Terms and Conditions – Hiya Mate Pty Ltd
1 Overview
1.1 Hiya Mate Pty Ltd ACN 645 422 019 (we, us, our) operates the platform named Hiyamate with domain name hiyamate.com.au (Platform), a digital platform developed and owned exclusively by us which allows construction businesses with a surplus of employees (Supplier) to on-hire their employees (Staff) to businesses in need of labour (Client). These Terms and Conditions (Terms and Conditions) record an agreement between you (you, your), as the user, whether as a Supplier or a Client, and us for the purpose of your use of the Platform.
1.2 The key features accessed through the Platform include but are not limited to:
(Service).
1.3 We and our third-party licensors reserve the right to update, modify, replace, limit, and expand the Platform and its functionality.
1.4 Prior to using the Platform, you should read these Terms and Conditions carefully.
2. Acceptance of Terms and Conditions
2.1 By using the Platform, you are accepting these Terms and Conditions (Terms and Conditions) and agree to be bound by them.
2.2 We reserve the right to make changes to these Terms and Conditions from time to time without notice.
3. Subscription
3.1 At the time you register to use the Platform you may be required to provide:
(Client Data).
3.2 Failure to supply correct Client Data may result in us cancelling your registration.
3.3 You must update your Client Data if there are any changes to ensure that it is current and accurate at all times. You will update us to the extent you become aware of any such changes in relation to your account.
3.4 We may use the Client Data for the purpose of providing the functionality of the Platform and any related purpose. In order to do so, we may share the Client Data with other parties, including stakeholders and suppliers.
3.5 When you register to use the Platform, you will be asked to provide a contact email address. An activation email will be sent to this address together with your password and login details.
3.6 You are responsible for maintaining the security of your login and account information (including the password). We are not liable for any loss or damage from your failure to comply with this security obligation.
3.7 Our use of any personal information provided within the Client Data will be in accordance with our Privacy Policy available at https://hiyamate.com.au/privacy-policy/
4. Set up and use of the Platform
4.1 You will cooperate to perform and complete all required onboarding actions, including if necessary providing us with information that we may reasonably request, at your own cost to allow you to commence using the Platform and for us to provide the Service.
4.2 You are responsible for all activities that occur on your account, and we will not be liable for any loss or damage from activities on your account.
4.3 You must use the Platform for its intended purpose. You may not use the software for any illegal or unauthorised purpose, including the transmission of malware. You must not use the service to violate any laws in any jurisdiction, including but not limited to copyright laws.
5. Marketplace only
5.1 The Platform provides a marketplace through which Clients can obtain Staff from Suppliers for ad hoc work (Transaction). Our involvement in the Transaction is limited to that of a facilitator to the Transaction. We are not and do not purport to be a Suppler, Client, guarantor, or otherwise a contractual party to the Transaction.
5.2 Our involvement in the Transaction is limited to the following capacity:
5.3 In consideration of the Service, we deduct a commission as a percentage of the value of the Transaction (Commission). Please see clause 9 for further details.
5.4 When you on-hire Staff from a Supplier or to a Client, you are entering into a legally binding contract with the Supplier or Client. We are not a party to this contract and are not responsible for the performance of the Supplier or Client’s obligations under this contract.
5.5 You fully release and discharge us from any claims, actions, demands or proceedings which may arise from a Transaction. We are in no way liable for any obligation arising from a Transaction, and you fully indemnify and hold us harmless against any dispute arising from a Transaction for reasons including but not limited to:
5.6 For the avoidance of doubt, we are not nor do we purport to be, in relation to any Transaction:
6. Employment Obligations
6.1 As a Supplier or Client to a transaction, certain obligations may apply to you under Australian law, including under the Fair Work Act 2009 (FWA).
6.2 At all material times, the Supplier shall remain the employer of any on-hired Staff, and shall be fully and solely responsible for any employer obligations and employee entitlements arising under Australian law, including but not limited to:
6.3 When a Client and a Supplier enter into a Transaction, the legal relationship is between the Client and the Supplier only. All payment and other contractual obligations arising out of the Transaction are between the Client and the Supplier only. The Client is not obliged to pay the Staff directly and will instead pay the Supplier at the rate agreed to pursuant to the Transaction. At all material times, our involvement will be limited to facilitating the Transaction and facilitating payment from the Client to the Supplier.
6.4 The Supplier is solely responsible for ensuring that it has the legal capacity to on-hire Staff to the Client:
6.5 We disclaim to the maximum extent permitted by law all liability arising out of any employment obligations that apply to Staff that have been on-hired pursuant to a Transaction.
6.6 You indemnify us against and hold us harmless from any claims, damages, loss, costs including legal costs, and any other liability arising out of you or any other party’s failure to comply with their employer obligations under the FWA or any other Australian law.
7. Workplace Health and Safety
7.1 Clients are solely responsible for ensuring that their workplace is always a safe and legally compliant work environment for any Staff. We accept no liability for, and Clients indemnify and hold us harmless against any loss, damages, claims, costs including legal costs, or any other liability arising out of a Clients failure to always maintain safe and legally compliant work environments.
7.2 Clients and Suppliers are required at all times to maintain the minimum following insurance policies:
We may request at any time that you provide certificates of currency in relation to any applicable insurance policies and upon request you must provide such certificates within a reasonable time and in any event not less than 14 days. Failure to comply with the requirements of this clause 7.2 may result in us permanently or temporarily terminating or suspending your access to the Platform.
7.3 In the event of any workplace health and safety incident or dispute, WorkSafe Victoria must be contacted immediately or as soon as is reasonably possible and, where necessary, and investigation will be conducted by an officer nominated by us.
7.4 Without limiting clause 7.2:
7.5 We are not responsible for providing any equipment or tools that a Staff may be required to supply, access, or use when being on-hired to a Client. Unless the Supplier and Client agree otherwise, it is expected that the Client will provide the necessary tools and equipment for on-hired Staff to perform the work they are being on-hired to perform. Any tools and equipment supplied to Staff must be safe, functional, and compliant with any Australian standards, laws, or regulations.
8. Third Party Products or Services
8.1 We may display advertisements by third party sponsors on the Platform (Ads). In doing so, we do not warrant the functionality of the business, product, or service being advertised in the Ad. We do not hold ourselves out as partners, affiliates, guarantors, or as having any other type of legal or professional relationship with the third party sponsors.
8.2 Where Ads link to third party websites, we do not warrant the safety, functionality, or suitability of these websites. We are in no way liable for any loss, damage, risk or liability incurred from you visiting any third party websites accessible through Ads.
8.3 Advertised third party websites may be subject to their own terms and conditions. We do not warrant the validity or suitability of these third party terms and conditions.
8.4 The Platform may contain links to third-party websites not under our control or operation. We may provide any such links only as a convenience. We do not endorse and we are not responsible for nor have any control over the contents of any linked site or any link contained in a linked site. Linked sites may be subject to their own terms and conditions. We do not verify or warrant the legality or suitability of those terms and conditions, and we encourage you to read them before accessing or using the linked site. We accept no liability for any loss or damage suffered as a result of you accessing a linked site.
9 Fees and Payment
9.1 The fee to hire Staff is payable by the Client pursuant to this clause 9 (Client Fee). You must complete any forms required by us through the Platform to enable us to process payment of the Client Fee.
9.2 The Client Fee will be the amount stipulated by the Supplier to the Client prior to entering the Transaction. Overtime penalty rates will apply pursuant to statute.
9.3 Clients authorise us or any third-party service provider to debit their account at the relevant financial institution connected with the payment details identified and provided in their Client Data for payment of all Client Fees.
9.4 In consideration for the Service, we are entitled to receive a commission equal to 15% of the Client Fee (Commission), which will be deducted prior to remitting the Client Fee to the Supplier. We may update the Commission at any time and will provide you with 10 days’ notice prior to implementing new Commission arrangements.
9.5 The Client Fee is payable by the Client in full upon booking Staff from a Supplier. We will process payment of the Client Fee at the time of booking, which will be held until it is approved to be remitted to the Supplier. We may, at our absolute discretion, allow for payment of the Client Fee to be made in instalments. In such circumstances, payment of the Client Fee will be payable according to the instalment payment instructions made available through the Platform.
9.6 Once the Staff have completed their shift, they will be required to complete a worksheet through the Platform (Worksheet) within 48 hours of completing the shift. It is the Supplier’s responsibility to ensure that the Staff complete the Worksheet at the end of each shift.
9.7 Upon completion of the Worksheet, the Client will have 48 hours to confirm or challenge the Worksheet. If the Worksheet is not challenged, it will be assumed that the Worksheet is accepted.
9.8 If a Client wishes to challenge the Worksheet, the Client must include full details as to why the Worksheet is being challenged. We will then investigate the challenged Worksheet. If we determine, at our absolute discretion, that the challenge is valid, we may, at our absolute discretion, refund all or part of the Client Fee to the Client.
9.10 If a Worksheet is not completed within 48 hours, a notification will be sent to the Supplier reminding them to complete the Worksheet. If the Worksheet is not complete within 48 hours of the notification being received, it will be assumed that the Staff did not attend or complete the Shift, and the Client Fee may, at our absolute discretion, be refunded to the Client.
9.11 If the Worksheet is completed and accepted, the Supplier is entitled to receive the Supplier’s fee, which is the Client Fee less:
(Supplier Fee).
9.11 Accrued Supplier Fees will be remitted to the Supplier weekly each Wednesday.
9.12 If it is agreed or we determine that the on-hired Staff worked for a lesser period than booked for, the excess payment will be refunded to the Client.
9.13 If it is agreed or we determine that the on-hired Staff worked for a greater period than booked for, including due to Staff working overtime, the Client will be charged for the excess time, and any further money paid as a result will form part of the Client Fee.
9.14 It is the Client’s responsibility to ensure that there are sufficient cleared funds or financial capacity in the nominated account to honour payment of the Client Fee when it falls due.
9.15 We will not be held responsible for any fees and / or charges imposed by a financial institution or any other third party that may be incurred if there are insufficient funds in the Clients account or if the payment fails.
9.16 Clients and Suppliers are responsible for providing complete and accurate billing and contact information to us, and we will not be held responsible for any loss or damage caused by the provision of incomplete billing information.
10 Third party payment service
10.1 We utilise Stripe to process payments on the Platforms. Payments submitted through the Stripe payment processing service are subject to Stripe’s terms and conditions which can be viewed at https://stripe.com/au. We are not liable for any issues, including charges from your financial institution, which may arise as a result of this service.
10.2 From time to time we may use a payment service provider other than Stripe in which case payment will be subject to the relevant payment service provider’s terms and conditions.
11. Refunds
11.1 Notwithstanding any other provision of these Terms and Conditions, we are in no way required to refund any money spent in a Transaction.
12. Requirements of use
12.1 Staff must be on-hired for a minimum shift of four hours. We reserve the right to set a maximum time-period that Staff may be on-hired for. Any such limit will be displayed through the Platform.
12.2 We reserve the right to set a limit on the number of Staff that can be on-hired at any one time. Any such limit will be displayed through the Platform.
12.3 When Staff arrives on the Client’s worksite, it is the Client’s responsibility to ensure safety and performance standards by, at a minimum, attending to the following:
12.4 You will at all times interact with other parties on the Platform with professionalism, decency and respect, and that failure to do so may result in the permanent or temporary suspension or termination of your access to the Platform.
12.5 You bear sole responsibility for maintaining your listings and associated information in accordance with our guidelines which are accessible via the Platform and may be updated from time to time.
12.6 If you are a Supplier, you warrant and guarantee that you have full authority, title, and legal right and capacity to on-hire Staff.
12.7 If you are a Supplier, it is your responsibility to ensure that your Staff attend the Client’s worksite on time and in a fit state to work. Repeated instances of Staff failing to attend the Client’s worksite on time or at all may result in, at our absolute discretion, the Supplier’s account, or Staff profiles, being temporarily or permanently suspended or deleted.
12.8 You will not provide false or misleading information to us or to another party through the Platform.
12.9 Clients will not use the Platform as a means of head-hunting. Clients will not contact Staff by reaching out to them outside of the context of the Platform with the intent of poaching them from a Supplier. One or more reports of this may result in, at our absolute discretion, the Client’s account being temporarily or permanently suspended or deleted.
13. Accepting or declining a Transaction
13.1 We reserve the right to accept or decline to process any Transaction initiated on the Platform for any reason, including if the requested Staff is not available or if there is an error in the description posted on the Platform.
13.2 Suppliers retain full discretion to accept or decline any Transaction. We do not warrant that any Staff listed by any Supplier will be available at any time for any job.
13.3 Notwithstanding the preceding subclause, Suppliers are required to take reasonable measures to ensure that their listed Staff are available pursuant to their advertised availability. Failure or repeated failure to supply requested Staff to Clients may result in the permanent or temporary suspension or termination of your access to the Platform.
14. Term and Termination
14.1 You can cancel your registration through the Platform at any time.
14.2 We reserve the right to delete your account immediately if you are in breach of any of these Terms and Conditions, including but not limited to any dishonest, discourteous, or otherwise unprofessional behaviour by you in relation to us, our employees, agents, or third party representatives.
14.3 Termination will not affect any of our accrued rights or your accrued liabilities as at the time of termination. For the avoidance of doubt, you are liable to pay all outstanding Fees and charges that have accrued as at termination.
15. Intellectual Property
15.1 Your use of the Platform is pursuant to a non-exclusive license between you and us which is granted subject to these Terms and Conditions. Nothing in these Terms and Conditions or otherwise creates an assignment of any rights in the Platform beyond the ability to use it for its intended use.
15.2 Nothing in these Terms and Conditions or otherwise creates the right for you to sublicense the Platform.
15.3 You undertake not to reverse engineer, replicate, or otherwise copy the Platform. We reserve all our rights to seek compensation, damages, injunctions, or any other remedy available to us at law if any attempt to do so, whether successful or unsuccessful, is made by you or any of your affiliates.
15.4 All intellectual property and ownership rights subsisting in the Platform (including the user interface and the software comprising the Platform), the data derived from use of the Platform, and any other documentation, information or materials that are supplied by us to you, remain our or our third party licensors’ exclusive property. For the avoidance of doubt, nothing in this agreement assigns any ownership rights to you.
16. Operation of the Platform
16.1 You warrant that you will comply fully with all the Platform operating instructions. Any failure to comply fully with operating instructions may result in the sub-par or faulty performance of the Platform.
16.2 We accept no liability, and you release us from any such liability, associated with faults or errors caused by your non-compliance with all operating instructions.
16.3 We may suspend your account for any one or more periods of time if we are unable to provide the software due to a fault or dysfunction with our servers.
17. Modifications to the Platform
17.1 We reserve the right to modify or discontinue, temporarily or permanently the Platform and its other products and services with or without notice.
18. Warranties
18.1 You represent and warrant that we will not be liable for any direct or indirect expense, damage or injury (including indirect loss of revenue, profits, goodwill or business opportunity) howsoever caused, including arising directly or indirectly from or in connection with your use of the Platform.
18.2 Subject to any of the rights you may have under Australian Consumer Protection Law, we exclude to the fullest extent possible all implied terms and warranties, whether statutory or otherwise, relating to the Platform or any other matter under these Terms and Conditions.
19. Limitation of liability
19.1 We accept no liability as to the performance standards of on-hired Staff. We make no warranty that any Staff made available by a Supplier will have the requisite qualifications, certifications, skills, abilities, or availability required by a Client. We further disclaim to the maximum extent permitted by law and liability relating to any damage, property damage or loss caused by any negligence, action, inaction, or fault of any on-hired Staff.
19.2 The Platform is made available to you on an “as is” basis. We make no warranties, representations or conditions of any kind, express, statutory or implied as to:
19.3 We disclaim all liability for any:
We further disclaim all liability for any loss or damage arising out of your use of the Platform.
19.4 Your use of the Platform is at your own discretion and risk, and you will be solely responsible for any resulting loss or damage, including but not limited to, any loss of data or damage to your computer(s) or networks from viruses that may be downloaded to your computer in the course of using the software. Some jurisdictions do not allow the exclusion of certain warranties, the limitation or exclusion of implied warranties, or limitations on how long an implied warranty may last, so the above limitations may not apply to you. If you reside in such a jurisdiction, the above limitations shall apply to you to the fullest extent permitted under applicable law.
19.5 Our maximum aggregate liability to you for any claims, damages, injuries or causes whatsoever, and regardless of the form of action (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason), will at all times be limited to the greater of (i) the amount paid, if any, by you to us in connection with the Platform in the 2 months prior to the action giving rise to liability or (ii) $1.00.
20. Transfer of rights and obligations
20.1 These Terms and Conditions are binding on you and us and on our respective successors and assignees.
20.2 You may not transfer, assign, charge or otherwise dispose of your rights or liabilities under these Terms and Conditions, or any of your rights or obligations arising under it, without our prior written consent.
20.3 We may transfer, assign, charge, sub-contract or otherwise dispose of any of our rights or obligations arising under these Terms and Conditions, at any time without your prior consent.
21. Indemnity
21.1 You defend, indemnify and hold harmless us, our members, managers, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them, including costs, liabilities and legal fees, from any claim or demand made by any third party due to or arising out of:
22. Force Majeure Events
22.1 We will not be liable or responsible for any failure to perform or delay in performance of any of our obligations under these Terms and Conditions that is caused by events outside our control (Force Majeure Event).
22.2 A Force Majeure Event includes any act, event, non- happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
22.3 Our performance under these Terms and Conditions is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Terms and Conditions may be performed despite the Force Majeure Event.
23. General
23.1 To the extent permitted by law, we reserve the right to create, collect and / or store any metadata resulting from your use of the Platform. To the extent permitted by law, we may use metadata for a variety of functions including (but not limited to) conducting investigations, helping us manage and administer the Platform, for purposes of search engine optimisation and to drive traffic to the Platform. To the extent permitted by law, we reserve the right to share your information (including metadata) with government agencies and authorities to the extent this is required or requested of us.
23.2 All parties must confidential all information shared or disclosed by another party which is not currently in the public domain, or which, by its nature, is or appears to be confidential, including the terms of these Terms and Conditions and our Services. This clause shall survive termination of these Terms and Conditions.
23.3 We may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, payment gateway and related technology required to run the Platform.
23.4 You must not modify, adapt or hack the Platform or modify another website or software so as to falsely imply that it is associated with the Platform or us.
23.5 You must not reproduce, duplicate, copy, sell, resell or exploit any portion of the Platform, use of the Platform, or access to the Platform without our prior express written permission. We claim copyright and all other intellectual property rights over the Platform and its other products and services and reserves all of our rights.
23.6 Verbal, physical, written or other abuse (including threats of abuse or retribution) of any of our employees, members, representatives, or officers will result in immediate termination of your account.
23.7 We do not warrant that:
23.8 You expressly understand, agree and warrant that we shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damages), resulting from:
23.9 The failure of the Platform to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. The Terms and Conditions constitutes the entire agreement between you and us and govern your use of the Platform, superseding any prior agreements between you and us.
23.10 Any part of these Terms and Conditions that is invalid, prohibited or not enforceable will not void the balance of the Terms and Conditions. All other parts will be enforced without regard to the invalid provision and continue to be valid in accordance with their terms.
23.11 We make no representations or warranties that the content of the Platform complies with the laws (including intellectual property laws) of any country outside Australia.
23.12 Any queries about the Terms and Conditions should be sent to us by email at contact@hiyamate.com.au
23.13 These Terms and Conditions are governed by the laws of the State of Victoria in Australia. Disputes arising from your use of the Platform are exclusively subject to the jurisdiction of the courts of Victoria.
