PLATFORM TERMS AND CONDITIONS
Welcome and thank you for reading our Terms and Conditions (Terms). These Terms apply to your use of our online contractor platform, referred to throughout as the “Platform”. By accessing and using our Platform and our associated services (our “Service”):
(a) you agree to these Terms; and
(b) where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
We ask that you review these Terms carefully. If you do not agree to these Terms, you are not authorised to access and use our Service and Platform, and you must immediately stop doing so.
How these Terms work
1.2 We have broken our Terms into four parts:
(a) An overview of our Platform and how it works;
(b) Terms specific to Principals who use our Platform and Service;
(c) Terms specific to Contractors who use our Platform and Service; and
(d) General terms that apply to all Members of the Platform.
1.3 These Terms create three binding contracts:
(a) A contract between us and each Principal who uses our Platform and Service;
(b) A contract between us and each Contractor who uses our Platform and Service; and
(c) In the case of any Engagement, a contract between the Contractor and Principal.
1.4 Our Platform and Service will only work where there is equity and fairness between us, Principals and Contractors. We reserve the absolute right at any time to determine whether your conduct is inconsistent with the values our Platform and Service are built on and, if we do so, we may decide in our sole discretion to terminate your use of our Platform and Service.
OVERVIEW
2. Our Platform
3.1 The Platform provides a double-sided platform through which:
(a) independent contractors (referred to as “Contractors”) connect with Principals, manage their Engagements, and track career activity, earnings as well as relevant qualifications, training and milestones; and
(b) those seeking independent contractors (referred to as the “Principal”) connect with Contractors, manage their Engagements, and track their flexible workforce.
3.2 The Platform is predicated on the upholding of 3 key values:
(a) Trust-is hard won and easily lost: We believe trust is the most important element of any relationship. If you create with trust and transparency the results will always be characterised by simplicity.
(b) Transparency: We build transparent relationships that are characterised by a shared purpose to create the best solution for our customers. Complexity is a proxy for trust and transparency.
(c) Being different: We don’t feel the need to be constrained by what everybody else does and are not afraid to suggest a course of action that is contrary to prevailing trends or thoughts.
3.3 Contractors and Principals are both “Members” of the Platform. For clarity, in providing our Service and Platform, we do not participate in the provision of services between Principals and Contractors, nor do we act as an agent for either party (except to the extent we facilitate payment under clause 7.1).
3.4 The Platform operates as follows:
3.5 We will always endeavour to provide our Service:
(a) in accordance with these Terms and New Zealand law; and
(b) exercising reasonable care, skill and diligence.
3.6 Our Platform is designed to facilitate the engagement of independent contractors by principals. It is not intended to be an employment service or a facility for principals to locate and engage employees. Whether an individual is an independent contractor or an employee is a question of law and relies on the specific relationship between the parties. We cannot and do not provide any promise, assurance or guarantee in relation to the legal relationship between Members using our Platform and Members must take their own independent legal advice.
3.7 Our provision of the Service to you is non-exclusive. What this means is that nothing in these Terms prevents us from providing access to the Platform and our Service to any other person.
3.8 While we will endeavour to ensure the ongoing availability of our Service and Platform, it is possible that on occasion our Service or Platform may be unavailable. This may be due to maintenance or other development activity to take place, or in the event that something happens which is out of our control. Where possible, we will notify you of scheduled maintenance or other system outages in advance and will try to schedule such occurrences outside of peak business hours.
3.9 It should be noted that our Service and Platform combine our own proprietary software with a range of third-party service features through the use of web services and APIs (application programming interfaces). Given that these third party features are out of our control, we cannot guarantee their availability. If a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to use that feature in our Platform and as a result cease to make that particular feature available to you. To avoid doubt, if we exercise our right to cease the availability of a third-party feature, you are not entitled to any refund, discount or other compensation. We will always endeavour to provide you with the best value and user features within the Platform.
4. User Account
4.1 To use our Service and Platform, we require you to create a user account.
4.2 When you register and activate an account, you may provide us with personal information such as your name, email address, and telephone number and information relating to your business or the services and skills you will provide (or seek to engage) via our Platform. You must ensure that this information is accurate and current. We will handle all personal information that we collect from you in accordance with our Privacy Policy)
4.3 When you register and activate an account, we will issue you a unique user identification credential used in combination with a unique password to access our Service and Platform. This is referred to as your “UserID”.
4.4 Each user account will be personal to the user. That being the case, if you have staff that you would like to have access to our Service and Platform (referred to as “Authorised Users”), each Authorised User will be required to be registered with their own UserID and unique password.
4.5 You will not allow our Service and Platform to be used by any person except Authorised Users.
4.6 You and each Authorised User are responsible for keeping your UserID and password secure and are responsible for all use and activity carried out under the User Account.
Principal Specific Terms
Responsibilities to us
5. Job Posts
5.1 We allow you to post an advertisement of the services you wish to be completed by a Contractor on our Platform (referred to as a “Job Post”).
5.2 When creating a Job Post through our Service and Platform you must:
(a) Provide complete and accurate information;
(b) Disclose any restrictions and requirements that apply (such as licence and/or qualification requirements);
(c) Provide any other pertinent information requested by us.
5.3 You are responsible for keeping your Job Post information up to date.
5.4 Your Job Post must not contain terms which conflict with these Terms.
6. Fees
6.1 These will always be 10% unless separately agreed in writing. We will charge you fees for the use of our Service and Platform (referred to as “Platform Fees”). We will only charge you Platform Fees to which you have agreed to pay through the functionality of our Platform.
6.2 You must pay any Contractor you engage in accordance with the terms of your Job Post (referred to as “Contractor Fees”) and in the manner specified in clause 7 below.
6.3 Unless stated otherwise, Platform Fees and Contractor Fees are expressed in New Zealand dollars and exclude GST (this does obviate the Party from paying the Tax).
7. Payment
7.1 Our payment interface will prompt you to make payment of our Platform Fees and Contractor Fees when required. We require you to pay all fees into a trust account administered by us. From there, we will pass the Contractor Fees to the Contractor on your behalf and deduct our Platform Fees (as agreed). You must not pay the Contractor direct.
7.2 In handling Contractor Fees on your behalf, we are acting as payment agent for you and not as principal. By using our Service and Platform, you appoint us to act as your payment agent solely for the purpose of receipting Contractor Fees into our trust account and passing those Contractor Fees on to Contractors on your behalf.
7.3 You will always be responsible for paying the contractor and Provide has no obligation in this regard
7.4 For clarity, upon paying us the Contractor Fees, you will discharge your obligation to pay the Contractor Fees.
7.5 All payments required to be paid by you must be paid:
(a) on or prior to the relevant due date;
(b) by means expressly approved and/or provided by us.
8. Default
8.1 Our Platform relies upon prompt payment in order to ensure trust, fairness and confidence between Members.
8.2 If payment is not made on the date required by us, then we may charge default interest on the amount unpaid at the rate of 25% per annum. The interest will be calculated on a daily basis from the date payment was due until the date payment is received. Should we fail or delay to charge interest on any unpaid fees or to exercise any of our rights, we do not waive those rights. You will also be liable to pay all expenses and legal costs incurred by us as a result of your default in payment.
8.3 If payment is outstanding for 7 days from the relevant date it is due, we may suspend providing you our Service and access to our Platform until the date of payment in full.
Responsibilities to the Contractor
These terms apply to your relationship with the Contractor during an Engagement.
9. Appointment
9.1 When an Engagement is created through our Platform, you appoint the Contractor to provide the services described in your Job Post on the terms you set out in your Job Post (for example, at the specific times, for the specific period and at the location(s) set out in your Job Post) and otherwise in accordance with the general obligations in these Terms.
9.2 You are entitled to provide your own form of independent contractor agreement in addition to set out the specific terms between you and the Contractor. However, you must provide a copy of that agreement with your Job Post and your own form of agreement must not include any provisions that are inconsistent with these Terms (such as by requiring payment other than through our Platform or by including restrictions on the Contractor’s right to accept other Engagements that do not conflict with their direct duties to you during your Engagement).
10. Nature of Engagement
10.1 You agree that your relationship with the Contractor is that of principal and independent contractor, and not employer and employee.
10.2 The Contractor may engage in other work and consulting assignments during the term of the Engagement, provided that the Contractor must not conflict with the Contractor's obligations to you in relation to the Engagement.
11. Fees
11.1 You must pay your Contractors the fees agreed between you and the Contractor through our Platform on or before the due date for payment. Payment may be based on an hourly rate or may be a fixed fee or some other measure.
12. Ownership of Intellectual Property
12.1 In respect of intellectual property used in or arising from the Engagement:
(a) All pre-existing intellectual property resides with the owner of that intellectual property as at the date the Engagement commences.
(b) Unless you agree otherwise with the Contractor, all new intellectual property created or arising out of the Engagement becomes the property of the Principal automatically on creation.
12.2 You are entitled to require the Contractor to sign any documents or take any other steps reasonably necessary to give effect to the transfer of ownership set out above.
13. Termination
13.1 The Engagement will automatically terminate once the Engagement has been completed.
13.2 If the Contractor fails to fulfil his or her obligations under these Terms or as made clear in a Job Post, and fails to remedy the failure within a reasonable time after you notify the Contractor of the failure and how it can be remedied, you may terminate the Engagement without further notice.
13.3 Any termination of an Engagement will be without prejudice to the rights of either party against the other which may have accrued up to the date of such termination and any other remedies at law.
General Terms
14. Exclusivity
14.1 You do not need to exclusively use our Service and Platform to find work or assignments (in the case of a Contractor) or source labour (in the case of a Principal). However, you may not under any circumstances contact another Member (whether a Principal or a Contractor), by any means either directly or indirectly, with the intention, purpose or effect of encouraging that Member not to use our Service or Platform or to create an Engagement outside of our Platform. By way of example, it is a breach of our Terms to agree between Principal and Contractor to conduct an initial Engagement through our Platform but then agree to complete additional work or assignments outside of our Platform. If you do so, we can immediately terminate your use of our Platform and Services and you must indemnify us and hold us harmless for any loss or expense (including legal costs on a solicitor-client basis) whatsoever caused by or related to your conduct.
15. Warranty and Liability
15.1 You indemnify us against all losses, costs (including legal costs on a full indemnity basis), expenses, demands or liability that we incur arising out of, or in connection with, your use of our Service and Platform.
15.2 Except as set out in these Terms or as provided in any separate written agreement signed by us, any and all conditions, guarantees, warranties or representations which might otherwise be implied by law, trade, custom or otherwise are expressly excluded to the maximum extent permitted by law. In particular, the Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. We exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
15.3 We are not a party in any Engagement between Members. As mentioned in clause 3.1 of these Terms, other than providing our Platform, we don’t take any part in the provision of Engagements, nor are we involved with any Job Post by any Principal. All transactions and other contact between you and other Members is entirely at your risk. We also do not promise that our default terms for Engagements set out above are appropriate in all circumstances. You must use your own business judgement in using our Platform.
15.4 The clause above means that we aren’t liable or responsible for:
(a) any Job Post or services that are offered or provided via our Platform;
(b) the safety, quality or legality of any Job Post, or the accuracy or truth of any Job Posts;
(c) any guarantees or assurances that a Contractor has made regarding their qualifications and experience.
15.5 This also means that we give no guarantee or warranty:
(a) that any Job Post on our Platform or Engagement arising from it will meet your requirements or expectations;
(b) that any information posted on our Platform, including feedback, is error-free or reliable.
15.6 Where any part of our Service and Platform is supplied by a third-party contractor engaged by us, and that third-party contractor causes loss or damage to you in the course of supplying such part of our Service and Platform, we will use reasonable endeavours to recover such loss or damage under any contract between us and the third-party contractor. However, you acknowledge and agree that we will not be liable for any loss or damage caused howsoever by that third party contractor in relation to our Service and Platform where we are unable to recover such loss or damage from that third party contractor for any reason.
15.7 Our maximum aggregate liability under or in connection with these Terms or relating to our Service and Platform, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any calendar year exceed 50% of the amount of any fees paid by you for our Service and Platform in that calendar year.
16. Posting Policy
16.1 By providing you with access to our Platform, we allow you to post content on our it.
16.2 You own all of the content, feedback, and personal information you provide to us, but you also grant us a non-exclusive license to it. This means we have the right to use your user generated content (UGC) for the purposes of our business in any way we see fit, and without any further notice to you or permission from you or any obligation on our part to pay you any money or provide any other compensation for our use of your UGC. An example of how we may use your UGC is that we may extract or republish your UGC in our marketing materials.
16.3 You are responsible to us and all relevant third parties for any UGC you upload to our Platform. We are entitled to recover any costs or liability we incur as a result of your UGC, direct from you and you indemnify us accordingly.
16.4 When using our Platform, you must not do any act that we would deem to be inappropriate, is unlawful or is prohibited by any laws applicable to our Platform, including but not limited to:
(a) any act that would constitute a breach of either the privacy (including uploading private or personal information without an individual's consent) or any other of the legal rights of individuals;
(b) using our Platform to defame or libel us, our employees or other individuals;
(c) uploading files that contain viruses that may cause damage to our property or the property of other individuals;
(d) posting or transmitting to our Platform any non-authorised material including, but not limited to, material that is, in our opinion, likely to cause annoyance, or which is defamatory, racist, obscene, threatening, pornographic or otherwise or which is detrimental to or in violation of our systems or a third party's systems or network security.
16.5 If we allow you to post any information to our Platform, we have the right to take down this information at our sole discretion and without notice. We take no responsibility and assume no liability for any content posted, stored, transmitted or uploaded to our Platform by you (in the case of your content) or any third party (in the case of any and all content more generally), or for any loss or damage thereto, nor are we liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter.
17. Intellectual Property
17.1 All intellectual property (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures and calculations) which arises out of or in the course of the provision of our Service and Platform is our exclusive property, or the exclusive property of any third party contractor engaged by us to undertake the provision of our Service and Platform, unless otherwise agreed in writing.
17.2 We will retain exclusive worldwide ownership at all times of our artistic styles, methods of working, techniques, ideas, skills and know-how.
17.3 You must not attribute our Service and Platform to anyone other than us.
18. Confidentiality
18.1 You undertake and agree to treat as secret and confidential, and not at any time for any reason, other than for the purpose of the Terms or as required by law, to disclose or permit to be disclosed to any person, or otherwise make use of, or permit to be made use of, any information relating to our technical processes, trademarks, business affairs or finances or of any suppliers, agents, distributors, licensees or customers of ours where such knowledge or details were received during the period you are a Member.
19. Prohibited Activities
19.1 To allow our Service and Platform to operate as intended, we would like to ensure that you do not:
(a) copy, store or otherwise access or use any information, including personally identifiable information about any other Member, contained on our Platform in any way that is inconsistent with our Privacy Policy or these Terms or that otherwise violates the privacy rights of Members or third parties;
(b) contact another Member for any purpose other than asking a question related to your own Job Post, including, but not limited to, recruiting or otherwise soliciting any Member to join third-party services, applications or websites, without our prior written approval;
(c) request, accept or make any payment to a Contractor outside of our Platform. If you do so, you acknowledge and agree that you:
(i) would be in breach of these Terms; and
(ii) will pay us what the Fee would have been had the engagement been through our Platform.
(d) discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behaviour;
(e) take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of our Platform.
20. Termination
20.1 Use of our Service and Platform is a benefit and not a right. That being the case, if we have reasonable grounds to believe:
(a) you are in material breach of these Terms or any of our other policies;
(b) you have committed an act of bankruptcy or are placed into liquidation; or
(c) a receiver or manager has been appointed in respect or any part or the whole of your assets;
we may immediately terminate these Terms by notice in writing to you.
20.2 Termination or cancellation of your use of our Service and Platform will not affect the rights, powers, remedies, obligations, duties and liabilities of either party which have accrued before termination.
20.3 If we do decide to terminate your use of our Service and Platform, you must not apply for a new account as unfortunately you will no longer be welcome.
21. Privacy of Information and Authorisations
21.1 By using our Service or Platform, you authorise us to collect, retain and use information about you in accordance with our Privacy Policy( file:///Users/Kevin/PROVIDE LTD/Marketing - Documents/Beta Private/HR Onboarding Management System/Legal docs/201130Provide Privacy Policy.docx)
21.2 You agree to provide us with any consents we require to enable us to access any third party data, services or platforms to the extent we require such access to enable the proper provision of our Service and Platform under these Terms.
22. Disputes with other Members
22.1 You agree to try to resolve any disputes you have with other Members directly with them.
22.2 We do try to offer help and information where we can, but please keep in mind that we are not a party in any Engagement between you and another Member, and there’s only so much we can do.
22.3 Because we care about our Members’ privacy, if you’re taking a dispute with another Member to the Disputes Tribunal or other tribunal or committee, we will only release that Member’s details if you sign a statutory declaration. We can provide you with a statutory declaration form if you need one. See our privacy policy for more information.
22.4 If you feel that any Member you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who:
(a) engages in offensive, violent or sexually inappropriate behaviour,
(b) you suspect of stealing from you, or
(c) engages in any other disturbing conduct,
you should immediately report such person to the appropriate authorities and then to us by contacting us with your police station and report number (if available). You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).
23. Disputes with us
23.1 If you have a dispute with us, please get in touch and we’ll try to resolve it informally. If we haven’t been able to resolve a dispute informally, either party can look to resolve a dispute or seek any remedy available through any legal method available.
23.2 The Commerce Commission is responsible for enforcing a number of consumer laws, including the Fair Trading Act (which prohibits false and misleading behaviour). If you have a complaint about us or our Platform being misleading, you can refer it to the Commission. Please keep in mind that we are not responsible for the content posted in any Job Post.
24. General
24.1 We reserve the right to modify these Terms as any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on our Platform and update the “Last Updated” date at the bottom of these Terms. If you disagree with the revised Terms, you should cease using our Service Platform. If you continue to use our Service and Platform after the date the revised Terms become effective, your continued access to and use of our Service and Platform will constitute acceptance of the revised Terms.
24.2 You must pay us costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms.
24.3 If any of these Terms is held to be invalid, void, unenforceable or illegal for any reason, such provision must be deemed to be severed from these Terms and the remaining provisions must continue in force.
24.4 A failure or delay in enforcing a right pursuant to these Terms is not a waiver of that right. Any waiver must be in writing and signed by the party granting the waiver.
24.5 You must not assign or subcontract any of your rights, powers or obligations under these Terms without our prior written consent.
24.6 We are not liable to you for any defect, loss, damage or delay caused by unforeseeable circumstances outside of our control.
24.7 These Terms will be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the courts of New Zealand.
24.8 These Terms apply in preference to any terms supplied by you. Except as may be set out in a separate written and signed agreement between you and us, these Terms represent the entire agreement of the parties in relation to the supply of our Service and Platform.
PLATFORM TERMS AND CONDITIONS
Welcome and thank you for reading our Terms and Conditions (Terms). These Terms apply to your use of our online contractor platform, referred to throughout as the “Platform”. By accessing and using our Platform and our associated services (our “Service”):
(a) you agree to these Terms; and
(b) where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
We ask that you review these Terms carefully. If you do not agree to these Terms, you are not authorised to access and use our Service and Platform, and you must immediately stop doing so.
How these Terms work
1.2 We have broken our Terms into four parts:
(a) An overview of our Platform and how it works;
(b) Terms specific to Principals who use our Platform and Service;
(c) Terms specific to Contractors who use our Platform and Service; and
(d) General terms that apply to all Members of the Platform.
1.3 These Terms create three binding contracts:
(a) A contract between us and each Principal who uses our Platform and Service;
(b) A contract between us and each Contractor who uses our Platform and Service; and
(c) In the case of any Engagement, a contract between the Contractor and Principal.
1.4 Our Platform and Service will only work where there is equity and fairness between us, Principals and Contractors. We reserve the absolute right at any time to determine whether your conduct is inconsistent with the values our Platform and Service are built on and, if we do so, we may decide in our sole discretion to terminate your use of our Platform and Service.
OVERVIEW
2. Our Platform
3.1 The Platform provides a double-sided platform through which:
(a) independent contractors (referred to as “Contractors”) connect with Principals, manage their Engagements, and track career activity, earnings as well as relevant qualifications, training and milestones; and
(b) those seeking independent contractors (referred to as the “Principal”) connect with Contractors, manage their Engagements, and track their flexible workforce.
3.2 The Platform is predicated on the upholding of 3 key values:
(a) Trust-is hard won and easily lost: We believe trust is the most important element of any relationship. If you create with trust and transparency the results will always be characterised by simplicity.
(b) Transparency: We build transparent relationships that are characterised by a shared purpose to create the best solution for our customers. Complexity is a proxy for trust and transparency.
(c) Being different: We don’t feel the need to be constrained by what everybody else does and are not afraid to suggest a course of action that is contrary to prevailing trends or thoughts.
3.3 Contractors and Principals are both “Members” of the Platform. For clarity, in providing our Service and Platform, we do not participate in the provision of services between Principals and Contractors, nor do we act as an agent for either party (except to the extent we facilitate payment under clause 7.1).
3.4 The Platform operates as follows:
3.5 We will always endeavour to provide our Service:
(a) in accordance with these Terms and New Zealand law; and
(b) exercising reasonable care, skill and diligence.
3.6 Our Platform is designed to facilitate the engagement of independent contractors by principals. It is not intended to be an employment service or a facility for principals to locate and engage employees. Whether an individual is an independent contractor or an employee is a question of law and relies on the specific relationship between the parties. We cannot and do not provide any promise, assurance or guarantee in relation to the legal relationship between Members using our Platform and Members must take their own independent legal advice.
3.7 Our provision of the Service to you is non-exclusive. What this means is that nothing in these Terms prevents us from providing access to the Platform and our Service to any other person.
3.8 While we will endeavour to ensure the ongoing availability of our Service and Platform, it is possible that on occasion our Service or Platform may be unavailable. This may be due to maintenance or other development activity to take place, or in the event that something happens which is out of our control. Where possible, we will notify you of scheduled maintenance or other system outages in advance and will try to schedule such occurrences outside of peak business hours.
3.9 It should be noted that our Service and Platform combine our own proprietary software with a range of third-party service features through the use of web services and APIs (application programming interfaces). Given that these third party features are out of our control, we cannot guarantee their availability. If a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to use that feature in our Platform and as a result cease to make that particular feature available to you. To avoid doubt, if we exercise our right to cease the availability of a third-party feature, you are not entitled to any refund, discount or other compensation. We will always endeavour to provide you with the best value and user features within the Platform.
4. User Account
4.1 To use our Service and Platform, we require you to create a user account.
4.2 When you register and activate an account, you may provide us with personal information such as your name, email address, and telephone number and information relating to your business or the services and skills you will provide (or seek to engage) via our Platform. You must ensure that this information is accurate and current. We will handle all personal information that we collect from you in accordance with our Privacy Policy)
4.3 When you register and activate an account, we will issue you a unique user identification credential used in combination with a unique password to access our Service and Platform. This is referred to as your “UserID”.
4.4 Each user account will be personal to the user. That being the case, if you have staff that you would like to have access to our Service and Platform (referred to as “Authorised Users”), each Authorised User will be required to be registered with their own UserID and unique password.
4.5 You will not allow our Service and Platform to be used by any person except Authorised Users.
4.6 You and each Authorised User are responsible for keeping your UserID and password secure and are responsible for all use and activity carried out under the User Account.
Principal Specific Terms
Responsibilities to us
5. Job Posts
5.1 We allow you to post an advertisement of the services you wish to be completed by a Contractor on our Platform (referred to as a “Job Post”).
5.2 When creating a Job Post through our Service and Platform you must:
(a) Provide complete and accurate information;
(b) Disclose any restrictions and requirements that apply (such as licence and/or qualification requirements);
(c) Provide any other pertinent information requested by us.
5.3 You are responsible for keeping your Job Post information up to date.
5.4 Your Job Post must not contain terms which conflict with these Terms.
6. Fees
6.1 These will always be 10% unless separately agreed in writing. We will charge you fees for the use of our Service and Platform (referred to as “Platform Fees”). We will only charge you Platform Fees to which you have agreed to pay through the functionality of our Platform.
6.2 You must pay any Contractor you engage in accordance with the terms of your Job Post (referred to as “Contractor Fees”) and in the manner specified in clause 7 below.
6.3 Unless stated otherwise, Platform Fees and Contractor Fees are expressed in New Zealand dollars and exclude GST (this does obviate the Party from paying the Tax).
7. Payment
7.1 Our payment interface will prompt you to make payment of our Platform Fees and Contractor Fees when required. We require you to pay all fees into a trust account administered by us. From there, we will pass the Contractor Fees to the Contractor on your behalf and deduct our Platform Fees (as agreed). You must not pay the Contractor direct.
7.2 In handling Contractor Fees on your behalf, we are acting as payment agent for you and not as principal. By using our Service and Platform, you appoint us to act as your payment agent solely for the purpose of receipting Contractor Fees into our trust account and passing those Contractor Fees on to Contractors on your behalf.
7.3 You will always be responsible for paying the contractor and Provide has no obligation in this regard
7.4 For clarity, upon paying us the Contractor Fees, you will discharge your obligation to pay the Contractor Fees.
7.5 All payments required to be paid by you must be paid:
(a) on or prior to the relevant due date;
(b) by means expressly approved and/or provided by us.
8. Default
8.1 Our Platform relies upon prompt payment in order to ensure trust, fairness and confidence between Members.
8.2 If payment is not made on the date required by us, then we may charge default interest on the amount unpaid at the rate of 25% per annum. The interest will be calculated on a daily basis from the date payment was due until the date payment is received. Should we fail or delay to charge interest on any unpaid fees or to exercise any of our rights, we do not waive those rights. You will also be liable to pay all expenses and legal costs incurred by us as a result of your default in payment.
8.3 If payment is outstanding for 7 days from the relevant date it is due, we may suspend providing you our Service and access to our Platform until the date of payment in full.
Responsibilities to the Contractor
These terms apply to your relationship with the Contractor during an Engagement.
9. Appointment
9.1 When an Engagement is created through our Platform, you appoint the Contractor to provide the services described in your Job Post on the terms you set out in your Job Post (for example, at the specific times, for the specific period and at the location(s) set out in your Job Post) and otherwise in accordance with the general obligations in these Terms.
9.2 You are entitled to provide your own form of independent contractor agreement in addition to set out the specific terms between you and the Contractor. However, you must provide a copy of that agreement with your Job Post and your own form of agreement must not include any provisions that are inconsistent with these Terms (such as by requiring payment other than through our Platform or by including restrictions on the Contractor’s right to accept other Engagements that do not conflict with their direct duties to you during your Engagement).
10. Nature of Engagement
10.1 You agree that your relationship with the Contractor is that of principal and independent contractor, and not employer and employee.
10.2 The Contractor may engage in other work and consulting assignments during the term of the Engagement, provided that the Contractor must not conflict with the Contractor's obligations to you in relation to the Engagement.
11. Fees
11.1 You must pay your Contractors the fees agreed between you and the Contractor through our Platform on or before the due date for payment. Payment may be based on an hourly rate or may be a fixed fee or some other measure.
12. Ownership of Intellectual Property
12.1 In respect of intellectual property used in or arising from the Engagement:
(a) All pre-existing intellectual property resides with the owner of that intellectual property as at the date the Engagement commences.
(b) Unless you agree otherwise with the Contractor, all new intellectual property created or arising out of the Engagement becomes the property of the Principal automatically on creation.
12.2 You are entitled to require the Contractor to sign any documents or take any other steps reasonably necessary to give effect to the transfer of ownership set out above.
13. Termination
13.1 The Engagement will automatically terminate once the Engagement has been completed.
13.2 If the Contractor fails to fulfil his or her obligations under these Terms or as made clear in a Job Post, and fails to remedy the failure within a reasonable time after you notify the Contractor of the failure and how it can be remedied, you may terminate the Engagement without further notice.
13.3 Any termination of an Engagement will be without prejudice to the rights of either party against the other which may have accrued up to the date of such termination and any other remedies at law.
General Terms
14. Exclusivity
14.1 You do not need to exclusively use our Service and Platform to find work or assignments (in the case of a Contractor) or source labour (in the case of a Principal). However, you may not under any circumstances contact another Member (whether a Principal or a Contractor), by any means either directly or indirectly, with the intention, purpose or effect of encouraging that Member not to use our Service or Platform or to create an Engagement outside of our Platform. By way of example, it is a breach of our Terms to agree between Principal and Contractor to conduct an initial Engagement through our Platform but then agree to complete additional work or assignments outside of our Platform. If you do so, we can immediately terminate your use of our Platform and Services and you must indemnify us and hold us harmless for any loss or expense (including legal costs on a solicitor-client basis) whatsoever caused by or related to your conduct.
15. Warranty and Liability
15.1 You indemnify us against all losses, costs (including legal costs on a full indemnity basis), expenses, demands or liability that we incur arising out of, or in connection with, your use of our Service and Platform.
15.2 Except as set out in these Terms or as provided in any separate written agreement signed by us, any and all conditions, guarantees, warranties or representations which might otherwise be implied by law, trade, custom or otherwise are expressly excluded to the maximum extent permitted by law. In particular, the Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. We exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
15.3 We are not a party in any Engagement between Members. As mentioned in clause 3.1 of these Terms, other than providing our Platform, we don’t take any part in the provision of Engagements, nor are we involved with any Job Post by any Principal. All transactions and other contact between you and other Members is entirely at your risk. We also do not promise that our default terms for Engagements set out above are appropriate in all circumstances. You must use your own business judgement in using our Platform.
15.4 The clause above means that we aren’t liable or responsible for:
(a) any Job Post or services that are offered or provided via our Platform;
(b) the safety, quality or legality of any Job Post, or the accuracy or truth of any Job Posts;
(c) any guarantees or assurances that a Contractor has made regarding their qualifications and experience.
15.5 This also means that we give no guarantee or warranty:
(a) that any Job Post on our Platform or Engagement arising from it will meet your requirements or expectations;
(b) that any information posted on our Platform, including feedback, is error-free or reliable.
15.6 Where any part of our Service and Platform is supplied by a third-party contractor engaged by us, and that third-party contractor causes loss or damage to you in the course of supplying such part of our Service and Platform, we will use reasonable endeavours to recover such loss or damage under any contract between us and the third-party contractor. However, you acknowledge and agree that we will not be liable for any loss or damage caused howsoever by that third party contractor in relation to our Service and Platform where we are unable to recover such loss or damage from that third party contractor for any reason.
15.7 Our maximum aggregate liability under or in connection with these Terms or relating to our Service and Platform, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any calendar year exceed 50% of the amount of any fees paid by you for our Service and Platform in that calendar year.
16. Posting Policy
16.1 By providing you with access to our Platform, we allow you to post content on our it.
16.2 You own all of the content, feedback, and personal information you provide to us, but you also grant us a non-exclusive license to it. This means we have the right to use your user generated content (UGC) for the purposes of our business in any way we see fit, and without any further notice to you or permission from you or any obligation on our part to pay you any money or provide any other compensation for our use of your UGC. An example of how we may use your UGC is that we may extract or republish your UGC in our marketing materials.
16.3 You are responsible to us and all relevant third parties for any UGC you upload to our Platform. We are entitled to recover any costs or liability we incur as a result of your UGC, direct from you and you indemnify us accordingly.
16.4 When using our Platform, you must not do any act that we would deem to be inappropriate, is unlawful or is prohibited by any laws applicable to our Platform, including but not limited to:
(a) any act that would constitute a breach of either the privacy (including uploading private or personal information without an individual's consent) or any other of the legal rights of individuals;
(b) using our Platform to defame or libel us, our employees or other individuals;
(c) uploading files that contain viruses that may cause damage to our property or the property of other individuals;
(d) posting or transmitting to our Platform any non-authorised material including, but not limited to, material that is, in our opinion, likely to cause annoyance, or which is defamatory, racist, obscene, threatening, pornographic or otherwise or which is detrimental to or in violation of our systems or a third party's systems or network security.
16.5 If we allow you to post any information to our Platform, we have the right to take down this information at our sole discretion and without notice. We take no responsibility and assume no liability for any content posted, stored, transmitted or uploaded to our Platform by you (in the case of your content) or any third party (in the case of any and all content more generally), or for any loss or damage thereto, nor are we liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter.
17. Intellectual Property
17.1 All intellectual property (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures and calculations) which arises out of or in the course of the provision of our Service and Platform is our exclusive property, or the exclusive property of any third party contractor engaged by us to undertake the provision of our Service and Platform, unless otherwise agreed in writing.
17.2 We will retain exclusive worldwide ownership at all times of our artistic styles, methods of working, techniques, ideas, skills and know-how.
17.3 You must not attribute our Service and Platform to anyone other than us.
18. Confidentiality
18.1 You undertake and agree to treat as secret and confidential, and not at any time for any reason, other than for the purpose of the Terms or as required by law, to disclose or permit to be disclosed to any person, or otherwise make use of, or permit to be made use of, any information relating to our technical processes, trademarks, business affairs or finances or of any suppliers, agents, distributors, licensees or customers of ours where such knowledge or details were received during the period you are a Member.
19. Prohibited Activities
19.1 To allow our Service and Platform to operate as intended, we would like to ensure that you do not:
(a) copy, store or otherwise access or use any information, including personally identifiable information about any other Member, contained on our Platform in any way that is inconsistent with our Privacy Policy or these Terms or that otherwise violates the privacy rights of Members or third parties;
(b) contact another Member for any purpose other than asking a question related to your own Job Post, including, but not limited to, recruiting or otherwise soliciting any Member to join third-party services, applications or websites, without our prior written approval;
(c) request, accept or make any payment to a Contractor outside of our Platform. If you do so, you acknowledge and agree that you:
(i) would be in breach of these Terms; and
(ii) will pay us what the Fee would have been had the engagement been through our Platform.
(d) discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behaviour;
(e) take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of our Platform.
20. Termination
20.1 Use of our Service and Platform is a benefit and not a right. That being the case, if we have reasonable grounds to believe:
(a) you are in material breach of these Terms or any of our other policies;
(b) you have committed an act of bankruptcy or are placed into liquidation; or
(c) a receiver or manager has been appointed in respect or any part or the whole of your assets;
we may immediately terminate these Terms by notice in writing to you.
20.2 Termination or cancellation of your use of our Service and Platform will not affect the rights, powers, remedies, obligations, duties and liabilities of either party which have accrued before termination.
20.3 If we do decide to terminate your use of our Service and Platform, you must not apply for a new account as unfortunately you will no longer be welcome.
21. Privacy of Information and Authorisations
21.1 By using our Service or Platform, you authorise us to collect, retain and use information about you in accordance with our Privacy Policy( file:///Users/Kevin/PROVIDE LTD/Marketing - Documents/Beta Private/HR Onboarding Management System/Legal docs/201130Provide Privacy Policy.docx)
21.2 You agree to provide us with any consents we require to enable us to access any third party data, services or platforms to the extent we require such access to enable the proper provision of our Service and Platform under these Terms.
22. Disputes with other Members
22.1 You agree to try to resolve any disputes you have with other Members directly with them.
22.2 We do try to offer help and information where we can, but please keep in mind that we are not a party in any Engagement between you and another Member, and there’s only so much we can do.
22.3 Because we care about our Members’ privacy, if you’re taking a dispute with another Member to the Disputes Tribunal or other tribunal or committee, we will only release that Member’s details if you sign a statutory declaration. We can provide you with a statutory declaration form if you need one. See our privacy policy for more information.
22.4 If you feel that any Member you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who:
(a) engages in offensive, violent or sexually inappropriate behaviour,
(b) you suspect of stealing from you, or
(c) engages in any other disturbing conduct,
you should immediately report such person to the appropriate authorities and then to us by contacting us with your police station and report number (if available). You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).
23. Disputes with us
23.1 If you have a dispute with us, please get in touch and we’ll try to resolve it informally. If we haven’t been able to resolve a dispute informally, either party can look to resolve a dispute or seek any remedy available through any legal method available.
23.2 The Commerce Commission is responsible for enforcing a number of consumer laws, including the Fair Trading Act (which prohibits false and misleading behaviour). If you have a complaint about us or our Platform being misleading, you can refer it to the Commission. Please keep in mind that we are not responsible for the content posted in any Job Post.
24. General
24.1 We reserve the right to modify these Terms as any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on our Platform and update the “Last Updated” date at the bottom of these Terms. If you disagree with the revised Terms, you should cease using our Service Platform. If you continue to use our Service and Platform after the date the revised Terms become effective, your continued access to and use of our Service and Platform will constitute acceptance of the revised Terms.
24.2 You must pay us costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms.
24.3 If any of these Terms is held to be invalid, void, unenforceable or illegal for any reason, such provision must be deemed to be severed from these Terms and the remaining provisions must continue in force.
24.4 A failure or delay in enforcing a right pursuant to these Terms is not a waiver of that right. Any waiver must be in writing and signed by the party granting the waiver.
24.5 You must not assign or subcontract any of your rights, powers or obligations under these Terms without our prior written consent.
24.6 We are not liable to you for any defect, loss, damage or delay caused by unforeseeable circumstances outside of our control.
24.7 These Terms will be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the courts of New Zealand.
24.8 These Terms apply in preference to any terms supplied by you. Except as may be set out in a separate written and signed agreement between you and us, these Terms represent the entire agreement of the parties in relation to the supply of our Service and Platform.
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