Term's &

Conditions

These terms of use (Terms) govern your use of the Cradle Pay application and website located at

www.cradlepay.com, and all associated websites and pages, including social media platforms (together, the

Platform) and any other services made available through the Platform. By using the Platform, you agree to

be bound by these Terms which form a binding contractual agreement between you, the user of the Platform

(you or User) and us, Cradle Pay Pty Ltd ABN 91 626 294 237 (Cradle Pay, we or us).

PLEASE CAREFULLY READ THESE TERMS INCLUDING THE DISCLAIMER AT CLAUSE 3.13 .

IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE THE PLATFORM.

We may change these Terms at any time by updating this page, and your continued use of the Platform

following such update will represent an agreement by you to be bound by the Terms as amended.

The Platform is a secure quoting and payment platform that facilitates agreements made between:

 - users of the Platform who are contractors, who use the Platform to create quotes in respect of

services to be provided to Customers, and request payment for those services to be held for a period up to 90 days

(Contractors); and

- users of the Platform who use the Platform to accept Quotes from Contractors and make payments

into holding for up to 90 days (Customers).

Stripe payments Pty ltd – Third Party Payments Services

We use the payment services of Stripe Payments Pty Ltd (Assembly Payments) to provide the 

payment services that facilitate transactions between Contractors and Customers on the Platform. Stripe

Payments is an API, meaning that it integrates with the Cradle Pay Platform and looks as though it is part of

Cradle Pay. This is not the case. Every time you access the payment services through the Platform

(such as when you upload payments, release payments or receive payments as the case may be), you

acknowledge and agree that you are using the services of Stripe Payments and not Cradle Pay. You

agree to be bound by Stripe Payments Privacy Policy which is located here and hereby consent and

authorise us and Stripe Payments to share any information and payment instructions you provide with

one another and, to the extent required to complete your transactions, with any other Users. You also agree

to be bound by Stripe Payments’ User Terms which are located here (Stripe Payments’ Terms)

which apply to you every time you use the escrow services on the Platform. Assembly Payments’ Terms and

Privacy Policy may change at any time without notice and Cradle Pay recommends that you regularly check

such pages to ensure you are aware of the then current terms which apply to your use of the escrow and

payment services.

You agree to release and hold harmless Cradle Pay 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 Stripe

Payments, including any failure by Stripe Payments to comply with the Stripe Payments’ Terms or

any issue with security or performance of the Stripe Payments’ services or any error or mistake in

processing or not processing a payment in connection with a Quote.

General

The remainder of these Terms are divided into three parts:

Part 1 (Contractors), which sets out further terms that apply to Contractors (as well as Users more

generally);

Part 2 (Customers), which sets out further terms that apply to Customers (as well as Users more

generally); and

Part 3 (General), which sets out terms that apply to all Users, including Contractors and Customers.

1.     CONTRACTORS

1.1       QUOTES

          (a)    You may create quotes for services you agree to provide to Customers through your

                  Account (defined in Part 3) on the Platform (Quotes).

          (b)    Each Quote must contain the milestones to be achieved, and state the:

                 

                  (i) date payment must be uploaded (optional);

        

                  (ii) payment amount (mandatory);

 

                  (iii) description of services being provided to the Customer (mandatory);

                  for each milestone (Milestone).

 

          (c)    It is the Contractor’s responsibility to ensure the Quote takes into account any GST or

                  other payments payable on the Quote.

 

          (d)    Once you create a Quote, it will be sent to the Customer for approval. Cradle Pay may

                  permit you to revoke or amend a Quote in certain circumstances, such as before it is

                  accepted by the Customer or if it has been accepted, through adding a Variation (defined

                  below) to any Quote with the Customer’s consent.

 

         (e)    If the Customer requests extra services be done or if the Contractor determines extra

                 services need to be provided then the Contractor may enter a variation in respect of the

                 Quote on the Platform at any time (Variation). Variations work in the same manner as

                 creating a Milestone.

 

          (f)    On acceptance of a Quote by the Customer, the Quote will be binding on the Customer

                 and Contractor.

1.2      INVOICING AND PAYMENT PROCESS – STANDARD PAYMENTS

          (a)   For each Quote that has been agreed between you and a Customer on the Platform

                 whereby the parties agree to standard payment terms you acknowledge and agree that:

                (i)   Prior to the commencement of each Milestone, the Customer is required to pay

                      the amount as agreed for that particular Milestone (Milestone Amount) to

                      Stripe Payments (through the Cradle Pay Platform). Payment of the

                      Milestone Amount is held for up to 90 days by Stripe Payments subject to these

                      Terms. You authorise Stripe Payments to act as your payment facilitator

                      and agent in connection with the Quote and payment of the Milestone Amount.

               (ii)   At the completion of each Milestone you may upload imagery as evidence of

                      completion of the Milestone (if you wish) and submit a request to the Customer

                      through the Platform to authorise the release of that particular Milestone

                      Amount from Stripe Payments.

               (iii)  The Customer has 7 business days to respond with either:

                      A.     clicking on the “release” button (or a similar button) in which case it

                              authorises Stripe Payments to release the Milestone Amount to

                              you and accepts satisfactory completion of the Milestone; or

                      B.     clicking on the “dispute” button (or a similar button, such as a

                              “discuss” button) in which case Stripe Payments will retain the

                              Milestone Amount for up to 90 days pending resolution of the dispute.

                (iv) If there is no response from the Customer at the expiry of the 7 business day

                      period, the Customer is deemed to have authorised Stripe Payments to

                      release the Milestone Amount automatically to you.

 

                (v)  On release, the Milestone Amount less our Service Fee (defined below) will be

                      paid to you by Stripe Payments within a reasonable time to your nominated

                      bank account which has been accepted by us and Stripe Payments.

 

                (vi) You are responsible for ensuring your bank account details provided are correct.

1.3      PAYMENT PROCESS – EXPRESS PAYMENTS

           (a)    For each Quote that has been agreed between you and the Customer on the Platform

                   and whereby the parties agree to express payment terms, you acknowledge and agree

                   that:

                   (i)     the Customer will pay the Milestone Amount to Stripe Payments through the

                           Platform on completion of each Milestone.

                   (ii)    by submitting payment of the Milestone Amount to Stripe Payments the

                          Customer irrevocably authorises Stripe Payments to release the Milestone

                          Amount to you and the Customer accept satisfactory completion of the

                          Milestone; and

 

                   (iii) there is no ability for the Customer to dispute the services performed by you.

1.4      FEES

 

          You agree and acknowledge that:

 

          (a)    in consideration of Cradle Pay providing the Platform to the Contractor, Cradle Pay

                  charges the Contractor a fee of 2% (including GST) of the total Milestone Amount

                  (including any GST on that Milestone Amount) (Service Fee). The Service Fee is subject

                  to change at any time without notice, and Cradle Pay encourages Users to regularly

                  review the Platform to confirm the then latest fee as any increase in the Service Fee will

                  apply immediately upon its publication on the Platform;

 

          (b)    the Contractor and the Customer irrevocably authorise and direct Stripe Payments to

                  pay the Service Fee directly to Cradle Pay from the relevant Milestone Amount held by

                  Stripe Payments immediately upon release by the Customer of the relevant Milestone

                  Amount to the Contractor. The parties acknowledge and agree that this payment will be

                  made after the completion of the relevant Milestone by the Contractor.

1.5      OBLIGATIONS

          You agree and acknowledge that:

          (a)    you are solely responsible for ensuring all information contained in your Quote is correct,

                  including without limitation all Milestone Amounts;

 

          (b)    Cradle Pay may choose not to accept any Quote you submit to the Platform, and Cradle

                  Pay may limit the number of Quotes you can submit on the Platform;

 

          (c)    you must take all reasonable steps to complete the services as described in every Quote

                  that is agreed with a Customer, including by not cancelling any part of such Quote,

                  except where agreed between the parties;

 

          (d)    you must deal with any dispute with a Customer in accordance with clause 3.11 ;

          (e)    any terms and conditions relating to a Quote provided via the Platform are solely between

                  you and the Customer and do not involve Cradle Pay in any way, except that they must

                  not be inconsistent with your obligations under these Terms; and

 

          (f)    Cradle Pay will have no responsibility for the accuracy, reliability or timeliness of the

                 content provided by a Customer responding to a Quote including without limitation the

                 ability of the Customer to make payment of a Quote or not dispute the release of a

                 Milestone Amount.

1.6      BINDING CONTRACT

          You agree that when both you and the Customer agree on a Quote in respect of services to be

          provided by you to the Customer, a contract is formed on the terms set out in that Quote and any

          other terms agreed by the parties. You acknowledge and agree that Cradle Pay is not a party to

          such contract.

1.7      REFUNDS & CANCELLATIONS

          (a)    Cradle Pay will have no liability or obligation to you if a Customer fails to pay any amount

                  required under a Quote or disputes the release of a Milestone Amount, and you will not

                  be entitled to any compensation from Cradle Pay.

 

          (b)    The Service Fee is by default non-refundable to the extent permitted by law. However,

                  Cradle Pay may, in its absolute discretion, issue refunds of the Service Fee in certain

                  circumstances.

 

          (c)    If you wish to cancel an agreed Quote before you have completed the services as

                  described under the Quote, you may only do so with the Customer’s consent or in

                  accordance with any terms of service that bind the Customer. In the event you have a

                  dispute with the Customer, you must follow the process set out in clause 3.11 .

          (d)    If we accept your request to a cancel an agreed Quote, we may take one or more of the

                  following actions (without limitation to any other actions we may take):

          (i)     cancel your Account with Cradle Pay, including any Quotes; and/or

          (ii)    direct Stripe Payments to refund to the relevant Customer/s all amounts

                  held by it in respect of the relevant Quote/s.

          (e)    In the event of a pricing error in a Quote on the Platform, you agree to honour and comply

                  with the process set out in clause 2.3(c) , and hold Cradle Pay harmless.

1.8 WARRANTIES

          By using the Platform as a Contractor, you represent and warrant that:

          (a)    you are able to fulfil the requirements of the services specified in a Quote;

 

          (b)    you will provide the relevant services required by the Quote to Customers:

 

                  (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;

 

           (c)   you understand that Cradle Pay does not hold insurance in respect of any services you

                  may provide to a Customer, including any public liability insurance, and that it is your

                  responsibility to obtain and hold any such insurances; and

 

           (d)   any individuals or companies involved in performing the relevant services have not been

                  previously convicted of a crime, and there are no current legal, criminal, civil or

                  administrative proceedings against such individuals or companies.

2.     CUSTOMERS – FURTHER TERMS

2.1       ACCEPTANCE OF QUOTE

           (a)   By accepting a Quote using the Platform’s functionality you represent and confirm that you:

                  (i)   have the legal capacity to enter into a binding contract with the Contractor; and

 

                  (ii)  are authorised to use the debit or credit card that you use to make payment of

                        the Milestone Amount/s.

 

           (b)   Accepting a Quote constitutes your intention and offer to enter into a contract with the

                  Contractor, where the Contractor will provide you with the services as set out in the

                  Quote in exchange for payment of each Milestone Amount in the Quote.

 

           (c)   Any terms and conditions relating to services or a Quote provided via the Platform are

                  solely between you and the Contractor and do not involve Cradle Pay in any way, except

                  that they must not be inconsistent with your obligations under these Terms. You

                  acknowledge and agree that Cradle Pay is not a party to such contract.

2.2      PAYMENT PROCESS – STANDARD PAYMENTS

           (a)   For each Quote that has been agreed between you and the Contractor on the Platform

                  whereby the parties agree to standard payment terms you acknowledge and agree that:

 

            (i)   You will pay the Milestone Amount to Assembly Payments through the Platform

                  for all non-disputed services provided by the Contractor. Payment of the

                  Milestone Amount is held by Stripe Payments subject to

                  Stripes Payments’ Terms. Customers do not pay any additional fees to

                  Cradle Pay for the use of the Platform other than the Service Fee (which is

                  included in the amount set out in the Quote, and is effectively paid by the

                  Contractor). You irrevocably authorise Stripe Payments to collect the

                  Milestone Amount/s from you and to pay the Service Fee from the Milestone

                  Amount/s to Cradle Pay at the same time as the Milestone Amount/s are

                  released to the Contractor.

 

           (ii)   At the completion of each Milestone the Contractor will send you a request for

                  you to authorise the release of the relevant Milestone Amount (less the Service

                  Fee paid to Cradle Pay) from Stripe Payments to the Contractor.

 

           (iii)  You will have 7 business days to respond with either:

                  A.    clicking on the “release” button (or a similar button) in which case you

                         authorise Stripe Payments to release the Milestone Amount to the

                         Contractor and you accept satisfactory completion of the Milestone; or

 

                  B.    clicking on the “dispute” button (or a similar button, such as “discuss”

                         button) in which case Stripe Payments will retain the Milestone

                         Amount for up to 90 days pending resolution of the dispute in accordance

                         with these Terms and Stripes Payments’ Terms.

 

            (iv)   If you do not respond at the expiry of the 7 business day period, you irrevocably

                    authorise Stripe Payments to release the Milestone Amount automatically to

                    the Contractor (and the Service Fee to Cradle Pay) and you are deemed to be

                    satisfied with the services provided by the Contractor.

2.3      PAYMENT PROCESS – EXPRESS PAYMENTS

           (a)    For each Quote that has been agreed between you and the Contractor on the Platform

                   whereby the parties agree to express payment terms, you acknowledge and agree that:

 

                   (i)   you will pay the Milestone Amount to Stripe Payments through the Platform

                         on completion of each Milestone.

 

                   (ii). by submitting payment of the Milestone Amount to Stripe Payments you

                        irrevocably authorise Stripe Payments to release the Milestone Amount to

                        the Contractor and to pay the Service Fee from the Milestone Amount/s to

                        Cradle Pay at the same time and you accept satisfactory completion of the

                        Milestone; and

                   (iii) you will not have the ability to dispute the services performed by the Contractor

                        (for example, you would not be able to get the Milestone Amount back in the

                        event you dispute the services provided).

2.4      GENERAL PAYMENT TERMS

           (a)   (GST) Unless otherwise indicated, amounts stated on a Quote do not include GST. GST

                  must be paid if a Quote indicates that GST is payable.

 

           (b)   (Card surcharges) Cradle Pay (or Stripe Payments as the case may be) reserves

                  the right to charge credit card surcharges in the event that payments are made using a

                  credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).

           (c)   (Pricing errors) In the event that we discover an error or inaccuracy in any price at which

                  a Quote was processed via the Platform (as determined by us in our discretion), we will

                  attempt to contact you and inform you of this as soon as possible. Subject to agreement

                  with the Contractor, you will then have the option of accepting the Quote again at the

                  correct price or cancelling the Quote. If you choose to cancel the Quote and payment has

                  already been debited, the full amount will be credited back to your original method of payment.

2.5      CANCELLATIONS & REFUNDS

           (a)    Once you accept a Quote, you cannot cancel the Quote or obtain a refund of any

                   Milestone Amount other than with the Contractor’s consent or in accordance with any

                   additional terms of service you have agreed on with the Contractor. If you have a dispute

                   with a Contractor, you should follow the process set out in clause 3.11 .

 

           (b)    In the event a Milestone Amount has been released to the Contractor, you must contact

                   the Contractor directly in relation to any defects in the services performed or if you

                   otherwise wish to obtain a refund. Cradle Pay does not facilitate dispute resolution where

                   the relevant Milestone Amount have already been released by Stripe Payments to the

                   Contractor.

 

            (c)   Cradle Pay will have no liability or obligation to you if a Contractor cancels a Quote any

                   time after you have accepted it and you will not be entitled to any compensation from

                   Cradle Pay. You may be entitled to a release of any Milestone Amounts uploaded

                   provided this is not disputed by the Contractor, or, if it is disputed, then provided that you

                   reach an agreed resolution direct with the Contractor or that Cradle Pay resolves the

                   dispute in your favour in accordance with these terms.

            (d)   The Service Fee, once paid to Cradle Pay, is by default non-refundable to the extent

                   permitted by law. The Service Fee is payable to Cradle Pay in consideration of Cradle

                   Pay providing the Platform, as opposed to in respect of the services provided by a

                   Contractor under a quote. However, Cradle Pay may, in its absolute discretion, issue

                   refunds of the Service Fee in certain circumstances.

2.6      OBLIGATIONS

           You acknowledge and agree that:

 

           (a)    the Contractor is solely responsible for providing the services set out under a Quote and

                   complying with the terms of the Quote;

           (b)   Cradle Pay assumes no responsibility for the Contractor’s compliance with any applicable

                  laws or the terms of any Quote;

 

           (c)   Cradle Pay has the right to share your information with the Contractor and other related

                  parties in connection with these Terms and in accordance with our Privacy Policy;

 

           (d)   under no circumstance is the is the Contractor acting as an agent or partner of Cradle

                  Pay or vice versa.

           (e)   Cradle Pay does not endorse or recommend any Contractors and you should make your

                  own investigations in respect of a Contractor before engaging with them;

 

            (f)   Cradle Pay does not examine, determine or warrant the certification and/or licensing,

                  competence, solvency or information of any Contractor who uses or is listed on the

                  Platform; and

 

            (g)  any terms and conditions relating to a Quote constitute a contract between you and the

                  Contractor and do not involve Cradle Pay in any way.

3.     GENERAL

3.1       ELIGIBILITY

           (a)   This Platform is not intended for 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 that you are over the age of 18 years and have not

                  been suspended or prohibited from using the Platform. If you are under the age of 18

                  years, please do not access or use the Platform.

 

           (b)   If you use the Platform on behalf of a company or organisation:

   

                  (i)    you must have necessary authority from that company or organisation to do so;

                         and

 

                  (ii)  you warrant that you have the necessary authority from that company or

                        organisation to do so.

3.2 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. You may sign-up or

                   register for the Platform by providing Cradle Pay with an email address and password

                   directly on the Platform or as otherwise instructed by us.

 

            (b)   Cradle Pay will create your Account based on the information you provide to us on the

                   Platform.

 

            (c)   You may only have one active Account.

            (d)   You agree to provide accurate, current and complete information during the Account

                   registration process and to update such information to keep it accurate, current and

                   complete.

 

            (e)   You are solely responsible for maintaining the confidentiality of your Account details

                    including your email and password and you are liable for all activities that happen under

                   your Account, even if you do not authorise such activities. Any use of your Account

                   registration information by any other person is strictly prohibited.

             (f)   Once you complete the Account registration process, Cradle Pay may, in its sole

                   discretion, choose to accept you as a registered user within the Platform and provide you

                   with an Account.

 

             (g)   If Cradle Pay enables you to connect to the Platform with a third-party service (such as

                    Facebook) you hereby grant Cradle Pay permission to access, store and use your

                    information from that service as permitted by that service and as may be described in our

                    Privacy Policy.

 

              (h)  You must immediately notify Cradle Pay of any unauthorised use of your Account,

                    password or email, or any other breach or potential breach of the Platform’s security.

3.3 USER OBLIGATIONS

            As a User, you agree:

            (a)   to comply with the Terms;

 

            (b)   to not copy, reproduce, translate, adapt, vary or modify the Platform without the express

                   consent of Cradle Pay;

 

            (c)   any arrangements entered into with another User are at your own risk;

 

            (d)   you must not expressly or impliedly impersonate any other User of the Platform or use the

                   profile or password or account of another User at any time;

            (e)  that you are solely responsible for your mobile phone, access to and connectivity to the

                  internet and all costs, including mobile data, required to use the Platform;

 

             (f)  that you are solely responsible for the verification of any data that you input into the

                  Platform including without limitation any bank account details;

 

             (g) to receive marketing materials and other communications from Cradle Pay, that you may

                  unsubscribe from, though you cannot unsubscribe from messages relating to your

                  Account or Quotes;

             (h) not to use the Platform for any purpose other than for the purpose of making

                  arrangements to provide or receive services;

             (i)  not to harass, stalk, threaten, bully or endanger any other User;

 

             (j)  to not to use the contact details of other Users for the purpose of distributing unsolicited

                  commercial content, junk mail, spam, bulk content or harassment;

 

             (k) you must not make any automated use of the Platform;

             (l)  that any commercial advertisements, affiliate links and other forms of solicitation may be

                  removed from your Account, profile or communications without notice and may result in

                  termination of your Account. Appropriate legal action will be taken by Cradle Pay for any

                  and all illegal or unauthorised use of the Platform;

 

             (m) not to act in any way that may harm the reputation of Cradle Pay or associated or

                   interested parties or do anything at all contrary to the interests of Cradle Pay or the

                   Platform;

 

              (n) you are solely responsible for your use the Platform; and

 

              (o) in using the Platform, the information you provide to Cradle Pay and Users must not be

                   false, inaccurate or misleading.

3.4        POSTED MATERIALS - WARRANTIES

             By providing or posting any information, materials or other content on the Platform, including

             Quotes (Posted Material), you represent and warrant that:

 

             (a)    you are authorised to provide the Posted Material (including by being authorised to

                     provide any services that you represent you 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 your 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 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 (IPR);

 

             (f)  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

 

             (g) the Posted Material does not breach or infringe any applicable laws.

3.5.       POSTED MATERIALS - LICENCE

             (a) You grant to Cradle Pay a perpetual, irrevocable, transferable, worldwide and royalty-free

                  licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any

                  IPR in any Posted Material in order for Cradle Pay 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 Cradle Pay from any and all claims that you

                  could assert against Cradle Pay by virtue of any such moral rights.

            (c)  You indemnify Cradle Pay against all damages, losses, costs and expenses incurred by

                  Cradle Pay arising out of any third party claim that your Posted Material infringes any

                  third party’s IPR.               

3.7       SERVICE LIMITATIONS

            The Platform is made available to you strictly on an 'as is' basis. Without limitation, you

            acknowledge that Cradle Pay cannot guarantee that:

         

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

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

            (c)  messages sent through the Platform will be delivered promptly, or delivered at all;

 

            (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.

3.8       PROHIBITED USE

             Users shall not use the Platform:

 

             (a)  in connection with any transaction that is:

 

                   (i)   illegal or involves the provision of illegal services, items or substances;

 

                   (ii)  involves obscene material;

   

                   (iii) involves any firearms;

                   (iv) involves pirated software or otherwise infringes copyright works;

 

             (b)  in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including

                   requesting or accepting services which includes illegal activities or purposes);

 

             (c)  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 Cradle Pay;

 

             (d)  for any illegal or unauthorised purpose, which includes collecting email addresses of

                   Users for any purpose such as sending unsolicited email, or unauthorised framing of or

                   linking to the Platform.

3.9        INTELLECTUAL PROPERTY

             Cradle Pay retains ownership of the Platform and reserves all rights in any IPR owned or licensed

             by it not expressly granted to you.

3.10      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). Cradle Pay takes no responsibility for Third Party

            Content and makes no representation or warranty about the quality, suitability, accuracy, reliability,

            currency or completeness of Third Party Content.

3.11       DISPUTES

             (a)   We are committed to dealing with disputes fairly and resolving issues in accordance with

                    our dispute resolution policy (if any) and the following terms. In the event of inconsistency

                    between the following terms and our dispute resolution policy featured on our Platform,

                    our dispute resolution policy will prevail to the extent of the inconsistency.

             (b)   Although we may provide a dispute resolution process, we are not responsible for any

                    negotiations or disputes arising between Users and we reserve the right to cease

                    providing our dispute resolution process at any time without notice.

 

             (c)   If you have a dispute with a User, you should file a dispute with our dispute resolution

                    team by following the process set out on the Platform before commencing any formal

                    legal action against the other party to the dispute. To file a dispute, you must pay the then

                    stated fee as specified on the Platform to Cradle Pay in the manner specified on the

                    Platform. Payment of this fee is non-refundable. This fee is in respect of the

                    administrative services provided by Cradle Pay in attempting to resolve the dispute

                    between the parties. Payment of the fee does not imply that the dispute will actually be

                    resolved by the parties, and does not cause Cradle Pay to become a party to the dispute.

 

             (d)   We will endeavour to acknowledge receipt of all disputes within 5 business days of the

                    date that you have filed your dispute and paid the applicable fee.

 

             (e)  Cradle Pay will then review the details of the dispute and contact either party for further

                   comment. Cradle Pay may set up a forum whereby the dispute may be discussed by the

                   parties involved with view to resolving the dispute. In addition to or in substitution of

                   providing such a forum, Cradle Pay may provide suggestions to either of the parties as to

                   how the dispute could be resolved and propose solutions.

             (f)   In the event the dispute is not resolved within 20 business days of the date that the

                   dispute is first notified to Cradle Pay, either party to the dispute may take legal action

                   against the other.

 

            (g)  Where the dispute relates to the payment by the Customer of any Quote, we may request

                  additional  documentation from you. Stripe Payments as our payments agent 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. Funds in relation to the dispute will only be released

                  in accordance with Stripes Payments’ Terms, which may require the written agreement

                  of the Users or a final judgement of a Court to be provided in order for the funds to be

                  released.

 

             (h) Any costs you incur in relation to a complaint or dispute will be your responsibility.

                        

                  (i)    If you have a dispute with Cradle Pay, you agree to notify us first and enter into

                         discussion, mediation or arbitration with us for a minimum of a 30-day period before

                         pursuing any  other proceedings.

 

                  (j)   Notwithstanding any other provision of this clause 3.11 , you or Cradle Pay may at any

                        time cancel your Account or discontinue your use of the Platform.

3.12      SECURITY

            Cradle Pay 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.

3.13      DISCLAIMER

             (a)   (Platform service) Cradle Pay is a medium that facilitates payments between Customers

                    and Contractors. Cradle Pay simply collects a service fee in consideration for providing

                    this payment service and does not have any obligations or liabilities to, and is not a party

                    to any contract between, Customers and Contractors in relation to such services. Cradle

                    Pay takes no steps to confirm the accuracy of any Users. Cradle Pay is not engaged in

                    the Quotes or providing of any services (other than the provision of the Platform) and as a

                    result has no control over, and does not ensure, guarantee or provide any warranty or

                    indemnity in respect of the quality, fitness for purpose, legality, accuracy, completeness

                    or otherwise of:

                    (i)    any Quotes; and

                    (ii)    the ability of Users to undertake their respective obligations.

 

                    Because of the foregoing, in the event that you have a dispute with one or more Users,

                    you release and hold us (and our officers, directors, agents, related entities, related

                    bodies corporate, employees and contractors) harmless from actions, claims, demands

                    and losses of every kind and nature, known and unknown, suspected and unsuspected,

                    disclosed and undisclosed, arising out of or in any way connected with such disputes.

              (b)  (Limitation of liability) To the maximum extent permitted by applicable law, Cradle Pay

                    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 interaction with another

                    User. This includes the transmission of any computer virus, or the theft or fraud of any

                    amounts uploaded to, or released from, Stripe Payments. Cradle Pay is not liable for

                    any error in judgement, for any act taken or not taken, or for any mistake of fact by the

                    Users when entering any details including without limitation bank details and Quote

                    details (including payment dates, payment amounts and Milestones).

 

                    All express or implied representations and warranties are, to the maximum extent

                    permitted by applicable law, excluded. Where any law (including the Competition and

                    Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee into these Terms

                    which may not lawfully be excluded, then to the maximum extent permitted by applicable

                    law, Cradle Pay's liability for breach of that non-excludable condition, warranty or

                    guarantee will, at our option, be limited to the supply of our services again, or the

                    payment of the cost of having them supplied again.

 

               (c)  (Indemnity) You agree to indemnify Cradle Pay 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’ use of the Platform or your provision or receipt of services

                     from another User.

               (d)  (Consequential loss) Under no circumstances will Cradle Pay 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, these Terms or their subject matter, or any

                     services provided by any Contractor.

3.14         CONFIDENTIALITY

 

               You agree that:

               (a)   no information owned by Cradle Pay, including system operations, documents, marketing

                      strategies, staff information and client information, may be disclosed or made available to

                      any third parties; and

               (b)   all communications involving the details of other users on this Platform are confidential

                      and must be kept as such by you and must not be distributed nor disclosed to any third party.

3.15         PRIVACY

               You agree to be bound by the clauses outlined in Cradle Pay’s Privacy Policy, which can be found here

3.16          TERMINATION

                (a)   Cradle Pay reserves the right to terminate a User’s access to any or all of the Platform at

                       any time upon giving the User written notice, in the event Cradle Pay knows or suspects

          that the User has breached a term of these Terms or Cradle Pay considers the User may

                       create liability for Cradle Pay or bring its reputation into disrepute.

 

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

                     

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

                       (ii)  if the User is a Contractor and has an active Quote, the Quote will be cancelled,

                             all funds held will be released to the Customer, and the Customer will

                             be notified to contact the Contractor directly and create another arrangement;

 

                       (iii) if the User is a Customer and has funds in respect of a Quote held,

                             the funds will remain held and will only be released in accordance with

                             these terms;

 

                       (iv) the User will be unable to view the details of all other Users (including contact details).

                (c)   Users may terminate their Account on Cradle Pay at any time by using the Platform’s

                       functionality where such functionality is available. Where such functionality is not

                       available, Cradle Pay will affect such termination within a reasonable time after receiving

                       written notice from the User.

   

                (d)   Notwithstanding termination or expiry of these Terms, the provisions of this Part 3 and

                       any other provision which by its nature would reasonably be expected to be complied with

                       after termination, will continue to apply.

3.17       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 Cradle Pay will not be

              held accountable in relation to any transactions between Customers and Contractors where tax

              related misconduct has occurred.

3.18        RECORD/AUDIT

              To the extent permitted by law, Cradle Pay 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, comments, feedback, cookies, and I.P. address information)

              for administration purposes and also holds the right to produce these records to a third party in the

              event of any legal dispute involving Cradle Pay.

3.19        GOVERNING LAW

               This agreement is governed by the law applying in Victoria, Australia.

3.20        JURISDICTION

                Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia 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.

3.21         INTERPRETATION

                In these Terms, unless inconsistent with the context or subject matter:

 

                (a)     a reference to a person includes any other legal entity and vice versa;

 

                (b)     words importing the singular number include the plural number and vice versa;

 

                (c)     a reference to a party includes the party’s heirs, executors, successors and permitted

                         assigns;

 

                (d)    headings are for reference purposes only and must not be used in interpretation;

 

                (e)    where any word or phrase is given a defined meaning any other part of speech or other

                        grammatical form concerning the word or phrase has a corresponding meaning;

 

                (f)     a reference to a statute includes all regulations and subordinate legislation and

                        amendments;

 

                (g)    references to writing include any mode of representing or reproducing words in tangible

                        and permanently visible form, and includes e-mail and fax;

                (h)    a reference to a monetary amount is a reference to an Australian currency amount;

                 (i)    an obligation of two or more parties binds them jointly and each of them severally;

                 (j)    an obligation incurred in favour of two or more parties is enforceable by them severally;

                 (k)   references to time are to local time in Melbourne;

                 (l)    where time is to be reckoned from a day or event, the day or the day of the event must be

                        excluded;

                 (m)  a reference to a business day means any day on which trading banks are open for

                        business in Melbourne;

 

                 (n)  if any time period specified in this document expires on a day which is not a business

                       day, the period shall expire at the end of the next business day;

 

                 (o) a reference to a month means a calendar month.

INFORMATION

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Victoria 3205

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