© Better Caring Pty Limited trading as Mable 2015
Last revised on 8 November 2016
Mable provides Users with an online network designed to connect Carers with Customers looking for Home Care Services.
1.1. In this Agreement:
1.1.1. “ACL” means the Australian Consumer Law at Schedule 2 of the Competition and Customer Act 2010 (Cth) and its associated Regulations as amended from time to time;
1.1.2. “Account Credentials” means the selected unique User id and password chosen by a User when setting up Your Account;
1.1.3. “Affiliates” means:
- Mable or any of its Related Bodies Corporate; and
- any employee, consultant, agent, licensor, supplier or representative of Mable or any of its Related Bodies Corporate;
1.1.4. “Agreement” means this User agreement between You and Better Caring Pty Limited trading as Mable (ACN 162 890 379) which incorporates all policies and terms and conditions referred to in this Agreement;
1.1.5. “Associate” has the meaning set out in the Corporations Act 2001 (Cth), as amended from time to time;
1.1.6. “Mable”, “We” or “Us” means Better Caring Pty Limited trading as Mable (ACN 162 890 379);
1.1.7. “Carer” refers to people or organisations providing Home Care Services;
1.1.8. “Carer Contract” means any agreement for a Carer to provide Home Care Services to a Customer formed as a result of the use of the Site or Services;
1.1.9. “Customer” refers to people, family members, representatives or organisations seeking Home Care Services;
1.1.10. “Content” means all information and materials contained on the Site that are posted by Members, or any information the Member provides to another Member via the Site or through the Services;
1.1.11. “Carer Fee” means the hourly rate charged by the Carer for the hours of Home Care Services provided by the Carer to the Customer;
1.1.12. “Carer Service Fee” means a Service Fee charged by Mable to the Carer;
1.1.13. “Customer Service Fee” means a Service Fee charged by Mable to the Customer;
1.1.14. “Home Care Services” means home care or health care services;
1.1.15. “Invoice” means an invoice for Home Care Services provided by a Carer to a Customer that is created through the Site on behalf of the Carer;
1.1.16. “Member” means a person who established an account with Mable;
1.1.17. “Membership Fee” means the membership fee implemented by Mable from time to time, and payable by a Member for accessing the Site and Services;
1.1.18. “Our Technology” means the software, code, proprietary methods and systems used to provide the Site or Services;
1.1.19. “Related Bodies Corporate” has the meaning set out in the Corporations Act 2001 (Cth), as amended from time to time;
1.1.20. “Services” means Mable’s products, software, services and Sites (referred to collectively as the “Services”);
1.1.21. “Service Fee” means any service fee implemented by Mable from time to time in respect to use of the site and services by a Carer or Customer;
1.1.22. “Site” means the www.mable.com.au website including without limitation all subpages;
1.1.23. ”User” means a Member or a Visitor;
1.1.24. “Visitor” means a person who browses the Site;
1.1.25. “You”, “Your”, “User”, or “Users” also refer to anyone accessing our Services or Site for any reason, and includes Members; and
1.1.26. “Your Account” means Your membership account with Mable.
1.1.27. “Your Account Balance” means the balance of your account.
1.2. This Agreement is:
1.2.1. a binding contract between You and Mable; and
1.2.2. incorporates all policies implemented by Mable from time to time (and as amended by Mable from time to time) and which are available on the Site, and terms and conditions referred to in this Agreement which together constitute the entire agreement between You and Mable.
1.4. The Site and Services are offered to You conditional on Your acceptance of this Agreement.
1.5. Your continued use of the Site and/or Services constitute Your acceptance of this Agreement.
1.6. Each time You access the Site or use the Services, You are agreeing to be bound by the terms set out in this Agreement, whether You are a Visitor or a Member.
1.7. If You do not agree to any of these terms and conditions You should immediately cease to access or use the Site and/or the Services.
1.8. We may close, suspend, or limit access to Your Account or the Site or the Services, and/or limit access to Your funds if You carry out activities which contravene this Agreement.
- Amendments to this Agreement
2.1. We may amend the terms of this Agreement from time to time.
2.2. We will notify You of any changes to this Agreement by posting a notice of the changes on the Site.
2.3. We may (although We are not obliged to) notify Members of amendments to the terms of this Agreement by email or SMS.
2.4. Amendments to this Agreement are effective on the earlier of:
2.4.1. Your acknowledgement of the amendments; or
2.4.2. Your continued access to and/or use of the Site and/or Services after We post notice of such modifications.
2.5. It is Your sole responsibility to check the Site from time to time to view any amendments to this Agreement.
2.6. If You do not agree to any amendment, You must cease access to and use of the Site and/or Services.
2.7. For the purpose of notifying You of any amendments to this Agreement, You provide permission to Us to email You or send You an SMS.
2.8. Continued access to the Site or Services following notice of any such changes will indicate Your acceptance of the amendments.
- Member eligibility
3.1. By using the Site, You represent and warrant that:
3.1.1. You are at least 18 years old;
3.1.2. If a Carer, that You are and will continue to be an Australian citizen and/or a person legally authorised to work in Australia;
3.1.3. You have the right, authority and capacity to enter into this Agreement;
3.1.4. You will abide by:
- all the terms and conditions of this Agreement;
- all of Mable’s policies as posted on the Site from time to time; and
- Mable’s Code of Conduct; and
- any relevant Code of Ethical Behaviour that applies to You as a Carer or Customer; and
3.1.5. neither You, nor anyone in Your household:
- has been the subject of a complaint, restraining order or any other legal action, arrested for, charged with or convicted of any criminal offense; or
- has been and/or is currently required to register as a sex offender in any jurisdiction or with any governmental entity.
3.2. A Visitor may browse the Site in accordance with this Agreement, but will not have access to certain Services unless they become a Member.
- Becoming a Member
4.1. A User who wishes to use the Services available to a Member is required to set up Your Account.
4.2. When setting up Your Account, You will be required to provide specific information, and select Account Credentials.
4.3. You warrant that all information You provide to Us is true, accurate, current and complete, and You agree to maintain and promptly update such information to keep the information true, accurate, current and complete.
4.4. You may not transfer or share Your Account Credentials with any other person.
4.5. You are solely responsible for maintaining the confidentiality of Your Account Credentials.
4.6. You acknowledge and agree that We rely on Account Credentials to know whether Users accessing the Site and using the Services are authorised to do so.
4.7. If someone accesses our Site or Services using Your Account Credentials, We will:
- rely on the Account Credentials; and
- assume that it is You who is accessing the Site and Services.
4.8. You are solely responsible for:
- any and all use of Your Account Credentials and Your Account;
- all activities that occur under or in connection with Your Account Credentials or Your Account; and
- any act or omission of any Users that access the Site or Services under Your Account Credentials.
4.9. You agree not to register for more than one Your Account.
4.10. If You create a Your Account on behalf of a third party, You represent that You have the authority to represent such third party and bind the third party to this Agreement.
For example purposes only, if You are creating an account on behalf of a family member who is seeking care, You represent that Your family member has provided You with proper authority to act on his/her behalf and that Your family member will abide by this Agreement.
- Mable is a venue
5.1. The Site is a venue designed to connect Carers with Customers looking for Home Care Services.
5.2. Mable agrees to upload to the Site an invitation for the Carer to provide Home Care Services to Customers.
5.3. Mable will rely upon the information provided by the Carer for that purpose.
5.4. Mable does not:
- provide or arrange for Home Care Services; or
- participate in the interaction between Carers and Customers, except to provide technology to facilitate the interaction, including in relation to the processing of payments on behalf of Customers to Carers.
5.5. The Carer solely decides whether to accept an offer from a Customer to provide Home Care Services.
5.6. The Customer solely decides whether to engage a Carer to provide Home Care Services.
5.7. You understand and agree that Mable:
- has no control over and is not responsible for the acts or omissions of any Users on or off the Site;
- makes no representation or warranty regarding the quality of any Home Care Services or any other services provided by any Member;
- is not responsible for the accuracy or reliability of any information provided by any Member on the Site; and
- takes no responsibility and has no obligation in contract or duty of care to manage or involve itself in any interactions between Users or in respect of any Carer Contract.
5.8. The Carer warrants and represents to Mable and any Customer who engages them that:
- they are capable of providing, and where relevant, qualified to provide the Home Care Services;
- they are not prohibited from providing the Home Care Services; and
- the information provided by the Carer is true and not misleading.
- Content of Site
6.1. When You access the Site and/or Services, You obtain access to Content.
6.2. You are solely responsible for each individual item of Content that You post, email or otherwise make available on the Site or the Services.
6.3. You grant Mable a non-exclusive, royalty-free, fully paid, worldwide perpetual license that is capable of being sub-licensed, in respect to all of Your copyright and other intellectual property rights related to the Content that You post or contribute to the Site.
6.4. You agree that any such Content or any derivative works thereof, may be disseminated, distributed, publicly displayed, reproduced, used, sublicensed, posted, or published by Mable, and searched, displayed, printed or otherwise used or exploited by our Visitors and Members.
6.5. The Member understands and agrees to the following:
6.5.1. Mable is only acting as a venue for the online distribution and publication of Content;
6.5.2. Mable makes no warranties (either express or implied)in relation to the Content;
6.5.3. Mable has the right (but no obligation) to take any action deemed appropriate with respect to Content if it believes that such Content may
- create liability for Mable;
- harm Mable’s business operation or reputation; or
- cause Mable to lose the services of its suppliers;
6.5.4. Mable reserves the right to reject or modify Content, at its discretion.
6.6. Evaluation of Content by Mable is based on guidelines implemented by Mable that encompass objectively, quantifiable and aesthetic aspects of Content.
6.7. Each Member represents and warrants to Mable that the Content that they submit on the Site, and any Content that they copy, reproduce or use:
6.7.1. will not infringe or misappropriate any copyright, patent, trademark, trade secret, or other intellectual property right or proprietary right of any third party, including other Members and Mable;
6.7.2. will not violate any law, statute, ordinance or regulation including laws regarding anti-discrimination and false advertising;
6.7.3. will not advocate or encourage any illegal activity;
6.7.4. will not misrepresent the Member’s identity in any way;
6.7.5. will not have the potential to create liability for Mable or cause Mable to violate the requirements of, or to lose the services, in whole or in part, of our internet service providers or other suppliers;
6.7.6. will not be discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, trade libellous, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive;
6.7.7. will not disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others;
6.7.8. will not contain any advertising or solicitation for anything other than Home Care Services offered through the Site;
6.7.9. will not violate the privacy, publicity, or other rights of third parties, including other Members and Mable;
6.7.10. will not include incomplete, false or inaccurate information about it or any other Member or any other individual or entity; and
6.7.11. will not contain any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
6.8. No copyrighted material of any third party can be posted on the Site, unless the Member has a license or other form of authority that permits them to do so.
- Member Verification
7.1. You understand that Members may make representations to You about themselves via the Site, or in other communications.
7.2. You are responsible for making Your own decision regarding the Members that You engage to provide Home Care Services through the Site.
7.3. Mable is not required to verify information made by a Member, and You are solely responsible for sighting original documents to verify any representation that a Member has made. You should obtain any additional information required to make an informed decision prior to utilising any specific Member to provide Home Care Services.
7.4. You understand and agree that Mable has the right, but not the obligation, to:
- independently verify any statement made by any Member on the Site; and
- verify that any Member meets any of the eligibility criteria established by Mable from time to time.
7.5. You hereby represent, understand and expressly agree that Mable does not have control over, or assume any responsibility for, the quality, accuracy, or reliability of the information provided by any third-party verification service.
7.6. Mable may make use of third-party verification services to verify information of Members. In the event that Mable chooses to verify the representations and warranties, or any information provided by a Member through the Site, You hereby authorise Mable, to verify such information, and use or disclose any information in order to accomplish such verification. Verification may include, without limitation, conducting the following searches and checks:
- criminal history checks;
- motor vehicle records checks;
- identification verifications;
- credential verification;
- credit checks; and/or
- using available public records to conduct searches and checks.
- Contract for the Home Care Services
8.1. Mable does not employ or contract Carers. It provides a platform through which Customers may engage Carers directly.
8.2. The Carer must contract directly with the Customer for the provision of the Home Care Services. Mable will not be a party to that contract.
8.3. By using the Mable Site you agree that you will observe and comply with all regulations relating to the engagement of Carers, including any applicable workplace laws. For more information see https://www.fairwork.gov.au/about-us/legislation and http://www.safeworkaustralia.gov.au/sites/SWA.
8.4. Mable does not involve itself in regulating or managing these issues and by using the Site you warrant that you have made yourself aware of the requirements under applicable workplace and occupational health and safety laws which may apply to the engagement between a Customer and Carer.
8.5. The contract between the Carer and the Customer for the provision of the Home Care Services must:
8.5.1. require the Carer to charge for the Home Care Services at an agree hourly rate;
8.5.2. permit Mable to issue an invoice for the Home Care Services on behalf of the Carer at the completion of each Home Care Service or weekly where the Home Care Service is ongoing, and debit the Customer’s nominated bank account or credit card;
8.5.3. require the Carer to comply with any relevant Carer code of conduct and ethical behaviour, and the Customer to comply with any relevant Customer code of conduct and ethical behaviour; and
8.5.4. be able to be terminated by either party at will, with no notice period unless otherwise specified in the Carer Contract.
8.6. The Customer warrants to the Carer that they have inspected their premises and that it is a safe work environment for the Carer to provide the Home Care Services requested by the Customer.
8.7. Carer warrants that they have the qualifications and skills to deliver the Home Care Services requested by the Customer, and that each time they arrive at the premises of a Customer, they will inspect the premises and any equipment to ensure it is a safe work environment.
- Relationship between the parties
9.1. The Carer is not a partner, employee, independent contractor or agent of Mable.
9.2. You acknowledge that You are not legally affiliated with Mable.
9.3. No independent contractor, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created between You and Us by Your use of the Site or Services or by this Agreement.
9.4. Mable is not an employment service or agency.
9.5. The Carer must comply with all laws relating to the provision of the Home Care Services.
9.6. Members must act in good faith towards Mable, and not do anything contrary to the interests of Mable.
9.7. Mable must not give the Carer any direction about the provision of the Home Care Services.
9.8. Mable is not liable for any injury, loss or damage suffered by the Carer or Customer in the provision of the Home Care Services.
10.1. Mable has worked with Zurich Australian Insurance Limited and Gow-Gates Insurance Brokers Pty Ltd to establish a suite of insurance covers that are made available to all its affiliated Carers when providing services arranged and invoiced through the Mable platform. Insurance is available to Carers only upon being approved by Mable and Gow Gates and fulfilling all requirements of the on boarding process.
10.2. Detailed information about insurance is available on the Mable website.
10.3. In the event of an insurance claim, Carers will be liable for the policy excess, which is generally $250 and $10,000 for molestation claims.
10.4. The cost of insurances is paid for by Carers as part of the Carer Service Fee. Additional insurance, such as Workers Compensation Insurance, may be made available for an additional fee where required.
- Ownership of intellectual property
11.1. You understand and acknowledge that the Agreement and Our Technology are:
11.1.1. Our proprietary copyright and/or licensed to Us under Australian and international copyright laws;
11.1.2. subject to other intellectual property and proprietary rights and laws; and
11.1.3. owned by Us or our licensors.
11.2. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission, and the prior written permission of our applicable licensors.
11.3. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology.
11.4. Nothing in this Agreement grants You any right to receive delivery of a copy of Our Technology, or to obtain access to Our Technology except as generally and ordinarily permitted through the Site, and in accordance with this Agreement.
11.5. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology.
11.6. Certain of the names, logos, and other materials displayed on the Site or in the Services constitute trademarks, trade names, service marks or logos (“Marks”) of Better Caring Pty Limited trading as Mable or other entities.
11.7. You are not authorised to use any Marks.
11.8. Ownership of all Marks, and the goodwill associated therewith remains with Us or those other entities who own the Marks.
11.9. Any use of third party software provided in connection with the Site or Services will be governed by relevant third party licenses and not by this Agreement.
- Feedback, Reputation and Reviews
12.1. By using the Site, You acknowledge that You transfer to Mable copyright in any feedback, reputation and reviews You leave (whether a Carer or Customer), consisting of comments, recommendations and/or a multidimensional rating (e.g. quality, communication, etc), together with a quality rating derived by Mable of Carers (“Feedback”).
12.2. You acknowledge that this Feedback belongs solely to Mable, notwithstanding that We permit You to use it on our Site while You remain a Member.
12.3. You may not use the Feedback or deal with the Feedback in any way inconsistent with Mable’s policies as posted on the Site from time to time, without the prior written consent of Mable.
12.4. You may not do anything that may undermine the integrity of the Mable Feedback system.
12.5. Mable is entitled to suspend or terminate Your Membership at any time if We, in our sole and absolute discretion, are concerned by any Feedback about You, or Your Feedback rating is considered to be problematic to Mable.
12.6. Mable’s Feedback ratings belong to Us and may not be used for any purpose other than facilitating the exchange of Services between Members of the Site.
12.7. You may not use Your Mable Feedback (including, but not limited to, marketing or exporting Your Feedback or quality rating or Feedback comments) in any real or virtual venue other than a Site operated by Mable or its Related Bodies Corporate, unless You obtain our prior written consent.
12.8. You warrant and represent that all Feedback You provide is true and correct, and is not misleading.
- Offensive content
13.1. Though We strive to enforce the rules set out in this Agreement with all of our Members, You may be exposed through the Site or Services to content that violates our policies, or is otherwise offensive.
13.2. You access the Site and Services at Your own risk.
13.3. We may, but are not obligated to, delete accounts and/or remove Content from the Site if We determine or suspect that those accounts or Content violate the terms of this Agreement.
13.4. We take no responsibility for Your exposure to Content on the Site or through the Services whether it violates the terms of this Agreement or not.
- General rules of Member conduct and confidentiality of personal and health information
14.1. It is our goal to make access to our Site and Services a good experience for Visitors and all Members.
14.2 Correspondence between Members is for the sole purpose of connecting Customers and Carers for purposes relating to Home Care Services.
14.3. If You receive the personal information of any other Member through the use of the Services, You may use the information solely as necessary to conduct a transaction through the Site and Services.
14.4. You may not use another Member’s personal information for any other purpose.
14.5. You agree not to, and represent and warrant that You will not reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, use the Site or Services, or access the Site or Services for any purposes other than for which the Site or Services are being provided to You.
14.6. Members who are Care Workers undertake to
- not discuss with a third party any information gained about Customers or the personnel of Customers or any other Members in the course of the supply of the Home Care Services; and only uses personal information and health information of Customers in accordance with applicable laws (including applicable health records legislation, the Privacy Act and the national privacy principles under the Privacy Act) and any relevant direction, guideline, determination or recommendation made by the Australian Privacy Commissioner or a state or territory privacy commissioner, health services commissioner and/or any equivalent body or agency.
- report any incidents of abuse or neglect of a child, an elder or a person with a disability to the relevant state authority and to Mable’s customer care team.
- Not enter or agree to an hourly rate of less than $20 per hour. When setting 24 hour, overnight or flat rates please ensure that the hourly rate for the hours that you work is at least $20 per hour, after taking into consideration the time that you spend sleeping or on a passive shift.
14.7. You agree not to do any of the following:
14.7.1. recruit, solicit or contact any Member for employment or contracting for a business which is not a Member with Mable or outside of the Mable Site;
14.7.2. contact other Members for any purpose other than as set forth in this Agreement;
14.7.3. harass, intimidate or otherwise engage in illegal or offensive behaviour with respect to any other Member;
14.7.4. conduct or promote any illegal activities while using the Site or Services;
14.7.5. upload, distribute or print anything that may be harmful to minors;
14.7.6. attempt to reverse engineer or jeopardise the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;
14.7.7. attempt to gain access to secured portions of the Site or Services to which You do not possess access rights;
14.7.8. upload or transmit to the Site any form of virus, worm, Trojan horse, or other malicious code;
14.7.9. use the Site or Services to generate unsolicited email advertisements or spam; allow, enable, or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam);
14.7.10. use the Site or Services to stalk, harass or harm another individual;
14.7.11. use any high volume automatic, electronic or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders or scripts);
14.7.12. interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;
14.7.13. use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Site or the content contained on any such web page for commercial use without Mable’s prior express written permission;
14.7.14. impersonate any person or entity, or otherwise misrepresent Your affiliation with a person or entity; or
14.7.15. mirror or frame the Site or any content, place pop-up windows over its pages, or otherwise affect the display of its pages.
15.1 Limited access to the Site is available free of charge to Visitors.
15.2 By becoming a Member, the Customer agrees to pay Mable:
15.2.1. the Carer Fee, which Mable will accept on behalf of the Carer; and
15.2.2. the Customer Service Fee; and
15.2.3. any other costs reasonably incurred by Mable in enforcing its rights under this User Agreement.
15.3 By becoming a Member, the Carer agrees to pay Mable:
15.3.1. the Carer Service Fees;
15.3.2. insurance premiums as nominated on the Site;
15.3.3. any other costs reasonably incurred by Mable in enforcing its rights under this Agreement.
15.4. Mable reserves the right, at any time, to modify its fees and/or billing methods as notified on the Site;
15.5. In exchange for the Services and Carer Services, the Customer authorises Mable to deduct from the Customer’s nominated bank account or credit card, the Top-up Amount, the Carer Fee(s) on behalf of the Carer, and the Customer Service Fee.
15.6. If a Customer wishes to connect with a Carer or seek services from a Carer, the Customer will need to:
15.6.1. provide the following information through the Site:
- information regarding the type of Home Care Services requested to be provided by the Carer;
- personal and household information; and
- bank name, bank BSB number, bank account name and number, the type of bank account, or credit card details for debiting or charging the payments required pursuant to this Agreement;
15.6.2. provide his or her consent to the debiting or charging of the Top-up Amount, Carer Fee and the Customer Service Fee, along with any taxes in connection with the contracting of the Carer.
15.7. If a Carer wishes to accept an offer from a Customer for the provision of Home Care Services, the Carer must provide the following information to Mable through the Site:
- information regarding the type of Home Care Services the Carer is qualified and willing to provide;
- personal information; and
- bank name, bank BSB number, bank account name and number, the type of account for depositing payments for the provision of Home Care Services.
15.8. After an offer by a Customer is accepted by the Carer, the contracting of the Carer by the Customer will begin. At this time Mable will:
- release personal information about the Carer (including the surname of the Carer and contact details) to the Customer; and
- release personal information about the Customer (including the surname of the Customer and contact details) to the Carer; and
- charge the Customer's Nominated Bank Account or Credit Card with a deposit, which will become the Customer’s Your Account Balance.
15.9. Immediately after performance of each Home Care Service, or at the end of each week where the Home Care Service is ongoing, Invoices are generated by the Site on behalf of the Carer for the Carer Fee and on behalf of Mable for the Service Fee.
15.10. The Customer is required to review the Invoice and, if correct, is required to immediately approve the Invoice.
15.11. If the Customer approves or is deemed to have approved the invoice by not rejecting the Invoice within the expiration of the review period (being 24 hours following performance of the Home Care Service), Mable, will accept the Invoice as being approved by the Customer.
15.12. Following actual or deemed approval of the Invoice, Mable will deduct the Customer Service Fee and, on behalf of the Carer, the Carer Fee, from the Customers Your Account Balance, or charge the Customer’s nominated Credit Card or Bank account, in accordance with the procedures implemented by Mable from time to time.
15.13. If you fail to maintain a positive balance or fail to pay an amount in accordance with this Agreement (for example, if your Nominated Credit Card is declined), Your Account will be suspended and you may be charged a non-payment fee by Mable and charged other amounts by the issuer of your nominated Bank Account or Credit Card.
15.14. If your existing Nominated Bank account or Credit Card is cancelled, suspended or is otherwise not usable, you must immediately provide Mable with details for an alternative Nominated Bank account or Credit Card which can be used to meet your obligations under this Agreement.
15.15. Mable is authorised by the Carer to deduct any relevant Carer Service Fee from the Carer Fee paid by Customers, before remitting the balance of the Carer Fee to the Carer.
15.16. Mable must on a weekly payment cycle:
- account to the Carer for Invoices issued under this Agreement, and any applicable Carer Service Fees; and
- remit to the Carer the amount due to it.
15.17. All payments relating to Home Care Services provided by a Carer to a Customer must be made through the payment channels provided or specified by Mable, and in accordance with this Agreement.
- Banks account details
16.1. Each Carer and each Customer is solely responsible for the accuracy of his or her bank account or credit card details that it provides to Mable, including the bank account number and BSB number, or the credit card details.
16.2. Mable expressly disclaims all liability related to errors in fund deposits due to inaccurate or incomplete bank details or credit card details being submitted by Carers and/or Customers.
- Banks and financial institutions
17.1. Mable is not responsible for, and will not reimburse any fees incurred by any Carer or Customer from their bank or other financial institution, including without limitation overdraft charges, insufficient funds charges, interest charges, or finance charges, which may have occurred as a result of charges billed by Mable.
17.2. The Carer or Customer agree that:
17.2.1. they will not receive interest or other earnings on the funds that Mable handles on their behalf;
17.2.2. Mable may receive interest on funds that Mable handles on their behalf;
17.2.3. Mable will not hold funds transferred to Mable in accordance with the terms and conditions of this Agreement for the purposes of Home Care Services in a separate account;
17.2.4. Mable may commingle and deposit funds transferred to Mable in accordance with the terms and conditions of this Agreement with funds of Mable in any account, at any institution, or in any other manner Mable may decide in its sole discretion from time to time;
17.2.5. such commingled funds could be used to pay other Carers, and by Mable for general corporate purposes or otherwise, provided that Mable will remain obliged to make payment to the Carer, for any Home Care Services that have been provided in accordance with the terms and conditions of this Agreement; and
17.2.6. to the extent Mable is obliged to make payment to a Carer, the Carer will be an unsecured creditor of Mable.
18.1. Mable reserves the right to correct any errors in the payment of Mable fees even if it has already requested and/or received payment.
18.2. A Customer will remain responsible for the Mable fees, and any other applicable fees, in connection with any refund or chargeback of a Carer’s payment.
- Payment processing
19.1. Mable may use third party payment processing services to process bank account information and payments.
19.2. Mable expressly disclaims any and all liability for any claims or damages related to Mable’s use of third party payment processing services and such transfers, including without limitation any damage that may result should any such information be released to any third parties.
- Payment channels and avoiding commissions
20.1 You are strictly prohibited from:
20.1.1. attempting to negotiate any fees or payments in respect to Home Care Services directly with another Member outside the site; or
20.1.2. Avoiding fees implemented by Mable as outlined in this document.
20.2. The Carer must not:
20.2.1. provide Home Care Services to any person to whom the Carer was introduced by the Site without reporting to Mable in respect to each Home Care Service session, in the terms prompted by the Site and in accordance with this Agreement; or
20.2.2. directly invoice a Customer, or accept any payment from a Customer for the provision of Home Care Services.
20.3. The Carer must account to Mable for any amount received from a Customer for the Home Care Services.
20.4. A Customer must not make payment for Home Care Services directly to a Carer.
20.5. Any action that encourages or solicits complete or partial payment outside of the Mable system is a violation of this Agreement.
20.6. Should a Carer or Customer be found in violation of this Clause 20 of the Agreement, they will be required to pay Mable fees equal to the greater of:
20.6.1. $5,000; or
20.6.2. the applicable fees that would have been payable to Mable under the terms and conditions of this Agreement had the Home Care Services been provided in accordance with the terms of this Agreement.
20.7. The parties agree that the amounts set out in Clause 20.6 are a genuine pre estimate of loss to Mable should a Carer or Customer be found in violation of this Clause 20 of the Agreement.
20.8. You shall immediately notify Mable if a Member requests that payment be made directly or through any channels other than those provided or specified by Mable.
20.9. Prior to a confirmed engagement for Home Care Services, Members agree not to:
20.9.1. post their e-mail address, phone numbers, Skype ID, or other contact details on the Site, except in the specific contact fields of the signup forms, or when asked by Mable; or
20.9.2. make direct contact with another Member outside of the Mable Site.
20.10. Customers and Carers are able to use the inbox private messaging system on the Site to communicate and plan for Home Care Services to be provided by a Carer to a Customer.
- No Recommendations or Medical Advice
21.1. Mable is not a referral service and does not recommend or endorse any particular Member.
21.2. Mable is only an intermediary that facilitates the provision of selected information about Members as represented by Members.
21.3. We do not offer advice regarding the quality or suitability of any particular Member for specific treatments or health conditions, and no information on this Site should be construed as health or medical advice.
21.4. The ratings and Carer and Member information consists of statements of opinion and not statements of fact or recommendations to utilise the Services of any specific Member.
21.5. You assume all responsibility in connection with choosing any Carer, whether or not You obtain information about such Carer on or through the Site.
21.6. Mable and its Affiliates assume no (and hereby disclaims all) responsibility or liability of any kind, for any advice, treatment or other Services rendered by any Carer, or for any malpractice claims and other claims that may arise directly or indirectly from the provision of Home Care Services or any other actions of any Carer.
21.7. No advice or information, whether oral or written, obtained by You from Us through the Site, Services, or otherwise will create any warranty, representation or guarantee not expressly stated in this Agreement.
21.8. You bear the sole responsibility and liability for maintaining backup or archive copies of Your data and/or submissions to the Site and Services.
- Promotional offers
22.1. We may run promotional offers from time to time on the Site.
22.2. The terms of any such promotion will be posted on the Site.
22.3. Unless otherwise indicated, We may establish and modify, in our sole discretion, the terms of such offer and end such offer at any time.
- Third party content
23.1. Content from other Members, advertisers, and other third parties may be made available to You through the Site and/or the Services. Because We do not control such Content, You agree that We are not responsible for any such Content.
23.2. We do not make any guarantees or representations about the accuracy, currency, suitability, or quality of the information in such Content, and We assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Content made available by other Users, advertisers, and other third parties or violation of any third party rights related to such Content.
23.3. The Site and Services may contain links to websites not operated by Us. We are not responsible for the content, products, materials, or practices (including privacy practices) of such websites.
23.4. You understand that by using the Site and/or Services You may be exposed to third-party websites that You find offensive, indecent or otherwise objectionable.
23.5. We make no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or Services.
23.6. We provide these links for Your convenience only and We do not control such websites.
23.7. Our inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators.
23.9. You agree that in no event will We be liable to You in connection with any websites, content, products, materials, or practices of any third party, including other Members.
- Suspension / termination
24.1. You agree that We may at any time, and in our sole discretion, with or without notice to You and without refund:
24.1.1. modify or discontinue the Site or Services; and/or
24.1.2. immediately modify, suspend or terminate Your access or use of the Site and Services.
24.2. You agree that Mable will not be liable to You or any other party for any:
24.2.1. suspension or termination of Your access to the Site or Services, or deletion of Your Account or Your Content; or
24.2.2. modification or discontinuance of the Site and/or Services.
24.3. Suspension or termination of Your Account will in no way modify, change or void any payment obligations You may have incurred through Your use of the Site or any Services, whether such obligation is to Mable or a third party.
24.4. Mable may without notice and without cause remove the invitation to treat with the Carer from the Site.
24.5. Continued access to the Site or Services following notice of any such changes will indicate Your acknowledgement of such changes and satisfaction with the Site or Services as so modified.
- No Warranty
25.1. You expressly agree that Your use of the Site and/or Services is at Your sole risk.
25.2. Mable is not involved in the actual transaction between Customers and Carers.
25.3. Mable’s Services, the Site and all Content on it are provided on an “as is” and “as available” basis, and to the extent permitted by law without warranties of any kind either express or implied.
25.4. To the extent permitted by law, Mable specifically disclaims all warranties and representations of any kind, whether express or implied, including but not limited to any warranties in respect to the following:
25.4.1. title, quality, merchantability, fitness for a particular use or purpose, non-infringement, operability, condition, quiet enjoyment, value, accuracy of data and system integration;
25.4.2. that the Site and/or Services will meet Your requirements;
25.4.3. that the Site will be accurate, reliable, uninterrupted, secure or error-free;
25.4.4. that the Site, or the server that makes it available will be uninterrupted, timely, secure, free of viruses, errors or other harmful components;
25.4.5. as to the results that may be obtained from the use of the Site or Services; and
25.4.6. that defects in the Site or Services will be corrected.
25.5. To the fullest extent permitted by law, Mable expressly disclaims, and You expressly release Mable from, any and all liability whatsoever for any damages, suits, claims and/or controversies that have arisen or may arise from and/or in any way relate to any acts or omissions of Members on or off the Site, including without limitation the provision of any Home Care Services by any Carer.
26.1. The Carer is liable for all acts or omissions in the provision of the Home Care Services.
26.2. The Customer is liable for all acts or omissions in the receipt of the Home Care Services.
26.3. If the Customer is a consumer pursuant to the ACL, nothing in this Agreement restricts, limits or modifies the Customer's rights or remedies against the Carer for failure of a statutory guarantee under the ACL.
26.4. Nothing in this Agreement is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
26.5. You understand and agree that:
26.5.1. any material or information downloaded or otherwise obtained through the use of the Site or Services is done at Your own discretion and risk; and
26.5.2. that You will be solely responsible for any damage to Your computer or loss of data that results from the download of such material and/or information.
26.6. To the extent permitted by the ACL and any other applicable legislation, Mable expressly limits its liability for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at Mable’s sole discretion):
26.6.1. in the case of goods, any one or more of the following:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
26.6.2. in the case of services:
- the supply of the services again; or
- the payment of the cost of having the services supplied again.
26.7. In that event that the limitations in Clause 26.6 are restricted, the liability of Mable will be limited as far as legally possible under the ACL or other applicable legislation.
26.8. To the extent permitted by law, Mable will not be liable, nor will any of its Affiliates be liable to You or any third party, whether in contract, warranty, tort (including negligence and strict liability), statute, or otherwise, for:
26.8.1. any indirect, special, incidental, consequential or exemplary damages that may be incurred by You;
26.8.2. any loss of income, revenue, goodwill, business, profits, data (whether direct or indirect) that may be incurred by You; or
26.8.3. any claim, damage, or loss which may be incurred by You;
arising from, out of or related to:
26.8.4. Your use of, or access to, or the inability to use or to access, the Site or the Services;
26.8.5. Your transactions involving the Site,
26.8.6. any act or omission of any User;
26.8.7. any misstatements and/or misrepresentations made by any Member or contained in any Content;
26.8.8. the accuracy, timeliness or completeness of any background check provided to You in connection with the Site, the Services or any Home Care Services;
26.8.9. the use of information provided by any third party verification service;
26.8.10. the transactions between You and any third party merchants or service providers; or
26.8.11. any information appearing on third party merchant or service provider sites or any other site linked to our Site.
26.9. The limitations on Mable’s liability to You shall apply whether or not Mable or its Affiliates have been advised of, knew of, or should have known of, the possibility of such losses or damages arising.
26.10. You acknowledge and agree that We are only willing to provide access to the Site and provide the Services if You agree to certain limitations of our liability to You and to third parties.
26.11. If You are dissatisfied with any portion of the Site or the Services, Your sole and exclusive remedy is to discontinue use of the Site and the Services.
26.12. Mable and any of its Affiliates may plead this Agreement in bar to any claim, action, proceeding, class action or suit brought by You, against Mable or any of its Affiliates for any matter arising out of any transaction or otherwise in respect of this Agreement.
27.1. Each Member will hold harmless, indemnify and keep Mable indemnified against any liability arising from or connected with:
27.1.1. any act or omission of another Member, whether they are a Carer or Customer; and
27.1.2. any representation made by Mable relying on the Member’s warranties in this Agreement.
27.2. You indemnify, defend and hold Mable and its Affiliates harmless from and against any and all third party claims, liabilities, demands, proceedings, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) and damages (actual, special and consequential) of every kind and nature, known and unknown, made by any third party due to or arising out of:
27.2.1. Your breach of this Agreement;
27.2.2. Your violation of any law or the rights of a third party;
27.2.3. any of Your Content and/or information that You submit, post or transmit through the Site or Services;
27.2.4. Your use of the Site or Services;
27.2.5. any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by You into the Site or Services; or
27.2.6. any disputes that arise between Users or between a Carer and a Customer in relation to Home Care Services.
- Dispute resolution
28.1. Any disputes related to the Home Care Services received by a Customer must be resolved directly between the Customer and the Carer.
28.2. We reserve the right, but have no obligation to monitor, or take any appropriate action regarding disputes that You may have with Users, Carers or other Customers.
28.3. If a dispute arises between You and Mable, our goal is to address Your concerns and, if We are unable to do so to Your satisfaction, to provide You with a means of resolving the dispute quickly.
28.4. For any claim, Mable may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration.
28.5. If Mable elects arbitration, such arbitration will be initiated through an established alternative dispute resolution (ADR) provider, which is to be selected by You from a panel of ADR providers that Mable will provide to You.
28.6. The ADR provider and the parties must comply with the following rules:
28.6.1. the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration;
28.6.2. the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and
28.6.3. any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
28.7. All claims You bring against Mable must be resolved in accordance with the terms of this Agreement.
28.8. All claims filed or brought contrary to this Agreement shall be considered improperly filed and a breach of this Agreement.
28.9. Should You file a claim contrary to the terms of this Agreement, Mable may recover its legal fees and costs (including fees for in-house attorneys and paralegals), provided that Mable has notified You in writing of the improperly filed claim, and You have failed to promptly withdraw the claim.
28.10. If any proceeding by or against You is commenced under any provision of any bankruptcy or insolvency law, Mable will be entitled to recover all reasonable costs or expenses (including reasonable legal fees and expenses) incurred in connection with the enforcement of this Agreement.
- Failures and delays
29.1. Without limiting the foregoing, under no circumstances will We or our licensors or Affiliates be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, floods, storms, explosions, acts of god, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.
- Electronic communications
30.1. The communications between You and Us use electronic means, whether You visit the Site or send Us emails, or whether We post notices on the server or communicate with You via email.
30.2. We can only give You the benefits of our service by conducting business through the internet, and therefore We need You to consent to Us giving You communications electronically.
30.3. This section informs You of Your rights when receiving communications from Us electronically.
30.4. For contractual purposes, You:
30.4.1. consent to receive communications from Us in an electronic form; and
30.4.2. agree that all terms and conditions, Agreements, notices, documents, disclosures, and other communications (“communications”) that We provide to You electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
30.5. Your consent to receive Communications and do business electronically, and our Agreement to do so, applies to all of Your interactions and transactions with Us.
30.6. You may also receive a copy of this Agreement by accessing this Site.
30.7. On accession, Mable may send Members sms text messages or other messages whether by way of email or through the Mable Site, or applications in connection with the Services or otherwise.
30.8. You are solely responsible for any costs You incur when receiving sms text messages from Mable.
30.9. You may withdraw Your consent to receive Communications electronically by contacting Us in the manner described below.
30.10. If You withdraw Your consent, from that time forward, You must stop using the Site and Services.
30.11. The withdrawal of Your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between Us prior to the time You withdraw Your consent.
30.12. Please keep Us informed of any changes in Your email address so that You continue to receive all communications without interruption.
- No third party beneficiaries
31.1. You understand and agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
- General terms
32.1. You are responsible for compliance with all applicable laws.
32.2. This Agreement and the relationship between You and Mable, will be governed by the laws of the state of New South Wales Australia.
32.3. The parties agree to the non-exclusive jurisdiction of the courts of New South Wales, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
32.4. This Agreement is personal to You, and You may not transfer, assign or delegate Your right and/or duties under this Agreement to anyone else and any attempted assignment or delegation is void.
32.5. We may assign or novate this Agreement at any time, without obtaining Your consent.
32.6. You acknowledge that We have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of Your obligations hereunder.
32.7. The paragraph headings in this Agreement shown in boldface type, are included only to help make this Agreement easier to read and have no binding effect.
32.8. Any delay or failure by Mable to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
32.9. No waiver by Us will have effect unless such waiver is set forth in writing, signed by Us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default.
32.10. Mable’s failure to act with respect to a breach by You or others does not waive our right to act with respect to subsequent or similar breaches.
32.11. This Agreement constitutes the complete and exclusive Agreement between You and Mable with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or Agreements.
32.12. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
33.1. All provisions that by their nature survive expiration or termination of this Agreement shall so survive, including without limitation, Clauses 26, 27 and 28, all other limitations on liability explicitly set forth herein and our proprietary rights in and to the Site, content provided by Us, Our Technology and the Services.
- Contact information
34.1. We may give notice to You by email, a posting on the Site, or other reasonable means.
34.2. You must give notice to Us in writing via email to email@example.com or as otherwise expressly provided. Please report any violations of this Agreement to firstname.lastname@example.org