Terms And Conditions

Terms & Conditions

Definitions and interpretation
1. Definitions
  In this Agreement unless the context indicates otherwise, the following words have the following meanings:
  Agreement means these terms and conditions of service including any amendments made from time to time.
  Consumer means the user of the Website who engages a Service Provider to provide a Service on the Website.
  Erni means Erni Pty Ltd ACN 614 232 085, its successors and assigns.
  Erni Contract means the contract entered into between a Service Provider and a Consumer on or via the Website in connection with the provision of Services by the Service Provider to the Consumer, the terms of which are set out in the Schedule to this Agreement.
  Erni Fee means the fee payable to Erni in consideration of Erni brokering the Services as advised by Erni via the Website at the time of formation of the Erni Contract.
  Erni Services means the provision of an online platform allowing Service Providers to connect with Consumers.
  GST means the same as in the GST Law.
  GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  Parties means Erni and the User, and Party means either one of them.
  Service Provider means a user of the Website who publishes an offer to provide Services on or via the Website.
  Services means the services provided by the Service Provider to the Consumer under an Erni Contract. SP Fee means the fee payable to the Service Provider in respect of provision of the Services under an Erni Contract.
  Total Fee means the aggregate of the Erni Fee and the SP Fee.
  User means you, the person utilising the Erni Services.
  Website means www.erni.com.au.
2. Interpretation
  In this Agreement unless the context otherwise requires:
  1. words importing any gender include every gender;
  2. words importing the singular number include the plural number and vice versa;
  3. words importing persons include firms, companies and corporations and vice versa;
  4. references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
  5. reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
  6. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
  7. the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
  8. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment;
  9. the word “including” (and related forms including “includes”) means “including without limitation”; and
  10. all references to money are to Australian dollars, and unless stated otherwise, are exclusive of GST.
Erni Services
1. Erni may provide the Erni Services, or refuse or discontinue to provide the Erni Services, to any person at any time in its absolute sole discretion.
2. In order to be eligible to create an account with Erni and receive the Erni Services, the User must be a natural person of at least 18 years of age.
Fees
1. Payment of Fees
  1. Upon the forming of an Erni Contract and unless provided otherwise in this Agreement, the Consumer must pay the Total Fee as directed by Erni.
  2. The User agrees that the Total Fee will be held by Erni or its third-party service provider and will only be dealt with in accordance with clauses 5.0(c) and 5.0(d) of this Agreement.
  3. Unless expressly stated otherwise, the Total Fee is exclusive of any GST that may be charged by Erni and the Service Provider.
  4. Erni will provide the User with a tax invoice in accordance with the GST Law in relation to the Erni Fee payable under this clause. For clarity, a separate tax invoice will be provided by the Service Provider in respect of the SP Fee attributable to the Services provided to the Consumer.
  5. All Total Fees payable to Erni must be paid by the User without any deduction or set-off.
  6. Erni will not be liable for any reasonable delay in the release of the Total Fee to the Service Provider or Consumer (as the case may be).
2. Variation of Fees
  Erni is entitled to vary the Erni Fee at any time, acting reasonably, by providing notice of the same to the User provided that such variations do not apply to any Erni Contracts entered into prior to the time that the notice is provided.
User’s Conduct
The User must at all times whilst it maintains an online account with Erni:
1. comply with the terms of this Agreement (including all other Erni policies and the Erni terms of use advised from time to time);
2. comply with the terms of any Erni Contract entered into by the User;
3. ensure the accuracy of the information posted by them on the Website;
4. not use the Website for any illegal or otherwise unethical purpose;
5. not request or arrange for payment for Services to be provided by the Service Provider to a Consumer external to the Website;
6. maintain full control of the User’s online account;
7. not post any information on the Website or any other medium, or engage in any behaviour, which does or is capable of harming Erni or any other User, including (without limitation) posting information that may be defamatory, threatening or harassing, or which contains any information that may be harmful to the Erni platform;
8. ensure that it does not engage in any conduct which may infringe upon the intellectual property or other proprietary rights of any other person;
9. comply at their own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority; and
10. in respect to the Website, not:
  1. use the Website in any manner that does or could potentially undermine the security of the Website or any data or information stored on the Website;
  2. attempt to, interfere with, modify or disable any features, functionality or security controls of the Website;
  3. defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Website or any data or information stored on the Website;
  4. copy part or all of the Website;
  5. modify, adapt, translate, tamper with, reverse engineer or otherwise derive source codes, underlying ideas, algorithms, structure or organisational form for the Website or attempt to do any of those things; or
  6. use robots, spiders, scraping or other technology to access or use any information on the Website.
Erni Contracts
1. Service Providers may publish offers to provide Services in the form required by Erni (the SP Offer).
2. Where a Consumer accepts the SP Offer, the Consumer and the Service Provider agree to engage one another on the terms set out in the Erni Contract. For the avoidance of doubt, the parties acknowledge that Erni is not a party to the Erni Contract.
3. The Erni Contract may be terminated by either the Service Provider or the Consumer giving written notice to the other prior to the Service Provider commencing the Services on the following conditions:
  1. in the case of termination by the Service Provider, the Consumer will receive a full refund of the Total Fee paid under the relevant Erni Contract;
  2. in the case of termination by the Consumer:
    1. if notice is provided no later than 12 hours before the time that the Service Provider is scheduled to provide the Services, the Consumer will receive a full refund of the Total Fee paid under the relevant Erni Contract;
    2. if notice is provided less than 12 hours before the time that the Service Provider is scheduled to provide the Services, Total Fees paid will be distributed as follows:
      1. 50% of the Erni Fee that would have been payable to Erni had the Services been provided will be payable to Erni;
      2. 50% of the SP Fee that would have been payable to the Service provider had the Services been provided will be payable to the Service Provider; and
      3. the remaining balance of the Total Fees held by Erni in connection with the relevant Erni Contract will be payable to the Consumer.
4. At least 48 hours after notification of completion of the Services has been receive by Erni from both the Consumer and the Service Provider, or upon Erni otherwise learning that the Services were provided, Erni will release the SP Fee to the Service Provider less the Erni Fee and Erni will be entitled to payment of the Erni Fee paid by the Consumer.
5. To the maximum extent permitted by law:
  1. Erni is not responsible or liable to the User in relation to any disputes arising in connection with the performance by either party under an Erni Contract to which the User is a party (Erni Contract Dispute); and
  2. the User indemnifies Erni against any loss, cost or expense that Erni may suffer or incur (including legal fees on a solicitor and own client basis) in relation to any claim made against Erni in connection with an Erni Contract Dispute,
  except to the extent arising from the default of Erni.
6. Service Providers are solely responsible for the Services carried out pursuant to any Erni Contract and are solely responsible for effecting any insurance that may be required to be taken out in connection with the provision of any such Services.
Limitation of Liability
1. The Service Provider and the Consumer acknowledge that:
  1. Erni does not carry out any form of investigation or due diligence into the Service Provider or the Consumer;
  2. Erni makes no endorsement of any kind regarding the suitability of the Service Provider or the Consumer; and
  3. the Service Provider and the Consumer engage with each other and enter into the Erni Contract entirely at their own risk after having the opportunity to conduct their own investigations and due diligence into each other.
2. To the maximum extent permitted by the applicable law:
  1. Erni does not make any warranties or representations other than those expressly set out in this Agreement; and
  2. all terms, representations and warranties that may be excluded by law regarding the Erni Services are expressly excluded from this Agreement.
3. If any legislation implies into this Agreement any term or warranty and also prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under, that term or warranty, it is deemed to be included in this Agreement.
4. To the maximum extent permitted by the applicable law, Erni expressly excludes liability for any:
  1. indirect, special, incidental, or consequential loss or damage suffered by the User which may arise in connection with this Agreement or in respect of other equipment or property;
  2. loss, damage or expense that the User may incur or suffer (as the case may be) as a consequence of any act or omission of any third party service provider in connection with the provision of the Erni Services;
  3. behaviour, wrongdoing or negligence of any other user of the Website, including in the event of a breach by either a Consumer or Service Provider pursuant to any Erni Contract; and
  4. loss of profit, business, revenue, goodwill or anticipated savings.
5. To the maximum extent permitted by law, if for any reason Erni is directly or indirectly liable to the User in respect of the provision of the Services, Erni’s liability is limited, at Erni’s option to resupplying, or paying the cost of resupplying, the Services in respect of which a breach by Erni occurred.
General
1. Force majeure
  1. Neither Party has any liability under or may be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party.
  2. The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
  3. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
  4. Both Parties acknowledge that the failure to perform an obligation under this Agreement because of anything set out in this clause 7.1(a) will not entitle either Party to treat this Agreement as repudiated.
2. Amendment
  Erni may amend any term of this Agreement at any time, acting reasonably, by providing written notice to the User, provided that any such amendment does not apply to any Erni Contract entered into prior to the time that the notice is provided.
3. Assignment
  This Agreement may be assigned, transferred or novated by Erni without the User’s consent.
4. Entire agreement
  1. This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement.
  2. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
5. Waiver
  1. No failure or delay by Erni in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
  2. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
6. Agency, partnership etc
  1. This Agreement does not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
  2. Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
7. Further assurance
  Each Party to this Agreement must at the request and expense of the other do all things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
8. Severance
  If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
9. Law and jurisdiction
  This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Queensland, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Queensland, Australia.

SCHEDULE – ERNI CONTRACT

Definitions and interpretation
1. Definitions
  In this Agreement unless the context indicates otherwise, the following words have the following meanings:
  Agreement means this agreement which gives effect to the transaction contemplated by the Erni Contract including any amendments made from time to time.
  Consumer means the party to this Agreement who is engaging the Service Provider to provide the Services.
  Engagement means the Consumer booking the Services on the Website.
  Erni means Erni Pty Ltd ACN 614 232 085, its successors and assigns.
  Erni Contract means a contract entered into between the Service Provider and the Consumer on or via the Website in connection with the provision of Services by the Service Provider to the Consumer.
  Erni Fee means the fee payable to Erni as displayed on the Website at the time of formation of the Erni Contract in consideration of Erni providing the Erni Services.
  Erni Services means the provision of an online platform allowing the Service Provider to connect with the Consumer.
  GST means the same as in the GST Law.
  GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  Parties means the Service Provider and the Consumer, and Party means either one of them.
  Service Provider means the party to this Agreement who agreed to provide the Services to the Consumer.
  SP Fee means the fee payable to the Service Provider in respect of provision of the Services under this Agreement.
  Total Fee means the aggregate of the Erni Fee and the SP Fee.
  Services means the services provided by the Service Provider to the Consumer under this Agreement.
  Website means www.erni.com.au.
2. Interpretation
  In this Agreement unless the context otherwise requires:
  1. words importing any gender include every gender;
  2. words importing the singular number include the plural number and vice versa;
  3. words importing persons include firms, companies and corporations and vice versa;
  4. references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
  5. reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
  6. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
  7. the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
  8. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment;
  9. the word “including” (and related forms including “includes”) means “including without limitation”; and
  10. all references to money are to Australian dollars, and unless stated otherwise, are exclusive of GST.
Term
This Agreement commences an Engagement taking place and continues until terminated in accordance with clauses 6.0 or 9.1(c).
Services
1. Provide Services
  The Service Provider must complete the Services in the manner, at the location and at the time as agreed between the Parties from time to time.
2. Completion of Services
  Upon completion of the Services, both Parties must lodge a notification of that fact through the Website.
3. General Obligations
  The Service Provider must:
  1. comply with all applicable laws when performing the Services;
  2. use its best endeavours to obtain all approvals that may be necessary from any local, State, Commonwealth or other regulatory authority to carry out the Services;
  3. give prompt, courteous and efficient service to the Consumer, and must in all dealings with the Consumer and the public adhere to the strictest standards of honesty, integrity, fair dealing and ethical conduct;
  4. perform the Services in an orderly and businesslike manner;
  5. not subcontract any part of the Services without the prior written consent of the Consumer;
  6. effect and maintain all insurances in accordance with standard industry practice and otherwise required by law in respect of performing the Services; and
  7. remain responsible for the acts and omissions of its employees, agents and servants.
Fees
1. Payment
  1. Upon the forming of an Erni Contract and unless provided otherwise in this Agreement, the Consumer must pay the Total Fee to Erni or Erni’s nominated recipient.
  2. If this Agreement is terminated by either Party prior to the Service Provider commencing the Services, the Total Fees paid will be distributed in accordance with clause 6.1.
  3. 48 hours after notification of completion of the Services in accordance with clause 3.2, or Erni otherwise learning that the Services have been completed, Erni will release the SP Fee to the Service Provider less the Erni Fee.
  4. Unless expressly stated otherwise, the Total Fees are exclusive of any GST that may be charged by the Service Provider and Erni.
  5. The Service Provider will provide the Consumer with a tax invoice in accordance with the GST Law in relation to SP Fees payable under this clause. For clarity, a separate tax invoice will be provided by Erni in respect of the Erni Fee.
  6. The Total Fees payable to Erni and the Service Provider must be paid by the Consumer without any deduction or set-off.
2. Secret Commissions
  The:
  1. Consumer must not in any circumstances whatsoever pay to the Service Provider; and
  2. Service Provider must not in any circumstances whatsoever accept from the Consumer, a secret commission or payment in connection with the Services other than the Total Fees paid to Erni.
Limitation of Liability
1. To the maximum extent permitted by the applicable law:
  1. the Service Provider does not make any warranties or representations other than those expressly set out in this Agreement; and
  2. all terms, representations and warranties that may be excluded by law regarding the Services are expressly excluded from this Agreement.
2. If any legislation implies into this Agreement any term or warranty and also prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under, that term or warranty, it is deemed to be included in this Agreement.
3. To the maximum extent permitted by the applicable law, the Service Provider expressly excludes liability for any:
  1. indirect, special, incidental, or consequential loss or damage suffered by the Consumer which may arise in connection with this Agreement or in respect of other equipment or property;
  2. loss, damage or expense that the Consumer may incur or suffer (as the case may be) as a consequence of any act or omission of any third party service provider in connection with the provision of the Services; or
  3. loss of profit, business, revenue, goodwill or anticipated savings,
  except to the extent arising from the default of the Service Provider.
4. To the maximum extent permitted by law, if for any reason the Service Provider is directly or indirectly liable to the Consumer in respect of the provision of the Services, the Service Provider’s liability is limited, at the Service Provider’s option to resupplying, or paying the cost of resupplying, the Services in respect of which a breach by the Service Provider occurred.
Termination
1. Prior to Commencement of Services
  This Agreement may be terminated by either Party giving written notice to the other prior to the Service Provider commencing the Services on the following conditions:
  1. in the case of termination by the Service Provider, the Consumer will receive a full refund of the Total Fee paid;
  2. in the case of termination by the Consumer:
    1. if notice is provided no later than 12 hours before the time that the Service Provider is booked by the Consumer to provide the Services, the Consumer will receive a full refund of all Total Fees paid;
    2. if notice is provided less than 12 hours before the time that the Service Provider is booked by the Consumer to provide the Services, Total Fees paid will be distributed as follows:
      1. 50% of the Erni Fee that would have been payable to Erni had the Services been provided will be payable to Erni;
      2. 50% of the SP Fee that would have been payable to the Service provider had the Services been provided will be payable to the Service Provider; and
      3. the remaining balance of the Total Fees held by Erni will be payable to the Consumer.
2. Completion of Services
  This Agreement will terminate once the Services are completed and all outstanding Total Fees (if any) are paid in full by the Consumer.
3. No Loss of Rights
  Termination of this Agreement for whatever reason will be without prejudice to the rights of either Party against the other and such termination will not relieve either Party of any of its obligations to the other existing at the time of termination or terminate those obligations of either Party which, by their nature, survive the termination of this Agreement.
RESOLUTION OF DISPUTES
1. Definitions
  For the purposes of this clause:
  Complainant means the person who starts the procedure in this clause.
  Respondent means the person with whom the Complainant has a dispute.
  Mediator means a person filling that role in relation to a dispute between the Parties, howsoever that person is appointed.
2. Dispute
  Except where a Party to this Agreement seeks urgent interlocutory relief where a dispute arises in relation to this Agreement, the Complainant must start the procedure outlined in this clause in which case the Respondent must abide by that procedure.
3. Procedure
  1. The Complainant will advise the Respondent that there is a dispute and will notify the Respondent in writing (Complainant’s Notice):
    1. the nature of the dispute;
    2. what outcome the Complainant wants; and
    3. what action the Complainant thinks will settle or resolve the dispute.
  2. The Parties will then try to agree about how to resolve the dispute. If the Parties cannot agree on a resolution within 7 days of service of the Complainant’s Notice the matter will be referred to mediation.
4. Mediation
  For mediation under this Agreement:
  1. the Parties will meet to agree on a Mediator, and providing agreement is reached, either Party may refer the matter to a Mediator agreed upon between the Parties;
  2. if the Parties cannot agree about who should be the Mediator within 14 days of the date of service of the Complainant’s Notice, either Party may ask the President of the Queensland Law Society at that time to appoint a Mediator;
  3. the Mediator may decide the time and place for Mediation; and
  4. the Parties will attend the Mediation and try to resolve the dispute.
5. Costs
  The Parties agree to:
  1. be equally liable for the costs of any Mediation, unless they agree otherwise; and
  2. pay for their own costs of attending any Mediation.
6. Referral of Dispute to Erni
  1. If a dispute arises in relation to this Agreement, either Party may notify Erni of that fact. Erni may in its absolute discretion provide any assistance as Erni deems necessary in an attempt to assist the resolution of the dispute. For clarity, nothing in this Agreement will oblige Erni to provide any such assistance to resolve the dispute.
  2. Upon notification to Erni of the existence of a dispute in accordance with clause 7.6(a), all Total Fees held by Erni in respect of the Services will be retained by Erni until Erni receives notification by both Parties that the dispute has been fully resolved.
Notices
A Party or its solicitor must give any notice required in the English language and in writing to a Party’s address set out in this Agreement (or as otherwise notified from time to time) and may serve the notice at that address by hand, prepaid post, email or fax. A notice will be taken to be received by the addressee:
1. if delivered by hand before 5:00pm on a business day, then on the day of delivery;
2. if posted to an address:
  1. within Australia, then on the third business day after the day of posting;
  2. outside Australia, then on the fifth business day after the day of posting;
3. if emailed and the sender has no reason to suspect the email was not delivered before 5:00pm (local time in the place of receipt), then on the first business day it could have been read by the addressee;
4. if faxed and the sender receives a delivery transmission confirmation report before 5:00pm, then on the day of delivery shown on the transmission confirmation report,
but in any other case the notice is taken to have been received on the next business day.
General
1. Force majeure
  1. Neither Party has any liability under or may be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party.
  2. The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
  3. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
  4. Both Parties acknowledge that the failure to perform an obligation under this Agreement because of anything set out in this clause 9.1(a) will not entitle either Party to treat this Agreement as repudiated.
2. Amendment
  No amendment to this Agreement will have any force or effect unless it is in writing and signed by all Parties to this Agreement.
3. Assignment
  This Agreement may not be assigned, transferred or novated by either Party without the written consent of the other Party.
4. Entire agreement
  1. This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement.
  2. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
5. Waiver
  1. No failure or delay by a Party in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
  2. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
6. Agency, partnership etc
  1. This Agreement does not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
  2. Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
7. Further assurance
  Each Party to this Agreement must at the request and expense of the other do all things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
8. Severance
  If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
9. Law and jurisdiction
  This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Queensland, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Queensland, Australia.