Terms & Conditions
Introduction & Acceptance of Agreement
Subtrux Pty Ltd (ACN 623 495 063) (“Subtrux“) is a technology services provider, which makes available an application that assists with matching Drivers and Senders for the transportation of goods. Through its application, Subtrux creates a marketplace for Senders to advertise Job Briefs and to enable independent third-party Drivers to accept and complete those jobs. The Services are provided to the Sender only as set out in the Agreement. Subtrux does not provide Transportation Services, nor is it in the business of doing so. This document sets out the terms and conditions of the legally binding agreement between you (“you“, or the “Sender“) and Subtrux (“Agreement“). Upon your execution (electronic or otherwise) of this Agreement, you agree to be bound by the terms of this Agreement. If you do not agree to the Agreement, you may not access or use the Subtrux App or the Services. Any prior agreements or arrangements with you are expressly superseded by this Agreement. Subtrux may terminate this Agreement or any Services with respect to you at any time for any reason. The terms and conditions of this Agreement must be read carefully. Aspects of the Services may be subject to additional conditions, guidelines, policies, terms, rules, or procedures which will be provided to you in conjunction with this Agreement. All such additional conditions, guidelines, policies, terms, rules, or procedures are incorporated by reference into this Agreement.
By entering into this Agreement, you acknowledge and agree that Subtrux is a technology services provider and that Subtrux does not provide Transportation Services. Subtrux enables interactions, communications, bookings and payments between Drivers and Senders via the Subtrux App. However, Subtrux is not a party to any Jobs between Drivers and Senders and does not verify the suitability or ranking of the Driver or Sender, the transportation services or the Job.
Drivers and Senders are wholly responsible for ensuring that their use of the Subtrux App and Jobs enabled by it comply with applicable Laws and third-party agreements. Such Laws and third-party agreements include but are not limited to premises leases, road transport and traffic legislation including heavy vehicle national law, vehicle standards and licensing including fatigue management requirements and best practice, dangerous goods legislation, health and safety requirements, and taxation regulations and laws. You will be wholly responsible for any additional fees and charges incurred by you in connection with the Subtrux App and/or the Transportation Services (whether arising directly or indirectly).
- The following definitions apply unless the context requires otherwise:
- Act means the Corporations Act 2001 (Cth).
- ADC means the Australian Disputes Centre Ltd (or, if that organisation ceases to exist, a similar organisation nominated by the party referring the Dispute to mediation).
- ADC Guidelines means ADC Guidelines for Commercial Mediation (or if the ADC ceases to exist, the guidelines for mediation of any similar organisation nominated by the party referring the Dispute to mediation) in force from time to time, the terms of which are incorporated into this Agreement.
- Affiliate means, in relation to any entity, any other entity that is a Related Body Corporate of the first mentioned entity, or controls, or is controlled by, or under common Control by the first mentioned entity.
- App Store means the third-party from which the Driver obtains the Subtrux App.
- Business Day means a day other than a Saturday, Sunday or public holiday in Victoria, Australia, and the capital city of the state in which the Goods are to be delivered or the Services are to be performed.
- Cancellation Fee means the amount equivalent to the call out rate for the Vehicle from the time that the Driver commences the Job Brief until the time that the Job has been cancelled.
- Claim means, in relation to a party, means any claim, demand, action, suit or proceeding for damages, debt, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy, whether by original claim, cross claim, counterclaim or otherwise whether arising at common law, in equity, under statute or otherwise wherever arising, whether known or unknown, whether present, unascertained, immediate, future or contingent made or brought by or against the party.
- Collection Fee means the fee paid by the Driver to Subtrux in accordance in the amount notified by Subtrux to the Driver, as notified by Subtrux to the Driver from time to time.
- Collection Point means the place from which the Goods are collected by a Driver as set out in each Job Brief.
- Collection Time means the time by which the Goods must be collected from the Collection Point.
- Commencement Date means the date the parties enter into this Agreement.
- Completed Job means that a Job will be complete if an Invoice is not disputed within the Dispute Period
- Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement and includes, without limitation, any information and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed), customers, employees, internal policy, the Intellectual Property Rights of a party, any other information which a party gives to another party under or in connection with the Agreement that is non-public, or dealings under this Agreement including the terms and conditions of this Agreement and the fact of its existence and all information regardless of form that relates to Subtrux and its Affiliates, its businesses or affairs and that, either before or after the date of this Agreement, is disclosed directly or indirectly by any means to you by Subtrux or its Affiliates or any of their officers, employees, agents or advisers, or otherwise comes to your knowledge, and any notes, reports and documents which contain or refer to the information described in this paragraph herein
- Consents means any licences, clearances, permissions, certificates, permits, authorities, declarations, exemptions, waivers, approvals or consents.
- Consequential Loss means any:
- loss of expected savings, loss of use, loss of opportunity, loss of profits, loss of revenue, loss of income, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third-parties), loss of management of time, damage to credit rating, loss of business, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise; and
- any loss, not arising naturally (that is according to the usual course of things), from the relevant breach, whether or not such loss is reasonably supposed to have been in the contemplation of both parties, at the time they made the Agreement, whether foreseeable, as the probable result of the relevant breach.
- Control means control as defined by section 50AA of the Act.
- Credentials means the necessary security measures and information provided by Subtrux to the Driver to enable the Driver to access its Driver Account.
- Dangerous Goods means any good that is classified as a dangerous good in any Australian Laws.
- Data means data (excluding Personal Information) that the Driver or Sender inputs into the Subtrux App or provides to Subtrux or its Personnel by any other means or that is otherwise obtained by or on behalf of Subtrux or its Personnel via the Subtrux App or by any other means.
- Delivery Point means any physical location to which Goods must be delivered by the Driver in order to complete a Job.
- Delivery Time means the time by which the Goods must be delivered in accordance with the Job Brief as specified by the Sender.
- Device means the device provided and used by the Sender to access the Subtrux App.
- Dispute means a dispute between the parties arising in connection with this Agreement.
- Dispute Period means the period of time in which the Sender may dispute the Job Calculation, as notified by Subtrux to the Driver and the Sender from time to time.
- Driver means an independent third-party driver who is registered to a Driver Account, who meets the Driver Conditions, is matched to a Sender using the Services, and who provides Transportation Services for a Sender.
- Driver Ratings means the provision by the Sender of a rating of the Driver for each Completed Job and, optionally, the provision of comments or feedback about the Driver.
- Feedback means any feedback, suggestions, bug reports, system errors and other information or ideas in relation to the Subtrux App or the Services.
- Force Majeure Event means an event or circumstance, which is beyond the reasonable control and without the fault or negligence of the party claiming force majeure and which by the exercise of reasonable diligence the party affected was unable to prevent provided that event or circumstances is limited to of the following:
- act of God, lightning, storm, flood, fire, earthquake or explosion;
- strike, lockout or other labour difficulty;
- act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
- riot, invasion, act of foreign enemies, hostilities (whether war be declared or not), military or usurped power, requisition or compulsory acquisition by any governmental or competent authority;
- ionising radiation or contamination, radioactivity from any nuclear fuel or nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component;
- the effect of any applicable Laws, orders, rules or regulations of any government or other competent authority;
- embargo, power or water shortage, lack of transportation, lack of public or private telecommunications networks;
- breakage or accident or other damage to machinery;
- strikes or industrial disputes at a national level, or strikes or industrial disputes by labour not employed by the affected party, its Personnel, sub-contractors or its suppliers, and which affect an essential portion of the works, but excluding any industrial dispute which is specific to the performance of the works or this contract.
- Goods means items desired by a Sender to be delivered by a Driver.
- Governmental Agency means any government or any governmental, semi-governmental or judicial entity or authority. It also includes any self-regulatory organisation established under statute or any stock exchange.
- GST means any tax calculated by reference to the value of goods or services provided, calculated and levied at the point of sale or supply of the goods or services and includes GST within the meaning of that abbreviation in the GST Act.
- GST Act means A New Tax System (Goods and Services) Tax Act 1999 and includes other GST related legislation and regulations under the legislation, as amended from time to time.
- Indemnified Parties means Subtrux, its Affiliates, Related Bodies Corporate, Personnel, successors, and assigns.
- Insolvency Event means:
- For the Sender, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Act) or analogous person appointed to the Sender or any of the Sender’s property, being taken under section 459 F (1) of the Act to have failed to comply with a statutory demand, being unable to pay the Sender’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Sender’s own affairs for any reason, taking any step that could result in the Sender becoming an insolvent under administration (as defined in section 9 of the Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Sender’s members or creditors, or any analogous event.
- For any party:
- a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
- a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
- a party becomes or is (including under legislation) deemed or presumed to be insolvent;
- a party has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;
- any composition or arrangement is made with any one or more classes of its creditors;
- except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;
- a party enters into liquidation whether compulsorily or voluntarily; or
- any analogous or comparable event takes place in any jurisdiction.
- Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, logo, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, technical information, know how, drawings, inventions, discoveries, research developments, rights in data bases, source codes or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, and any application or right to apply for registration of any of the rights in this definition and all renewals and extensions of those rights.
- Invoice means a tax invoice setting out the Job Calculation, any applicable Cancellation Fees, the Service Fee and details about the Driver and the Job.
- Job means a Job Brief that has been accepted by a Driver, which sets out further information about the Sender’s requirement for the delivery of Goods.
- Job Amendment means if the Sender wants to add additional Goods to a Job or other Delivery Points.
- Job Calculation means the cost of the Job, which is calculated by Subtrux once the Driver has delivered the Goods and has obtained Proof of Delivery.
- Job Brief means a request by a Sender to transport Goods which has been matched with a Driver, and which can be accepted or declined by a Driver using the Subtrux App.
- Law means all laws including rules or requirements of common law, principles of equity, statutes, regulations, proclamations, order in council, ordinances, by-laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct, writs, orders, injunctions and judgments, whether commonwealth, state, territorial, local, or otherwise.
- Liability Cap means the amount equal to the fees paid by the Sender in the preceding three-month period from the time the event occurred that gave rise to the Claim.
- Loss means any loss, liability, Claim, damage, cost, charge, fine or penalty imposed by a statutory or other authority, expense or diminution in value, however arising, and whether present or future, fixed or unascertained, actual or contingent.
- Minimum Sender Rating means the average rating given by Senders to a Driver that exceeds the minimum average acceptable rating established by Subtrux, as may be updated from time to time by Subtrux in its sole discretion.
- (Notice means any notice, demand, consent or other communication.
- Officer has the meaning given in the Act.
- Permitted Timeframe means the period of time in which Driver may accept or decline a Job Brief once it has been notified to the Driver, as notified by Subtrux to the Driver from time to time.
- Personal Information means:
- information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; or
- information or a document that relates to the affairs or personal particulars of another person (such as a company or a business), which is received or learnt from any source as a consequence of or in the performance of this Agreement;
- “personal information” as defined in the Privacy Act that either party has collected, received or otherwise has access to in connection with this Agreement.
- Personnel means in respect of a person any employee, contractor, servant, officer, agent, or other person under the person’s direct or indirect control and includes any subcontractors.
- Privacy Act means the Privacy Act 1988 (Cth).
- Proof of Delivery means the proof of delivery document signed by the Receiver or the Sender (or as otherwise expressly provided in this Agreement). For the avoidance of doubt, this proof of delivery document includes an electronic version of the document signed by the Receiver or the Sender on the Driver’s Device.
- Receiver means the person responsible for receiving the delivery of the Goods of a Job.
- Regulatory Event means an amendment, repeal or change in Law, the enactment of a new Law, or a change in the interpretation or application of a Law (including privacy Laws), or a direction, notice or order of a Governmental Agency which is binding on Subtrux or the Driver.
- Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).
- Resulting Information means materials, data and insights derived or created by or on behalf of Subtrux or its Personnel, which are based on, or created or derived from, the Data.
- Sender Account means the provision of a registered sender account by Subtrux to the Sender to enable the Sender to access and use the Services.
- Sender Rating means the provision by the Driver of a rating of the Sender for each Completed Job and, optionally, the provision of comments or feedback about the Sender.
- Services means that Subtrux makes the Subtrux App available to the Sender to facilitate the matching of a Driver with a Sender when the Sender requires the transportation of Goods, with drivers who are available to transport those Goods.
- Service Fee means the amount calculated as a fixed percentage of the amount of the Job Calculation exclusive of GST, or the GST-exclusive amount charged for the Cancellation Fee (as applicable), which the Driver has no recourse to for any reason whatsoever.
- Subtrux App means the mobile or desktop application (as updated from time to time) or any other application (approved by Subtrux) used to provide the Services.
- Tax includes any tax, levy, impost, deduction, charge, rate, duty, compulsory loan or withholding that is levied or imposed by a Governmental Agency, and any related interest, penalty, charge, fee or other amount.
- Term means the period being the commencement of the Agreement from the Commencement Date and until the Agreement is terminated in accordance with its terms.
- Third-Party Content means links to third party websites, services or advertisements for third parties, which may be contained in the Subtrux App and/or Services.
- Transportation Services means the transportation of Goods by a Driver for a Sender (including, if applicable, the loading and unloading of the Goods under the instruction of a Sender or a Receiver).
- Vehicle means any vehicle registered to a Driver Account by a Driver, that meets the Vehicle Conditions, used by a Driver to provide Transportation Services.
- Update means any update or upgrade to the Subtrux App issued by from time to time.
- User Content means any and all information, data and other content that a Driver or Sender submits to, or uses with, the Subtrux App or Services.
- The following rules apply unless the context requires otherwise, or expressed to the contrary:
- headings are for convenience only and do not affect interpretation in this Agreement;
- any gender includes the other gender
- words in the singular include the plural, and the converse also applies;
- nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or a relevant part of it;
- if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
- a reference to a clause, paragraph, annexure or schedule is a reference to a clause of, paragraph of, annexure to, or Schedule to, this Agreement;
- a reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document
- a reference to a party to this Agreement or another agreement or document includes the party’s successors, permitted substitutes and permitted assigns (and, where applicable, the party’s legal personal representatives);
- a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
- a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in visible or tangible form;
- a reference to conduct includes an omission, statement or undertaking, whether or not in writing; a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind;
- mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included;
- a reference to dollars and $ is to Australian currency or such other currency set out in the relevant Order;
- a reference to time is local time in Melbourne; and
- a month means a calendar month.
- Subtrux will provide a Sender Account to a Sender in Subtrux•s sole discretion. Subtrux will only activate a Sender Account if the Sender has provided information reasonably required by Subtrux.
- A Sender Account is personal to a Sender and can only be accessed and used by the Sender (and/or appropriate Personnel) to which the Sender Account is registered.
- Once a Sender Account has been activated by Subtrux, the Sender will also be provided with Credentials. The Sender must keep their Credentials secure and confidential any only provide their Credentials to appropriate Personnel. A Sender must not use another Sender’s Credentials.
- All activity, including activity in breach of the provisions of this Agreement, undertaken using the Sender’s Credentials will be deemed to be the activity of the Sender.
- The Sender must notify Subtrux immediately if it becomes aware of any unauthorised use, or suspected unauthorised use, of the Sender Account.
- Subtrux may suspend or deactivate the Sender Account in the following circumstances:
- a breach of the terms of this Agreement by the Sender;
- the Sender receives negative ratings or reviews from a Driver, and/or the Sender consistently receives Sender Ratings considered unacceptable by Subtrux.;
- The Sender uses the Services to be matched to a Driver and then obtains or attempts to obtain Transportation Services independently of the Subtrux App and/or Services for any reason.
- The following information must be provided by the Sender in a Job Brief:
- Information about the Goods including, but not limited to:
- The weight of the Goods; and
- The dimension of the Goods.
- The Collection Point;
- The Delivery Time;
- The Collection Time;
- Contact details of any person other than the Sender;
- The Delivery Point, or Delivery Points (as the case may be);
- Whether the Driver may deliver the Goods to any unattended Delivery Point;
- The Receiver (if not also the Sender), including the Receiver’s contact details;
- Confirmation that the Vehicle selected is appropriate to deliver the Goods;
- Confirmation that the Goods are not Dangerous Goods;
- Confirmation that the quote for the Job Brief is acceptable; and
- Any other information required to ensure that Subtrux can make the most suitable match.
- Information about the Goods including, but not limited to:
- The Sender is solely responsible for the information contained in a Job Brief.
- At Subtrux’s sole discretion, Subtrux may deem a Job Brief to be inappropriate. In those circumstances, Subtrux will not be required to match the Job Brief to a Driver.
- If a Driver is matched to a Sender, the Driver will receive the Job Brief.
- The Driver will accept or decline a Job Brief within the Permitted Timeframe. If the Driver does not respond to the Job Brief within the Permitted Timeframe, the Driver will be deemed to have declined the Job Brief.
- The Sender may cancel a Job Brief at any time before it has been accepted by a Driver without charge.
- The Sender acknowledges and agrees that the Sender will enter into a separate agreement, which may or may not be in the form of a consignment note with the Driver for the carriage of the Goods once they have been matched using the Services, and any agreement or consignment note will not be inconsistent with the terms of this Agreement. The Sender represents and warrants that it will procure the consignor to enter into a consignment note with the Driver if the Sender is not the consignor.
Undertaking a Job & Location-based services
- Undertaking a Job will include, but is not limited to:
- Subtrux providing notification, if necessary, to the Sender of arrival of the Vehicle at the Collection Point;
- timely submission of all documentation required by Subtrux and the Sender (including Proof of Delivery); and
- Subtrux providing notification, if necessary, to the Sender of delivery of the Goods at each Delivery Point location.
- Once a Driver commences a Job after the Driver has been matched with a Sender, the Driver will proceed to the Collection Point for the Job. If the Sender cancels a Job between the time the Driver commences a Job and the time Driver arrives at the Collection Point to undertake a Job, the Sender will be charged a Cancellation Fee.
- The Sender must ensure that the Goods are packed in a safe and transportable form from the Collection Point.
- If the Driver has appropriate equipment to enable the Driver to load and unload the Goods in a safe and manner that is complies with all Laws, then Driver may do so. Otherwise, the Driver will not be responsible for loading and unloading the Goods. The Driver and the Sender must both ensure that the load is secure and that the load has adequate load restraint in accordance with all Laws.
- If the Goods at the Collection Point do not match the description in the Job Brief, such as in relation to dimension, and, consequently, the Goods are too big or too heavy for the capacity of the Vehicle, or the Driver considers that the Goods do not comply with Laws or are otherwise Dangerous Goods, the Driver may reject the Job Brief or the Job and the Sender will be charged a Cancellation Fee.
- The Sender is entitled to propose a Job Amendment and the Driver is entitled to accept the Job Amendment. If a Job Amendment is accepted, further fees may apply. If the Driver does not accept a Job Amendment before commencing the Job and the Sender does not wish to continue with the Job, the Driver may reject the Job without charge.
- If the Driver does not accept a Job Amendment after commencing the Job and the Sender does not wish to continue with the Job, the Driver is entitled to reject the Job and the Sender will be charged a Cancellation Fee.
- (The Sender acknowledges and agrees that the Sender’s geo-location information may be obtained by Subtrux while the Subtrux App is running and the approximate location of the Sender and/or the Collection Point and the Delivery Point will be displayed to the Driver before and during the provision of Transportation Services to such Sender. In addition, Subtrux, its Related Bodies Corporate and its Affiliates may monitor, track and share with third-parties the Sender’s geo-location information obtained by the Subtrux App and Device for safety and security purposes.
- The Sender agrees and acknowledges that Subtrux may ask for permission to access certain hardware or software features of the Device (such as location services). Subtrux will only access these features with the consent of the Sender, and only for the purpose of enabling the particular functions of the Subtrux App. If the Sender does not consent, the Sender may not be able to use or receive the benefit of some or all of the functionality of the Subtrux App or the Services. The Sender acknowledges and agrees that information collected about their location may be disclosed to third parties including the Driver for the relevant Job.
- The Driver will be solely responsible for any and all liability which results from the provision of the Transportation Services, including any Loss, damage, injury or delay. To the extent permitted by Law, Subtrux disclaims any liability to the Sender or any third-party arising from or in connection with the provision of Transportation Services.
- The Sender acknowledges and agrees that payment of a Cancellation Fee is a genuine pre-estimate of the Loss suffered by Subtrux and/or the Driver.
- The Driver must obtain a Proof of Delivery from the Receiver once the Goods have been delivered to the Delivery Point.
- The Sender is responsible for all of the information and instructions that is given to the Driver by a Receiver (including in relation to unattended Delivery Sites). The Sender must ensure that the Receiver is available to accept delivery of the Goods. The Sender will remain responsible for all costs and expenses associated with redelivery. Further charges will be incurred by the Sender if redelivery is required.
- The algorithm for the Job Calculation may include any parameters considered relevant by Subtrux, which may change from time to time and Subtrux may change the Job Calculation at any time.
- Subtrux will issue the Sender an Invoice, which Invoice the Sender may dispute in writing within the Dispute Period. The dispute must be made in writing to Subtrux by the Sender. Subtrux is under no obligation to amend or withdraw an Invoice which has been disputed by the Sender within the Dispute Period, or at all.
- If the Invoice has not been amended or withdrawn after a dispute has been made within the Dispute Period, or if an Invoice is not disputed with the Dispute Period, the Job will become a Completed Job.
Damage and injury claims
- The Sender agrees to notify Subtrux of any damage to Goods or other property, or injury caused or incurred, in relation to the provision of the Transportation Services as soon as practicable after the damage or injury occurs.
- Without limiting the provisions of this Agreement, the Sender agrees and acknowledges that the Driver will be responsible for any damage to Goods or other property or injury caused or incurred in the course of providing Transportation Services, and the Sender will need to resolve any Claim directly with the Driver or a third-party (including any dispute over insurance coverage). The Sender expressly indemnifies Subtrux for any Claim in relation to the damage to Goods, or other property or injury caused in relation to the provision of the Transportation Services.
- The Sender will fully co-operate with the Driver and/or Subtrux to resolve any damage or injury claims as quickly as possible.
- You acknowledge and agree that:
- from time to time, after providing the Transportation Services, the Driver will provide Sender Ratings for each Job and in good faith, and the Sender may provide Driver Ratings for each Completed Job.
- The Driver Ratings and the Sender Ratings will be used by Subtrux to monitor and improve the standard and provision of the Services.
- Subtrux desires that Drivers have access to high-quality services via the Subtrux App. In order to continue to receive access to the Subtrux App and the Services, the Sender must maintain a Minimum Sender Rating. The Sender Rating is intended to reflect the Drivers’ satisfaction with the Sender.
- In the event the Sender’s average rating falls below the Minimum Sender Rating, Subtrux will notify the Sender and may provide the Sender, in Subtrux’s discretion, a limited period of time to raise the Sender’s average rating above the Minimum Sender Rating. If the Sender does not increase the Sender’s average rating above the Minimum Sender Rating within the time period allowed (if any), Subtrux reserves the right to deactivate the Sender’s access to the Subtrux App and the Services.
- If the Sender consistently receives Sender Ratings considered unacceptable by Subtrux, Subtrux may, at its sole and absolute discretion, deactivate a Sender Account and/or terminate this Agreement.
- Where the Sender is dissatisfied with the Sender Ratings provided by a particular Driver for a particular Job, the Sender may contact Subtrux and the parties will engage in good faith discussions with the view to resolving the matter raised by the Sender. This clause is not subject to the dispute resolution procedure set out in this Agreement. Subtrux is under no obligation to amend or remove Sender Ratings following such discussions.
- Subtrux and its Affiliates reserve the right to use, share and display the Sender Ratings and comments in any manner in connection with the business of Subtrux and its Affiliates without attribution to the Sender.
- The Sender acknowledges and agrees that:
- it will be charged for Completed Jobs in accordance with any agreed rates, or the Job Calculation.
- it will pay Subtrux any agreed rate for each Completed Job and any applicable Cancellation Fees.
- Subtrux is responsible for the collection of the payment for Completed Jobs and Cancellation Fees from Senders as a collection agent for the Driver.
- it must pay all Invoices properly issued upon the creation of a Job Brief, or if the Sender satisfies Subtrux’s requirements to establish an account, within 14 days of the Invoice (unless otherwise agreed).
- When GST is deemed payable on a supply made in connection with this Agreement, the party that pays consideration for the supply is responsible for paying further consideration of an amount equating to the amount of GST on that supply.
- When amounts are referred to under this Agreement, it is exclusive of GST, but unless otherwise stated.
- Where any indemnity, reimbursement or similar payment under this Agreement is based on any cost, expense or other liability, it shall be reduced by any input tax credit entitlement, or notional input tax credit entitlement, in relation to the relevant cost, expense or other liability.
- If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
- A party must provide proper tax invoices if GST is applicable and if the party is required to provide an invoice.
- The clauses relating to GST under clause 10 do not merge on completion and they will be applicable after expiration or termination of this Agreement.
- Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 shall have that meaning in this Agreement.
Use of Subtrux App and Services
- The Sender:
- must not do any act that we would deem to be inappropriate, is unlawful or is prohibited by any laws applicable, including but not limited to:
- any act that would constitute a breach of either the privacy or any other of the legal rights of individuals;
- defaming or libelling Subtrux, its Personnel, Affiliates, Related Body Corporate, or other individuals;
- is not permitted, and the Sender must not:
- copy the Subtrux App unless otherwise provided by this Agreement for the normal use of the Subtrux App;
- rent, lease, sub-license, loan, decipher, translate, integrate, adapt, vary or modify the Subtrux App in any way;
- alter or modify any part of the Subtrux App, or permit the Subtrux App or any part of it to be combined with, or become incorporated in any other programs;
- disassemble, decompile, reverse engineer or create derivative works based on the whole or any part of the Subtrux App or attempt to do any such thing;
- provide or otherwise make available the Subtrux App in any form to any person without the prior written consent of Subtrux;
- infringe Subtrux’s Intellectual Property Rights or those of any third-party in relation to the Sender’s use of the Subtrux App or Services;
- transmit or submit using the Subtrux App or Services any material or User Content that is defamatory, offensive or otherwise objectionable;
- use the Subtrux App or Services in a way that could damage, disable, overburden, impair or compromise Subtrux’s systems or security or interfere with other users; and
- collect or harvest any information or data, or attempt to decipher any transmissions to or from the servers used by Subtrux.
- must not do any act that we would deem to be inappropriate, is unlawful or is prohibited by any laws applicable, including but not limited to:
- Subtrux may, at any time and in Subtrux’s sole discretion, prohibit, suspend or otherwise restrict the Sender from accessing the Subtrux App or the Services for any reason whatsoever.
- At any time during the Term and for at 12 months following the Term, Subtrux may engage an independent third-party auditor to, carry out an audit and inspection of the Sender to determine that the Sender is complying with the terms of this Agreement, the associated costs of which will be at Subtrux’s expense.
- Each audit must be conducted during normal business hours and in a manner designed to not unreasonably interfere with the Sender’s ordinary business.
Intellectual Property Rights & Ownership
- Subtrux and/or its licensors own or license from third parties all rights, title and interest (including Intellectual Property Rights in the Subtrux App and Services) in the Subtrux App and Services and in all other material in the Subtrux App and Services, which remains with Subtrux and/or its licensors at all times.
- Subject to the Sender’s compliance with this Agreement, Subtrux grants to the Sender a non-transferable and non-exclusive license to install, view, use and display the Subtrux App during the Term for personal and business purposes only provided that the business purpose is solely and directly related to the provision by the Driver of the Transportation Services to the Sender.
- Any reproduction or redistribution of the Subtrux App or Services is prohibited.
- Under no circumstances does Subtrux confer a, nor is the Sender entitled to, sub-license or otherwise provide the Subtrux App or Services to any third-party. Nothing in this Agreement grants or transfers any rights, title or interest to the Sender.
- The Sender acknowledges and agrees that the availability of the Subtrux App is dependent on the App Store. Each App Store may have its own terms and conditions which the Sender agrees to comply with, and the licence granted under this clause is conditional on the Sender’s compliance with any such terms and conditions.
- The Sender agrees that:
- from time to time, Subtrux may use any Feedback in any way in which it desires or deems appropriate and the use of such Feedback will not be considered confidential or proprietary information;
- the Sender will assign, procure the assignment of, any existing or future Intellectual Property Rights in any Feedback to Subtrux upon its creation. All such Intellectual Property Rights vest in Subtrux absolutely.
- The Sender agrees and acknowledges that:
- user Content is the sole responsibility of the Sender and Subtrux is not be responsible for any User Content and provides no guarantees regarding the accuracy, currency, suitability or quality of any User Content.
- the Sender grants Subtrux a perpetual, worldwide, transferable, non-exclusive right to access, use, adapt, modify, reproduce, reformat, transform, process, commercialise and exploit, and create Resulting Information from, User Content and the Data to the extent necessary to undertake such activities.
- Subtrux may disclose User Content to third-party service providers, if Subtrux merges with or is acquired by a third-party, or to comply with applicable Laws.
- the Subtrux App and/or Services may contain Third-Party Content. Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, Subtrux does not endorse and is not responsible for any Third-Party Content and has no control over or rights in Third-Party Content.
- Subtrux intends to use and/or aggregate the Data in conjunction with other information collected or obtained by Subtrux, and the Sender agrees that Subtrux is permitted to make full use of, commercialise and exploit the Data for those purposes.
- the Sender will assign, procure the assignment of, any existing or future Intellectual Property Rights in any Resulting Information to Subtrux upon its creation. All such Intellectual Property Rights vest in Subtrux absolutely.
- Without limiting the foregoing, the Sender agrees and acknowledges that Subtrux may disclose Data and Resulting Information to any third-party in its sole discretion.
- A party must not disclose, unless for a purpose contemplated by this Agreement, the existence of and terms of this Agreement or any other Confidential Information.
- However, a party may disclose any Confidential Information:
- to the other party to this Agreement;
- under corresponding obligations of confidence as imposed by this clause, to persons which control or are controlled by the party within the meaning of the Act, and the employees, legal advisors or consultants of such persons;
- for the purpose of enforcing this Agreement;
- if required by Law (but only to the extent required);
- to its legal advisers, its insurers and its consultants; or
- with the prior written consent of the other party to this Agreement.
- The Sender remains at all times responsible for ensuring the confidentiality of the Confidential Information. The Sender will be deemed to have breached their obligations under this Agreement if any officer, employee, agent or adviser of the Sender or any Affiliates of the Sender, commits any act or omission that, if committed by the Sender, would be a breach of this document.
- The Sender acknowledges that monetary damages may not be a sufficient remedy for a breach of this Agreement and Subtrux, its Affiliates or Related Bodies Corporate may seek and are entitled to remedies such as injunctive relief to prevent the breach and orders of specific performance to compel compliance.
- If the Sender is required by Law to disclose the Confidential Information to a third person, the Sender must:
- Immediately notify Subtrux in writing a provide any assistance reasonably requested by Subtrux to oppose disclosure of the Confidential Information;
- Use all reasonable endeavours when making disclosure to prevent disclosure of the Confidential Information into the public domain; and
- Only disclose so much of the Confidential Information as is legally required.
- The Sender agrees to indemnify and keep indemnified Subtrux against:
- any Claim, action, liability, loss, damage, cost and expense that Subtrux suffers, incurs or is liable for, whether directly or indirectly, as a result of:
- a breach by the Sender of its obligations under this document; or
- any act or omission by an Officer, employee, agent or adviser of the Sender which is deemed to be a breach of this document by the Sender;
- any Claim, action, liability, loss, damage, cost and expense that Subtrux suffers, incurs or is liable for, whether directly or indirectly, as a result of:
- all costs and expenses (including legal costs and disbursements on a full indemnity basis) incurred by Subtrux in enforcing its rights under this document.
- Each indemnity is a continuing obligation, constitutes a separate and independent obligation of the party giving the indemnity from its other obligations under this Agreement and it survives termination of this Agreement.
Publicity & Privacy
- The Sender agrees that Subtrux may:
- disclose to third-parties the fact that the Sender has entered into this Agreement with Subtrux; and
- use de-identified information about the Sender, in any marketing or other material used by Subtrux.
Representations and Warranties
- Each party represents and warrants that:
- it has full power, authority and legal capacity to enter into this Agreement and perform its obligations under this Agreement;
- execution and performance of this Agreement will not result in a breach of any terms or conditions of any instrument or agreement to which it is a party; and
- it shall obtain and maintain all Consents applicable or necessary in order to perform its obligations under this Agreement.
- The Sender represents and warrants to Subtrux that:
- the Sender will take all reasonable steps to prevent breaches of any applicable Laws (including in relation to road transport mass, dimension, loading, speed compliance, work hours and occupational health and safety);
- The Sender will comply with all Laws.
- Subtrux may make Updates available to the Sender from time to time. The Sender must install any Updates as soon as reasonably practicable upon receipt. Once installed, Updates will be deemed to form part of the Subtrux App.
- To the extent permitted by Law (including the Australian Consumer Law if applicable), Subtrux shall not be liable for any failure of the Subtrux App or the Services to operate in accordance with this Agreement, or to otherwise meet any warranties or representations set out in this Agreement or required under Law, unless the Sender has installed all Updates pursuant to this clause.
- Subject to the requirement to give notice under this clause, if the performance by any party (“Affected Party”) of all or any of its obligations under this Agreement is prevented or delayed in whole or in part due to any Force Majeure Event, this Agreement will continue and remain in effect but the Affected Party will not be in breach of this Agreement for that reason only, and the Affected Party will be granted a reasonable extension of time to complete performance of its affected obligations.
- The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.
- After 14 days (or earlier if agreed by the parties) of being given notice, either party may terminate the Agreement or negotiate to allow part fulfilment or deferment of the obligations of either party under this Agreement.
- Upon completion of a Force Majeure Event, the Affected Party must, as soon as reasonably practicable, recommence the performance of its obligations under this Agreement.
- A Force Majeure Event does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.
- The Driver has no entitlement to, and Subtrux has no liability for:
- any costs, losses, expenses, damages or the payment of any part of the contract price during a Force Majeure Event;
- any delay costs in any way incurred by the Sender due to a Force Majeure Event.
- Either party may terminate this Agreement with immediate effect by giving written notice to the other party at any time if either party breaches a provision of this Agreement, which is incapable of being remedied. However, where a breach is capable of remedy, and party fails to remedy the breach within seven days after receiving notice from the terminating party requiring it to do so.
- Where an Insolvency Event occurs, either parties may terminate this Agreement.
- At any time, by mutual agreement, the parties may terminate this Agreement.
- Without limiting this Agreement, Subtrux may suspend the Sender•s access to the Services or terminate this Agreement with immediate effect if the Sender makes any intentional or fraudulent misrepresentation;
- If a Regulatory Event that, in the reasonable opinion of Subtrux, may affect the subject matter of this Agreement occurs or is likely to occur during the Term, Subtrux may immediately suspend the performance of this Agreement or terminate this Agreement without liability to the Sender.
- If the Sender elects not to accept variations to this Agreement, the Sender will be deemed to have terminated this Agreement with immediate effect.
- Either party may terminate this Agreement for convenience and without incurring liability to the other party at any time by giving at least 30 days’ written notice to the other party.
Consequences of Termination
- On termination of this Agreement for any reason:
- all rights granted to the Sender under this Agreement shall cease;
- any Sender Account will be deactivated and any User Content may be deleted;
- the Sender must cease all activities authorised by this Agreement;
- the Sender must return all Confidential Information and Intellectual Property (if any); and
- the Sender must immediately delete or remove the Subtrux App from all Devices, and immediately destroy all copies of the Subtrux App in its possession.
- The Sender must, within 14 Business Days of termination, pay to Subtrux all fees incurred and/or owing under the Agreement up to and including the date of termination or expiry.
- The Sender agrees and acknowledges that, to the extent permitted by Law, and without limiting the provisions of this Agreement, Subtrux does not represent, warrant or accept any liability in relation to the accuracy, currency, security, reliability or quality of the Subtrux App or the Services.
- Subtrux disclaims any warranties, representations or endorsements, express or implied, with regard to the Subtrux App or the Services, including all implied warranties of merchantability, fitness for a particular purpose, or non-infringement.
Indemnities, Releases & Limitation of Liability
- Subtrux shall defend, hold harmless and indemnify the Sender from and against any Loss suffered or incurred by the Sender arising out of or in connection with any Claim that the Services infringe any Intellectual Property Right or other right of any third-party, except to the extent that such Loss is caused or contributed to by an act or omission of Sender.
- The Sender shall defend, hold harmless and indemnify the Indemnified Parties from and against any Loss suffered or incurred by the Indemnified Parties arising out of or in connection with:
- any breach of this Agreement or any applicable Laws;
- the death or injury of any person arising out of or otherwise in connection with any negligence or wrongful act or omission of the Sender or its Personnel;
- any fraud (including intentional and/or fraudulent misrepresentation), criminal activity, negligence or wilful misconduct of the Sender or its Personnel;
- any Claim by any person (including the Sender) in connection with any Feedback, User Content or data used or disclosed by Subtrux in connection with this Agreement;
- any Claim by any person (including the Sender) that is connected with use by the Sender of the Services; or
- any loss or damage to property arising out of or otherwise in connection with any wrongful act or omission of the Sender.
- Each indemnity is a continuing obligation, constitutes a separate and independent obligation of the party giving the indemnity from its other obligations under this Agreement and it survives termination of this Agreement
- To the extent permitted by Law, under no circumstances will the total liability of Subtrux for any Loss, direct or otherwise, exceed the Liability Cap. The limitation of liability under this clause is cumulative and not per incident or Claim and, to the extent permitted by Law, under no circumstances will Subtrux be liable for any Consequential Loss.
- The limitations and exclusions in this clause shall apply to any liability.
- This clause does not apply to, and shall not limit, any party’s liability:
- for death or personal injury caused by that party or its Personnel;
- for fraud (including fraudulent misrepresentation); or
- under any indemnity given in this Agreement.
- The contract between Subtrux and the Sender is binding on the parties and their respective successors and assigns.
- Except as provided in this Agreement, the Sender must not, without the prior written consent of Subtrux, transfer, assign, charge, subcontract or otherwise dispose of this Agreement, or any of its rights or obligations arising under it.
- Subtrux may transfer, assign, charge, subcontract or otherwise deal with an Agreement, or any of its rights or obligations arising under it, at any time during the term of the Agreement.
- Neither party may commence any court or arbitration proceedings relating to a Dispute unless it has complied with the provisions of this clause, except to seek urgent interlocutory relief.
- A party claiming that a Dispute has arisen must promptly notify the other party in writing by giving details of the Dispute (“Notice of Dispute”). The parties must use reasonable endeavours to resolve any Dispute.
- If the parties are not able to resolve the Dispute 20 Business after the Notice of Dispute is given to the other party, either party may immediately refer the Dispute to mediation and the parties will use reasonable endeavours to resolve the Dispute following the ADC Guidelines. Each party must bear its own costs in relation to complying with this clause, except for the costs and expenses of the mediation, which will be borne by the parties equally.
- A Notice given to a party under this Agreement must be addressed to the party’s address last notified by the intended recipient of the Notice.
- Notices are deemed to have been given or made:
- in the case of delivery in person, upon hand-delivery;
- in the case of delivery by pre-paid post, on the third Business Day following postage;
- in the case of delivery by email:
- provided the email is sent by 4pm on a Business Day and no answer-back message is received within 24 hours indicating the email did not reach its destination or the recipient is not available, then on that Business Day; or
- otherwise on the next Business Day.
- If delivery or receipt occurs on a day that is not a business day in the place to which the Notice is sent or is later than 4:00pm (local time) at that place, it will be taken to have been given at the commencement of business on the next business day in that place.
Relationship of the Parties
- The Sender’s relationship with Subtrux under this Agreement is solely one of service provider and service recipient (including, as part of that relationship, a licensor and licensee relationship). Nothing in this Agreement constitutes or shall be deemed to constitute a partnership, employment arrangement, joint venture or agency between the Sender and Subtrux for any purpose whatsoever and except as provided in this Agreement, neither party has the authority or power to bind the other or to contract in the name of and create a liability against the other in any way or for any purpose.
- The Sender acknowledges and agrees that the provision of Transportation Services to Senders by the Drivers creates a direct business relationship between the Driver and the Sender. Subtrux is not responsible or liable for the actions or inactions of a Sender in relation to the Driver, nor the Driver’s actions or inactions in relation to the Sender.
- Subtrux retains the right to deactivate or otherwise restrict the Sender from accessing or using the Subtrux App or the Services in the event of a breach or alleged breach of this Agreement, the Sender’s disparagement of Subtrux or any of its Affiliates, the Sender’s act or omission that causes harm to Subtrux or its Affiliates’, reputation or business as determined by Subtrux in its sole discretion.
- Each party warrants for itself that it has full power and authority to enter into this Agreement and entry in this Agreement by that party has been duly authorised and represents a proper exercise of power of that party.
- This Agreement may be signed in counterparts and all counterparts taken together constitute one document.
- Subtrux may vary or amend the terms and conditions of this Agreement from time to time to reflect changes in market and industry, including changes in technology used to provide the products and services under this Agreement, changes in payment methods, changes in Laws and changes in Subtrux’s systems.
- Subtrux will notify the Sender of any variation or amendment to this Agreement in writing. The Sender must accept the amended and/or varied terms to continue its use of the Subtrux App and the Services. If the Sender does not agree to the amended terms, the Sender will be deemed to have exercised its right to terminate the Agreement pursuant to clause 22(f) of this Agreement.
- A provision of or a right created under this Agreement may not be waived or varied except in writing signed by the party or parties to be bound.
Time of the essence
- The parties to this Agreement acknowledge and agree that where a time is specified for the performance of any of the obligations in this Agreement, time shall be of the essence.
- A provision of this Agreement must not be construed to the disadvantage of a party simply because that party was responsible for its preparation or inclusion.
- Each party must, at its own expense, whenever requested by another party, promptly do or cause to be done everything reasonably necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.
- This Agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this document and have no further effect.
- No failure to exercise or delay in exercising any right, remedy or power under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, remedy or power does not preclude any other or further exercise of that or any other right, remedy or power. A waiver is not valid or binding on the party granting that waiver unless made in writing.
Rights & Remedies Cumulative
- The rights, remedies and powers of the parties under this Agreement are cumulative and not exclusive of any rights, remedies or powers provided to the parties by law.
- Without limiting any other provision of this Agreement, any clauses which should by their nature survive termination of this agreement, survive termination or expiration of this Agreement for any reason.
- The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this Agreement.
- If a provision of this Agreement which is deemed invalid or unenforceable in a jurisdiction, it is read down and ineffective (to the point of severance if necessary) in that jurisdiction to the extent of the invalidity or unenforceability. That does not:
- invalidate the remaining provisions of this Agreement; nor
- affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions.
- Except as provided by this Agreement, each party agrees to bear his or her or its own costs and expenses (whether legal or otherwise) arising out of the negotiation, preparation, execution and completion of this Agreement.
Governing law and jurisdiction
- This Agreement shall be governed by the laws of Victoria and of the Commonwealth of Australia. Each party irrevocably accepts andsubmits to the jurisdiction of courts and tribunals with jurisdiction there and waives any right to object to the venue on any ground.