THESE TERMS AND CONDITIONS GOVERN THE RELATIONSHIP BETWEEN DIFM DECORATING PTY LTD, trading at 12 Honeyeater Close, Budrim, QLD 4556 (ACN 116890370) trading as Getapainter AND THE Member ("MEMBER")
This is a legal agreement ("Agreement") whereby Getapainter's will supply services (the "service"), for facilitating the matching of persons ("the customer") accessing the Getapainter site who are seeking Professional Painters who are Members of Getapainter for domestic and commercial painting jobs ("jobs") The "Member" is the individual or business who is registered with Getapainter and who has agreed to be bound by the Getapainter membership terms and conditions and who has agreed to purchase from Getapainter Job Lead Referral (‘JLR”)where they will be matched with customers who are seeking painters via the Getapainter system.
BREACH OF ANY OF THE TERMS OF THIS AGREEMENT WILL RESULT IN THE TERMINATION OF YOUR RIGHT TO USE THE Getapainter SERVICE, AND ANY ACCOUNT THAT YOU MAY HAVE CREATED AS PART OF THE SERVICE. YOU AGREE TO USE THE Getapainter SITE OR SERVICES AT YOUR OWN RISK.
Right to Accept or Reject Application
Member acknowledges that Getapainter reserves the right to accept or reject at its sole discretion any application for Membership. The Member agrees to supply documentation required by Getapainter to verify its qualifications and ability to perform Member Services e.g. domestic painting, commercial painting or both.
Member acknowledges and agrees that Getapainter's role is to supply referrals for domestic and commercial painting work only and that Getapainter is not directly involved in the transactions between Customers and the Members and will not be involved in or be a party to any agreement or arrangement between the Member and any Customer relating to any work carried out by the Member.
How the Getapainter Process Works
Getapainter will receive from a customer a request that a quotation is required for domestic and/or commercial painting work. Getapainter then matches that request with a Member. Getapainter will match a maximum of four members to each customer request for a quotation.
When the Member receives a Job Lead Referral (‘JLR”) from Getapainter it may, in its discretion choose to accept or not accept the JLR.
A Member is not capable of accepting a JLR, which has not been sent directly to them unless that JLR is listed on the Getapainter web site. When a JLR is listed on the Getapainter Website any Member can Accept the JLR by clicking the appropriate site box.
Once the JLR has been accepted and paid for by the Member (as set out in Fees Charges and Payment) Getapainter then sends to the Member the Customer's contact details and any other details relevant to the JLR in order for the Member to arrange an estimate of fees and charges for that Job. The Member must endeavor to contact the Customer within two hours of accepting a JLR or as soon as reasonably practicable.
If Customer's contact details given to the Member by Getapainter are not correct and do not enable the Member to contact the Customer, the Member must notify Getapainter within 24 hours of discovering this and Getapainter will try and obtain the relevant Customer's contact details and provide these details to the Member.
If the customer informs the Member that it does not require any further quotations the JLR will not be refunded by Getapainter.
Members acknowledge and agree that details and the scope of the work to be done along with the terms and conditions including warranties, indemnities and guarantees of any agreement relating to the Job are to be agreed solely between the Member and the Customer and that Getapainter performs no role in this process and accepts no liability in this respect.
If, after accepting a JLR, the Member (for whatever reason) elects not to perform the Job, they must notify Getapainter immediately of this so that Getapainter may refer the Job Leave Request to another Member (at its sole discretion). In this case the JLR Fee payable by the Member will not be refunded.
The Member must complete the Getapainter registration form and provide all of the requested documentation. Within seven days of receiving the completed application and requested documentation, Getapainter will either accept or reject the Members application. Registration entitles the Member to receive JLR's direct from Getapainter or by accessing the web site to see JLRs, which have not been referred to a Member, or the maximum 4 JLR's have not been accepted.
One person or legal entity must not register more than one account.
Fees, charges and payment
Members agree that to receive JLRs or select JLRs from the Website they must have a valid credit or Debit card to pay the fees as outlined in the fees schedule. JLR fees are listed in dollars .Bonus Points issued by Getapainter have a nominal value of $1.00. All transactions are in Australian Dollars (AUD)
Getapainter and/or its associated sponsors may from time to time and at their discretion allocate Bonus Points to members accounts.
Members will pay the JLR fee in one of three ways:
All payments to Getapainter will be made by secure gateway using Members credit card details which have been previously stored. This website supports Secure Socket Layers of 128bit and greater.
The Member agrees that Getapainter will automatically charge all scheduled JLR fees and any merchant fees to the Member’s stored Credit Card.
Where the Member’s Getapainter account becomes inactive for a period of 18 months the Member acknowledges that Getapainter may at its discretion suspend the account and any Bonus Points are forefeited.
Member acknowledges and agrees that payments due under this Agreement shall not be deemed to have been received until all amounts payable are received as clear funds in Getapainter's bank account.
Member acknowledges and agrees that any Bonus Points allocated to their account by either GAP or it’s associated sponsors are non-transferrable and can only be used only for accepting JLR’s.
Getapainter may, at its sole discretion, terminate or suspend Registration and access to the System without notice for any breach of the terms and conditions.
Getapainter reserves the right to increase the fees required to obtain a JLR or to institute new fees, upon reasonable notice provided to the Member and/or posted on the Site.
In the event an account is closed all Bonus Points are non-refundable. Any Bonus Points allocated to member accounts will not be refunded and are forefeited
Member agrees that Getapainter's records (including records of SMS messages sent by or on its behalf) shall be conclusive evidence of Getapainter's transmission and the Member's receipt of notifications of JLR's, and accepted JLR's.
Member warrants to and agrees with Getapainter that:
it is under no legal or other impediment that may prevent it fully carrying out its obligations under this Agreement;
it and any personnel it engages are and will at all times remain qualified to offer and perform the Member Services;
and all personnel engaged by it will comply with the Charter of Conduct and exercise a high degree of skill, care and professionalism in providing the Member Services to the Customers;
that all necessary insurance policies are current including a public liability policy to the value of $5 million and all legislative and statutory required insurance policies.
all information (including but not limited to that set out in the application for Registration (registration form) including information relating to the Member's qualifications and capacity (including those of its employees) is true and correct in every respect and will be updated by the Member if and when material changes occur during the period of the Registration;
all information provided by the Member to Getapainter or the Customer will not be false, inaccurate or misleading, abusive, vulgar, hateful, harassing, obscene, threatening, defamatory or violate any applicable law or regulation;
all Getapainter initiated jobs need to be supported by written quotations that clearly document what is included and/ or excluded as part of the scope of works
it will not impersonate or misrepresent any sponsorship, endorsement by or affiliation with any person or entity;
it will not release to the public any news release, advertising material, promotional material or any other form of publicity or information relating to Getapainter without Getapainter's prior written approval;
at the time of accepting a Job Referral, it will be able and willing to perform the Job, within a commercially reasonable time and at a commercially acceptable price;
it must not cancel or reschedule any appointment made with a Customer (whether to provide a quotation, perform the Job or otherwise) without prior notification to and acceptance by the Customer;
CHARTER OF CONDUCT
Members acknowledge and agree that they will comply with and be bound by the following Charter of Conduct:
Deliver and maintain high levels of customer service as assessed and confirmed by the customer and Getapainter.
Deliver quality workmanship to given Australian standards. Painting undertaken to comply with Australian Standard AS/2311:2009, the guide to the painting of a building which is the recognised industry standard.
Respond to JLR's by contacting the customer within two hours of accepting a JLR.
Provide to the customer a comprehensive written quotation inclusive of GST on all Getapainter jobs that lists what services and products you will (and will not) provide.
Participate in mediation or discussions with a Getapainter representative or a representative nominated by Getapainter if a customer makes a complaint against you or Getapainter and furthermore to provide all quotations and documentation relating to the matter in dispute to Getapainter.
Ensure that they comply with all workplace and OH&S laws.
Ensure that they and their employees and subcontractors have current workers compensation insurance.
Ensure and maintain public liability insurance of at least five million dollars.
Member acknowledges and agrees that:
Getapainter is not and will not be a party to any transactions between any Customers and the Member;
Getapainter does not offer professional advice to Customers or other persons relating to the fitness of any goods or services for any purpose;
Getapainter cannot and does not confirm the identity of Customers, their qualifications, backgrounds or abilities;
Getapainter makes no representation in respect of, and does not warrant to the Member the ability of any Customer to pay the Member for or in respect of any Job, the Member Services or otherwise;
Getapainter does not provide billing, money collection, reconciliation, accounting or any other services for the Member or Customers each of which shall be the responsibility of the Member;
Member is responsible for completing all transactions it participates in and providing all of the Member Services agreed to between it and each Customer (including monitoring the status and complying with all relevant legal obligations); and
Getapainter will not be liable for any loss or damage incurred by the Member as a result of any failure or delay in Getapainter transmitting or providing any information to the Member or a Customer or removing any information from the Site.
Getapainter offers no promise that advertising and marketing of Getapainter will occur.
There is no guarantee that JLR's will be provided to the Member during the term of this Agreement.
JLR's are an opportunity to obtain work, but there is no guarantee that the JLR will result in paid work for the Member.
Getapainter SITE AGREEMENT
Getapainter uses a standard web browser feature called "cookies" to help improve a users experience. A cookie is a small text file that many web sites write through your browser when you visit them. A cookie can only be read by the site that places it, so the Getapainter web site cannot "see where you've been" based on any other cookies in your browser.
On some areas of Getapainter cookies are used to distinguish you from other users. However, cookies merely provide Getapainter with a unique anonymous number that we can use in identifying and enhancing the use of sections of our site.
Cookies can also be used to store your user name and encrypted password, if you choose. You may choose to disable cookies in your browser or use security software to prevent the storage of cookies. However if you disable cookies, we may not be able to fulfil your request or provide you with an appropriate level of service in some areas of the Getapainter web site.
Getapainter reserves the right to:
Co-operate fully with any law enforcement authority in any jurisdiction in respect of any lawful direction or request to disclose the identity or other information in respect of anyone using the System including the Member; and
Refuse to disseminate any information and/or materials (in whole or in part) that Getapainter, in its sole and absolute discretion, regards in any way objectionable or in violation of any applicable law or this Agreement.
All intellectual property rights in information, trademarks, logos, business processes, data and materials including without limitation all software, tools, know-how, equipment or processes, used in relation to the Service, System and on the Site shall remain Getapainter's sole and exclusive intellectual property and the Member acknowledges and agrees that it shall not acquire any rights, title or interest in or to any of Getapainter's intellectual property rights.
Where the Member posts to the Site, or otherwise provides information materials and copyright material for Getapainter to disseminate, it grants Getapainter a royalty free, perpetual, irrevocable license to reproduce, modify, distribute, display and delete such content (in whole or in part) on the Site or as otherwise deemed appropriate by Getapainter.
Disclaimer and Limitation of Liability
Getapainter provides JLR's and Customer contact details to the Member on and 'as is' basis without any warranties of any kind, express, implied or statutory as to their accuracy or otherwise. The Member must satisfy itself through its own enquiries as to the ability of the Customer to pay for goods and services provided by the Member.
To the extent permitted by law Getapainter excludes all liability to the Member or any other person for any loss, claim or damage (whether arising in contract, negligence, tort, equity or otherwise for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including, without limitation any loss of profits, loss or corruption of data or loss of goodwill) arising out of or in connection with this Agreement and the System.
To the extent permitted by law, Getapainter and all affiliates and related entities of Getapainter expressly limit their liability for breach of any non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at Getapainter's sole discretion):
in the case of services: the supply of the services again; or the payment of the cost of having the services supplied again.
Members are liable for ensuring that all work conducted by sub-contractors complies with the Charter of Conduct (member agreements), good practice, involves quality workmanship, is carried out under applicable industry licenses and that each sub-contractor is covered by appropriate and adequate insurance to the extent generally desirable for the Member in the Member's position and area of practice.
Member indemnifies and holds Getapainter and its parent, subsidiaries, affiliates, officers, directors, agents, employees, partners, suppliers, franchisors and franchisees, harmless from and against any claims, demands, proceedings, losses and damages (actual, special and consequential of every kind and nature, including all legal fees) made by any Customer, other Subscriber or any third party due to or arising out of or in any way related to the Member's use of the Service, System or Site, its performance of any Job, its negligence, its breach of this Agreement, or its violation of any law or the rights of a third party.
The Member may cancel its Registration upon notice to Getapainter. Upon cancellation of Registration, Getapainter shall terminate the Member's membership.
Termination and Breach
Getapainter reasonably believes that the Member's acts or omissions may adversely affect the interests of or may result in any loss or liability for the Member, Customers, Subscribers or Getapainter; or
Getapainter reasonably believes that the quality of the Member Services is of poor or deteriorating quality.
Effect of termination or cancellation of Registration
If this Agreement is terminated or expires and/or the Member's Registration is cancelled or suspended or expires for any reason, the Member acknowledges and agrees:
Member must immediately cease and refrain from representing itself as a Member or otherwise having any affiliation with Getapainter and must immediately cease using all trademarks and other material owned by Getapainter or provided by Getapainter to the Member;
Getapainter will not be liable to the Member for any claims of any kind arising as a result of such termination, suspension or cancellation including but not limited to on account of the loss by the Member of present or prospective profits, anticipated orders, expenditures, investments or commitments made, goodwill created, loss of or damage to reputation or on account of any other cause whatsoever; and of this Agreement shall continue in force.
Members and Getapainter are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Getapainter will not be liable for any failure or delay in the performance of its obligations to the Member if that failure or delay is due to circumstances beyond its reasonable control including, without limitation, any act of God or other cause beyond its reasonable control including any mechanical, electronic, communications or third party supplier failure.
Member may not assign any of its rights or obligations under this Agreement without Getapainter's prior written consent. If the Member is a company, any change in its effective control shall be deemed an assignment for the purpose of this clause. Getapainter may assign its rights or obligations under this Agreement at any time without notice to the Member.
Non Transferable Registration
Member's Registration is personal to the Member and may not be sold or otherwise transferred to another person or entity.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Member agrees that this Agreement may not be construed adversely against Getapainter solely because Getapainter prepared it. The singular includes the plural and vice-versa. Person includes any corporation or body corporate.
In this Agreement the following terms have the following meanings: " JLR" means the provision of goods and/or services by a Painter to a Customer that arises out of a Job Lead Referal "Job Lead Referal " means a request made by the Customer using the Site seeking offers for the provision of services from Painters. "Painter" means any person or entity that is or may potentially be matched to a Customer JLR and who has been approved by Getapainter to be a member. "Painter Services" means the goods and/or services that Painter offers and/or provides to Customers. "Web Site" means the website operated by Getapainter at www.getapainter.com.au. "Getapainter System" means the system operated by Getapainter as described in this Agreement, and as developed by Getapainter from time to time.
This Agreement shall be governed in all respects by the laws of the State of Victoria, Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria, Australia and to the Federal Court of Australia sitting in Victoria.
The provisions of this Agreement are severable, and if any provision of this Agreement is held to be illegal, invalid or unenforceable, under present or future law, such provision may be removed and the remaining provisions shall be enforced.
Getapainter's failure to act with respect to a breach by the Member or others does not waive its right to act with respect to subsequent or similar breaches.
This Agreement and those incorporated herein set forth the entire understanding and agreement between the parties with respect to the subject matter hereof.
Getapainter may provide notices to you by simply posting the notice on the Site. This is in addition to any other mode of service permitted by law.
Getapainter may vary the terms and conditions of this Agreement by providing written notice of the changes to the Member, which variation will be effective from the service of a notice to this effect on the Member.
For the purposes of notification under this clause, an acceptance dialog box appearing on the site following login followed by acceptance of the notice by the Customer will be sufficient acknowledgement of the acceptance of variation to the terms and conditions.