Rider Agreement Terms and Conditions
These terms and conditions apply to the Agreement between Us and You relating to provision of the Services. For definitions, see clause 13.
1. ENGAGEMENT AND CONSIDERATION
1.1. You offer to provide Us with the Services in accordance with the Agreement and we accept this offer by You.
1.2. In consideration of the provision of the Services by You, We agree to pay You the Service Fee.
1.3. For the avoidance of doubt, You offer to provide the Services to Us, and We engage You, as an independent contractor and You will be responsible for the payment, and will indemnify Us in respect, of any taxes imposed or levied on, or in respect of, or in connection with, the Services or Service Fee.
2. PROVISION OF SERVICES
2.1. You will provide the Services to Us.
2.2. You will, in providing the Services:
2.2.1. Exercise a reasonable degree of skill, care and diligence having regard to the nature of the Services;
2.2.2. Comply with all laws and regulations to which You are subject; and
2.2.3. Have appropriate regard to the safety of You, Your employees, contractors or agents, or any other person.
2.3. Subject to clause 4, You will provide, and maintain in good working order, such equipment as may be necessary to provide the Services.
2.4. You must not provide the Services if doing so would expose You, Your employees, contractors or agents, or any other person, to an unacceptable risk of harm or injury.
3. NOTIFICATIONS TO US
3.1. If You experience any material technical difficulties in providing the Services, including with respect to any deficiency or suspected deficiency in the Display Pieces, You must notify Us of such difficulties as soon as reasonably practicable or otherwise within 24 hours of experiencing such difficulties.
3.2. If You, Your employees, contractors or agents, or any other person, sustains injury as a direct result of You providing the Services, You must provide full details of the injury to Us, in writing, as soon as reasonably practicable, but otherwise within 24 hours of the occurrence of such injury.
4. PROVISION AND USE OF THE DISPLAY PIECES AND APPLICATION
4.1. To enable You to provide the Services, We will provide You with the Display Pieces.
4.2. To enable You to provide the Services, We will provide You with, or make available to You, the Application.
4.3. The Display Pieces are, and shall remain, Our property, and We may request the return of the Display Pieces at any time and, in the event of such a request, You must return the Display Pieces to Us within 3 business days of Our request using a prepaid envelope provided to You by Us.
4.4. You must use, and must ensure that the Display Pieces are used, strictly in accordance with the instructions given to You by Us.
4.5. You must not, or must not allow any other person to, intentionally deface, damage or in any way modify the Display Pieces, including any print based media contained on or in the Display Pieces.
4.6. Prior to using a bicycle to which the Display Pieces are attached, You must inspect the said bicycle to ensure that the Display Pieces are properly attached and that the bicycle can be used safely.
4.7. You must not use, or allow to be used, any Display Pieces, or any bicycle to which any Display Pieces are attached, if any of the Display Pieces are damaged or defaced in any way.
5. AGREED SERVICE TIMES
5.1. We will not be liable to pay any Service Fee for Services provided outside of the Agreed Service Times.
5.2. We will not be liable to pay any Service Fee unless the Services to which the Service Fee relates are properly and accurately recorded by the Application.
6. SERVICE FEE AND INVOICING
6.1. You will issue, or cause or allow to be issued, to Us, an Invoice in respect of the Service Fee and any other charges imposed by You in accordance with the Agreement.
6.2. You must issue, or cause to be issued, to Us, an Invoice within 7 days of the last date specified in the Agreed Service Times or, if no such date is specified, the end of each calendar month during the term of the Agreement.
6.3. We will pay You the amount that is due and payable pursuant an Invoice issued by You pursuant to and in accordance with the Agreement.
6.4. We will pay the Invoice amount by the Due Date.
7. GOODS AND SERVICES TAX
7.1. All amounts expressed in the Agreement are exclusive of GST unless otherwise stated.
7.2. You may charge Us, in addition to the Service Fee, an amount equal to the GST that is payable by You as a direct result of provision of the Services.
8. LIMITATION OF LIABILITY AND INDEMNITY
8.1. To the extent permitted by law, We and Our employees, contractors or agents accept no liability to You or any person arising out of the performance or non-performance of the Services by You, or otherwise by virtue of, or in connection with, this Agreement, whether such liability arises at law, in equity or pursuant to any statute, and You indemnify Us, and hold Us harmless against, any liability, loss or damage suffered or incurred by Us, Our employees, contractors or agents arising out of the performance or non-performance of the Services by You, or otherwise by virtue of, or in connection with, this Agreement, whether such liability arises at law, in equity or pursuant to any statute.
9.1. We will hold, and maintain, such policies of insurance as We are required to hold by law.
9.2. You must hold, and maintain, such policies of insurance as You are required to hold by law.
10. DISPUTE RESOLUTION
10.1. Subject to clause 10.2, if a dispute between Us and You arises out of, or relates to, the Agreement, including with respect to a breach or termination of the Agreement, Us and You expressly agree to take all reasonable steps to resolve the dispute through Appropriate Dispute Resolution, unless and until Us and You otherwise agree in writing.
10.2. Either Us or You, as a party to the Agreement, may take action in relation to a dispute otherwise than in accordance with clause 10.1, if the party taking action reasonably believes, having regard to that party’s situation and the nature of the dispute, that resolution of the dispute cannot be achieved through compliance with clause 10.1, in which case that party shall provide written notice to the other party stating:
10.2.1. That the party proposes to take action pursuant to clause 10.2; and
10.2.2. The basis for the party’s reasonable belief that the dispute cannot be achieved through compliance with clause 10.1.
10.3. If a party to a dispute for the purposes of this clause 10 takes action pursuant to clause 10.2, and a court or tribunal determines that the belief of that party with respect to its compliance with clause 10.1 is or was not reasonable having regard to that party’s situation and the nature of the dispute, that party is deemed to consent to the making of an appropriate order for costs as against the party on the application of the other party to the dispute.
11.1. Either Us or You may terminate the Agreement for convenience on giving the other party not less than 2 days’ notice.
11.2. On termination of the Agreement, You must return to Us, at Your expense, any Display Pieces which are in Your possession and You authorise Us to withhold any payment that may be owing to You by Us until such time as You have complied with this clause 11.2.
12.1. A waiver by Us of, or failure by Us to enforce, a right arising under the Agreement does not affect any other of Our rights, whether arising under the Agreement or otherwise.
12.2. If any clause of the Agreement is invalid or unenforceable in any jurisdiction it is to be read down for the purposes of that jurisdiction so as to enable it to be valid and enforceable and otherwise, and to the extent of any invalidity, shall be severed without effecting, to the extent possible, the validity and enforceability of the remaining clauses of the Agreement.
12.3. The Agreement contains the entire Agreement between Us and You with respect to its subject matter and supersedes all prior communications, arrangements, conduct and/or agreements.
12.4. The Agreement shall be governed by, and construed in accordance with, the laws for the time being in force in the state of Victoria and Us and You submit to the non-exclusive jurisdiction of the courts of that State.
12.5. Unless otherwise stated in the Agreement, any clause of the Agreement which expressly, or by implication from its nature, is intended to continue, will survive the expiration or termination of the Agreement.
12.6. Without limiting clause 12.5 in any manner, the following clauses survive the expiration or termination of the Agreement:
12.6.1. Clause 8 (Limitation of liability and indemnity);
12.6.2. Clause 9 (Insurance);
12.6.3. Clause 10 (dispute resolution);
12.6.4. Clause 11 (Termination); and
12.6.5. Clause 12 (Miscellaneous).
13.1. In the Agreement, unless the context otherwise requires:
Agreement means the Rider Agreement;
Agreed Areas means the area(s) stated at Item 2 of the Rider Agreement Schedule;
Agreed Service Times means the dates and times stated at Item 3 of the Rider Agreement Schedule;
Appropriate Dispute Resolution has the meaning defined in the Civil Procedure Act 2010 (Vic);
Application means the application or device provided, or made available, by Us to You which records, or is capable of recording, the extent to which a bicycle, to which the Display Pieces are attached, is ridden, including the times and the area(s) in which it is ridden;
Display Pieces means all of the items provided to You by Us which are supposed to attach to, or cover, the frame, forks and/or wheel(s) of a bicycle;
Due Date means the date that is 3 days after the date on which We receive, by way of return, the Display Pieces to which the Invoice relates, in the condition in which We provided them to You, except for reasonable wear and tear, but in no case shall the date be before the date that is 14 days after the date of issue of the Invoice;
GST has the meaning defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Invoice means a tax invoice (or other form of invoice as permitted by law) which is provided by, or on behalf of, You in respect of the Services and may include a recipient generated invoice;
Maximum Monthly Service Fee means the amount stated at Item 5 of the Rider Agreement Schedule;
Rider Agreement means the agreement between Us and You, pursuant to these terms and conditions, relating to the provision of the Services and includes the Rider Agreement Schedule;
Rider Agreement Schedule means the schedule to the Rider Agreement which is signed by Us and You;
Service Fee means the amount calculated in accordance with Item 4 of the Rider Agreement Schedule, but shall not exceed the Maximum Monthly Service Fee;
Services means the provision of the areas in or around the spokes on the wheel(s) of a bicycle, and in or around the frame and forks of a bicycle, and the riding of the said bicycle, to which the Display Pieces are properly, and in accordance with Our instructions, attached, during the Agreed Service Times, in the Agreed Areas, and which riding is properly and accurately recorded by the Application;
Us / We / Our / Ours means Spoke Media Pty Ltd ABN 83 151 049 348;
You / Yours means the entity stated at Item 1 of the Rider Agreement Schedule.