28 We can amend the Terms of Use

1. We may amend the Terms of Use at any time by giving You at least 30 days written notice of those changes (unless those changes are required to comply with a change in Laws, in which case We will give You as much written notice of those changes as is reasonably practicable in the circumstances), and:
   1. any Care Services received prior to the end of that notice period will continue to be governed by the Terms of Use without amendment; and
   2. any Care Services received after the end of that notice period will be governed by the amended Terms of Use.
2. If You do not agree to the terms of the amended Terms of Use, You must cease arranging, providing or receiving (as applicable) Care Services and terminate Your Account at the end of the notice period.

29 General Terms

1. We will give notices and provide communications to You using the email address connected to Your Account. You must give notice to Us in writing via email to info@mable.com.au, or for notification of incidents or complaints as provided for under clause 26, or via the details as otherwise expressly notified by Us to You.
2. The Terms of Use are governed by the Laws in New South Wales, Australia. The Parties agree to the exclusive jurisdiction of the courts of New South Wales, the Federal Court of Australia, and courts entitled to hear appeals from those courts.
3. Each Party must do all things and complete all actions (including to sign documents) as necessary to give effect to the Terms of Use and each Party’s respective rights and obligations under the Terms of Use.
4. You must not assign, encumber or otherwise transfer any of its rights or obligations under the Terms of Use to anyone else and any attempt to do so is void. We may assign or novate the Terms of Use at any time by giving reasonable prior notice to You without obtaining Your consent.
5. Any delay or failure by either Party in exercising or enforcing any right or provision of the Terms of Use will not constitute a waiver of such right or provision.
6. The Terms of Use constitutes the entire agreement between the parties in respect of the matters dealt with in the Terms of Use and supersedes all prior agreements, understanding and negotiations in respect of the matters dealt with in the Terms of Use.
7. Each word, phrase, sentence, paragraph and clause of the Terms of Use is severable. Severance of any part of the Terms of Use will not affect any other part of the Terms of Use.
8. Any termination of the Terms of Use does not affect any accrued right of either Party.
9. Despite termination of the Terms of Use, this clause 29, clauses 5.2, 9, 10, 16, 17, 18, 19, 20, 21, 22, 25, 26, 27 and those other clauses in these Platform Terms that by their nature remain in force, shall survive.
10. The Site Terms and not the Terms of Use apply to Your use of the Site (excluding those parts of the Site that can only be accessed with the Account Credentials), except where expressly stated otherwise in the Terms of Use. To the extent of any inconsistency, the terms of the Terms of Use prevail over the Site Terms.
11. In these Platform Terms, a reference to a clause is a reference to a clause in these Platform Terms, unless otherwise stated.
12. In the Terms of Use (unless the context requires otherwise):
    
    1. the Introduction to the Terms of Use is true and correct in every material particular and forms part of the Terms of Use;
    2. headings are used for convenience only and do not affect the interpretation of the Terms of Use;
    3. other grammatical forms of defined words or expressions have corresponding meanings;
    4. “includes”, “including”, “for example”, “such as”, “or” and similar terms are not words of limitation;
    5. a reference to any Law or legislation includes:
       
       1. all legislation, regulations and other forms of statutory instrument issued under that legislation; and
       2. any modification, consolidation, amendment, re-enactment or substitution of that legislation;
    6. a reference to dollars is to Australian dollars;
    7. an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency;
    8. a reference to a person includes that person’s successors and legal personal representatives; and
    9. all monetary amounts in the Terms of Use are exclusive of all GST (unless otherwise expressly stated) and other applicable taxes.

30 Apple End User Terms

1. If You access the Platform using an app (App) downloaded from the Apple Inc (Apple) App store or through an iOS device, You acknowledge and agree that the terms of this clause 30 apply.
2. You acknowledge and agree that:
   
   1. the Terms of Use is concluded between You and Us, and not Apple;
   2. We, and not Apple, are solely responsible for the App and its contents;
   3. the rights granted to You under the Agreement to access the Platform are subject to Apple’s Usage Rules set out in the Apple Media Services Terms and Conditions which You may view on Apple’s website;
   4. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
   5. in the event of any failure of the App to conform to any applicable warranty, You may notify Apple and Apple will refund the purchase price You paid for the App;
   6. to the maximum extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to the App;
   7. Apple is not responsible for any claims, losses, liabilities, damages, costs or expenses that You have arising out of Your use of the App;
   8. We, and not Apple, are responsible for addressing any claims by You or any third party relating to the App or Your use of the App, including, but not limited to:
      1. product liability claims;
      2. any claims that the App fails to conform to any applicable or regulatory requirement; and
      3. claims arising under consumer protection, privacy or similar legislation;
   9. Apple will have no responsibility whatsoever for the investigation, defence, settlement or discharge of any third-party claims that the App, or Your use and possession of the App, infringes that third party’s intellectual property rights; and
   10. Apple and its subsidiaries are third party beneficiaries of the Terms of Use and, upon Your acceptance of the Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement against You as a third party beneficiary.
3. You represent and warrant that:
   
   1. You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
   2. You are not listed on any U.S. Government list of prohibited or restricted parties.

31 Dictionary

In the Terms of Use, capitalised terms have specific meanings. The meaning of each of those capitalised terms are either listed in the Member Terms that apply to You, or as follows:

Account means a Member’s account with Mable that enables access to and use of the Platform and Platform Services.

Account Credentials means the selected unique user ID and password chosen by You when setting up Your Account.

ACL means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).

Affiliates means:

1. any Related Bodies Corporate of a Party (as defined in the Corporations Act 2001 (Cth));
2. any employee, consultant, agent, licensor, supplier or representative of a Party or any of its Related Bodies Corporate; and
3. in the case of Mable, MPS.

Agreed Rate means the reference rate as agreed between a Client Member or Coordinator and the Support Worker attributable to provision of Care Services under a Care Services Agreement, and which is used to determine the amount payable for the Cost of Support, and the Mable Fees.

Appointed Coordinators are Coordinators who are appointed by another Coordinator pursuant to their Member Terms with Mable, to perform all or part of the Coordinating Services for a Managed Client.

Approval means that You have received Our written approval to gain full access to the Platform and Platform Services, pursuant to clause 4.1(b)(ii).

Australian Privacy Principles means the Australian Privacy Principles, or APPs, contained in Schedule 1 of the Privacy Act.

Avoidance Conduct has the meaning given in the “Avoidance Conduct” clause of the Member Terms that apply to You.

Breach Event has the meaning given to that term in clause 24.2(a).

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Sydney, New South Wales.

Care Services means home care, aged care, disability support, health care or other care or associated services the provision of which are arranged through the Platform, and includes any services incidental to those services (including travel).

Care Services Agreement means an agreement for the provision of Care Services between a Client Member or Coordinator and a Support Worker.

Claim means claims, actions, proceedings or investigations of any nature or kind (including the allegation or threat of a claim).

Client means either a Client Member or a Managed Client (as the context allows).

Client Member means a person who creates an Account on the Platform for the purposes of that person engaging with Support Workers and entering into Care Services Agreements for the receipt of Care Services.

Client Member Terms means the Client Member Terms available here:
https://mable.com.au/legal/terms/client-terms-hub.

Client Platform Fee means the platform fee payable to Mable, which is calculated by applying the relevant percentage amount for that fee, as set out in the Fee Schedule, to the Agreed Rate. This percentage can be amended pursuant to clause 12(b) from time to time.

Client Premises means a Client’s home, or any other private residence, where a Client receives Care Services.

Codes of Conduct means Mable’s Client Code of Conduct, and Mable’s Support Provider Code
of Conduct, both available here: https://mable.com.au/code-of-conduct/mable-coc/.

Confidential Information means:

1. information that at the time of disclosure by a disclosing party is identified as being
   confidential; and
2. all other information belonging or relating to a disclosing party, or any Affiliate of that
   disclosing party, that is not available to the public at the time of disclosure other than by
   reason of a breach of the Terms of Use or which the receiving party knows, or ought
   reasonably to be expected to know, is confidential to that disclosing party or any Affiliate
   of that disclosing party.

Content means all information, data, documents, images and other materials contained on the Platform or through the Platform Services that are posted, emailed, contributed to or otherwise made available on the Platform or through the Platform Services.

Consequential Loss means any:

1. loss of profit or anticipated profit, loss of revenue, loss of savings, loss of data, loss of contract, loss of reputation or goodwill or loss of opportunity; and
2. any other Loss suffered or incurred by a Party in connection with the Terms of Use that does not arise naturally (that is, according to the usual course of things) from the event giving rise to the Loss.

Consumer Price Index or CPI means the Consumer Price Index for “all groups”, Australia, published by the Australian Bureau of Statistics from time to time.

Coordinating Services includes facilitating, coordinating and managing the engagement of Support Workers to provide Care Services.

Coordinator means a person who creates an Account on the Platform for the purposes of assisting Clients who require Care Services by facilitating, coordinating and managing the engagement of Support Workers to provide those Care Services to them, and includes Appointed Coordinators. Coordinators provide Coordinating Services, Funding Services or both to their Clients.

Coordinator Terms means the Coordinator Terms entered into by Coordinators, the current version of which is available here: https://mable.com.au/legal/terms/coordinator-terms/.

Cost of Support means the fee payable to the Support Worker for the provision of Care Services (which may be an hourly rate, a travel rate, a fixed rate or a combination of them), which is calculated by applying the relevant percentage amount for that fee, as set out in the Fee Schedule, to the Agreed Rate. This percentage can be amended pursuant to clause 12(b) from time to time.

Eligibility Criteria means the eligibility criteria applicable to a Member as set out in the Member Terms that apply to that Member.

Facilitated Insurance Cover has the meaning given to that term in clause 15.1(a).

Facilitated Insurance Provider has the meaning given to that term in clause 15.1(a).

Fee Schedule means the schedule of fees, and method of calculating such fees, as set out on the Site at https://mable.com.au/pricing/.

Force Majeure Event means:

1. natural disasters, acts of terrorism, riots, civil disturbances, pandemics, epidemics, industrial disputes and strikes;
2. interruption or breakdown in telecommunications networks or the internet; and
3. any other event which is outside of a Party’s reasonable control.
   Funding Services includes facilitating, coordinating and managing the payments to Support Workers and Mable in respect of Care Services.

GST means the tax imposed by the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Held Funds has the meaning given to that term in clause 13(e).

Incidents and Complaints Management Policy means the policy available at https://mable.com.au/incidents-complaints-management-policy/.

Interest Rate means Cash Rate Target established by the Reserve Bank of Australia and published on its website from time to time, plus 3%. If the Reserve Bank of Australia should discontinue publishing the Cash Rate Target, the parties must reasonably agree on a replacement statistic similar to the Cash Rate Target.

Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by Law and wherever existing, including:

1. patents, designs, copyright, rights in circuit layouts, database rights, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
2. any application or right to apply for registration of any of the rights in paragraph (a);
3. any registration of any of those rights or any registration of any application referred to in paragraph (b); and
4. all renewals and extensions of those rights.

Insolvency Event means, in respect of a Party, any one or more of the following events or circumstances:

1. a winding up, dissolution, liquidation, provisional liquidation, administration or bankruptcy;
2. that Party having a receiver or receiver and user appointed over any of its property or assets, or an administrator, liquidator or provisional liquidator appointed to that Party;
3. being unable to pay any of its debts as and when due and payable or being deemed to be insolvent under any provision of the Corporations Act 2001 (Cth) or any other applicable Law;
4. seeking protection from its creditors under any applicable Law, entering into a compromise, moratorium, assignment, composition or arrangement with, or for the benefit of, any of its members or creditors; or
5. any analogous event or circumstance to those described in paragraphs (a) to (d) above under any applicable Law of any jurisdiction,
   unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation approved by the other Party.

Law means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time, and includes the common law and equity as applicable from time to time, and any mandatory standards or industry codes of conduct.

Losses means losses (whether direct, indirect or consequential), damages, liabilities, charges, expenses, outgoings or costs (including all legal and other professional costs on a full indemnity basis) of any nature or kind and Loss has a corresponding meaning.

Mable, We, Us, Our has the meaning given to that term in Introduction A.

Mable Content has the meaning given to that term in clause 19(a)(ii).

Mable Fees means the Support Engagement Fee and the Client Platform Fee.

Mable IP has the meaning given to that term in clause 19(a)(iii).

Mable Policies means:

1. Codes of Conduct; and
2. Incidents and Complaints Management Policy.
   Mable Proprietary Material has the meaning given to that term in clause 19(a).

Mable Technology means the software, source code, proprietary methods and systems used to provide the Site, Platform and Platform Services.

Managed Client means a person who is represented by a Coordinator on the Platform, and for whom that Coordinator may provide Coordinating Services and/or Funding Services.

Material Breach Event has the meaning given to that term in clause 24.2(d).

Member means any person or organisation who has created an Account on the Platform, and includes You, Coordinators, Support Workers and Client Members, but excludes Managed Clients.

Member Feedback has the meaning in clause 22(a).

Member Terms means the terms that apply to specific Members on the Platform, including (as the context allows):

1. in relation to Support Workers, the Support Worker Terms;
2. in relation to Client Members, the Client Member Terms; and
3. in relation to Coordinators, the Coordinator Terms.

Minimum Rate means the minimum hourly rate set out in the Fee Schedule, as amended pursuant to clause 12(b) from time to time.

MPS has the meaning given to that term in Introduction B.

Non-Excludable Guarantee has the meaning given to that term in clause 11(a)(i).

Party means either of You or Us, and Parties means both of You and Us.

Payment Processing Services has the meaning given in the applicable Member Terms.

Personal Information has the meaning given in the Privacy Act (or, where context requires, has the meaning given to corresponding terminology under another relevant Privacy Law).

Personnel means a Party’s officers, employees, secondees, agents, consultants, contractors and subcontractors.

Platform has the meaning given to that term in paragraph A of the Introduction.

Platform Services has the meaning given in paragraph C of the Introduction, and excludes the Payment Processing Services.

Platform Minimum Requirements has the meaning in clause 6(b).

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Policy means Mable’s Privacy Policy, available here: https://mable.com.au/privacy-policy/.

Privacy Laws means, in relation to a Party:

1. the Privacy Act, irrespective of whether the Party would otherwise be bound to comply at Law;
2. all other Laws regulating the handling of Personal Information which that Party is required to comply with from time to time; and
3. all other Laws regulating the handling of Personal information which apply to the other Party and which the other Party has notified in writing to the first mentioned Party.

Prohibited Conduct has the meaning given to that term in clause 2(a) and includes Avoidance Conduct.

Prohibited Content means Content of any kind that:

1. is offensive, defamatory, distressing, harmful, insulting, intimidating, menacing, harassing, discriminatory, unlawful, false or misleading;
2. poses, or may pose, a risk to any person;
3. threatens, harasses, humiliates or ridicules any person, or is otherwise unlawful, or encourages any such activity;
4. is posted, uploaded, published or disseminated without the lawful owner’s permission, or breaches any obligation of confidentiality;
5. contains any false or misleading statements, representations or advertising, (including but not limited to representations about the Member’s identity, qualifications, experience or reputation);
6. advertises or promotes goods or services other than Care Services;
7. requests for services other than Care Services, including those that are not approved by the Platform (for example, sex therapy services);
8. is Personal Information about a person and is posted, uploaded, published or disseminated without that person’s prior consent or in breach of any Privacy Law, or is contrary to Mable’s Privacy Policy;
9. infringes another person’s copyright, trade mark or any other Intellectual Property Rights;
10. includes a person’s Account Credentials or is directed to accessing a person’s Account other than in accordance with the Terms of Use or without the Account holder’s consent;
11. may cause Mable to breach any Law or otherwise expose Mable to liability;
12. is or includes any virus, worm, trojan, or other malicious or unauthorised code or disabling feature to or via the Platform or the Platform Services, or which may breach the requirements or cause the loss of services of Mable’s internet service providers or other suppliers;
13. is likely to interfere with or disrupt the proper and intended operation of the Platform or the Services, or is, or contains any means of automatically searching or mining data from the Platform; or
14. is contrary to any of the Mable Policies.

Related Body Corporate has the meaning given in the Corporations Act.

Service Log means the service log a Support Worker creates after providing each Care Service, which is submitted via the Platform, and which includes the start time, end time and service notes for the relevant Care Service.

Site means the mable.com.au website including without limitation all subpages, and excluding the Platform and the Mable smartphone App.

Site Terms means the Site Terms, available here: mable.com.au/legal/terms/site-terms.

Support Engagement Fee means the support engagement fee payable to Mable, which is calculated by applying the relevant percentage amount for that fee, as set out in the Fee Schedule, to the Agreed Rate. This percentage can be amended pursuant to clause 12(b) from time to time.

Support Worker means a person that creates an Account on the Platform for the purposes of engaging with Clients and Coordinators and entering into Care Services Agreements.

Support Worker Terms means the Support Worker Terms available here:
https://mable.com.au/legal/terms/support-worker-terms-hub/.

Term has the meaning given to that term in clause 3(b).

Terms of Use has the meaning set out in Introduction 3(a).

Third Party Content has the meaning given to that term in clause 21(a).

Verification Checks has the meaning given to that term in clause 5.1(a).

Verification Policies means those verification policies available here:
https://mable.com.au/legal/policies/verification-policy/.

You, Your has the meaning given to that term in the Member Terms that apply to You depending on the type of Member that You are.

Your Content has the meaning given to that term in clause 20(a).

Your IP has the meaning given to that term in clause 20(c).