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This agreement governs the terms and conditions under which Upwise provides services to you. The first part of the agreement is the Agreement Summary, followed by the Terms and Conditions on which we provide the services to you (together, the “Terms”).
Overview of Services
Consultants can be engaged by Users via the Marketplace for provision of the following:
- a Meeting, facilitated through the Website;
- a Consulting Session of 1 - 4 hours, either facilitated through the Website or conducted offline;
- Long Term Projects, as agreed between the Consultant and User.
The date on which you submit Registration Data to us.
From the Commencement Date for the duration of your use of the Website and Services, or until terminated in accordance with clause 10.
Meetings and Consulting Sessions: The Consultant must pay Upwise 20% of the total amount charged by the Consultant for Meetings and Consulting Sessions.
Long Term Projects: The Consultant must pay Upwise 15% of the total amount charged by the Consultant for Long Term Projects following engagement of the Consultant by the User via the Marketplace.
Meetings and Consulting Sessions:
- Upwise will collect User payments for Meetings and Consulting Sessions and provide the Consultant with a summary of the charged hours on a quarterly basis.
- The Consultant will invoice Upwise for the reported charged hours minus the applicable Fee.
- Upwise will pay such invoices within 30 days of receipt of the invoice.
Long Term Projects:
- The Consultant will provide Upwise with details of amounts charged by the Consultant for Long Term Projects on a quarterly basis.
- Upwise will invoice the Consultant for the applicable Fees.
- The Consultant will pay such invoices within 30 days of receiving the payment from the User for which the Fee applies.
You must ensure that all Registration Data provided to Upwise, including your LinkedIn profile, is accurate and up to date. This information is used to create your Consultant profile, which you must keep up to date at all times.
If you are engaged by a User to provide services:
- you must keep the User’s confidential information confidential;
- all Intellectual Property Rights created out of your performance of the Services Contract immediately and automatically vest with the User; and
- you must comply with the restraints set out in clause 9.2.
Terms and conditions
About these Terms
You should read these Terms carefully. They apply to your use of the Services and the Website.
In these Terms, “Upwise”, “we”, “us” or “our” means Upwise Pty Ltd ACN 620 249 710 and includes its directors, employees and agents. “Consultant”, "you" or "your" means the person, company, association or organisation who accepts these Terms. Additional definitions are set out in clause 19.
By submitting Registration Data to us, you indicate your acceptance of these Terms (including any associated Fees). If you do not agree to these Terms you should immediately cease accessing the Website and using the Services.
We reserve all rights to alter these Terms at our discretion. Each time you use the Website or Services, it is your responsibility to be aware of our current terms. Your continued use of the Website and/or Services following the posting of changes to these Terms will be deemed your acceptance of those changes.
These Terms, as amended by us from time to time, continue to apply for the duration of your use of the Website and Services or until terminated in accordance with clause 10.
Overview of Services
the ability to be engaged by Users via the Marketplace for the following:
an online meeting, facilitated through the Website ("Meeting”);
a consulting session of one (1) to four (4) hours, either facilitated through the Website or conducted offline (“Consulting Session”); and
longer term projects, as agreed between the Consultant and User (“Long Term Project”).
To access the Services, you must register with us by providing us with Registration Data as requested. We reserve the right to decline your registration request if you do not pass our verification process
You warrant that persons providing the Registration Data to us have the relevant authority to provide such information and to enter contracts on behalf of the Consultant seeking registration with us, and that you have the capacity to offer the goods and/or services listed by the Consultant on the Marketplace.
You represent and warrant to us that the Registration Data provided to us is true, complete, accurate and up to date, and you undertake to maintain the truthfulness, completeness and accuracy of your Registration Data as necessary and/or as required by us.
You allow us to refer to you in any publicity we engage in after we have provided you with the Services or during our provision to you of the Services.
You agree that immediately upon registration in accordance with clause 4, we will charge you the Fees on each transaction that you enter into with a User.
The Fees are deducted from the total amount paid by the User for each transaction excluding any applicable taxes and credit card processing fees.
The Fees are exclusive of GST unless otherwise specified.
Payment of the Fees will be in accordance with the process set out in item 5 of the Agreement Summary.
We are entitled to accrue payments made by Users for services provided by you via the Website and withhold payment to you until payment is due.
If payment by a User for a transaction via the Website is rejected or does not settle, you will not be entitled to payment for that transaction.
If we receive a complaint from a User about services provided by you:
we are entitled to withhold the applicable payment for those services and refund it to the User at our sole discretion; or
if the applicable payment has already been paid to you, we may require you to immediately refund that payment as directed by us.
You indemnify us for any loss, liability or cost that we directly or indirectly suffer in relation to any tax laws or rulings as a result of, or in connection with your use of the Website, the Services or your obligations under these Terms.
Your obligations include, but are not limited to, the following:
Acceptance of User requests
You are free to accept or decline requests from Users for the provision of services, however, you must only accept requests when:
you have the requisite knowledge and expertise to deliver the requested services;
accepting the request does not create a conflict of interest or breach any express or implied term of any agreement or other obligation that is legally binding upon you; and
providing the requested services will not breach any applicable laws or other obligations that are legally binding upon you.
You are expected to respond to Users’ requests within 2 Business Days and to comply with any schedule or program that you establish with a User regarding the delivery of applicable Services Contracts.
All bookings for Meetings and Consulting Sessions may be instantly booked via the Website, unless otherwise specified by us from time to time.
You must ensure that all services that you provide via the Website and/or pursuant to any Services Contract are provided with acceptable care and skill and in compliance with any applicable obligations under the Competition and Consumer Act 2010 (Cth).
You must not upload any content to the Website that promotes intolerance, racism, illegal behaviour or contains defamatory content.
Viruses and hacking
You must not:
misuse any part of the Website by introducing viruses, trojans or other material which is malicious or technologically harmful;
attempt to gain unauthorised access to any part of the Website, the server on which the Website is stored or any server, computer or database connected to the Website;
engage in any activity that interferes with or disrupts the Services or the servers and networks which host the Services; or
attempt to circumvent, disable or otherwise interfere with any security-related features of the Services or any features which prevent or restrict the use or copying of any content or enforce limitations on the use of the Services or the content of the Website.
Interactions with Users
You must not advocate, support or practise discrimination based on race, religion, age, national origin, language, gender, sexual orientation, or mental or physical handicap.
You must not advocate, support or practise discrimination based on race, religion, age, national origin, language, gender, sexual orientation, or mental or physical handicap.
Cancellation of Meetings and Consulting Sessions
If a User cancels, or does not attend, a scheduled Meeting or Consulting Session, the relevant Meeting or Consulting Session will be rescheduled. You will not be entitled to any cancellation fees.
If you need to cancel, or do not attend, a scheduled Meeting or Consulting Session, you must notify us as soon as possible so that the relevant Meeting or Consulting Session can be rescheduled.
If a User engages a Consultant for a Meeting, Consulting Session, Long Term Project or any other arrangement for the provision of services (each a “Services Contract”), that Services Contract is directly between the User and the Consultant to the exclusion of Upwise. You acknowledge and agree that we are not a party to any Services Contract.
The Consultant agrees that the following provisions will apply to any Services Contract with a User, unless the Consultant and the User agree otherwise in writing:
a. the Consultant agrees not to use or disclose confidential information relating to or owned by the User that has been received or disclosed to the Consultant by the User, save for use or disclosure required in order to perform the Consultant’s obligations under the applicable Services Contract;
b. disclosure of any confidential information shall be limited to such of the Consultant’s employees, officers, agents or contractors directly involved in performing the Consultant’s obligations under the applicable Services Contract;
c. information is not to be regarded as confidential, and the Consultant will have no obligation regarding confidentiality, where that information is already in the public domain or enters the public domain through no fault of the Consultant, is received from a third party without any obligations of confidentiality, is used or disclosed with the prior written consent of the User, is disclosed in compliance with a legal requirement, or is independently developed by the Consultant;
d. any confidential information will be returned or destroyed by the Consultant at the prior written request of the User; and
e. the Consultant recognises and acknowledges that all Intellectual Property Rights created out of performance of a Services Contract for a particular User immediately and automatically vest with that User, and the Consultant will take all such steps as practicable to ensure that those Intellectual Property Rights will vest in and remain vested in that User.
In addition to our rights under clause 3, we may, at our absolute discretion, terminate these Terms or cease to supply you with the Services, if:
it transpires that you have provided false or misleading information on the Website;
you are found by us to be offensive or abusive to a User or other Consultant;
you accumulate repeated reports of customer dissatisfaction, to be determined at our discretion;
your business ceases to operate or you sell a majority interest in your business to a new owner; or
you do not comply with your obligations under these Terms.
If your access to the Services is terminated for any reason, we will be entitled to payment for all outstanding Fees properly incurred by us up to the date of termination and any Fees incurred during any applicable notice period or otherwise specified in these Terms.
You agree that our liability for any alleged error or other issue with the Services will be limited to the right to attempt redelivery of the Services to you.
Except as provided in these Terms, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, quality, performance or fitness for purpose of the Services provided in accordance with these Terms is given by us, other than as required by law. All implied warranties are hereby excluded.
Nothing contained in these Terms excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, state or territory legislation where to do so is unlawful.
To the extent permitted by law, we will not be liable for any loss, expenses, liabilities, costs or damage caused by viruses, system failures or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of any part of the Website or downloading of any material or content posted on it, or on any website linked to it. We recommend that you have up-to-date virus checking software installed.
To the fullest extent permitted by law, we are not responsible for dealing with, and not liable for, any disputes or complaints made by you or any User in relation to the goods or services sold on, or via, the Website (including any dispute or complaint regarding refunds, payment, goods or services).
You agree that we will not be liable for any indirect, consequential, special or exemplary losses, expenses or liabilities or any loss of profits, loss of revenue, economic loss, loss of goodwill, loss, corruption or alteration of data, failure to realise anticipated savings, loss of opportunity, expectation loss or loss of production arising out of, or in connection with, the provision or use of the Services, the Marketplace, the Website or these Terms.
You agree that, in any event, our maximum aggregate liability to you under these Terms will be the total Fees that you have paid in the 3 months preceding the claim.
The Consultant acknowledges and agrees that the limitations of liability contained in this clause are a fair and reasonable allocation of the commercial risk between the parties.
This clause 12 survives termination or expiry of these Terms.
You may not modify or copy the layout or appearance of the Services or any computer software or code contained in the Services, nor may you decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the Services.
We grant you, for the duration of these Terms as determined in accordance with clause 1.5, a non-exclusive, non-transferable and revocable licence to use the Intellectual Property Rights embodied in the Services to the extent necessary for you to use the Services, Marketplace and Website for your business purposes.
By uploading, posting, transmitting or otherwise making available any material via the Services, Marketplace or Website, you:
grant to us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable licence to use, publish, reproduce and otherwise exploit that material in any form to enable us to provide the Services, Marketplace and Website and unconditionally waive any moral rights that you might have in respect of that material; and
represent and warrant that you either own the Intellectual Property Rights in that material or have the necessary permission to upload, post, transmit or otherwise make available that material via the Website.
We will not be liable to you if we are prevented from, or delayed in, providing the Services due to acts, events, omissions or accidents beyond our reasonable control (“Unavoidable Events”). Where an Unavoidable Event occurs, we will attempt to recommence provision of the Services as soon as reasonably practicable.
If you have a complaint about the performance of these Terms or the Services, you will contact us at firstname.lastname@example.org in the first instance and allow us reasonable time to consider your complaint, determine a possible solution and notify you of the solution.
This clause 17 survives the expiry or termination of these Terms.
These Terms shall be governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties unconditionally submit to the exclusive jurisdiction of the courts of New South Wales.
Definitions and interpretation
In these Terms, the following expressions shall have the following meanings, unless otherwise stated:
“Business Day” means a day that is not a Saturday, Sunday or public holiday in New South Wales;
“Commencement Date” is defined in item 2 of the Agreement Summary;
“Consulting Session” is defined in clause 2.1.a;
“Fees” means the fees set out in item 4 of the Agreement Summary, or as otherwise notified to you or published by us on the Website from time to time;
“Intellectual Property Rights” means all present and future intellectual and industrial property rights of whatever nature (whether or not registered or registrable), including, but not limited to, rights in respect of all technical information, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights;
“Long Term Project” is defined in clause 2.1.a;
“Marketplace” means the online platform located on or via the Website through which certain goods and services can be negotiated, bought or sold;
“Meeting” is defined in clause 2.1.a;
“Payment Processing Services” means any services that we provide pursuant to these Terms which are to be used to process payments in relation to the Marketplace, Website and/or Services;
“Purchaser” means any person who purchases goods and/or services listed by Consultants for sale on the Marketplace;
“Registration Data” means information provided by you to us for the purposes of your registration to access certain sections of the Website and the Services including, but not limited to, your name, date of birth, gender, your business or trading name, Australian Business Number, Australian Company Number, business address and contact details, your LinkedIn profile details and all details contained within your LinkedIn profile;
“Services” refers to the Marketplace and any associated services we provide pursuant to these Terms;
“Services Contract” means an arrangement between a User and Consultant for the provision of services as defined in clause 9.1;
“Terms” means these Terms and Conditions, as may be amended by us from time to time, at our discretion;
“User” means any person using the Services, whether they are a Consultant, Purchaser or a person who browses, visits or otherwise uses the Website, the Marketplace or the Services; and
“Website” means the website located at www.upwise.io or any other website nominated by us from time to time, and any associated services, software, networks or processes.
Any reference in these Terms to the singular includes the plural, to any gender includes all genders, to any Act or statute includes any Act or statute which supersedes, replaces or modifies any earlier Act or statute, to persons includes all bodies and associations (including human, corporate and unincorporated), and vice versa. Paragraph headings are for reference and convenience purposes only, and all references to clauses are to clauses in these Terms unless otherwise specified.