid mail to a Party’s postal address for notices as set out in this Agreement (or to such other address as either Party may designate to the other by written notice); and/or
20.2 A notice or communication is taken as having been given:
(a) when left at a Party’s delivery address for notices (as per clause 19.4(c)); or
(b) if mailed within Australia to a Party’s delivery address, on the third Business Day after posting; or
(c) if mailed outside of Australia to a Party’s delivery address or within Australia to a Party’s delivery address outside of Australia, on the tenth Business Day after posting; or
(d) if delivered via the Platform, on the next Business Day after sending of the notice or communication.
21.1 Assignment: 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 shall 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.
21.2 Waiver 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.
21.3 Powers, 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.
21.4 Consents 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.
21.5 Further 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.
21.6 Counterparts: This Agreement may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Agreement. The date of this Agreement will be the date that it is executed by the last Party.
21.7 Entire 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.
21.8 Governing 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.
22. DEFINITIONS AND INTERPRETATION
22.1 In this Agreement:
Agreement means this agreement;
App means the apple or android app titled ‘Zoom2u’ offered by Zoom2u;
Boarding Process means the online registration process on the Platform available at https://courier.zoom2u.com/#/register;
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 has the meaning outlined in clause 1.1;
Brand had the meaning outlined in clause 5.1;
Business has the meaning outlined in clause 1.1;
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;
Confidential Information means 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;
Consignment means the item or items which is/are carried by the Carrier in performing a Booking;
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 provide the Carrier Services and includes any employee of such Party (who shall also be deemed to be bound by these terms);Carrier Services means the provision of carrier services whereby the Carrier will pick-up a Consignment from one location and deliver to another location for a Customer in accordance with this Agreement;
Carrier Services means the provision of services whereby the Carrier will pick-up a Consignment from one location and deliver to another location for a Customer in accordance with this Agreement;
Customers means customer of Zoom2u, namely those individuals or businesses who place bookings for Carrier Services on the Platform;
Dispute has the meaning outlined in clause 19.1;
Dispute notice has the meaning outlined in clause 19.1(a);
Fees means the amounts displayed on the Platform as being payable to the Carrier in relation to Bookings; a “Fee” for a completed Booking is the equivalent of 20% of the fee paid by the Customer to Zoom2u for the completion of a specified Booking. The remainder of the fee paid by the Customer is retained by Zoom2u as the fee charged by Zoom2u for accessing the Platform;
HVNL/Heavy Vehicle National Law means the Heavy Vehicle National Law (Qld) set out in the Schedule to the Heavy Vehicle National Law Act 2012 (Qld) and as it applies through being adopted in other States and Territories and the Road Traffic (Administration) Act 2008 (WA) and Road Traffic (Vehicles) Act 2012 (WA) or any replacement or modification thereof.
Losses has the meaning outlined in clause 18.2;
Parties means the parties to this Agreement;
Platform has the meaning outlined in clause 1.1;
Specified Booking Request has the meaning outlined in clause 3.3;
Subcontracted Carrier means an individual or company to whom a Booking is subcontracted by a Carrier;
Taxes means income tax, GST, superannuation and all other applicable taxes;
Term means the period from the commencement date until the termination date of this Agreement;
Website means the website at the domain name www.zoom2u.com.au (or such other domain name as Zoom2u may use in relation to the Business from time to time); and
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.
Zoom2u means Zoom2u Pty Ltd (ACN 169 869 327) 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.
(a) words in the singular include the plural and vice versa;
(b) headings are for convenience and do not affect the interpretation of this Agreement;
(c) 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;
(d) 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;
(e) “includes” and similar words mean includes without limitation; and
(f) a reference to time is to local time in New South Wales.
Criminal background check terms and conditions
PROVIDING CONSENT FOR A POLICE HISTORY CHECK
I hereby authorise Zoom2U to submit a NPHC on my behalf for the purpose of carrier driver. Please note that this is an obligation under our terms of service as a police check can only be used for this purpose/position. Please read the points and information below carefully before continuing.
1) I acknowledge that I have read the General Information below and understand that information will be disclosed in accordance with applicable legislation and information release policies (including spent convictions legislation (however described) in the Commonwealth, States and Territories);
2) I understand that the purpose for which I am seeking a NPHC may be in a category for which exclusions from spent convictions legislation may apply;
3) I have fully and correctly completed this form to the best of my ability, and the personal information I have provided in it relates to me, contains my full name and all names previously used by me;
4) I acknowledge that the provision of false or misleading information on this form is a serious offence;
5) I acknowledge that Zoom2u is collecting information in this form to provide to Australian Criminal Intelligence Commission (ACIC) (an Agency of the Commonwealth of Australia) and police agencies for use National Police History Check (NPHC).
6) I consent to:
a. The ACIC and police agencies using and disclosing my personal information to conduct a National Police History Check;
b. The police agencies disclosing to ACIC, from their records, Police History information that can be disclosed in accordance with the Laws of the Commonwealth, States and Territories and in accordance with the relevant jurisdiction’s information release policies;
c. The ACIC disclosing the information sourced from the police agencies to Zoom2u
d. Zoom2u using the results of the NPHC to determine my eligibility to carry out carrier work.
7) I acknowledge that any information provided by me on this form relates specifically to me and my suitability to join the Zoom2u carrier market place.
8) I acknowledge that any information provided by the police agencies or ACIC relates specifically to becoming a carrier;
9) I acknowledge that any information sent, by mail or electronically, in relation to this form, including any identity documents, is sent at my own risk and I am aware of the consequences of these methods of lodgement;
10) I acknowledge that the personal information that I provide in this form may be disclosed to Zoom2u (including contractors or related bodies) located in Australia or overseas (refer to attached list if applicable); and
11) I acknowledge that it is usual practice for my personal information to be disclosed to police agencies for law enforcement purposes including the investigation of any outstanding criminal offences.
12) I acknowledge that if I have any concerns about the results of the NPHC, I can contact Zoom2u to initiate the dispute process.
13) I understand that if I have any questions or concerns about the National Police History Check, I am able to freely contact “Zoom2u Pty Ltd” on 1300 966 628, at [email protected], or at PO Box 1413, North Sydney, 2059
The Australian Criminal Intelligence Commission (ACIC) is collecting your personal information in this form in order to conduct a National Police History Check (NPHC) on you, and it does this through a contractual arrangement with Zoom2u.
The ACIC has contractual arrangements Zoom2u to collect personal information on its behalf to support processing and assessing the suitability of people applying for employment, Australian citizenship, appointment to positions of trust, volunteer service or for various licensing or registration schemes. Accredited Organisations and their customers (such as employers) use the personal information collected on this form and the resulting NPHC as part of their assessment process to determine your application. Some Accredited Organisations have a legislative basis for the collection, use and disclosure of your personal information. ACIC recommends that you seek further information about any relevant/applicable legislative framework from the Accredited Organisation. In some circumstances Accredited Organisations may have arrangements with overseas entities for administrative or other purposes. ACIC recommends that you seek further information from the Accredited Organisation at Section 3 in circumstances where your information is likely to be disclosed to overseas recipients. Unless statutory obligations require otherwise, the information provided on this form will not be used without your prior consent for any purpose other than in relation to the assessment of your suitability; or to maintain the records of ACIC and police agencies; or for law enforcement purposes. You will be required to complete another consent form for any future NPHCs.
NATIONAL POLICE HISTORY CHECK (NPHC)
The information in your application will be used by ACIC and police agencies for checking action; it will also be used to update records held about you by ACIC and police agencies. ACIC and police agencies will access their records to obtain and disclose Police History Information (PHI) that relates to you.
PHI may include outstanding charges, warrant information and criminal convictions/findings/pleas of guilt recorded against you. PHI is disclosed according to applicable laws of the relevant jurisdiction and, in accordance with the relevant jurisdiction’s information release policies. Applicable laws include but are not limited to spent convictions legislation.
LIMITATIONS ON ACCURACY AND USE OF PHI
While every care has been taken by the ACIC and police agencies to conduct a search of PHI that relates to you (the Applicant), the accuracy and quality of an NPHC issued by ACIC depends on accurate identification of the Applicant (including aliases), the comprehensiveness of police records and is based on the information provided in this form.
If you do not complete the information requirements in this form, the success and validity of the NPHC will be compromised. It is in your interest to provide full and complete details in this form.
If for any reason you do not agree with the results of your NPHC, please notify Zoom2u so that the NPCS dispute process can be initiated.