Terms of Use - Shiftmate

ShiftMate operates an online platform which connects health service facilities (Service Facilities) with healthcare practitioners (Practitioners) by facilitating introductions between Service Facilities and Practitioners (Platform).

This agreement governs your use of the Platform and any other services made available through the Platform. By using the Platform, you agree to be bound by this agreement which forms a binding contractual agreement between you, the User, and us, ShiftMate Pty Ltd ACN 644 839 538 trading as ShiftMate ABN 67 644 839 538 (ShiftMate, we, us or our).

The remainder of this agreement is divided into three parts:

Part 1 (All Users), which sets out terms that apply to all Users;
Part 2 (Practitioners), which sets out additional terms that apply to Practitioners, being Users who use the Platform to offer their professional services to Service Facilities; and
Part 3 (Service Facilities), which sets out additional terms that apply to Service Facilities, being Users who use the Platform to post role vacancies and seek professional services from Practitioners.

The Platform offers a Standard Invoice Function as described in clause 4.1(c) in Part 1 of this agreement.

If you intend to use the Platform as a Practitioner, only Part 1 and Part 2 of these terms will apply to you. In Part 1 and Part 2 of this Agreement, any reference to you in those Parts means you, a Practitioner and User of the Platform.

If you intend to use the Platform as a Service Facility, only Part 1 and Part 3 and of these terms will apply to you. In Part 1 and Part 3 of this Agreement, any reference to you means you, a Service Facility and User of the Platform.

When we talk about the “Services” in this agreement, we are referring to the services available through our website and any associated services we offer.

When we talk about “Service Listings” we are referring to Vacancies which are posted by Service Facilities on the Platform and are open for Practitioners to accept.

When we talk about a “Scheduled Engagement”, we are referring to a Service Listing which has been accepted by one or more Practitioners and in respect of which the Service Facility has selected among the accepting Practitioners, the Practitioner who will fulfil the services set out in the Service Listing.

We may use Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.

Part 1 : ALL USERS

1. ELIGIBILITY

(a) All clauses in this Part 1 apply to all Users who participate on the Platform.
(b) This Platform is not intended for unsupervised use by any person under the age of 18 years old or any person who has previously been suspended or prohibited from using the Platform. By using the Platform, you represent and warrant that you are both:

(i) over the age of 18 years; and

(ii) have not previously been suspended or prohibited from using the Platform.

(c) Please do not access the Platform if you are under the age of 18 years old, or if you have previously been suspended or prohibited from using the Platform.
(d) If you use the Platform on behalf of a company or organisation you warrant that you have the necessary authority from that company or organisation to do so. If you are signing up not as an individual but on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “User” means the Represented Entity and you are binding the Represented Entity to this agreement. If you are accepting this agreement and using our Services on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.

2. ACCOUNTS

(a) In order to use most of the functionality of the Platform, all Users are required to sign-up, register and receive an account through the Platform (an Account).

(b) As part of the Account registration process and as part of your continued use of the Platform, you are required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, and other information as determined by Shiftmate from time to time.

(c) You may only have one (1) Account on the Platform at any given time unless otherwise permitted by Shiftmate in writing.

(d) You warrant that any information you give to Shiftmate in the course of completing the Account registration process will always be accurate, honest, correct and up to date.

(e) Correspondence between Users must take place on the Platform. You agree to ensure that your Account does not display any of your personal contact information at any time such that it can be viewed by any other User. You agree to not give your contact details to any other User.

(f) Once you complete the Account registration process, Shiftmate may, in its absolute discretion, choose to accept you as a registered user within the Platform and provide you with an Account.

(g) Shiftmate reserves the right to contact you about any concerning behaviour by you, or to seek a resolution with you.

(h) Shiftmate may, in its absolute discretion, suspend or cancel your Account for any reason, including for any failure to comply with this agreement.

(i) You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account whether or not you authorised such activities or actions.

(j) It is free for to register for an Account.

3. USER OBLIGATIONS

As a User, you agree:

(a) not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment;
(b) to not share your Account with any other person and that any use of your Account by any other person is strictly prohibited;
(c) you must immediately notify Shiftmate of any unauthorised use of your Account, password or email, or any other breach or potential breach of the Platform’s security;
(d) to not use the Platform for any purpose other than for the purpose of making arrangements to provide or receive services, including by not using the Platform:

(i) in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes); and

(ii) in connection with any commercial or money making or other promotional or marketing endeavours except those that are endorsed herein, or as approved in writing by ShiftMate;

(e) not to act in any way that may harm the reputation of Shiftmate or associated or interested parties or do anything at all contrary to the interests of Shiftmate or the Platform;
(f) not to make any automated use of the Platform and you must not copy, reproduce, translate, adapt, vary or modify the Platform without the express written consent of ShiftMate;
(g) that Shiftmate may change any features of the Platform or Services offered through the Platform at any time without notice to you;
(h) that information given to you through the Platform, by ShiftMate or another User including a Practitioner, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
(i) that ShiftMate may cancel your account at any time if it considers, in its absolute discretion, that you are in breach or are likely to breach this clause 3.

4. MODEL

4.1 GENERAL

(a) The Platform provides an introductory service for Practitioners who seek to provide their professional services to Service Facilities, and Service Facilities who want to engage the professional services of Practitioners.

(b) The Platform offers only one function for payment:

(i) standard invoice function, where the Service Facility pays the Practitioner in accordance with clause 5 of Part 1 (Standard Invoice Function).

(i) creates an Account and Practitioner Profile (described below); and

(ii) updates their calendar availability to provide the professional services within their Practitioner Profile.

(d) A Service Facility wishing to engage the ad-hoc services of Practitioners via the Platform must create an offer on the Platform for Practitioners to fill the specific needs of a vacancy for professional services in exchange for payment (each offer a Vacancy).

(e) A Service Facility may send Vacancies to any number of Practitioners on the Platform.

(f) Practitioners may respond to a Vacancy by accepting or rejecting the Vacancy via the Platform. The Service Facility may then select a successful Practitioner or Practitioners from those Practitioners who responded to the Vacancy (Engagement).

(g) By responding to a Vacancy a Practitioner confirms that they are legally and practically capable of supplying the professional services described in the Vacancy and will perform the Engagement if they are selected by the Service Facility.

(h) Once a Practitioner has accepted an Engagement, the Service Facility and Practitioner can communicate privately using our private messaging service. Each time a User receives a message from the Platform messaging service, depending on the User’s Account settings, a notification may be sent to the User via their currently active communication channel. Any contractual arrangement between a Service Facility and Practitioner is entered into between the parties, as agreed between them on the Platform.

(i) Once a Practitioner has provided the professional services listed in a Vacancy, both the Service Facility and the Practitioner must provide notice to Shiftmate that the Engagement is complete by using the Platform Timesheet functionality (Completed Engagement).

(j) To ensure the accuracy of the Completed Engagement:

(i) timesheets must be signed off by both the Practitioner and Service Facility in a timely manner; and

(ii) both the Practitioner and Service Facility must agree on the duration of the Completed Engagement on the Platform (for example, if the Engagement has gone for longer than originally agreed between the Practitioner and the Service Facility, the parties must adjust the hours completed via their Account).

(k) You understand and agree that the Platform is an online introductory platform only, and that our responsibilities are limited to facilitating the user functionality and availability of the Platform. We are not an employment agency or labour hire business and Practitioners and Service Facilities are independent third parties, not our employees, contractors, partners or agents.

(l) Except as otherwise set out in clause 6 of Part 1 of this agreement, ShiftMate is not a party to any agreement entered into between a Service Facility and a Practitioner. ShiftMate has no control over the conduct of Service Facilities, Practitioners or any other users of the Platform.

(m) ShiftMate accepts no liability for any aspect of the Practitioner and Service Facility interaction, including but not limited to:

(i) the description of professional services offered;

(ii) the performance and delivery of professional services; and

(iii) the facilities provided.

(n) We do not assist or involve ourselves in any way in any dispute between a Practitioner and a Service Facility. If you are unsatisfied with the Platform you may discontinue your use of the Platform at any time.

(0) All communications between a Practitioner and a Service Provider regarding any Engagements, Vacancies and Completed Engagements must be carried out on the Platform. Any amendments to any Engagements, Vacancies and Completed Engagements, including time and length changes to Engagements and Completed Engagements must be carried out on the Platform.

(p) The Service Facility is responsible for setting up payroll with the Practitioner and providing the Practitioner with an orientation session for the premises, including identifying health and safety risks and processes.

5. STANDARD INVOICE FUNCTION

(a) For each Completed Engagement, both the Practitioner and Service Facility must agree on the duration of the Completed Engagement through the Platform within 7 days of the date which either the Practitioner or the Service Facility first indicates the professional services are complete on the Platform, where time is of the essence in reaching such agreement (Agreed Duration).
(b) Any payments for professional services provided by Practitioners will be made directly between the Practitioner and the Service Facility and not through the Platform. Practitioner concerns regarding payment should be communicated to the relevant Service Facility by using the contact details on the Service Facility’s Profile (which is described at clause 2.1 in Part 3 of this agreement).
(c) The Service Facility will be charged a fee by ShiftMate for using the Platform calculated as 20% percent of the amount payable to the Practitioner for the Agreed Duration (Platform Fee), or as otherwise agreed between us and the Service Facility.
(d) ShiftMate reserves the right to change or waive the Platform Fee at any time by updating this agreement, on 14 days’ written notice to the Service Facility. Upon receipt of such notice the Service Facility will have the right to terminate this agreement immediately, on written notice to ShiftMate. The Service Facility’s continued use of the Services after the receipt of a written notice in relation to a change and/or waiver of the Platform Fee will constitute its consent to the change and/or waiver set out in that notice.
(e) The Service Facility acknowledges and agrees that, unless applicable laws or regulations require otherwise, taxes (including GST) will be calculated and charged on the Platform Fee and ShiftMate will calculate the Platform Fee on an amount equal to the Platform Fee plus any taxes applicable to the Platform Fee.
(f) To the extent permitted by law, ShiftMate’s Platform Fee is non-cancellable and non-refundable.

6. INSURANCE MODEL

(a) ShiftMate recommends that Practitioners obtain appropriate professional indemnity insurance, or union membership for the purposes of supplying their professional services.

(b) ShiftMate also recommends that Service Facilities have in place or obtain all insurances required by law or otherwise considered good industry practice taking into account the nature of the facility, the services carried out at the facility and the engagement of the Practitioner by the Service Facility.

(c) ShiftMate is under no obligation to insure any User and will not be liable to any User if they fail to insure themselves.

7. POSTED MATERIALS

7.1 WARRANTIES

By providing or posting any information, materials or other content on the Platform (Posted Material), a User posting such content represents and warrants that:

(a) the User is authorised to provide the Posted Material (including by being authorised to provide any services that the User represents that they provide);
(b) the Posted Material is accurate and true at the time it is provided;
(c) any Posted Material which is in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or the User’s experience;
(d) the Posted Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
(e) the Posted Material is not “passing off” of any product or service and does not constitute unfair competition;
(f) the Posted Material does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, confidential information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
(g) the Posted Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Platform or any network or system; and
(h) the Posted Material does not breach or infringe any applicable laws.

7.2 LICENCE

(a) You grant to Shiftmate a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Posted Material in order for Shiftmate to use, exploit or otherwise enjoy the benefit of such Posted Material.

(b) If it is determined that you retain moral rights (including rights of attribution or integrity) in any Posted Material, you forever release Shiftmate from any and all claims that you could assert against Shiftmate by virtue of any such moral rights.

(c) You indemnify Shiftmate against all damages, losses, costs and expenses incurred by Shiftmate arising out of any third party claim that your Posted Material infringes any third party’s Intellectual Property Rights.

7.3 REMOVAL

(a) Shiftmate acts as a passive conduit for the online distribution of Posted Material and has no obligation to screen Posted Material in advance of it being posted. However, Shiftmate may, in its absolute discretion, review and remove any Posted Material (including links to you, your profile or listings you have posted on the Platform) at any time without giving any explanation or justification for removing the Posted Material.

(b) You agree that you are responsible for keeping and maintaining records of Posted Material.

8. REFUNDS, SERVICE INTERRUPTIONS AND CANCELLATIONS

8.1 NO OBLIGATIONS OF SHIFTMATE

ShiftMate will have no liability or obligation to you if:

(a) a Service Facility or Practitioner cancels at any time after the time for performance of the Scheduled Engagement is agreed; or
(b) for whatever reason, including technical faults, the services in a Scheduled Engagement cannot be performed or completed, and you will not be entitled to any compensation from ShiftMate.

8.2 CANCELLATION

(a) Either a Service Facility or Practitioner may cancel a Scheduled provided such cancellation is given to the other party via the Platform at least two (2) hours prior to the commencement of the Scheduled Engagement.
(b) If a Service Facility fails to cancel a Scheduled Engagement in accordance with clause 9.2(a) above, the Service Facility must pay to ShiftMate a cancellation fee being the cancelled Practitioner’s hourly rate on their Practitioner Profile at the date the Scheduled Engagement was accepted by them, multiplied by four (4) (Cancellation Fee).
(c) ShiftMate will deduct and retain 20% of the Cancellation Fee and remit the balance to the cancelled Practitioner.
(d) If a Practitioner fails to cancel a Scheduled Engagement in accordance with clause 9.2(a) and fails to perform the Scheduled Engagement, Shiftmate is not responsible for recouping any loss or damage from the Practitioner suffered by the Service Facility.

9. VERIFICATION CHECK

9.1 VERIFICATION PROCESS GENERALLY

(a) Shiftmate may require Users to verify their details, including but not limited to their name, date of birth, qualifications and working experience, criminal record, authority to represent a Service Facility if they purport to do so and credit information (Verification Check).

(b) ShiftMate may use:

(i) its internal processes; or

(ii) an external identity verification service as selected by ShiftMate from time to time (Third Party ID Service),

to perform the Verification Check.

(d) A User may be required to perform a Verification Check:

(i) before your Account is approved; and

(ii) at any other time as reasonably requested by us provided you remain a User of the Platform.

9.2 DISCLOSURE OF INFORMATION

(a) ShiftMate will collect your personal information in accordance with our Privacy Policy as set out in clause 23.

(b) Users acknowledge and agree that:

(i) ShiftMate may contact and share Users’ personal information with third-parties for the purposes of completing any Verification Check; and

(ii) Users consent to ShiftMate receiving, sharing and using this information to enable ShiftMate to carry out any Verification Check.

9.3 REPRESENTATIONS AND WARRANTIES

(a) Users acknowledge and agree that:

(i) ShiftMate are reliant on the information provided as part of each User’s Verification Check to verify that User’s identity and to the extent permitted by law, ShiftMate disclaims all warranties that the Verification Service will be accurate or guarantee that the Verification Check will ensure any User will contract with a suitable User;

(ii) Users should make their own inquiries as to other Users’ identities before engaging in contracts with those Users;

(iii) ShiftMate does not endorse any User, Service Listing or Verification Check (whether performed by a Third Party ID Service or otherwise);

(b) ShiftMate makes no warranties, representations or guarantees of any kind, whether express or implied, or whether under this agreement, under statute or on any other basis, in relation to or connected with:

(i) any Verification Check being able to identify prior misconduct by a User or guarantee that a User will not engage in misconduct in the future;

(ii) the accuracy, legitimacy, validity, credibility or authenticity of any Users on the Platform; and

(iii) the performance of any Verification Check.

(c) To the maximum extent permitted by law, Shiftmate accepts no responsibility and excludes all liability arising from, or connected with, the Verification Checks, or any use of or reliance on Verification Checks.

9.4 VERIFICATION CHECKS FOR PRACTITIONERS

(a) If you are a Practitioner, to the maximum extent permitted by law, you acknowledge and agree that:

(i) we may contact, connect to or otherwise liaise with Third Party ID Services to validate your Verification Check;

(ii) we may provide your personal information or sensitive information to Third Party ID Services, and you consent to the Third Party ID Service receiving and using this information to enable us to perform a Verification Check; and

(iii) you may be charged a non-refundable fee for the Verification Check (as set out on the Platform), and we will be under no obligation to perform the Verification Check until the relevant fee has been paid, in accordance with the requirements specified on the Platform and these Terms.

9.5 VERIFICATION CHECKS FOR SERVICE FACILITIES

(a) If you are a Service Facility, to the maximum extent permitted by law, you acknowledge and agree that:

(i) the Verification Check of a Practitioner may not be fully accurate, as they are dependent on the information provided by a Practitioner and/or information or checks performed by a Third Party ID Service;

(ii) you should not solely rely on the Verification Checks, and you should make your own inquiries as to the accuracy, legitimacy, validity, credibility or authenticity of any Practitioner’s professional services on the Platform; and

(iii) in order to create an Account, Service Facilities including Service Facility Administrators, and any other authorised user required by us, must verify their identity and complete certain background checks (including a Verification Check) which will assist with the protection of Practitioner’s personal and sensitive information.

10. ADVERTISEMENTS, REASSIGNMENTS AND COMPETITION/POACHING

10.1 ADVERTISING ROLES

Service Facilities may advertise employment positions on the Platform provided that they:

(a) clearly indicate the role they are advertising for is not a Service Listing within the meaning of this agreement but rather an offer of employment; and

(b) pay ShiftMate a hiring fee, being $1000 AUD in the event that a User of ShiftMate applies for and is hired for the role.

10.2 REASSIGNMENT

(a) Where a Service Facility engages a Practitioner outside the Platform who they have previously engaged through the Platform in the 6 months preceding the date they engage the Practitioner outside the Platform, the Service Facility must pay ShiftMate a reassignment fee of $1000 AUD.
(b) With the exception of the above clause 11.2, you are prohibited from using our Platform, including the information and materials available on it, in any way that competes with our business. If you breach this term, we will hold you responsible for any loss, damage or expense, howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent (Liability) we suffer, and hold you accountable for any profits that you may make from non-permitted use.

11. PROHIBITED ACTIVITIES

You must not do, or attempt to do:

(a) anything that is unlawful;

(b) anything prohibited by any laws which apply to our Platform or which apply to you or your use of our Platform;

(d) anything which might bring us or our Platform into disrepute, including (without limitation):

(i) anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual’s consent) or any other legal rights;

(ii) using our Platform to defame, harass, threaten, menace or offend any person;

(iii) interfering with any user using our Platform;

(iv) tampering with or modifying our Platform, knowingly transmitting viruses or other disabling features, or damaging or interfering with our Platform, including (without limitation) using trojan horses, viruses or piracy or programming routines that may damage or interfere with our Platform;

(v) anything that is likely to violate any local, state, national or other law or regulation or any order of a court, including, without limitation, zoning and tax regulations, all health services regulations and guidelines including the Health Practitioner Regulation National Law Act 2009 (Cth), any AHPRA guidelines and code of conduct for registered health practitioners, and all other applicable law and policy regulating health service professionals such as any state and territory laws and the Australian Consumer Law;

(vi) using our Platform to find a Practitioner or Service Facility and then completing an Engagement or transaction independent of our Platform in order to circumvent the obligation to pay any fees related to our provision of the Platform except in accordance with the “reassignment” clause above;

(vii) as a Practitioner, offering any professional services that you do not intend to honour or cannot provide;

(viii) as a Service Facility, making any offers to Practitioners for professional services that you do not intend to honour;

(ix) using our Platform to send unsolicited email messages; or

(x) facilitating or assisting a third party to do any of the above acts.

12. ONLINE PAYMENT PARTNER

(a) We may use third-party online payment partner (Online Payment Partner) to collect payments on the Platform, including for our Services.

(b) The processing of payments by the Online Payment Partner will be, in addition to this agreement, subject to the terms, conditions and privacy policies of the Online Payment Partner.

(c) You agree to release Shiftmate and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Online Payment Partner, including any issue with security or performance of the Online Payment Partner’s platform or any error or mistake in processing your payment.

(d) We reserve the right to correct, or to instruct our Online Payment Partner to correct, any errors or mistakes in collecting your payment.

13. SERVICE LIMITATIONS

The Platform is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that Shiftmate cannot and does not represent, warrant or guarantee that:

(a) the Platform will be free from errors or defects;

(b) the Platform will be accessible at all times;

(d) information you receive or supply through the Platform will be secure or confidential; or

(e) any information provided through the Platform is accurate or true.

14. INTELLECTUAL PROPERTY

(a) Shiftmate retains ownership of all materials developed or provided (or both, as the case may be) in connection with the Services (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Service Content) and reserves all rights in any Intellectual Property Rights owned or licensed by it not expressly granted to you.

(b) You may make a temporary electronic copy of all or part of the Service Content for the sole purpose of viewing it and adapting it for the purpose of using the Platform. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish the Service Content without prior written consent from Shiftmate or as permitted by law.

(c) In this clause 15, “Intellectual Property Rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world.

15. THIRD PARTY CONTENT

The Platform may contain text, images, data and other content provided by a third party and displayed on the Platform (Third Party Content). Shiftmate accepts no responsibility for Third Party Content and makes no representation, warranty or guarantee about the quality, suitability, accuracy, reliability, currency or completeness of Third Party Content.

16. THIRD PARTY TERMS

(a) Any service that requires Shiftmate to acquire goods and services supplied by a third party on behalf of the Service Facility (including a third party payment service) may be subject to the terms and conditions of that third party (Third Party Terms), including ‘no refund’ policies.
(b) Users agree to familiarise themselves with any Third Party Terms applicable to any such goods and services and, by instructing Shiftmate to acquire the goods or services on the User’s behalf, the User will be taken to have agreed to such Third Party Terms.

17. DISPUTES BETWEEN USERS

(a) You should direct any complaint relating to another User to that User. Users must take all reasonable steps to resolve any dispute with another User with that User.

(b) If any issue or problem relating to the Platform remains unresolved after directing a complaint to a relevant User, or if the complaint does not relate to another User, you must report it to ShiftMate via email to: info@shiftmate.com.au. We will assess the complaint and attempt to quickly and satisfactorily resolve it.

(d) ShiftMate has the option to appoint an independent mediator or arbitrator if needed. The cost of any mediator or arbitrator must be shared equally between each of the parties to the dispute.

(e) ShiftMate reserves the right to hold funds in relation to a dispute until the dispute is resolved by the relevant parties or by a mediator or arbitrator.

(f) If you have a dispute with ShiftMate, you agree to notify us first and enter into discussion, mediation or arbitration with us for a minimum of a 120-day period before pursuing any other proceedings.

(g) Notwithstanding any other provision of this clause 18, you or ShiftMate may at any time cancel your Account or discontinue your use of the Platform.

18. SECURITY

ShiftMate does not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with your use of the Platform. You should take your own precautions to ensure that the process you employ to access the Platform does not expose you to the risk of viruses, malicious computer code or other forms of interference.

19. DISCLAIMER

(a) (Introduction service) Shiftmate is a medium that facilitates the introduction of Service Facilities and Practitioners for the purposes of the provision of professional services. ShiftMate simply collects a service fee in consideration for providing this introduction service and does not have any obligations or liabilities to, and is not a party to any contract between, Service Facilities and Practitioners in relation to such services or otherwise resulting from the introduction.

(b) (Limitation of liability) To the maximum extent permitted by applicable law, Shiftmate excludes completely all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the Platform or its use or any services provided by any Practitioner. This includes the transmission of any computer virus.

(c) (Disclaimer) All express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded.

(d) (Consumer law) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.

(e) (Indemnity) You agree to indemnify Shiftmate and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from you or your representatives’:

(i) breach of any term of this agreement;

(ii) use of the Platform; or

(iii) your provision or receipt of Services from another User.

(f) (Consequential loss) To the maximum extent permitted by law, under no circumstances will Shiftmate be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the Platform, this agreement or their subject matter, or any services provided by any Practitioner (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).

(g) (Not advice) The content on the Platform is not comprehensive and is for general information purposes only. It does not take into account your specific needs, objectives or circumstances, and is not advice. While we use reasonable attempts to ensure the accuracy and completeness of the content, we make no representation or warranty regarding it, to the extent permitted by law. The content is subject to change without notice. However, we do not undertake to keep our Platform up-to-date and we are not liable if any content is inaccurate or out-of-date.

20. RATINGS AND REVIEWS

(a) Service Facilities may rate a Completed Engagement and Practitioners may rate their experience working with a Service Facility (Rating).

(b) Service Facilities may provide feedback to Practitioners regarding the services that the Service Facility received from them and Practitioners may provide feedback to Service Facilities having working for that Service Facility (Review).

(c) Ratings and Reviews can be viewed by any User and will remain viewable until the relevant User Account is removed or terminated.

(d) Users must only provide true, fair and accurate information in their Reviews.

(e) If we consider that a Review is untrue, unfair, inaccurate, offensive or inappropriate, we may delete the Review and/or ban the relevant User from posting further Reviews. We do not undertake to review each Review made by Users.

(f) To the maximum extent permitted by law, we are not responsible for the content of any Reviews.

(g) You may not publish Reviews of other Users to whom you have a personal or professional relationship (separately from the Platform).

(h) You may only write a Review about a User if you have had a buying or service experience with that User, which means that:

(i) you have purchased a service from that User via the Platform; or

(ii) you have placed an order with the User via the Platform; or

(iii) you can otherwise document your use of the relevant User’s service, including via correspondence or other interaction with the Practitioner via the Platform, (collectively referred to as a Service Experience).

(i) You may only write about your own Service Experience. You are not permitted to write a Review about somebody else’s Service Experience, such as that of a family member or friend.

(j) You may not write a Review about a User you have previously owned, currently own, or which an immediate family member currently owns, or if you are an executive or employee of that Practitioner, or work for the Practitioner. Similarly, you may not write a Review about a direct competitor to the User you own, are employed by or work for.

(k) Your Service Experience must have occurred within the last 12 months when you submit a Review.

(l) You are encouraged to be specific and factual in your Reviews. If you have been offered an incentive by a User to write a Review, you should include information about this in your Review. Incentives include the User offering you a gift, reward, discount or advantage for writing a Review about the User.

21. CONFIDENTIALITY

You agree that:

(a) no information owned by ShiftMate, including system operations, documents, marketing strategies, staff information and client information, may be disclosed or made available to any third parties;

(b) all communications involving the details of other users on this Platform and of the Practitioner are confidential, and must be kept as such by you and must not be distributed nor disclosed to any third party;

(c) any Interview recording, to the extent you are given access to one, is to be treated as confidential and not to be distributed or disclosed to any third party.

22. PRIVACY

You agree to be bound by the clauses outlined in Shiftmate’s Privacy Policy, which can be accessed here https://home.shiftmate.com.au/privacy-policy/.

23. COLLECTION NOTICE

(a) We collect personal information about you in order to enable you to access and use the Platform, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.

(b) Our Privacy Policy contains more information about how we use, disclose and store your information and details how you can access and correct your personal information.

24. TERMINATION

(a) Shiftmate reserves the right to terminate a User’s access to any or all of the Platform (including any listings, memberships or Accounts) at any time without notice, for any reason.

(b) In the event that a User’s Account is terminated:

(i) the User’s access to all posting tools on the Platform will be revoked;

(ii) the User will be unable to view the details of all other Users (including contact details, geographic details, any other personal details and Service Listings or requests); and

(iii) the User may be unable to view the details of other Practitioners (including contact details, geographic details and any other details), and all Service Listings previously posted by the respective User will also be removed from the Platform.

(c) Users may terminate their Account, and any other membership they hold in connection with the Platform, at any time by using the Platform’s functionality, where such functionality is available. Where such functionality is not available, Shiftmate will effect such termination within a reasonable time after receiving written notice from the User.

(d) Notwithstanding termination or expiry of your Account, this agreement, or any other membership you hold in connection with the Platform, the provisions of Part 1 and any other provision in this agreement which by its nature would reasonably be expected to be complied with after termination or expiry, will continue to apply.

25. TAX

You are responsible for the collection and remission of all taxes associated with the services you provide or receive or any transactions through your use of the Platform, and Shiftmate will not be held accountable in relation to any transactions between Service Facilities and Practitioners where tax related misconduct has occurred.

26. RECORD / AUDIT

To the extent permitted by law, Shiftmate reserves the right to keep all records of any and all transactions and communications made through this Platform between you and other Users (including conversations, user posts, job request bids, comments, feedback, cookies, and I.P. address information) for administration purposes and also holds the right to produce these records in the event of any legal dispute involving Shiftmate.

27. NOTICES

(a) A notice or other communication to a party under this agreement must be:

(i) in writing and in English; and

(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

(i) 24 hours after the email was sent; or

(ii) when replied to by the other party,

whichever is earlier.

28. GENERAL

28.1 GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

28.2 WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

28.3 SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

28.4 JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

28.5 ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

28.6 COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

28.7 ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

28.8 INTERPRETATION

(a) (singular and plural) words in the singular includes the plural (and vice versa);

(b) (gender) words indicating a gender includes the corresponding words of any other gender;

(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;

(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(i) (includes) the word “includes” and similar words in any form is not a word of limitation; and

(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

Part 2 : PRACTITIONERS

1. ELIGIBILITY AND QUALIFICATIONS

(a) You warrant that you are over the age of 18.

(b) If in any of your Service Listings or anywhere on your Account you hold yourself out to possess certain qualifications (Qualifications), you warrant to Shiftmate that you do hold such Qualifications and if requested by the Platform or Shiftmate from time to time, you will promptly provide Shiftmate with evidence of the Qualifications.

(c) You must provide us with accurate and complete information when setting up your Account as some of this information will form part of your profile available to other Users of the Platform (Practitioner Profile), including your:

(i) date of birth;

(ii) contact details;

(iii) visa status;

(iv) Verification Check;

(v) Australian Health Practitioner Regulation Agency (AHPRA) registration;

(vi) statement of work history;

(vii) number of hours you are available to work;

(viii) specialties, practitioner level, mandatory competencies, Qualifications;

(ix) whether you have professional indemnity insurance; and

(x) other information required on the Platform to enable you to provide the professional services to Service Facilities.

(d) You must use your best endeavours to provide as much information as possible in your Practitioner Profile and keep it accurate, current and complete at all times.

(e) When creating a Practitioner Profile, you warrant that:

(i) you are licensed with AHPRA;

(ii) you have never had a criminal conviction or this has been disclosed in accordance with any AHPRA regulations;

(iii) you have never had your Practitioner’s AHPRA licence suspended or revoked in any jurisdiction; and

(iv) all information in your Practitioner Profile is accurate.

(f) As part of the Platform, Service Facilities will have access to your Practitioner Profile and all the personal and sensitive information contained in the Practitioner Profile. Only those Service Facilities that you wish to provide your services to will have access to all of your personal and sensitive information. Only the human resources department of a Service Facility will receive your email address for employment related services. You consent to the disclosure of your Practitioner Profile to Service Facilities. Service Facilities will be bound by these Terms and our Privacy Policy when viewing and using your Practitioner Profile.

(g) When you sign up for an Account, you must indicate whether or not you wish to use the Platform’s Managed Invoice Function and Shiftmate will assess whether or not it its sole and absolute discretion whether to enable the Managed Invoice Function for your Account.

2. INTERVIEW

(a) ShiftMate may, before approving your Account, require you to complete an interview (either in person or remotely) where we will ask you questions about your professional background, Qualifications, or any other information you supply to us in setting up an Account and Practitioner Profile (Interview).

(b) We will record your Interview for training, quality assurance and dispute resolution purposes.

(c) We may share the Interview with any Service Facility on a confidential basis whose Vacancies you accept on the Platform.

3. SERVICE LISTINGS

You acknowledge and agree that:

(a) you must take all reasonable steps to complete the services as described in every Scheduled Engagement that is offered by a Service Facility and accepted by you, including by not cancelling any part of the professional services you are to provide under a Scheduled Engagement;

(b) you must deal with any dispute with a Service Facility in accordance with clause 18 the Platform of Part 1;

(c) any additional terms and conditions relating to a Scheduled Engagement, Service Listing via the Platform, are solely between you and the relevant Service Facility and do not involve Shiftmate in any way, except that they must not be inconsistent with your or the Service Facility’s obligations under this agreement; and

(d) Shiftmate will have no responsibility for the accuracy, reliability or timeliness of any Service Facility’s response (or lack thereof) to any Vacancy.

4. PROVISION OF SERVICES

(a) You must ensure that all professional services required to be provided by you as part of a Scheduled Engagement are provided:

(i) in accordance with all applicable laws, regulations, tax obligations and industry standards;

(ii) with due care and skill and in a professional, punctual and diligent manner;

(iii) so that the services are fit for their intended purpose; and

(iv) on the date and at the times of the Scheduled Engagement.

(b) You acknowledge and agree that a Service Facility may review any Service Listing or services you provide under a Service Listing on the Platform in accordance with clause 21 of Part 3 of this agreement.

(c) If a Service Facility requests to reschedule the delivery time for the services to be delivered as part of a Scheduled Engagement, you may choose to accept or reject such a request.

5. REFUNDS & CANCELLATIONS

(a) Without limiting or otherwise affecting the terms of this agreement, if you wish to cancel a Scheduled Engagement before you have performed any or all the relevant professional services in that engagement, you must contact us using the Platform’s functionality, including by providing details as to why you are cancelling. If Shiftmate decides to investigate your request, you must provide assistance and information to Shiftmate as reasonably requested.

(b) You must ensure that you have no upcoming requirements or duties under any Scheduled Engagements in the next two (2) hours.

(i) cancel your Account and/or any membership you hold in connection with the Platform;

(ii) refund any amounts paid by the relevant Service Facility; and

(iii) if any amounts were refunded to the relevant Service Facility, require you to pay all or part of that amount to us, and issue you with an invoice for that amount.

6. BYPASSING

(a) You agree that while you are a Practitioner on the Platform, and for one (1) year after you cease using the Platform, regardless of the reason that your Account was suspended or cancelled, you will not, either directly or indirectly, solicit or attempt to solicit any business, work, income or other benefit, from any Service Facility whom you came to know about, or with whom you provided services to directly or indirectly in connection with the Platform. This provision will apply whether or not the relevant Service Facility or their representative is still active on the Platform.

(b) Shiftmate may, in its absolute discretion, cancel your Account and suspend you from using the Platform if it finds or suspects that you have breached or are in breach of this clause 6.

7. BINDING CONTRACT

You agree that when a Service Facility submits an enquiry in response to your Service Listing, this constitutes their intention and offer to enter into a contract with you, where you will provide the Service Facility with the service as specified in the relevant Service Listing, in exchange for payment of the relevant Quoted Amount. A contract is formed in this respect (between you and the Service Facility) when you respond to an email or message on the Platform confirming that you accept the Service Facility’s offer.

8. WARRANTIES

By listing yourself as a Practitioner on the Platform, responding to a Vacancy you represent and warrant that:

(a) you are able to fulfil the requirements of the services specified in the relevant vacancies to which you respond;

(b) you will provide services to each Service Facility as part of a Scheduled Engagement:

(i) using suitably qualified and trained personnel exercising due care and skill in a professional, efficient, diligent and safe manner, and to the best industry standards; and

(ii) in compliance with all applicable laws.

9. INDEMNITY

Further and in addition to any other indemnity you give us under this agreement, to the maximum extent permitted by law, as a Practitioner you indemnify us and hold us harmless against any liability suffered or incurred by us arising from or in connection with:

(a) any breach of the warranties given by you in this agreement;

(b) any breach of our intellectual property rights by you;

Part 3 : SERVICE FACILITIES

1. SERVICE LISTINGS, SERVICE REQUESTS AND FEES

1.1 SERVICE LISTINGS

(a) You acknowledge and agree that:

(i) if you upload a Vacancy, once a Practitioner responds to it and you select that Practitioner to complete the Scheduled Engagement, that will constitute your offer and intention to enter into a contract with the Practitioner;

(ii) our fees will be calculated and charged in accordance with the terms of this document;

(iii) any terms and conditions relating to professional services or other content in a Vacancy provided via the Platform are solely between you and the relevant Practitioner and do not involve Shiftmate in any way, except that such terms and conditions must not be inconsistent with your or the Practitioner’s obligations under this agreement.

(b) When you submit a Vacancy on the Platform, you must:

(i) only submit requests that are bone fide and accurate; and

(ii) truthfully fill out all the information requested by the Platform in relation to the Vacancy.

2. ACCOUNT SETTINGS

2.1 GENERAL

(a) When registering for an Account, you must:

(i) choose whether to be on-boarded to the Managed Invoice Function; and

(ii) provide us with sufficient information to prepare your profile which will be visible to other Users of the Platform (Service Facility Profile) which will include the Service Facility’s:

(A) name;

(B) provider number;

(D) type of facility;

(E) rates of pay to be paid to Practitioners;

(F) details of the Service Facility Administrators and other authorised representatives;

(G) breakdown of specialties;

(H) handy hints on accessing the Service Facility; and

(I) any other information required by the Platform.

(b) You must update your Service Facility Profile to keep it accurate, current and complete.

2.2 PAYMENT INFORMATION

When signing up for an account, a Service Facility may provide bank account or credit/debit card information and pre-authorise a certain amount which may be debited when the Service Facility becomes liable to pay fees under their chosen model.

2.3 MULTIPLE ACCOUNTS

Notwithstanding clause 2(c) in Part 1 of this agreement, if you are a Service Facility and you own more than one business or facility, you must apply for a separate Account for each business or facility. We may provide you with multiple logins for each business or facility on request. 

2.4 SERVICE FACILITY WARRANTIES

When creating a Service Facility Profile, you warrant that:

(a) you have any licenses required to operate the Service Facility;

(b) you will provide to us, as reasonably requested by us, a correct and up to date:

(i) set of conditions and rates of pay to be set out in your Service Facility Profile; and

(ii) when you choose to place a Vacancy on the Platform, a Booking Request as the context requires and as provided for in the Platform;

3. PAYMENT

(a) (Payment obligations) Unless otherwise agreed in writing with the Practitioner, you must pay for all services performed by a Practitioner.

(b) (Card surcharges) Our Online Payment Partner may charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

(c) (Pricing errors) In the event that we discover an error or inaccuracy in any price at which your order was purchased via the Platform, we will attempt to contact you and inform you of this as soon as possible. Subject to agreement with the Practitioner, you will then have the option of purchasing the relevant services at the correct price, or cancelling your order. If you choose to cancel your order and payment has already been debited, the full amount will be credited back to your original method of payment.

4. CANCELLATIONS

(a) If you wish to cancel a Service Listing, you must do so in accordance with this agreement and comply with clause 9 in Part 1.

(b) Shiftmate will have no liability or obligation to you if a Practitioner cancels a Service Listing after it has been agreed and you will not be entitled to any compensation from Shiftmate in relation to any such cancellation, including any portion of the Service Fee.

(c) If you wish to cancel services specified in an agreed Service Listing, before the Practitioner has performed them, you must contact the Practitioner. If Shiftmate decides to investigate your cancellation, you must provide assistance and information to Shiftmate as reasonably requested.

(d) If you cancel a service specified in an agreed Service Listing, whether the relevant Quoted Amount paid by you is refundable will depend on the cancellation policy and refund policy of the relevant Practitioner.

5. LINKED BUSINESSES

You acknowledge and agree that:

(a) the Platform provides links and introductions to Practitioners who are third parties that are not under the control of Shiftmate;

(b) the provision by Shiftmate of introductions to Practitioners does not imply any endorsement or recommendation by Shiftmate of any Practitioner;

(c) Shiftmate does not examine, determine or warrant the certification and/or licensing, competence, solvency or information of any Practitioner who uses or is listed on the Platform; and

(d) any terms and conditions relating to a Vacancy or quote provided via the Platform constitute a contract for professional services between you and the Practitioner and do not involve Shiftmate in any way unless otherwise set out in this agreement.

6. COMMUNICATION OUTSIDE THE PLATFORM

(a) You must not communicate with a Practitioner, or request or entice a Practitioner to communicate with you, outside the Platform (except in the course of accepting Practitioner services that were agreed in a Service Listing or Service Request).

(b) Shiftmate, in its absolute discretion, may cancel your Account and suspend you from using the Platform if it finds or suspects that you have breached or are in breach of this clause 6.

7. ACCESS TO PRACTITIONER INFORMATION

(a) By using this Platform Service Facilities will have access to Practitioner’s personal and sensitive information contained in their Practitioner Profile. You agree that this information is only to be used for the purposes of engaging the professional services of Practitioners. You are responsible for ensuring you have appropriate measures in place to protect a Practitioner’s personal and sensitive information and that only authorised users at your Service Facility have access to this information.

(b) Service Facilities must appoint an authorised representative responsible for ensuring the privacy and safety of Practitioner’s personal information (Service Facility Administrator).

(c) Service Facilities must comply with ShiftMate’s Privacy Policy, which can be accessed here https://home.shiftmate.com.au/privacy-policy/

8. INDEMNITY

(a) Further and in addition to any other indemnity under this agreement, to the maximum extent permitted by law, as a Service Facility you indemnify us and hold us harmless against any liability suffered or incurred by us arising from or in connection with:

(i) any breach of our intellectual property rights by you or your personnel;

(ii) any breach of applicable laws by you;

(iii) the acts or omissions of a Practitioner while performing an Engagement;

(iv) any death or personal injury suffered by a Practitioner while performing an Engagement, to the extent caused or contributed to by you; and/or

(v) any death, personal injury, loss or damage caused or contributed to by a Practitioner while performing an Engagement, to the extent caused or contributed to by you.

(b) The above indemnities are continuing obligations, independent from the other obligations under this agreement, and they continue after this agreement.

(c) It is not necessary for us to suffer or incur any Liability before enforcing a right of indemnity under this agreement.

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