© Mable 2021
DISCLAIMER AND IMPORTANT TERMS
1. Mable is a platform that allows Customers to connect with Support Workers. Mable provides a platform only and does not engage Support Workers or provide Care Services.
2. By using Mable, You agree and acknowledge that any engagement for Care Services is between You and the Support Worker or Customer only, and that Mable is not a party to any such engagement and/or employment contract that may be entered into.
3. By using Mable, You agree to the limitations of liability, warranties and indemnities set out in clause 9.
2. Eligibility to use the Site and Services
2.1. By using Mable’s Site and/or Services, You acknowledge, warrant and represent to Mable and any User that (Member Eligibility Criteria):
2.1.1. if You are an individual, you are at least 18 years old;
2.1.2. if You are an organisation, company or other entity, that You:
(a) are validly incorporated; and
(b) have full power, authority and corporate approvals necessary to enter into this Agreement and any Support Worker Contract;
2.1.3. You have the right, authority and capacity to enter into this Agreement;
2.1.4. You will abide by:
(a) all the terms and conditions of this Agreement;
(b) all of Mable’s policies as posted on the Site from time to time, Mable’s Code of Conduct, and any relevant code of ethical behaviour that applies to You as a Support Worker or Customer; and
(c) NDIS Code of Conduct (if you are a Support Worker providing Care Services to a NDIS participant);
(d) the Member Standards and refrain from engaging in Prohibited Conduct as set out in clause 8 below; and
(e) the Payment Terms set out in clause 10 below. You agree and acknowledge that all payments relating to Care Services must be made through the payment channels provided or specified by Mable, and in accordance with this Agreement;
2.1.5. neither You, nor anyone at Your Premises:
(a) has been convicted of any serious criminal offence, or any criminal offence involving violence, assault, fraud or dishonesty, any sexual offence, or any offence relating to the safety of children or vulnerable persons, any offence relating to workplace health and safety, or any offence which may reasonably be considered relevant to the provision or receipt of Care Services (Relevant Criminal Conduct);
(b) is presently the subject of a complaint, claim, investigation, or other legal action, charge, proceedings or other litigation (Investigation or Legal Action) in respect of Relevant Criminal Conduct;
(c) has ever been the subject of Investigation or Legal Action in respect of Relevant Criminal Conduct that has not been notified in writing to Mable;
(d) has engaged in any conduct that would prevent you from lawfully and safely providing Care Services;
(e) has been and/or is currently required to register as a sex offender in any jurisdiction or with any governmental entity;
2.1.6. any information provided by You is true and not misleading; and
2.1.7. You will act in good faith and not misuse the Site or the Services so as to cause harm or damage to Mable or any other Member.
2.2. If You do not satisfy all of the Member Eligibility Criteria, You must not create a Member Account or use the Site and/or Services as a Member, but may access the Site as a Visitor. A Visitor may browse the Site in accordance with this Agreement, but will not have access to Member Services unless they become a Member.
3. Becoming a Member
3.1. To use the Member Services, you must set up a Member Account. To do so, You will be required to provide specific information, and nominate Account Credentials to access Your Account.
3.2. In setting up or using a Member Account, You:
(a) 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;
(b) agree that you will not transfer or share your Account Credentials with any other person;
(c) agree not to register for more than one Support Worker or Customer Member Account;
(d) are solely responsible for:
- maintaining the confidentiality of Your Account Credentials;
- 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 who access the Site and/or Services under Your Account Credentials.
(e) 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; and
- if someone (whether or not you) accesses our Site and/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/or Services.
3.3. If You create Your Account on behalf of a third party including any business or entity, You represent that You have the authority to represent such third party and bind the third party to this Agreement.
(For example, if You are creating an account on behalf of a family member or a client who is seeking Care Services, You represent that Your family member or client has provided You with proper authority to act on his/her behalf and that Your family member or client will abide by this Agreement.)
4. Member Verification
4.1. Disclaimer regarding verification: You agree and acknowledge that Members may make representations to You about themselves or the services they provide (including Care Services) via the Site, or in other communications. You are solely responsible for:
(a) making Your own inquiries and making your own decision regarding whether to engage a Member to provide Care Services (or to accept a request for Care Services); and
(b) verifying any document, information or representation given to you by a Member which has not previously been verified by Mable or a provider to Mable. Documents and information verified by Mable are set out in the Verification Policy, noted on a Members’ profile on the Site, or otherwise outlined on the Site.
4.2. Verification of matters: In accepting an application to create a Member Account, Mable will conduct certain checks and require a Member to provide information relevant to any mandatory criteria relevant to the Services to be provided (Verification Checks).
4.3. Additional matters that may be verified:
Mable may also verify other information, including:
(a) independently verifying a statement made by any Member or Visitor on the Site;
(b) verifying that any Member meets any of the eligibility criteria established by Mable from time to time, including funding verification;
(c) worker screening checks;
(d) identification verifications;
(e) credential, qualification and training verification; and/or
(f) using available public records to conduct searches and checks.
4.4. Completion of mandatory profile sections: Before accepting an application, to create a Member Account Mable may request a Member complete all mandatory sections of their Site profile.
4.5. Consent and authorisation of Verification Checks: In creating Your Account or otherwise seeking to become a Member, You agree and consent to Mable conducting the Verification Checks at any time in its sole and absolute discretion, and agree to provide Mable with such information or documentation as it reasonably requests in order to do so, and authorise Mable to conduct any such Verification Checks.
4.6. Verification Policy: Unless expressly stated otherwise, the steps that Mable takes to verify information are strictly limited to those set out in the Verification Policy and any relevant legislation.
4.7. No warranty or liability for third party information or sources: In conducting any verification steps or checks, Mable may rely on publicly available information including from government registers, and/or information provided by third parties. Mable gives no warranty, makes no representation as to, and accepts no liability in respect of, the accuracy, reliability or quality of any such information.
4.8. Except as set out in this clause, Mable does not, and is not required to, verify information provided by a Member or Visitor.
5. Content and Your use of the Site
5.1. Prohibited Content: Content of any kind that:
(a) is offensive, defamatory, distressing, harmful, insulting, intimidating, menacing, harassing, discriminatory, unlawful, false or misleading, content of any kind;
(b) poses, or may pose, a risk to any person;
(c) threatens, harasses, humiliates or ridicules any person, or is otherwise unlawful, or encourages any such activity;
(d) is posted, uploaded, published or disseminated without the lawful owner’s permission, or breaches any obligation of confidentiality;
(e) contains any false or misleading statements, representations or advertising, (including but not limited to representations about the Member’s identity, qualifications, experience or reputation);
(f) advertises or promotes goods or services other than Care Services;
(h) infringes another person’s copyright, trade mark or any other intellectual property right;
(i) includes a person’s Account Credentials or is directed to accessing a person’s Member Account other than in accordance with this Agreement or without the account holder’s consent;
(j) may cause Mable to breach any law or otherwise expose Mable to liability;
(k) is or includes any virus, worm, trojan, or other malicious or unauthorised code or disabling feature to or via the Site or the Services, or which may breach the requirements or cause the loss of services of Mable’s internet service providers or other suppliers;
(l) is likely to interfere with or disrupt the proper and intended operation of the Site or the Services, or is, or contains any means of automatically searching or mining data from the Site; or
(m) is contrary to any of Mable’s policies or code of conduct,
is prohibited (Prohibited Content).
5.2. Content posted, created or sourced by/from others: When You access the Site and/or Services, You may obtain access to Content posted by other Members or third parties. You agree and acknowledge that:
(a) Mable provides a platform only, that acts as a forum for venue for the online distribution and publication of Content, and Mable does not verify that Content;
(b) Mable makes no warranties or representations (either express or implied) whatsoever in relation to the Content, its accuracy, completeness, quality, currency or otherwise, and is not responsible for any Content;
(c) the Content posted by others may include Prohibited Content;
(d) Mable may, but is not obliged to, take any action it considers (in its sole and absolute discretion) appropriate with respect to Content that it considers is Prohibited Content, may create liability for Mable, harm Mable’s business operation or reputation, cause Mable to lose the services of its suppliers; and
(e) Mable reserves the right to reject or modify Content, at its discretion.
5.3. Content you post: You are solely responsible for all Content that You post, email or otherwise make available on the Site and/or Services. You:
(a) grant Mable a non-exclusive, royalty-free, fully paid, worldwide perpetual license that is capable of being sub-licensed, in respect of all of Your copyright and other intellectual property rights related to Content that You post or contribute to the Site;
(b) 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;
(c) must not post or upload any Prohibited Content; and
(d) warrant that none of the Content you post or upload is Prohibited Content or infringes the rights (including but not limited to copyright and other intellectual property rights) of any person.
5.4. Feedback, Reputation and Reviews: By using the Site and posting feedback (including a review) (“User Feedback”), You grant Us an unrestricted, worldwide, royalty-free, sub-licensable licence to use, reproduce, publish, communicate to the public, modify, and adapt Your User Feedback posted on the Site for the purpose of publishing that User Feedback on the Site and as otherwise permitted by this Agreement.
(a) You may use any Feedback that is about You provided that you use it in a way that is not misleading or deceptive and is in accordance with Mable’s policies as posted on the Site from time to time.
6. Intellectual property
6.1. You agree and acknowledge that the Agreement and Our Technology are our intellectual property and/or licensed to Us under Australian and international copyright or trade mark laws, and may be subject to other intellectual property and proprietary rights and laws (Our IP). Title to Our IP at all times remains with us or the licensor, and nothing in this Agreement is, or is intended to be, a transfer of, or to create, any rights (including any licence) in Our IP.
6.2. Our Technology and Our IP must 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 any applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology and Our IP.
6.3. 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 Mable or other entities. You are not authorised to use any Marks, and ownership will at all times remain with Us or those other entities who own the Marks.
6.4. Any use of third party software provided in connection with the Site and/or Services will be governed by relevant third party licenses and not by this Agreement.
7. Care Services and the Support Worker Contract
7.1. Support Worker Contract is between Customer and Support Worker:
(a) Mable is a platform that allows Customers to connect with Support Workers. Mable provides a platform only and does not engage or employ Support Workers or provide Care Services.
(b) When a Customer engages a Support Worker through the Site, the Support Worker and Customer contract with each other directly. Mable is not a party to that contract.
(c) The Support Worker solely decides whether to accept an offer from a Customer to provide Care Services, and the Customer solely decides whether to engage a Support Worker to provide Care Services.
7.2. No relationship of employment, contracting or franchise, and no provision of Care Services by Mable: Support Workers including any other person engaged or employed by any Support Worker are not employees, contractors, agents or franchisees of Mable. Nothing in this Agreement or Your use of the Site and/or Services is intended to give rise to any such relationship, or any relationship of partnership or joint venture.
Mable does not:
(a) provide or arrange for the provision of Care Services; or
(b) give any Support Workers any direction about the provision of the Care Services; or
(c) operate a referral service or employment agency and does not recommend or endorse any particular Member; or
(d) provide advice regarding the quality or suitability of any particular Member for any Care Services, including any specific treatments or health conditions, and no information on Mable’s Site and/or Services should be construed as health or medical advice; or
(e) participate in any interactions or arrangements between Support Workers and Customers for any provision of Care Services, except to provide the Site and/or Services to facilitate those interactions or arrangements, including any processing of payments on behalf of Customers to Support Workers;
(f) involve itself in the terms of a Support Worker Contract between Customers and Support Workers or control their engagement with each other, including regulating or managing any workplace laws or any occupational health and safety laws; or
(g) set or determine the agreed level of payment for and/or remuneration for the provision of the Care Services.
7.3. By using Mable’s Site and/or Services, You acknowledge and agree that Mable:
(a) acts only as an intermediary facilitating the provision of selected information between Members;
(b) will rely upon the information provided by Members except as otherwise verified in accordance with our Verification Policy;
(c) has no control over and is not responsible for any acts or omissions of any Users on or off Mable’s Site and/or Services;
(d) makes no representation or warranty regarding the quality of any Care Services or any other services provided by any Member, or the accuracy or reliability of any information provided by any Member on its Site and/or Services; and
(e) is not responsible for the interactions between Users including under any Support Worker Contract.
7.4. Mandatory terms of Support Worker Contracts: The Customer and the Support Worker may enter into a Support Worker Contract on such terms as they agree, but the following must be terms of every Support Worker Contract:
(a) the Support Worker must charge for the Care Services at the Agreed Rate as agreed between the Customer and the Support Worker, but which must not be less than $25.00 per hour. Where an overnight or flat rate is used, the effective hourly rate must be at least $25.00 per hour for active time, after taking account of any applicable breaks, sleeping or passive time ;
(b) Mable is permitted to issue an invoice for the Care Services on behalf of the Support Worker at the completion of each Care Service, and Mable (or MPS) to collect payment from the Customer (including by debiting the Customer’s nominated bank account or credit card, or other method agreed between Mable and the Customer) or collect payment from the Customer’s nominated funding party (for example an Approved Provider);
(c) the Support Worker must comply with any relevant Support Worker code of conduct and ethical behaviour and any applicable occupational health and safety policies or procedures;
(d) the Customer must comply with any relevant Customer code of conduct and ethical behaviour and any applicable occupational health and safety policies or procedures;
(e) the Support Worker Contract must be able to be terminated by either party at will, with no notice period, unless otherwise specified in the Support Worker Contract in writing;
(f) the Support Worker warrants that:
- they are capable of providing, and where relevant, have the necessary qualifications and skills to provide the Care Services to the Customer;
- they are not prohibited from providing the Care Services;
- they are and will, for the duration of any Support Worker Contract, continue to be an Australian citizen and/or a person legally authorised to work in Australia;
- they are not a partner, employee, independent contractor or agent of Mable;
- they will not engage in any Avoidance Conduct as set out in clause 11 below;
- if they are providing services in a Customer’s home and/or premises, You have inspected the Customer’s home, premises and any equipment to ensure that it is a safe work environment each time You arrive at the Customer’s home and/or premises;
- they have made themselves aware of and will comply with all laws and regulations relating to the provision of the Care Services, including any workplace laws and any applicable occupational health and safety laws, policies, procedures, or directions given by a Customer in relation to the provision of Care Services pursuant to any Support Worker Contract; and
- they are not employed or engaged by Mable.
(g) the Customer warrants that:
- they have inspected their premises and those premises are a safe work environment for the Support Worker to provide the Care Services;
- they have made themselves aware of and will comply with all laws and regulations relating to the engagement of Support Workers, including any applicable workplace laws and any applicable occupational health and safety policies or procedures. For more information see https://www.fairwork.gov.au/about-us/legislation and http://www.safeworkaustralia.gov.au/sites/SWA;
7.5. Using the Site to connect with Support Workers / Customers:
(a) Customers can connect with potential Support Workers through the Site by uploading the information regarding the requested Care Services, the Customer, and the Customer’s payment details, as required by the Site, and providing their consent to the debiting or charging of the Support Worker Fee and Platform Fee, along with any taxes in connection with the contracting of the Support Worker.
(b) Support Workers can receive offers to provide Care Services and connect with potential Customers by uploading the information regarding the Support Worker and the Care Services they wish to offer and are qualified to provide, and the Support Worker’s payment details, as required by the Site.
(c) When an offer by a Support Worker is accepted by the Customer, the Support Worker and Customer will enter into a Support Worker Contract with each other. Mable will then release the Support Worker’s or Customer’s personal details (including surname and contact details) to those parties.
7.6. Service Log and Invoice on completion of Care Service:
(a) As soon as practicable after the performance of each Care Service, the Support Worker must generate via the Site an electronic service log, that includes the start time, end time and any service notes for the relevant Care Service (Service Log).
(b) The Customer will be notified of the Service Log via the Site, email or other notification. The Customer must approve or reject the Service Log within 24 hours of notification, or such other period notified on the Site (Review Period).
(c) The Customer will be deemed to have approved the Service Log if they do not reject the Service Log before the expiration of the Review Period or if the Customer approves the Service Log through the Site.
8. Member Standards and integrity of the Site and Services
8.1. Member Standards: It is our goal to make access to our Site and Services a positive experience for Visitors and all Members. All Members are required to abide by the following standards to ensure the integrity of the Services and their fair and proper use:
(a) Correspondence between Members is for the sole purpose of connecting Customers and Support Workers for purposes relating to Care Services.
(b) If You receive personal information or health information of any other Member through the use of the Services, You may use the information:
- only for the purpose of conducting a transaction through the Site and/or Services with that Member. You must not use another Member’s personal information for any other purpose; and
- only in accordance with law (including applicable health records legislation, the Privacy Act and the Australian 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.
(c) Members (whether Support Workers or Customers) must not discuss with a third party any information gained about other Members (whether Customers or Support Workers, or their personnel) in the course of the supply of the Care Services.
(d) Members who are Support Workers undertake to 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 (except where prohibited by law).
(e) Members must not reproduce, duplicate, copy, sell, resell or exploit any portion of the Site and/or Services, use the Site or Services, or access the Site and/or Services for any purposes other than for which the Site and/or Services are being provided to them.
8.2. Prohibited Conduct: Members must not do any of the following:
(a) make use of the Platform to recruit or subcontract any other Member for the provision of services of a similar nature to the Care Services;
(b) contact another Member for any purpose other than as set out in this Agreement;
(c) harass, intimidate or otherwise engage in illegal or offensive behaviour with respect to any other Member, or use the Site to stalk another person;
(d) conduct or promote any illegal activities while using the Site and/or Services;
(e) upload, distribute or print any Prohibited Content;
(f) use the Site and/or Services to generate unsolicited email advertisements or spam;
(g) allow, enable, or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam);
(h) misuse or attempt to interfere with the Site and/or Services, including by:
- attempting 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, or attempt to gain access to secured portions of the Site and/or Services to which they do not possess access rights;
- uploading or transmitting to the Site any form of virus, worm, trojan horse, or other malicious code;
- interfering in any way with the proper functioning of the Site and/or Services or interfere with or disrupt any servers or networks connected to the Site and/or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site and/or Services;
- using any high volume automatic, electronic or manual process to access, search, harvest, “screen scrape”, monitor, “mine” information from the Site and/or Services (including without limitation robots, spiders or scripts) 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;
- mirror or frame the Site or any content, place pop-up windows over its pages, or otherwise affect the display of its pages; and / or
(i) impersonate any person or entity, or otherwise misrepresent an affiliation with a person or entity.
9. Limitation of warranty, liability, and indemnity
9.1. Consumer and other statutory rights not affected: Nothing in this Agreement limits any right or obligation that You may have under the Australian Consumer Law (ACL), including any consumer guarantee or right to refund, or any other right under any law, to the extent that it cannot lawfully be excluded or limited.
9.2. Use of Site and Services at Your sole risk: You agree and acknowledge that, subject to clause 9.1, Your use of the Site and/or Services, and any material or information downloaded or otherwise obtained through the use of the Site and/or Services, is at Your sole discretion and risk. You are solely responsible and liable for any damage, including (without limitation) damage to Your computer or loss of data that results from the download of such material and/or information. You agree and acknowledge that:
9.2.1. 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 or as otherwise provided in this Agreement) without any warranty or representation of any kind either express or implied;
9.2.2. You assume all responsibility in connection with choosing any Support Worker, whether or not You obtain information about such Support Worker on or through the Site; and
9.2.3. 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.
9.3. Exclusion / limitation of warranty: To the fullest extent permitted by law, Mable disclaims and excludes all warranties and representations of any kind, whether express or implied, in respect of the Site and the Services, including but not limited to any warranty:
9.3.1. as to title, quality, merchantability, fitness for a particular use or purpose, non-infringement, operability, condition, quiet enjoyment, value, accuracy of data and system integration;
9.3.2. that the Site and/or Services will meet Your requirements;
9.3.3. that the Site will be accurate, reliable, uninterrupted, secure or error-free;
9.3.4. that the Site, or the server that makes it available, will be uninterrupted, timely, secure, free of viruses, errors or other harmful components;
9.3.5. as to the results that may be obtained from the use of the Site and/or Services; and
9.3.6. that defects in the Site and/or Services will be corrected.
9.4. No liability for conduct of other Members: To the fullest extent permitted by law, Mable expressly disclaims, and You expressly release Mable, and each of its Affiliates, 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 in connection with any provision of Care Services by any Support Worker.
9.5. Exclusion of liability: To the fullest extent permitted by law, Mable and each of its Affiliates will not be liable to You or any third party, whether in contract, warranty, tort (including negligence and strict liability), statute, or otherwise, for:
9.5.1. any injury, loss or damage suffered by any Support Worker or Customer in relation to the provision of any Care Services;
9.5.2. any advice, treatment or other Services rendered by any Support Worker, or for any malpractice claims;
9.5.3. any other claims that may arise directly or indirectly from the provision of Care Services or any other actions of any Support Worker;
9.5.4. any indirect, special, incidental, consequential or exemplary damages that may be incurred by You;
9.5.5. any loss of income, revenue, goodwill, business, profits and/or data (whether direct or indirect) that may be incurred by You;
9.5.6. any claim, damage, or loss which may be incurred by You arising from, out of or related to:
(a) Your use of, or access to, or the inability to use or to access, the Site and/or Services;
(b) any suspension and/or termination of your use of and/or Your access to the Site and/or Services as set out in clause 15 below;
(c) Your transactions involving the Site;
(d) any act or omission of any User (including any Support Worker or Customer);
(e) Your breach of this Agreement, or any contravention of any law or rights of a third party by You;
(f) any statements and/or representations (including misstatements or misrepresentations) made by any User (including any Support Worker or Customer) contained in any Content;
(g) any statements and/or representations made by Mable in reliance of any warranties and/or representations made by Members or other third parties;
(h) any of Your Content and/or information that You submit, post or transmit through the Site and/or Services;
(i) the quality, accuracy, reliability, timeliness or completeness of any background check or verification provided (by Mable or through any third party verification services) to You in connection with the Site, the Services or any Care Services;
(j) the use of information provided by any third party verification service;
(k) transactions between You and any third party merchants or service providers;
(l) any information appearing on third party merchant or service provider sites or any other site linked to our Site;
(m) any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by You into the Site and/or Services; and
(n) any disputes that arise between Users or between a Support Worker and a Customer in relation to Care Services.
For avoidance of doubt, each exclusion of liability in this clause is a separate term of this Agreement.
9.6. General limitation of liability and exclusion of consequential loss: Subject to clause 9.1, and to the fullest extent permitted by law, all liability of Mable, and each of its Affiliates, to the Member:
(a) is limited to the refund of amounts paid by the Member to Mable for Services in the 12 months prior to the date on which the liability arose;
(b) excludes any liability for any indirect, consequential or pure economic loss; and
(c) is reduced to the extent that the liability arises out of the negligent or wrongful act or omission of the Member or any third party,
and each of the above limitations or exclusions are a separate term of this Agreement.
9.7. Indemnities given by Members: You agree to 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, incurred by Mable or any of its Affiliates or made by any third party (including a Support Worker, Customer or another Member) due to or arising out of, or in any way in connection with:
(a) Your breach of this Agreement, or any contravention of any law or rights of a third party by You;
(b) Your use of the Site and the Services;
(c) any advice, treatment or other Services You provide as a Support Worker (if applicable), including any malpractice claims;
(d) Your transactions involving the Site;
(e) any of Your Content and/or information that You submit, post or transmit through the Site and/or Services;
(f) any statement or representation you make to, or any conduct you engage in towards, another Member;
(g) in the case of Support Workers, the provision of Care Services by You or any of Your officers, employee, contractor, agent, representative or other personnel (as applicable), or any Support Worker Contract to which you are a party;
(h) in the case of Customers, the provision of Care Services to, or receipt of Care Services by, You, or otherwise arising out of or in connection with any Support Worker Contract to which you are a party; and
(i) any claim arising out of any employment relationship, including but not limited to any industrial instrument and/or statutory entitlement, including superannuation obligations.
9.8. Acknowledgment by Member: You agree and acknowledge that the exclusions and limitations of liability and warranty in, and the indemnity given by You under, this clause 9 are reasonable to protect the legitimate interests of Mable in circumstances where:
(a) Mable does not provide the Care Services, and acts as a platform only; and
(b) any Support Worker Contract and any engagement to provide Care Services is between You and the Support Worker or Customer (as applicable).
9.9. Any liability as between Support Worker and Customer unaffected: Nothing in this Agreement is intended to limit any liability owed by a Support Worker to a Customer, or by a Customer to a Support Worker, including (without limitation) for any claim as a consumer under the ACL, or to limit or modify any right or remedy the Customer has against the Support Worker for failure of a statutory guarantee under the ACL.
9.10. Bar to claims brought in breach of this clause: 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 in any proceeding or claim commenced in breach of this clause 9.
10. Payment terms, fees and payment processing
10.1. Fees payable by Customers: Customers will pay Mable (or MPS):
(a) the Support Worker Fee, which Mable (or MPS) will accept on behalf of the Support Worker;
(b) the Platform Fee; and
(c) any other costs reasonably incurred by Mable (including costs incurred by MPS or another Affiliate) in enforcing its rights under this User Agreement.
10.2. Fees payable by Support Workers: Support Workers will pay Mable (or MPS):
(a) the Support Worker Platform Fee, deducted from the Agreed Rate;
(b) any insurance premiums remitted by Mable on their behalf; and
(c) any other costs reasonably incurred by Mable (including costs incurred by MPS or another Affiliate) in enforcing its rights under this Agreement.
10.3. Changes to fees: Mable reserves the right, at any time, to amend its fees and/or billing methods as notified on the Site.
10.4. Payment processing and handling of funds: You agree and acknowledge that:
(a) Mable is not responsible for, and will not reimburse any fees incurred by You from Your 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 debited or withdrawn by Mable (or its Affiliate, including MPS);
(b) Mable may commingle and deposit funds transferred to Mable in accordance with the terms and conditions of this Agreement (Held Funds) with other 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;
(c) such commingled funds may be used to pay other Support Workers, and by Mable (or where applicable, MPS or another Affiliate) for general corporate purposes or otherwise, provided that nothing in this clause will relieve Mable of liability to remit to a Support Worker any Support Worker Fees for Care Services that have been provided in accordance with the terms and conditions of this Agreement;
(d) You will not receive interest or other earnings on funds that Mable (or an Affiliate, including MPS) handles or holds on Your behalf, and Mable (or its Affiliate) may receive interest on those funds;
(e) Mable has no obligation to hold any Held Funds in a separate account;
(f) nothing in this Agreement gives rise to any security interest or makes a Support Worker a secured creditor of Mable (or, where applicable, MPS or another Affiliate); and
(g) third party payment processing: Mable may use third party payment processing services to process bank account information and payments. 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.
10.5. Authorisation of Mable to collect payment: The Customer authorises Mable (or MPS) to collect payment from the Customer (including by debiting the Customer’s nominated bank account or credit card or other method agreed between Mable and the Customer), or to collect payment from the Customer’s nominated funding party, including an Approved Provider for any Support Worker Fee, the Platform Fee or any other fees payable to Mable.
10.6. Each Support Worker and each Customer is solely responsible for the accuracy of the bank account or credit card details they provide to Mable. Mable is not liable for any funds incorrectly deposited or not deposited due to inaccurate or incomplete bank details or credit card details provided by a Support Worker and/or Customer.
10.7. 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.
10.8. Invoices and payment:
(a) Where the Customer has nominated payment by credit or debit card or direct debit of a bank account, Mable (or MPS) will deduct payment upon approval or deemed approval of a Service Log under clause 7.6, in accordance with the invoice attached to the Service Log.
(b) Where the Customer has nominated payment through a nominated funding party, Mable will issue an invoice to the nominated party for all Service Logs that have been approved or deemed approved during the invoicing period.
(c) All invoices issued under this Agreement must be paid within 7 days of issue, and time is of the essence.
(d) Mable will provide to the Support Worker copies of Invoices which are issued under this Agreement on their behalf, and remit to the Support Worker the Support Worker Fees that have been collected from the Customer on their behalf.
(e) Mable reserves the right to correct any errors in the payment of Mable fees even if it has already requested and/or received payment.
(f) The Customer will remain responsible for the Platform Fees, and any other applicable fees, in connection with any refund or chargeback of a Support Worker’s payment.
10.9. Failure to make payment: If you fail to pay an amount in accordance with this Agreement (for example, if your Nominated Credit Card is declined), Your Account may be suspended and you may be charged a non-payment fee by Mable (or MPS) and charged other amounts by the issuer of your nominated Bank Account or Credit Card.
11. Anti-avoidance terms
11.1. The conduct referred to in this clause is Avoidance Conduct.
11.2. You are strictly prohibited from:
(a) avoiding or diverting fees otherwise payable to Mable, including (without limitation) any Support Worker Fee or Platform Fee; or
(b) encouraging or soliciting any Member to avoid making payments through the Site or paying the Support Worker Fee or Platform Fee.
11.3. Support Workers must not:
(a) provide or seek to provide Care Services to any person to whom the Support Worker was introduced by the Site, or provided Care Services, in the previous 12 months other than via the Site and in accordance with this Agreement; or
(b) directly invoice a Customer, or accept any payment from a Customer other than through the Site, for the provision of Care Services. Each Support Worker must account to Mable for any amount received from a Customer in breach of this clause.
11.4. You must immediately notify Mable if a Member requests that you make or receive payment directly or through any channels other than those provided or specified by Mable as contemplated by this Agreement.
11.5. In the event of any breach of this clause 11, You agree to pay Mable the greater of:
(a) the total fees that would have been payable to Mable under the terms and conditions of this Agreement had the Care Services been organised via the Site in accordance with the terms of this Agreement; or
11.6. You agree that the amounts set out in this clause 11 are a genuine pre-estimate of Mable’s potential loss should a Support Worker or Customer breach this clause.
12.1. The terms of this clause 12, and the insurances made available to Support Workers via their use of the Site, will not apply to Provider Customers whose insurance obligations and entitlements are set out in the applicable Provider Agreement.
12.2. For Support Workers providing Care Services, Mable will facilitate access to insurance cover with agreed insurers as notified from time to time.
12.3. The cost of insurances (if any) will be charged as part of the Support Worker Platform Fee. In the event of an insurance claim, Support Workers will be liable for the relevant policy excess.
13. Provider Customers
13.1. In response to the COVID-19 pandemic, Mable may make available its Site and/or Services to Provider Customers to connect with Support Workers.
14. Promotional offers
14.1. We may run promotional offers from time to time on the Site. The terms of any such promotion will be posted on the Site. Unless otherwise indicated, We may establish and modify, in our sole discretion, the terms of such offers and end such offers at any time.
15. Suspension / termination
15.1. We may at any time, by giving You notice in accordance with clause 18:
(a) immediately modify, suspend or discontinue (for a reasonable period of time) access to the Site and/or Services, if it is reasonably necessary for Mable to carry out any maintenance, updates or business operations; and/or
(b) immediately modify, limit, suspend or terminate Your Account, Your access or Your use of the Site and/or Services, if We consider that You have posted any Prohibited Content, engaged in any Prohibited Conduct or are in breach of this Agreement.
15.2. You agree that Mable will not be liable to You or any other party arising out of any:
(a) suspension or termination of Your access to the Site and/or Services, or deletion of Your Account or Your Content; or
(b) modification or discontinuance of the Site and/or Services,
in accordance with the terms of this Agreement.
15.3. 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 and/or any Services, whether such obligation is to Mable (or MPS or another Affiliate) or a third party.
15.4. Mable may without notice and in its sole and absolute discretion remove any invitation to treat from a Support Worker from the Site.
15.5. Either party may terminate this agreement by notice at any time for any reason.
16. Dispute resolution
16.1. Any disputes arising out of or in connection with the Care Services received by a Customer must be resolved directly between the Customer and the Support Worker.
16.2. We may, but have no obligation to, monitor or request information regarding disputes that You may have with Users, Support Workers or other Customers.
16.3. If a dispute arises between You and Mable arising out of this Agreement, 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.
16.4. For any claim against Mable:
(a) either party may elect to resolve the dispute in a cost effective manner through a binding non-appearance-based mediation.
(b) in the event of an unsuccessful mediation, and in circumstances where both parties to any dispute agree in writing, arbitration may be initiated through an established alternative dispute resolution (ADR) provider in New South Wales Australia, which is to be selected by You from a panel of established ADR providers that Mable will provide to You.
(c) The ADR provider and the parties must comply with the following rules:
- 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;
- the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
16.5. If the parties elect arbitration under this clause You must not commence proceedings until the arbitration has been determined, provided that nothing in this clause prevents any party from seeking urgent injunctive relief. This Agreement may be pleaded in bar to any proceeding commenced in breach of this clause.
16.6. Mable may recover its legal fees and costs (including on an indemnity basis) arising out of any breach of this clause, provided that Mable has notified You in writing and You have failed to promptly withdraw that claim.
16.7. 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.
17. Force majeure
Neither We nor our licensors or Affiliates are 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, pandemic, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.
18.1. Notices: We will give notice and provide communications to You by email, by posting on the Site, or other reasonable electronic means. You must give notice to Us in writing via email to firstname.lastname@example.org or as otherwise expressly provided. Please report any violations of this Agreement to email@example.com.
18.2. Electronic communications: You consent to receiving communications from Us in an electronic form, and 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. 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.
18.3. No third party beneficiaries: You understand and agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
18.4. Governing law and jurisdiction: This Agreement and the relationship between You and Mable, will be governed by the laws of the State of New South Wales, Australia. 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.
18.5. Assignment: You must not transfer, assign or delegate Your right and/or duties under this Agreement to anyone else and any attempted assignment or delegation is void. We may assign or novate this Agreement at any time by giving notice to You in accordance with clause 18.1 and without obtaining Your consent.
18.6. Headings: Headings and paragraph titles are for convenience only and do not form part of the terms of this Agreement.
18.7. Delay and waiver: 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. 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 or similar breach or default.
18.8. Whole agreement: This Agreement constitutes the entire Agreement between You and Mable with respect to its subject matter, and supersedes all prior oral or written understandings, communications or agreements.
18.9. Severability: If for any reason a court holds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be read down to the minimum extent necessary so as to give full effect to the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
18.10. Survival: All provisions that by their nature survive expiration or termination of this Agreement shall so survive, including without limitation, clauses 9 and 16, 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.
18.11. Amendments: We may amend the terms of this Agreement from time to time by publishing the amended terms to Our website or by giving electronic notice to You. It is Your sole responsibility to check the Site from time to time to view any amendments to this Agreement. The amendment takes effect upon your express acknowledgement or when you continuing to access and/or use the Site and/or Services.
In this Agreement:
19.1. “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;
19.2. “Account Credentials” means the selected unique User ID and password chosen by a User when setting up Your Account;
19.3. “Affiliates” means:
19.3.1. Mable or any of its Related Bodies Corporate; and
19.3.2. any employee, consultant, agent, licensor, supplier or representative of Mable or any of its Related Bodies Corporate; and
19.3.3. Mable Payment Services Pty Ltd (MPS). MPS acts as agent for Mable and the Support Worker in providing payment processing services.
19.4. “Agreed Rate” the hourly rate or fixed rate agreed between a Support Worker and a Customer for Care Services provided by the Support Worker to the Customer;
19.5. “Agreement” means this User agreement between You and Mable (ACN 162 890 379) which incorporates all policies and terms and conditions referred to in this Agreement;
19.6. “Approved Providers” means government approved or registered providers of disability support and/or aged care services, including providers of the Commonwealth Home Support Programme (“CHSP”);
19.7. “Associate” has the meaning set out in the Corporations Act 2001 (Cth), as amended from time to time;
19.8. “Care Services” means home care, aged care, disability support, health care or other approved services;
19.9. “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;
19.10. “Customer” refers to people, family members, representatives or entities seeking Care Services including, where applicable, Provider Customers;
19.11. “Customer Platform Fee” means a Platform Fee charged by Mable and expressed as a percentage of the Agreed Rate, which is added to the Agreed Rate and published on the Site;
19.12. “Feedback” means any User Feedback and/or any multidimensional rating or any quality rating derived by Mable for Support Workers based on User feedback;
19.13. “Invoice” means an invoice for Care Services provided by a Support Worker to a Customer that is created through the Site on behalf of the Support Worker or an invoice provided by Mable (or MPS) for Platform Fees. A combined invoice may be provided by MPS on behalf of both the Support Worker and Mable for payment processing services (Combined Invoice). Where a Combined Invoice is issued, it replaces the requirement for the Support Worker or Mable to issue separate invoices in respect of the items covered in the Combined Invoice;
19.14. “Mable”, “We” or “Us” means Mable (ACN 162 890 379);
19.15. “Mable’s Code of Conduct” means Mable’s code of conduct set out at https://mable.com.au/code-of-conduct/mable-coc/, as updated from time to time;
19.16. “Member” means a person or organisation who establishes an account with Mable, and includes Customers and Support Workers;
19.17. “Member Account” means a membership account with Mable;
19.18. “Member Eligibility Criteria” means the criteria set out in clause 2.1;
19.19. “Member Services” means the Services only available to Members;
19.20. “Member Standards” means the standards as set out in clause 8;
19.21. “MPS” means Mable Payment Services Pty Ltd ACN: 635 828 170;
19.22. “NDIS Code of Conduct” means the National Disability Insurance Scheme Code of Conduct (Workers) set out at https://www.ndiscommission.gov.au/workers/ndis-code-conduct as updated from time to time.
19.23. “Our Technology” means the software, code, proprietary methods and systems used to provide the Site and/or Services;
19.24. “Payment Terms” means the terms relating to payments as more specifically set out in clause 10;
19.25. “Platform Fee” means any platform fee implemented by Mable from time to time in respect to use of the Site and/or Services by a Support Worker or Customer and includes the Customer Platform Fee and Support Worker Platform Fee;
19.27. “Prohibited Conduct” has the meaning given in clause 8.2;
19.28. “Prohibited Content” has the meaning given in clause 5.2;
19.29. “Provider Agreement” means any agreement between Mable and You (including Provider Customers and Approved Providers) that You sign, on terms specified by Mable;
19.30. “Provider Customer” means an Approved Provider or a Commonwealth Home Support Program Provider who is a Customer and Member;
19.31. “Related Bodies Corporate” has the meaning set out in the Corporations Act 2001 (Cth), as amended from time to time;
19.32. “Services” means Mable’s products, software, services and Sites (referred to collectively as the “Services”);
19.33. “Site” means the mable.com.au website including without limitation all subpages, Mable smartphone app, and any other affiliated platform that may be introduced from time to time;
19.34. “Support Worker” refers to people or entities providing or seeking to provide Care Services;
19.35. “Support Worker Contract” means an agreement (in any form) for a Support Worker to provide Care Services to a Customer formed as a result of the use of the Site and/or Services;
19.36. “Support Worker Fee” means:
(a) if the Agreed Rate is an hourly rate, the Agreed Rate multiplied by the hours of Care Services; or
(b) if the Agreed Rate is a fixed rate, the fixed Agreed Rate;
in either case less the Support Worker Platform Fee;
19.37. “Support Worker Platform Fee” means a Platform Fee charged by Mable and expressed as a percentage of the Agreed Rate, which is deducted from the Agreed Rate and published on the Site;
19.38. “User” means a Member or a Visitor;
19.39. “Verification Policy” means the Mable verification policy in place from time to time which sets out the details of what information is verified by Mable and the processes undertaken to verify the information provided. The policy is available on the Mable website https://mable.com.au/our-policies/verification-policy/.
19.40. “Visitor” means a person who browses the Site;
19.41. “You”, “Your”, “User”, or “Users” also refer to anyone accessing our Services and/or Site for any reason, and includes Members;
19.42. “Your Account Balance” means the balance of your account; and
19.43. “Your Premises” means any premises at which You will provide or receive Care Services.