Swav
SWAV Pty Ltd ABN 25 652 923 021
barber Terms of service
INTRODUCTION
The Company provides the “Swav” online booking platform for barber services. Use of Swav is subject to these Terms of Service.
definitions
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
(a) ABN means Australian Business Number.
(b) Account means a registered account with the Platform.
(c) Barber means a registered user that holds an Account to make a Listing and receive Bookings through the Platform.
(d) Barber Fee means the fee charged by the Barber to the Customer to provide the Barber Services for a Booking, as determined by the Barber from time-to-time.
(e) Barber Services means the services offered by a Barber and advertised in a Listing.
(f) Booking means a booking for services offered by a Barber made via the Platform.
(g) Booking Fee means the fee charged by the Company to the Barber for each Booking completed by the Barber, as agreed in writing from time-to-time by the parties.
(h) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
(i) Company means Swav Pty Ltd ABN 25 652 923 021.
(j) Corporations Act means the Corporations Act 2001 (Cth).
(k) Customer means a registered user that holds an Account to make Bookings and receive Loyalty Rewards.
(l) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(m) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
(n) Listing means a Barber’s profile or listing page, offering Bookings within the Platform.
(o) Loyalty Rewards means the rewards accrued to a Customer’s Account from completed Bookings, as notified within the Platform from time-to-time.
(p) Mobile Application Marketplace means an online marketplace for access to the Platform and other applications for mobile devices, such as the App Store.
(q) Personal Information has the same meaning as in the Privacy Act.
(r) Platform means the “Swav” online barber booking platform owned and operated by the Company, and accessible from a Mobile Application Marketplace.
(s) Privacy Act means the Privacy Act 1988 (Cth).
(t) Privacy Policy means the Company’s privacy policy as updated from time-to-time, published on the Site.
(u) Site means swav.app and any other URL where the Company makes the Platform available from time-to-time.
(v) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(w) Terms of Service means the terms and conditions of using the Platform, as updated from time-to-time.
(x) User means any user of the Platform, including Customers and Barbers.
1 USING Platform
1.1 General
(a) The Barber agrees that all use of the Platform is subject to these Terms of Service.
(b) The Company may suspend the Account or restrict the access of any Barber that breaches the terms of these Terms of Service.
(c) The Platform is a digital platform connecting the Barber with Customers for Barber Services and the Company is in no way responsible for the conduct or interactions of Users.
1.2 Account
(a) To use the Platform, the Barber must have set up their Account.
(b) The Barber must provide their business name and email address as part of the Account sign up process, and any other reasonably requested business information such as ABN.
(c) The Barber must provide accurate and complete information when setting up an Account and, if necessary, update their Account to ensure that such information is maintained as current for the duration of these Terms of Service.
(d) The Company may set up the Barber’s Account on their behalf provided the requested information is provided in accordance with paragraph (b) above.
(e) The Company may permit or deny the Barber an Account in its absolute discretion (although the Barber may generally obtain an Account by completing registration and accepting these Terms of Service).
1.3 Features
The Company shall provide the Barber with access to and use of the features as agreed between the parties and provided within the Platform from time-to-time.
1.4 Listings
(a) The Company simply provides the platform for Barbers to create a Listing and the Barber shall have complete control over the Listing they advertise on the Platform including setting what Barber Services are available for Bookings and the applicable Barber Fee.
(b) By creating a Listing, the Barber warrants to the Company that they are authorised to provide the Barber Services as advertised and, where requested, can provide the Company with evidence to verify whether they are so authorised.
(c) The Company accepts no responsibility for any interaction between the Barber and Customers, whether that interaction occurs via the Platform or not.
(d) Where the Company has reasonable grounds to believe that the Barber is in breach of these Terms of Service or the subject to genuine negative feedback from Customers, the Company may in its complete discretion suspend the Barber’s Account until such time as the issue is appropriately resolved.
(e) The Vendor acknowledges and agrees that the Company may add a mark-up on the Rates payable by the Customer when completing an Order following consultation with the Vendor.
1.5 Bookings & Cancellations
(a) Subject to the Barber’s availability, the Customer may make a Booking via the Platform.
(b) The Barber is responsible for ensuring that all Booking times, are advertised on a Listing are up-to date and accurate.
(c) Once a Booking is confirmed, the Barber agrees to provide the Barber Services to the Customer at the scheduled time.
(d) The Barber shall be paid the Barber Fee at the time of the Booking when the Barber Services are provided to the Customer. For clarity, no payment is required for the Customer to make a Booking.
(e) The Barber acknowledges that Bookings are subject to change and the Customer may seek to cancel a Booking, in which case the Barber will be notified via the Platform or by the Customer directly.
(f) The Barber should independently determine the cancellation policy to apply to their Bookings, which will be notified to the Customer at the time of making a Booking.
(g) Bookings are managed directly between the Barber and the Customer, and the Company is not involved in the making, managing and/or cancelling of Bookings. If the Barber wishes to enforce the terms of their cancellation policy, they must do so directly with the relevant Customer.
(h) The Company accepts no responsibility for any loss incurred by the Barber relating to Bookings, including where a result of missed or cancelled Bookings.
1.6 Loyalty Rewards
(a) The Barber acknowledges that Customers earn Loyalty Rewards from completed Bookings.
(b) The Barber agrees to recognise and apply valid Loyalty Rewards to their Bookings (where applicable).
(c) The Loyalty Rewards can only be used for Barber Services and are not transferable or redeemable as cash.
2 Fees, payments and refunds
2.1 Booking Fee
(a) The Company shall charge the Barber the Booking Fee on each completed Booking as a fixed percentage of the Barber Fee.
(b) Booking Fees are calculated on the total Barber Fees received by the Barber from completed Bookings in a calendar month (if any).
(c) Where Barber Fees have been received for a particular calendar month, the following information will be provided to the Barber for the previous calendar month:
i Number of Bookings completed;
ii Value of Booking Fees received; and
iii Value of Booking Fees payable.
(d) Where Booking Fees are payable, the Company will render a Tax Invoice to the Barber equal to the amount of Booking Fees payable for that month.
(e) The Barber shall be pay the Booking Fees within 7 days of the date the Tax Invoice is received by Barber to the Company’s nominated bank account by electronic bank transfer.
2.2 Currency
All Fees are charged and payable in Australian dollars.
2.3 GST
GST is applicable to the Booking Fee charged by the Company to the Barber. Unless expressed otherwise, the Booking Fee shall be deemed inclusive of GST. The Company will provide the Barber with a Tax Invoice for any payments.
2.4 Refunds
No refunds are provided for Booking Fees except where required under law or at the Company’s absolute discretion.
2.5 Late Payment
(a) The Company may suspend the Barber’s Account should any Booking Fees be outstanding to the Company at any time.
(b) If Booking Fees are not brought out of arrears within 28 days of becoming overdue, the Company may delete the Barber’s Account in without notice and terminate these Terms of Service.
(c) The Barber agrees that the Company shall not be liable in any way for any valid termination or suspension of the Barber’s access to the Platform.
3 General conditions
3.1 Licence
(a) By accepting the terms and conditions of these Terms of Service, the User is granted a limited, non-exclusive and revocable licence to access and use the Platform for the duration of these Terms of Service, in accordance with the terms and conditions of these Terms of Service.
(b) The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in these Terms of Service by the User.
3.2 Modification of Terms
(a) The terms of these Terms of Service may be updated by the Company from time-to-time.
(b) Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using the Platform.
3.3 Software-as-a-Service
(a) The User agrees and accepts that the Platform is:
i Hosted on servers managed by the Company, or by third-party service providers and systems approved by the Company, and shall only be accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
ii Managed and supported by the Company and other third-party service providers engaged by the Company from time-to-time from the servers, and that no ‘back-end’ access to the Platform is available to the User unless expressly agreed in writing.
(b) As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Platform.
3.4 Third Party Dependencies
The User agrees and acknowledges that the Platform has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.
3.5 Use & Availability
(a) The User agrees that it shall only use the Platform for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
(b) The User is solely responsible for the security of its username and password for access to the Platform. The User shall notify the Company as soon as it becomes aware of any unauthorised access of their Account.
(c) The User agrees that the Company shall provide access to the Platform to the best of its abilities, however:
i Access to the Platform may be prevented by issues outside of its control; and
ii It accepts no responsibility for ongoing access to the Platform.
3.6 Support
(a) The Company provides User support for the Platform via the email address [email protected].
(b) The Company shall endeavour to respond to all support requests within 3 Business Days.
3.7 Privacy
(a) The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about Users.
(b) The Privacy Policy does not apply to how the User handles personal information. If necessary under the Privacy Act, it is the User’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.
(c) The Company may use cookies (a small electronic tracking code) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.
3.8 Intellectual Property
(a) Trade marks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
(b) Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of the Platform.
(c) Content. All content submitted to the Company, whether via the Platform or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the Platform.
3.9 Liability & Indemnity
(a) The User agrees that it uses the Platform at its own risk.
(b) The Company makes no representation or guarantee that the Barber will receive Bookings via the Platform.
(c) The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with the Platform, including any breach by the User of these Terms of Service.
(d) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, injury, illness, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use the Platform, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, injury, illness or business interruption of any type, whether in tort, contract or otherwise.
(e) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
i The re-supply of services or payment of the cost of re-supply of services; or
ii The replacement or repair of goods or payment of the cost of replacement or repair.
3.10 Termination
(a) Either party may terminate these Terms of Service at any time by giving the other party no less than 10 Business Days’ written notice.
(b) Despite paragraph (a) above, either party may terminate these Terms of Service by written notice if the other party:
i Is in breach of these Terms of Service, and such breach is not remedied within 5 Business Days’ of receiving written notice of that breach; or
ii Commits a breach incapable of remedy.
(c) Termination is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms of Service up to the date of expiry or termination.
(d) For avoidance of doubt, any accrued Booking Fees will remain payable to the Company by the Barber following the termination of these Terms of Service.
3.11 Electronic Communication & Notices
(a) The parties agree to be bound by these Terms of Service where the terms of these Terms of Service are accepted by the User electronically.
(b) The User can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service. The Company will notify the User of a change of details from time-to-time.
(c) The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
(d) A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) Notices must be sent to the parties’ most recent known contact details.
3.12 General
(a) Special Conditions. The parties may agree to any Special Conditions to these Terms of Service in writing.
(b) Assignment.
i The User may not assign or otherwise create an interest in these Terms of Service.
ii The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.
(c) Prevalence. To the extent these Terms of Service is in conflict with, or inconsistent with any Special Conditions made under these Terms of Service, the terms of those Special Conditions shall prevail.
(d) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.
(e) Relationship. The relationship of the parties to these Terms of Service does not form a joint venture or partnership.
(f) Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(g) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.
(h) Governing Law. These Terms of Service are governed by the laws of Victoria, Australia. Each of the parties hereby submits to the exclusive jurisdiction of courts with jurisdiction there.
(i) Severability. Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.