The Maintain App

THE MAINTAIN APP PTY LTD ABN 71 666 189 984

TERMS OF SERVICE

(CUSTOMERS)

THE MAINTAIN APP

TERMS OF SERVICE (CUSTOMERS)

INTRODUCTION

The Maintain App is a digital platform to help users effectively manage contracts for property

maintenance services. Use of The Maintain App 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) Business Day means a day (other than a Saturday, Sunday or public holiday) on which

banks are open for general banking business in Western Australia, Australia.

(d) Chat means the messaging function within the Platform.

(e) Company means The Maintain App Pty Ltd ABN 71 666 189 984.

(f) Confidential Information means any written or verbal information that:

i. Any information deemed as confidential under these Terms of Service;

ii. A party informs the other party that it considers it confidential and/or

proprietary;

iii. A party would reasonably consider to be confidential in the

circumstances; and

iv. Is personal information within the meaning of the Privacy Act and

GDPR.

but does not include information that a party can establish:

v. Was in the public domain at the time it was given to that party;

vi. Became part of the public domain, without that party’s involvement in

any way, after being given to the party;

vii. Was in party's possession when it was given to the party, without

having been acquired (directly or indirectly) from the disclosing party; or

viii. Was received from another person who had the unrestricted legal right

to disclose that information free from any confidentiality obligation.

(g) Contract means a specific contract for property maintenance services between the

Customer and a Worker that is managed via the Platform.

(h) Customer means a customer of the Worker that uses the Platform to track the progress

of Contracts and receives an Invitation from the Worker.

(i) Customer Data means all information and data entered or uploaded into the Platform

by the Customer but does not include derivative data or analytics.

(j) GDPR means the EU General Data Protection Regulation 2016/679.

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(k) 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.

(l) Intellectual Property Rights means, for the duration of the rights in any part of the

world, any Moral Rights, industrial or intellectual property rights, whether registrable or

not, including in respect of Intellectual Property, applications for the registration of any

Intellectual Property and any improvements, enhancements or modifications to any

Intellectual Property registrations.

(m) Invitation means an invitation to create an Account and connect to a Contract.

(n) Materials Allowance means the maximum amount a Worker may be spend on

materials as part of completing a Task without having to obtain the consent of the

Customer, as agreed between the Worker and a Customer from time-to-time.

(o) Mobile Application Marketplace means an online marketplace for access to the

Platform and other applications for mobile devices, such as the App Store.

(p) Moral Rights means:

i. Moral rights pursuant to the Copyright Act 1968 (Cth); and

ii. Or any rights analogous to the rights set out in Article 6bis of the Berne

Convention for Protection of Literary and Artistic Works 1886 (as

amended from time to time).

(q) Platform means the “The Maintain App” property maintenance digital platform owned

and operated by the Company, accessible at a Mobile Application Marketplace.

(r) Privacy Policy means the Company’s privacy policy as updated from time-to-time,

which can be found at the Site.

(s) Privacy Act means the Privacy Act 1989 (Cth).

(t) Site means the Company’s website found at https://www.themaintainapp.com/, or such

other URL used by the Company from time-to-time.

(u) Task means a specific task or deliverable to be completed as part of a Contract.

(v) Terms of Service means these terms and conditions agreed to by the Customer as a

condition to using the Platform.

(w) Time Allowance means the amount of time budgeted under a Contract, as agreed

between the Worker and a Customer from time-to-time.

(x) Timetable means the shared calendar timetable to schedule the completion of Tasks.

(y) Worker means a business engaged by the Customer to provide services that uses the

Platform to create and manage Contracts.

2. AGREEMENT

2.1. The licence granted under these Terms of Service shall be ongoing until terminated in

accordance with the terms of these Terms of Service.

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2.2. The Worker agrees that all use of the Platform is subject to these Terms of Service and

must immediately cease to use the Platform if the Worker can no longer agree or

adhere to these Terms of Service.

2.3. The Company may suspend an Account or restrict the access of any Worker that

breaches these Terms of Service.

3. RELATIONSHIP

3.1. The Company’s role is limited to providing the digital platform to facilitate the delivery of

services between the Customer and Workers pursuant to a Contract.

3.2. The Worker and the Customer have a direct contractual relationship and are directly

responsible to each other with respect to their obligations under a Contract, including

especially the Worker’s obligation to deliver the agreed services to the Customer and

the Customer’s obligation to pay the agreed service fees to the Worker.

3.3. Where required, the Customer must separately agree to the Worker’s standard terms

and conditions with respect to the delivery of services under a Contract (if any), which

shall occur outside of the Platform. To clarify, the Company is not a party to this direct

contract between the Customer and the Worker.

3.4. The Customer acknowledges and agrees that:

(a) The Worker is not engaged by the Company and the Worker does not provide

any goods or services on behalf of the Company; and

(b) The Company is in no way responsible or liable in respect of Contracts,

including the actual provision of agreed services itself and/or the quality,

suitability, or legality of the services provided by the Worker.

3.5. For the avoidance of doubt, the Company is not responsible for, and not liable to the

Customer with respect to, the conduct of the Worker or any activities that occur in

connection with a Contract.

3.6. The Customer acknowledges and accepts that any disputes with a Worker in respect of

a Contract or otherwise shall be handled directly between each other without

involvement of the Company.

4. USING THE PLATFORM

4.1. Account

(a) To use the Platform, the Customer must have set up an Account.

(b) The Customer 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.

(c) The Company may permit or deny the Customer an Account in its absolute

discretion (although the Customer may generally obtain an Account by

registering with the Platform and accepting these Terms of Service).

(d) To clarify, it shall be free to create an Account and use the Platform for the

Customer.

4.2. Features

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The Company shall provide the Customer with access to and use of the features as

agreed between the parties and provided within the Platform from time-to-time.

4.3. Contracts

(a) The primary feature of the Platform is to create and manage Contracts.

(b) Once a Contract is successfully created by the Worker, the Worker may invite

the Customer to connect with the Contract using the Invitation.

(c) Where the Customer receives the Invitation, they will be required to create an

Account to access the Platform and connect to the Contract (unless they have

an Account created already).

(d) The Customer shall agree on the Time Allowance for each Contract directly with

the Worker. Where the full Time Allowance is not exhausted prior to the

completion of a Contract, then any remaining unused time shall be lost without

any rollover or credits.

4.4. Tasks

(a) The Customer may create (and manage) individual Tasks under the Contract.

(b) Unless specified otherwise, there is no limit on the number of Tasks that may be

created under a Contract.

(c) In respect of a Task, the Customer may (without limitation):

i. Set a name;

ii. Enter a description;

iii. Upload multimedia content (such as photos or videos);

iv. Mark it is a priority;

v. Set it on a regular, repetitive schedule;

vi. Run a timer;

vii. Enter materials used and relevant costs;

viii. Make comments using the Chat; and

ix. Change the status (such as completed).

(d) To avoid doubt, Tasks may be updated at any time from within the Account,

unless the Task has been marked as completed.

(e) The Customer shall use the Timetable to schedule Tasks with the Worker and

must ensure their availability as reflected in the Timetable is accurate and up to

date at all times.

(f) Unless the cost of materials used for a Task are within the Materials Allowance,

the Worker must seek the consent of the Customer prior to using the materials.

Otherwise, the Customer consents to the Worker using materials that do not

exceed the Materials Allowance.

4.5. User Conduct. The Customer acknowledges and agrees that:

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(a) They shall not use the Platform for any other purpose than to facilitate the

completion of Contracts;

(b) The Company accepts no responsibility for the conduct of any Worker;

(c) The Company accepts no responsibility for any interaction between the

Customer and Workers as a result of using the Platform, including the actual

provision of services by Workers pursuant to Contracts; and

(d) The Company makes no warranty as to the character or credentials of any

Worker, including their capacity to complete Contracts.

5. CUSTOMER DATA

5.1. By uploading Customer Data, the Customer acknowledges and accepts that such

Customer Data, which may include personal information, may be shared with and

accessible by Customers connected to the Contract.

5.2. The Customer warrants that any Customer Data uploaded to the Platform about an

individual is provided with that individual’s consent. Under no circumstances will the

Company be responsible to the Customer for another Customer’s use of personal

information made available within the Platform.

5.3. The Company accepts no liability for the content of Customer Data.

5.4. The Customer is responsible for the accuracy, quality and legality of any Customer Data

uploaded to the Platform.

5.5. The Customer is liable for any intentionally or recklessly erroneous, corrupted, or false

data uploaded to the Platform and indemnifies the Company for any loss, damage, cost

or expense that the Company may suffer or incur as a result of or in connection with

that data.

5.6. The Customer grants the Company an immediate, worldwide, royalty-free license to use

and incorporate the Customer Data within the Platform, for the purposes of providing

the Platform.

5.7. The Company shall not access, use, modify or otherwise deal with Customer Data

except where required by compulsion of law or upon the Customer’s authority (such as

to provide support for the Platform).

5.8. The Company may suspend accessibility to Customer Data that the Company

determines is illegal, offensive, indecent, or objectionable in its sole discretion.

5.9. The Company may delete Customer Data from its systems on termination of these

Terms of Service.

6. GENERAL CONDITIONS

6.1. Licence

(a) By accepting these Terms of Service, the Customer is granted a limited, non-

exclusive, non-transferrable 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 issue the licence to the Customer on further terms or

limitations as it sees fit.

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(c) The Company may revoke or suspend the Customer’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 Customer.

6.2. Modification of Terms

(a) The Company may, in its sole discretion, modify or update these Terms of

Service from time-to-time.

(b) When the Company changes these Terms of Service in a material manner, it

will update the 'last modified' date at the top of these Terms of Service and

notify the Customer that material changes have been made to these Terms.

(c) The Customer should review this page periodically for notice of any changes to

these Terms of Service.

(d) The modified terms shall come into effect the next time the Customer accesses

the Platform following the update to the Terms of Service.

(e) If the Customer does not accept any changes to the terms of these Terms of

Service, the Customer must immediately cease using the Platform.

6.3. Software-as-a-Service

(a) The Customer agrees and accepts that the Platform is:

i. Hosted by the Company and shall only be installed, accessed, and

maintained by the Company, accessed using the internet or other

connection to the Company servers and is not available ‘locally’ from

the Customer’s systems; and

ii. Managed and supported exclusively by the Company from the

Company servers and that no ‘back-end’ access to the Platform is

available to the Customer 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.

6.4. Support

(a) The Company shall provide reasonable support services in the manner agreed

with the Customer from time-to-time.

(b) The Company reserves the right to require the payment of reasonable fees for

non-standard support requests prior to the provision of such support.

6.5. Use & Availability

(a) The Customer agrees that it shall only use the Platform for legal purposes and

shall not use it to engage any conduct that is unlawful, immoral, threatening,

abusive or in a way that is deemed unreasonable by the Company in its

discretion.

(b) The Customer is solely responsible for the security of its username and

password for access to the Platform. The Customer shall notify the Company

as soon as it becomes aware of any unauthorised access to its Account.

(c) The Customer agrees that the Company shall provide access to the Platform to

the best of its abilities, however:

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i. Access to the Platform may be prevented by issues outside of its

control; and

ii. The Company is not liable to the Customer and/or any Customer for

any Customer not being able to access the Platform.

6.6. Privacy

(a) The Company maintains the Privacy Policy in compliance with the provisions of

the Privacy Act and the GDPR with respect to personal information that it

collects about the Customer and other individuals.

(b) The Privacy Policy does not apply to how the Customer handles personal

information. If necessary under the Privacy Act and/or the GDPR, it is the

Customer’s responsibility to meet the obligations of the Privacy Act and/or

GDPR by implementing a privacy policy in accordance with law.

(c) The Platform may use cookies (a small electronic file) to improve a Customer’s

experience while browsing, while also sending browsing information back to the

Company. The Customer may manage how it handles cookies in its own

browser settings.

(d) The Company may use Customer Data and other information collected via the

Platform for research, developmental, statistical, and analytical purposes,

subject to and in accordance with the Privacy Policy.

6.7. Data

(a) Security. The Company takes the security of the Platform and the privacy of its

users very seriously. The Customer agrees that the Customer shall not do

anything to prejudice the security or privacy of the Company’s systems or the

information on them.

(b) Transmission. The Company shall do all things reasonable to ensure that the

transmission of data occurs according to accepted industry standards and the

Privacy Policy. It is up to the Customer to ensure that any transmission

standards meet the Customer’s operating and legal requirements.

(c) Storage. Data that is stored by the Company shall be stored according to

accepted industry standards and the Privacy Policy.

6.8. Intellectual Property

(a) Trade marks. The Company has moral, registered and unregistered rights in

its trade marks and the Customer 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 Customer agrees that such is protected by

copyright, trade marks, patents, proprietary rights and other laws, both

domestically and internationally. The Customer warrants that it shall not

infringe on any third-party rights through the use of the Platform.

(c) Platform. The Customer agrees and accepts that the Platform is the

Intellectual Property of the Company and the Customer further warrants that by

using the Platform the Customer will not:

i. Copy the Platform or the services that it provides for the Customer’s

own commercial purposes; and

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ii. Directly or indirectly copy, recreate, decompile, reverse engineer or

otherwise obtain, modify or use any source or object code, architecture,

algorithms contained in the Platform or any documentation associated

with it.

(d) Content. All content (excluding Customer Data) 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 Customer or any other party with respect to

the Platform.

6.9. Third Party Dependencies

The Customer 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.

6.10. Confidentiality

(a) Each party acknowledges and agrees that:

i. the Confidential Information is secret, confidential and valuable to the

disclosing party (Discloser);

ii. it owes an obligation of confidence to the Discloser concerning the

Confidential Information;

iii. it must not disclose the Confidential Information to a third party except

as permitted in these Terms of Service;

iv. all Intellectual Property rights remain vested in the Discloser but

disclosure of Confidential Information does not in any way transfer or

assign any rights or interests in the Intellectual Property to the receiving

party; and

v. any breach or threatened breach by the receiving party of an obligation

under these Terms of Service may cause the Discloser immediate and

irreparable harm for which damages alone may not be an adequate

remedy. Consequently the Discloser has the right, in addition to other

remedies available at law or in equity, to seek injunctive relief against

the receiving party (and its agents, assigns, employees, officers and

directors, personally) or to compel specific performance of this clause.

(b) A party must notify the Discloser in writing, giving full details known to it

immediately, when it becomes aware of:

i. any actual, suspected, likely or threatened breach by it of any

obligations it has in relation to the Confidential Information.

ii. any actual, suspected, likely or threatened breach by any person of any

obligation in relation to the Confidential Information; or

iii. any actual, suspected, likely or threatened theft, loss, damage, or

unauthorized access, use or disclosure of or to any Confidential

Information.

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(c) The receiving party must promptly take all steps that the Discloser may

reasonably require and must co-operate with any investigation, litigation or

other action of the Discloser or of a related body corporate if there is:

i. any actual, suspected, likely or threatened breach of a term of these

Terms of Service; or

ii. any theft, loss, damage or unauthorized access, use or disclosure of or

to any Confidential Information that is or was in its possession or

control.

6.11. Liability & Indemnity

(a) The Customer agrees that it uses the Platform at its own risk.

(b) The Company makes no representation or guarantee that the Customer will be

satisfied with the services delivered by Workers and/or meet their expectations

and achieve desired results.

(c) The Customer acknowledges that the Company is not responsible for the

conduct or activities of any Worker and that the Company is not liable for such

under any circumstances.

(d) To avoid doubt, the Company is in no way responsible for the workmanship,

actions, omissions or conduct generally of a Worker in relation to a Contract

and cannot be held liable for such. The Company merely provides the digital

platform to facilitate the management of Contracts.

(e) The Customer 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 Customer’s use of or conduct in connection with the Platform, including

any breach by the Customer of these Terms of Service.

(f) In no circumstances will the Company be liable for any direct, incidental,

consequential or indirect damages, personal injury, death, damage to property,

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 Customer’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, loss, personal injury or death, or

business interruption of any type, whether in tort, contract or otherwise.

(g) 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, guarantees and warranties that may be implied or

imposed by law. To the extent permitted by law, the Company’s liability for

breach of any such guarantee or 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.

6.12. Termination

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(a) The Customer may terminate these Terms of Service by giving the Company

written notice or simply by cancelling their Account, and access to the Platform

shall terminate immediately.

(b) The Company may terminate these Terms of Service for cause by giving the

Customer immediate written notice where:

i. The Customer has been notified in writing of a breach and has not

remedied that breach within 10 Business Days;

ii. The Customer commits a breach which is incapable of remedy; and/or

iii. The Customer repetitiously, wilfully, or recklessly commits a breach.

(c) Termination of these Terms of Service 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.

6.13. Dispute Resolution

(a) If any dispute arises between the parties in connection with these Terms of

Service (Dispute), then either party may notify the other of the Dispute with a

notice (Dispute Notice) which:

i. Includes or is accompanied by full and detailed particulars of the

Dispute; and

ii. Is delivered within 10 Business Days of the circumstances giving rise to

the Dispute first occurring.

(b) Within 10 Business Days after a Dispute Notice is given, a representative (with

the authority to resolve the dispute) parties must meet (virtually or otherwise)

and seek to resolve the Dispute.

(c) Subject to clause (d), a party must not bring court proceedings in respect of any

Dispute unless it first complies with the requirements of the dispute resolution

mechanism outlined in this clause.

(d) Nothing in this clause prevents either party from instituting court proceedings to

seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

(e) Despite the existence of a Dispute, the parties must continue to perform their

respective obligations under this document and any related agreements.

6.14. Electronic Communication, Amendment & Assignment

(a) The words in this clause that are defined in the Electronic Transactions Act

1999 (Cth) have the same meaning.

(b) The Customer can direct notices, enquiries, complaints and so forth to the

Company using the contact details notified to the Customer. The Company will

notify the Customer of a change of details from time-to-time.

(c) The Company will send the Customer notices and other correspondence to the

details that the Customer submits to the Company, or that the Customer notifies

the Company of from time-to-time. It is the Customer’s responsibility to update

its contact details as they change.

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(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.

(f) The Customer may not assign or otherwise create an interest in these Terms of

Service without prior written consent of the Company (which shall not be

unreasonably withheld).

(g) The Company may assign or otherwise create an interest in its rights under

these Terms of Service by giving written notice to the Customer.

6.15. General

(a) Special Conditions. The parties may agree to any special conditions to these

Terms of Service in writing.

(b) Prevalence. To the extent these Terms of Service is in conflict with, or

inconsistent with, any special conditions, the terms of those special conditions

shall prevail.

(c) 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.

(d) Relationship. The relationship of the parties to these Terms of Service does

not form a joint venture or partnership.

(e) 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.

(f) 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.

(g) Governing Law. These Terms of Service are governed by the laws of Victoria,

Australia. Each of the parties hereby submits to the non-exclusive jurisdiction

of courts with jurisdiction there.

(h) 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.

(i) Interpretation. The following rules apply unless the context requires otherwise:

i. Headings are only for convenience and do not affect interpretation.

ii. The singular includes the plural and the opposite also applies.

iii. If a word or phrase is defined, any other grammatical form of that word

or phrase has a corresponding meaning.

iv. A reference to a clause refers to clauses in these Terms of Service.

v. A reference to legislation is to that legislation as amended, reenacted or

replaced, and includes any subordinate legislation issued under it.

vi. Mentioning anything after includes, including, or similar expressions,

does not limit anything else that might be included.

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vii. A reference to a party to these Terms of Service or another agreement

or document includes that party’s successors and permitted substitutes

and assigns (and, where applicable, the party’s legal personal

representatives).

viii. A reference to a person, corporation, trust, partnership, unincorporated

body or other entity includes any of them.

ix. A reference to information is to information of any kind in any form or

medium, whether formal or informal, written or unwritten, for example,

computer software or programs, concepts, data, drawings, ideas,

knowledge, procedures, source codes or object codes, technology or

trade secrets.

END TERMS OF SERVICE

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