Software Licence Agreement – Get Blys Pty Ltd
1. Introduction and Grant of Licence
1.1 This is a licence agreement between Blys (We, Our, Us) as the licensor and the Practice or Practitioner (You, Your) as the licensee.
1.2 Blys is a technology services provider that operates the online platform Business which:
1.2.1 enables Customers to request and book Practitioners to provide Services at a Property determined by the Customer; and
1.2.2 provides the Platform for Practitioners and Customers to be connected.
1.3 On completion of the Onboarding by the Practitioner, Blys grants to the Practitioner a revocable, non-exclusive Licence for the Term to use and access the Platform for the permitted use of accepting Booking Requests and providing Services to Customers, on the terms and conditions of this Agreement.
1.4 During the Term, Blys agrees to provide the Practitioner with access to the Platform to enable the Practitioner to have the opportunity to accept Booking Requests and provide the Services.
1.5 The Practitioner acknowledges and agrees that:
1.5.1 Blys does not employ the Practitioner or any other Practitioners on the Blys online platform;
1.5.2 Blys does not provide, perform or conduct or offer to or provide, perform or conduct any Services nor does it act as an agent or broker;
1.5.3 Blys does not participate, and is not responsible for participating, in any interaction between the Practitioner and Customers except to the extent necessary to provide the Platform and the Support to facilitate such interaction, including the invoicing and processing of the Service Fee from behalf of the Practitioner.
1.6 By using the Platform, the Practitioner agrees to observe and comply with all laws and regulations relating to the Services and the Practitioner’s engagement by the Customers.
1.7 Upon receiving a Booking Request from a Customer, Blys will upload that Booking Request to the Platform (subject to the terms and conditions of this Agreement and the customer’s terms and conditions, available at https://getblys.com.au/terms/).
1.8 As a condition of Blys making Booking Requests available to the Practitioner, the Practitioner must, at all times during the Term:
1.8.1 have access to the Professional Equipment (in accordance with clause 12 of this Agreement) in order to provide the Services;
1.8.2 have completed the Onboarding;
1.8.3 be registered as a Practitioner on the Blys Platform; and
1.8.4 accept and comply with the terms and conditions set out in this Agreement.
1.9 Once a Booking Request has been accepted by a Practitioner, the Practitioner must:
1.9.1 perform the Booking by providing the Services directly for the Customer in accordance with this Agreement; or
1.9.2 if the Practitioner can no longer attend a Booking;
220.127.116.11 Abandon the Booking as soon as practicable in order for the Booking Request to be accepted by another Practitioner on the Blys Platform; or, provided that the performance of the Booking is carried out in accordance with this Agreement;
18.104.22.168.1 arrange for employees of the Practitioner to perform the Booking; or
22.214.171.124.2 engage another individual or company to act as an Assigned Practitioner to perform the Booking
1.10 The Practitioner must not sub-licence any of its rights under this Agreement without the prior written consent of Blys.
2.1 By using and accessing the Platform, the Practitioner accepts the terms and conditions of this Agreement.
2.2 This Agreement commences on the date that Blys notifies the Practitioner in writing that he or she has successfully completed the Onboarding process, and continues in force unless and until terminated in accordance with this Agreement.
2.3 Blys may amend the terms of this Agreement at any time during the Term. The continued access and use of the Platform constitutes the Practitioner’s consent to be bound by the terms of this Agreement, as amended from time to time.
2.4 Blys is entitled to terminate this Agreement, at any time, with immediate effect, if:
2.4.1 Blys does not receive a police record check to the satisfaction of Blys under clause 16.3;
2.4.2 the Practitioner does not provide Blys, upon request by Blys, with evidence of the insurance which the Practitioner is required to maintain under clause 11; or
2.4.3 a Termination Event occurs.
2.5 Blys acknowledges that the Practitioner may not be available from time to time during the Term to accept Booking Requests and that it is at the absolute discretion of the Practitioner whether or not the Practitioner accepts a Booking Request.
2.6 Blys acknowledges that the Practitioner may not be available from time to time during the Term to use the Platform and that it is at the absolute discretion of the Practitioner as to when the Practitioner uses the Platform.
3.1 Blys and the Practitioner agree and acknowledge that:
3.1.1 during the Term, Blys will allow the Practitioner to access Booking Requests via the Platform under the terms of this Agreement;
3.1.2 the Practitioner may only accept a Booking Request by using the Platform and not through any other means, for example, by contacting a Customer by means other than through the Platform;
3.1.3 it is at the Practitioner’s absolute discretion as to whether the Practitioner accepts a Booking Request;
3.1.4 each Booking Request uploaded onto the Platform will be able to be viewed by all Practitioners, depending on Practitioner’s location, services offered and availability, and will be open for acceptance by any Practitioner on a ‘first come, first served’ basis;
3.1.5 Blys will not be party to any contract that may arise between a Customer and the Practitioner as a result of the Practitioner accepting a Customer’s Booking Request;
3.1.6 any warranties or representations made with regard to the Services, are not given by Blys and are specifically and solely made as between the Practitioner and the Customer;
3.1.7 Blys makes no warranty or representation in relation to any Practitioner and has no control over any aspect of the Service;
3.1.8 Blys does not have any responsibility for or control over the Practitioner or the Customer. The Practitioner is solely responsible for the quality and safety of the Services and Blys is not responsible for the agreements or any other legal aspects relevant to the Services that are facilitated through the Platform, other than as may be required by law;
3.1.9 Blys does not guarantee any quantity of Booking Requests being made available for acceptance by the Practitioner through the Platform, or that the Practitioner will receive any particular amount of revenue as a result of entering into this Agreement;
3.1.10 Blys is entitled, at its sole discretion and without any reason, to stop making the Platform available to the Practitioner without notice; and
3.1.11 subject to this Agreement, the Practitioner is solely responsible for the manner in which it provides the Services or completes the Bookings.
3.2 The Practitioner acknowledges and agrees that it is the responsibility of the Practitioner to login to the Platform to view available Booking Requests.
3.3 The Practitioner acknowledges that the Platform provides a “Rebooking Request” and “Direct Booking Request” functions that allows Customers to request the Practitioner as a Specific Practitioner, subject to availability. In the event that a Customer makes a Rebooking Request for the Practitioner, the Practitioner acknowledges and agrees that:
3.3.1 Blys may make the Rebooking Request available for acceptance by the Practitioner via the Platform;
3.3.2 the Therapist will have a period of sixty (60) minutes (or such other period specified in the Rebooking Request) from the time which the Rebooking Request is made available for viewing on the Platform in which to accept the Rebooking Request;
3.3.3 if the Practitioner accepts a Rebooking Request, the Practitioner must perform the Services as required by the Rebooking Request; and
3.3.4 if the Practitioner does not accept the Rebooking Request within the specified period, the Rebooking Request will immediately convert into an ordinary Booking Request and be advertised on the Platform to all other available Practitioners who have access to the Platform.
3.4 Blys may, at its discretion, place Booking Requests on the Platform on its own account on behalf of Customers that contact Blys directly to make such a request.
3.5 Blys allows Customers to suggest a price when making a Booking Request through the Platform. If a Customer suggests a price then the Practitioner acknowledges and agrees that:
3.5.1 Practitioners, based on proximity and availability, will be notified through the Platform of the suggested price;
3.5.2 the Practitioner will have the option to accept the suggested price or make a counter offer through the Platform or through Blys Operations team;
3.5.3 it is at the Practitioner’s absolute discretion as to whether the Practitioner accepts a suggested price booking;
3.5.4 if the Practitioner and the Customer both agree on a price for the service, the Practitioner will perform the Service as agreed to between the Practitioner and the Customer.
4. Service Fee
4.1 The Practitioner acknowledges that the Practitioner is only entitled to receive the Service Fee once the Services are completed in accordance with this Agreement.
4.2 Services are deemed to be completed under this Agreement only when the Practitioner has completed the Services in accordance with the Booking and clicked on the “complete” button function on the Platform.
4.3 In the event that a Customer cancels a Booking:
4.3.1 within four (4) hours before the scheduled Booking time, the Practitioner is entitled to the full Service Fee, subject to any Licence Fee payable by the Practitioner under clause 6; and
4.3.2 within twenty-four (24) hours before the scheduled Booking time but with at least four (4) hours’ notice before the scheduled Booking time, the Practitioner is only entitled to receive fifty (50) percent of the Service Fee, subject to any Service Fee payable by the Therapist under clause 6.
4.4 Notwithstanding clauses 4.3.1 and 4.3.2 of this Agreement, if a Customer cancels a Booking within one (1) hour after the Practitioner has accepted the Booking Request, the Customer is entitled to a refund of the Service Fee.
4.5 The Practitioner is entitled to the full Service Fee, subject to any Licence Fee payable by the Practitioner under clause 6 of this Agreement if:
4.5.1 the Customer does not provide the Practitioner with access to the Property;
4.5.2 is not present at the Property at the time of the Booking; or
4.5.3 is late to the Booking by more than twenty (20) minutes.
4.6 Blys will receive and then hold the Service Fee on behalf of and as agent for the Practitioner until each relevant Processing Date.
4.7 On each Processing Date, Blys will pay to the Practitioner the Service Fee less the Licence Fee payable by the Practitioner under clause 6 and less any other amount which Blys is entitled to deduct under this Agreement by direct deposit to the Practitioner’s nominated bank account. For the avoidance of doubt, if the Practitioner has not completed any Bookings during any particular week, the Practitioner will not be entitled to receive any Service Fees for that particular week.
4.8 The total Service Fee payable to the Practitioner on each Processing Date is calculated by reference to total value of tax invoices issued on behalf the Practitioner through the Platform which have been paid by the relevant Customers, in respect of Bookings completed by the Practitioner during the relevant week.
4.9 The Practitioner acknowledges and agrees that the Platform will generate tax invoices on behalf of the Practitioner which will include the Practitioner’s name (including any trading name), ABN, and other details that required by law or are otherwise reasonably necessary to include, on the invoices issued to Customers. The Practitioner must at all times ensure that it has uploaded onto the Platform up to date details required by law to be included on any tax invoice issued to Customers.
4.10 The Practitioner acknowledges and agrees that Blys may amend the process for the collection of Service Fees and payment of Service Fees under this clause 4 from time to time at its sole discretion.
5. GST and Tax
5.1 The Practitioner acknowledges and agrees:
5.1.1 the Service Fees are inclusive of any applicable GST and that the Practitioner is solely responsible for the remission of any GST payable to the ATO;
5.1.2 the Practitioner will be responsible for the payment of all taxes arising out of the provision of the Services or assessed on any Service Fees payable or paid under this Agreement;
5.1.3 the Practitioner will be responsible for making any superannuation guarantee contributions to any employees of the Practitioner that is required by law;
5.1.4 the Practitioner hereby fully indemnifies Blys from and against any and all liabilities for any tax or superannuation liability arising in respect of any payments it receives on behalf of, or makes to the Practitioner; and
5.1.5 Blys may, in its discretion, charge Customers a booking fee, licence fee or any other fee for the use of the Platform, and Blys will be entitled to any such fee absolutely.
6. Licence Fee
6.1 Subject to clause 6.2, in consideration of the grant of the Licence to the Practitioner, the Practitioner must pay the Licence Fee to Blys on each Processing Date.
6.2 If the Practitioner Abandons the Booking:
6.2.1 with more than twenty-four (24) hours’ notice before the scheduled Booking time, the Therapist is not required to pay the Licence Fee to Blys;
6.2.2 within twenty-four (24) hours before the scheduled Booking time but with at least four (4) hours’ notice before the scheduled Booking time, the Practitioner must pay, on the Processing Date, an amount equivalent to fifty (50) percent of the Licence Fee otherwise payable to Blys had the Practitioner not abandoned the Booking;
6.2.3 within four (4) hours before the scheduled Booking time, the Practitioner must pay, on the Processing Date, an amount that is equivalent to the full Licence Fee otherwise payable to Blys had the Therapist not abandoned the Booking.
6.3 Prior or on the Processing Date, Blys will issue the Practitioner with a tax invoice for the total Licence Fee payable by the Practitioner to Blys for that relevant calendar week.
6.4 The Practitioner agrees and irrevocably directs that on each Processing Date, Blys is to deduct the total Licence Fee payable by the Practitioner to Blys from the Service Fee payable to the Practitioner for that relevant calendar week.
7.1 The Practitioner is responsible for the payment of all costs and expenses incurred in performing the Services including without limitation, the costs associated with the Professional Equipment and any travel expenses incurred by the Practitioner, and any and all other expenses relating to the use of the Platform.
7.2 The Practitioner is responsible for assessing whether it will make a profit in using the Platform and that Blys makes no representation as to whether the Practitioner will make a profit from using the Platform.
8. Ownership and Intellectual Property Rights
8.1 Blys retains ownership of the Mobile Application and the Platform at all times, including all Intellectual Property Rights in the Mobile Application and the Platform.
8.2 All existing goodwill in, or associated with the Mobile Application and the Platform, is owned by, and vested in, and all future goodwill arising out of the use by the Practitioner of the Mobile Application and the Platform will vest in, and remain the exclusive property of Blys.
9. Damage and Loss
9.1 The Practitioner acknowledges and agrees that:
9.1.1 he or she will be liable for any loss or damage to the Property caused by the Practitioner while the Practitioner is providing the Services; and
9.1.2 he or she will be personally liable for any loss or damage (including bodily harm) suffered by the Customer as a result of the Practitioner providing the Services.
9.2 Notwithstanding any other clauses in this Agreement, the Practitioner acknowledges and agrees that Blys does not have any responsibility to reimburse the Practitioner for any damage to the Property or loss or damage (including bodily harm) to a Customer whatsoever, and the Practitioner indemnifies, releases and holds Blys harmless from any cost, expenses or liabilities incurred directly or indirectly in connection with any Services.
9.3 In the event that Blys is notified of any loss or damage in respect of the Property or the Customer Blys must take reasonable steps, as directed by the Customer, to ascertain whether all or part of the loss or damage has been caused by the Practitioner and the Practitioner shall fully cooperate with Blys in relation to any information required by Blys.
9.4 The Practitioner acknowledges and agrees that, without limiting any other term of this Agreement, if Blys determines all or part of the loss or damage was caused by the Practitioner (including, but not limited to, a negligent act or omission or breach of this Agreement), Blys may in its absolute discretion deduct from any Service Fee held by Blys on behalf of the Practitioner an amount which represents the cost of repairing and replacing that part of the Property as lost or damaged by the Practitioner and any loss suffered by the Customer as a result of the loss or damage caused by the Practitioner.
9.5 To the extent that the total Service Fees held by Blys on behalf of the Practitioner at the relevant time are not sufficient to cover the amount being deducted at clause 9.4, the Practitioner will immediately pay or reimburse Blys for the shortfall amount.
10. Incomplete Bookings
10.1 In the event that the Practitioner fails to attend the Property at the time of the Booking or does not complete the Service, any part of the Service Fee held by Blys on behalf of the Practitioner may be refunded to the Customer.
10.2 In the event the Practitioner does not complete a Booking by not being present at the Property within the timeframe specified in the Booking or not completing the Service for the full Service Time the Practitioner will not be deemed to have successfully completed the Services for the purposes of clauses 4.1 4.2 above and Blys will act in accordance with the directions of the Customer in determining whether the Practitioner is entitled to be paid all or part of the Service Fee for the relevant Booking. Any decision made in this regard is final and not subject to review or negotiation. Further information may be requested from the Practitioner in relation to the Booking (which may be based on information obtained by Blys from data recorded via the Platform in relation to any Booking) before any determination is made in relation to the payment of the Service Fee. Any decision will be provided to the Practitioner in writing through the Platform.
11.1 The Practitioner must obtain and maintain any necessary and adequate insurance(s) throughout the Term, (including public liability insurance) on terms that are satisfactory to Blys in Blys’ absolute discretion, and otherwise comply with any other legislation as applicable.
11.1.1 The Practitioner will be obliged to produce to Blys, at Blys’ request, original documentation to confirm the validity of any and all necessary insurance policies required to be maintained by the Practitioner pursuant to clause 11.1.
11.1.2 The Practitioner acknowledges that it is not entitled to the benefit of any insurance policies (including for accidents, third party liability, workers’ compensation or other indemnity-based insurance) that Blys may hold in relation to the Business.
12. Professional Equipment
12.1 The Practitioner acknowledges and agrees that it is expected to own, lease or otherwise have authorised access to the Professional Equipment.
12.2 The Practitioner is responsible for any maintenance, up-keep and insurance of the Professional Equipment which he or she chooses to use to complete the Services and acknowledges that he or she will not be entitled to be reimbursed by Blys for any expenses or costs relating to the Professional Equipment, including in relation to any insurance which the Practitioner may choose to obtain in respect of any of the Professional Equipment or the costs associated with normal wear and tear.
13.1 The Practitioner is permitted to assign the completion of a Booking to an Assigned Practitioner engaged by the Practitioner on the basis that the Practitioner acknowledges and agrees that the Practitioner is responsible for:
13.1.1 ensuring that the Assigned Practitioner is made aware of this Agreement and the terms contained herein and is bound by this Agreement to the same extent as the Practitioner;
13.1.2 ensuring that the Assigned Practitioner complies with the terms of this Agreement; and
13.1.3 payment to the Assigned Practitioner in respect of the provision of the Services performed by the Assigned Practitioner.
13.2 Further to clause above, in no circumstances will Blys be liable to make payment of any Service Fee (or part thereof) to an Assigned Practitioner, including on behalf of the Practitioner.
13.3 The Practitioner acknowledges and agrees the Practitioner is liable for the acts or omissions of the Practitioner’s employees as well as any Assigned Practitioner (and any employees of the Assigned Practitioner) in respect of the provision of the Services. A breach of any of the terms of this Agreement by an Assigned Practitioner will be deemed to be a breach by the Practitioner, and Blys shall be entitled to exercise its rights (as relevant) against the Practitioner in relation to any such breach.
13.4 The Parties acknowledge and agree that the performance of Services by any employee of the Practitioner is not considered to be an assignment for the purposes of this clause.
14.1 The Practitioner hereby warrants, represents and undertakes to Blys that the Practitioner:
14.1.1 has legal capacity, full right, power and authority to enter into this Agreement;
14.1.2 is not subject to any legal restrictions preventing the Practitioner from performing the Services;
14.1.3 has completed the Onboarding and has the relevant Qualification to perform the Services;
14.1.4 will, in performing the Services, act with due care and skill;
14.1.5 will be courteous and polite to Customers and any other person with whom the Practitioner comes into contact in providing the Services;
14.1.6 will not be under the influence of drugs or alcohol in performing the Services;
14.1.7 will use the Practitioner’s best endeavours to attend the Property in respect of the Booking within the timeframe specified in the Booking Request;
14.1.8 will complete all accepted Booking Requests in accordance with this Agreement;
14.1.9 will not disparage, comment unfairly about or defame Blys, its directors or employees, any other Practitioners on the Blys platform, any Customers and/or the Business either during or after the Term, including on any form of social media, and whether or not by identifying any particular person;
14.1.10 will not, in providing the Services, participate or act in a manner contrary to the interests of Blys or Customers or otherwise commit any act which may bring Blys into disrepute or which directly or indirectly damages Blys’s reputation;
14.1.11 will act lawfully and comply with any applicable licences, laws, regulations, industry codes of conduct, health and safety requirements and Australian standards in performing the Services;
14.1.12 has complied with all applicable legislation;
14.1.13 if applicable, has advised Blys of his or her ABN; and
14.1.14 if applicable, is registered for GST purpose.
15.1 The Practitioner agrees at all times during and for so long as is legally permissible after the Term to keep confidential the Confidential Information and will not (and will use best endeavours to ensure third parties do not) disclose, discuss, copy or transmit the same without the prior written approval of Blys, except as required by law or to the extent necessary to perform any of his/her obligations under this Agreement or where the information is or becomes public knowledge (but not if it is because the Practitioner has contravened a confidentiality obligation under this clause 15).
15.2 The obligations under this clause 15 will survive termination or expiry of this Agreement.
16.1 In performing the Services, the Parties agree to comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
16.3 The Practitioner hereby authorises Blys to submit a National Police History Check in relation to the Practitioner and Blys may request a National Police History Check at any time in relation to the Practitioner or any of its employees or subcontractors. The Practitioner acknowledges and agrees that this is a condition of the Practitioner being granted the Licence.
16.4 You agree to respect the privacy of Customers and must not perform any act that would constitute a breach of the privacy, such as;
16.4.1 sharing private or personal information without an individual’s consent
16.4.2 unwanted or unsolicited contact with Customers,
16.4.3 unwanted or unsolicited visit with Customers,
17. Health and Safety
17.1 The Practitioner acknowledges that he/she is solely responsible for his/her own safety and wellbeing in performing the Services and that Blys has no ability to supervise the performance of the Services by the Practitioner.
17.2 Blys is not under any obligation to carry out any training or arrange for the provision of any training to the Practitioner in respect of the Services.
17.3 If the Practitioner considers that performing the Services could cause serious risk to the Practitioner’s or to the Customer’s health or safety, the Practitioner must immediately cease performing the Services.
17.4 If Blys considers that performing the Services could cause serious risk to the Practitioner’s, to the Customer’s, or to the general public’s health or safety, Blys holds the right to suspend the Practitioner’s Blys account immediately and indefinitely.
17.5 The Practitioner must ensure that each Professional Equipment used by the Practitioner to perform the Services is in a safe and serviceable condition.
17.6 The Practitioner will promptly notify Blys of any health and safety incidents that occur in relation to the provision of the Services, and/or of any involvement by health and safety officials in connection with the Services.
18. Modification, Suspension and Termination of the Platform
18.1 The Practitioner acknowledges that Blys may, at any time and in its absolute discretion, with or without notice to the Practitioner and without any payment or refund:
18.1.1 modify or discontinue the Platform; and/or
18.1.2 modify, suspend or terminate the Practitioner’s access to, or use of the Platform.
18.2 The Practitioner acknowledges and agrees that Blys will not be liable to the Practitioner or any other party for any:
18.12.1 suspension or termination of the Practitioner’s access to the Platform;
18.12.2 loss or damage, including loss of profit arising from suspension or termination of the Practitioner’s access to the Platform;
18.12.3 deletion of any information or materials contained on the Platform posted by the Practitioner, or any information the Practitioner provides to a Customer via the Platform; or
18.12.4 modification or discontinuance of the Platform.
18.13 Continued use of the Platform following notice to the Practitioner of any modification to the Platform will indicate the Practitioner’s acknowledgment of and agreement to such modifications.
19.1 In using the Platform under the Licence, the Practitioner has an obligation to maintain a standard when providing the Service to uphold the reputation and goodwill of the Blys brand.
19.2 During the Term, the Practitioner must:
19.2.1 ensure that he/she does not receive any negative review ratings after the completion of a Booking;
19.2.2 ensure that the Practitioner follows adequate hygiene practices;
19.2.3 ensure that each Professional Equipment used by the Practitioner is in a safe and serviceable condition;
19.2.4 comply with any instructions given by the Customer in the Booking Request.
19.3 The Practitioner acknowledges and agrees that each of the obligations set out in clause above is an essential term of this agreement.
20. Termination Events
20.1 For the purpose of this Agreement, each of the following is a ‘Termination Event’:
20.1.1 the Practitioner has breached an Essential Obligation during the Term (notwithstanding that it may not be the same Essential Obligation being breached each time);
20.1.2 the breach or threatened breach by either Party of any of its material obligations under this Agreement;
20.1.3 the Practitioner partaking in unlawful and/or fraudulent behaviour;
20.1.4 the Practitioner creating an unsafe and/or anti-social environment for other Practitioners, Customers or any other individuals or businesses associated with Blys; or
20.1.5 the Practitioner becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.
20.2 If a Termination Event occurs, this Agreement may be terminated by notice in writing by Blys to the Practitioner, with effect immediately.
20.3 Either Party may terminate the Blys practitioner account and this Agreement at any time for any reason.
20.4 Upon termination of this Agreement:
20.4.1 the Practitioner must;
126.96.36.199 stop performing the Services and inform Blys of any Bookings not yet performed so that Blys can make alternative arrangements for the performance of such Bookings;
188.8.131.52 cease to accept any new Booking Requests;
184.108.40.206 cease all use of the Platform;
220.127.116.11 return to Blys all property, including Confidential Information, in its possession that belongs to Blys; and
18.104.22.168 pay or repay any sums lawfully owing to Blys as provided for pursuant to this Agreement;
20.4.2 the Practitioner acknowledges and agrees that if the Practitioner does not pay or repay any sums lawfully owing to the Customer or to Blys, Blys will be entitled to deduct those sums from any amount payable to the Practitioner in accordance with this clause 20.4; and
20.4.3 Blys must pay to the Practitioner any Service Fees which have been received by Blys on behalf of the Practitioner and have not yet been paid to the Practitioner in respect of Bookings completed prior to the date of Termination (less any deductions which Blys is entitled to make pursuant to this Agreement or as otherwise agreed in writing between the parties, if relevant)
20.5 Termination of this Agreement will not prejudice or impair any rights, remedies or continuous obligations that have already accrued to any Party under or in respect of any breach of this Agreement.
21. No Competition Restrictions
21.1 The Practitioner may engage in other work during the Term including by doing any of the following, provided that it does not conflict with the Practitioner’s obligations under this Agreement:
21.1.1 entering into another licence agreement to use a similar platform; or
21.1.2 providing any other personal or therapeutic services to the public; or
21.1.3 operating its own personal or therapeutic services business, as a sole trader or under a registered company name, trading name or partnership which is made known to Blys on or before the commencement of the Term.
21.2 If the Practitioner becomes aware of any conflict of interest between this Agreement and any other work it has been offered or proposes to undertake, it must inform Blys immediately in writing and take all steps as reasonably agreed with Blys to resolve the conflict.
21.3 The Practitioner must not:
21.3.1 contact or engage with any Customer for employment or contracting for any business outside of the Platform; or
21.3.2 contact Customers whose details are obtained from the Platform for any purpose other than for the purposes of carrying out the Services in accordance with this Agreement.
21.4 The Practitioner agrees that:
21.4.1 any failure to comply with clause 21.3 would significantly diminish the value of Blys’ business; and
21.4.2 the restrictive undertakings in clause 21.3 are reasonable and necessary for the protection of the value of Blys’ business and must be given full effect.
21.5 The Practitioner acknowledges that monetary damages alone would not be adequate compensation to Blys for the Practitioner’s breach of clause 21.3 and that Blys is entitled to seek an injunction from a court of competent jurisdiction if the Practitioner fails to comply with clause 21.3 or Blys has reason to believe that the Practitioner has failed to comply with clause 21.3.
22. Relationship of the Parties
22.1 No independent contractor, partnership, quasi-partnership, joint venture, employer/employee or franchisor/franchisee relationship is intended to be created between Blys and the Practitioner under this Agreement.
22.2 By using the Platform the Practitioner warrants that it has made itself aware of the requirements under any applicable workplace and occupational health and safety laws which may apply to the engagement between a Customer and the Practitioner.
22.3 Except as expressly authorised in writing, no Party will have (and must not represent that it has) any power, right or authority to bind the other Party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other or in the other’s name.
23. Liability and Indemnity
23.1 The Practitioner acknowledges and agrees that it is responsible for any losses, costs, expenses and damages to Blys or any third party in respect of, arising out of or in connection with the Services that the Practitioner provides, or negligence or any breach of this Agreement by the Practitioner.
23.2 The Practitioner hereby indemnifies and undertakes to keep Blys indemnified from and against all and any Losses suffered or incurred by Blys in connection with this Agreement.
23.3 Without limiting clause 23.2, the Practitioner acknowledges that the indemnity in clause 23.2 applies to Losses arising from:
23.3.1 the negligence of any Party or third party;
23.3.2 the manner in which the Services are performed by the Practitioner, including but not limited to any act or omission by the Practitioner in connection with the performance of the Services;
23.3.3 the decision of any court, tribunal or other authority in respect of the classification of the Practitioner as either an employee or contractor under common law or statute;
23.3.4 deemed employees of the Practitioner including in relation to employee entitlements; and
23.3.5 any taxes, fees, charges and any other imposts.
23.4 The indemnity in clause 23.2 is a continuing obligation which is separate and independent from any other obligations of the parties under this Agreement and it survives termination or expiry of this Agreement.
23.5 The Practitioner acknowledges and agrees that it is not necessary for Blys to incur any expense or cost or make any payment before enforcing the indemnity in clause 23.2 and the Practitioner must pay any money due to Blys under that indemnity on demand by Blys.
23.5.1 Blys does not warrant that the Platform will be uninterrupted or error-free and the Practitioner agrees that Blys will not be liable to the Practitioner for any loss or damage, including loss of profit arising from any malfunction or bugs in respect of the Platform.
23.5.2 To the maximum extent permitted by law, Blys will not accept liability to the Practitioner in respect of any loss or damage (including indirect, special, or consequential loss or damage) which may be suffered or incurred by the Practitioner or which may arise directly or indirectly in respect of the Practitioner using the Platform.
23.5.3 To the maximum extent permitted by law, any condition or warranty by Blys which would otherwise be implied into this Agreement is hereby excluded.
23.5.4 The obligations under this clause 23 will survive termination or expiry of this Agreement.
23.5.5 For the avoidance of doubt, nothing in this Agreement limits or affects any agreement between the Practitioner and the Customer as to liability for loss and damage to the Property or loss to the Customer arising from the Services provided by the Practitioner.
24. Dispute Resolution
24.1 In the event of a Dispute arising out of or in connection with this Agreement, the Parties agree to the following dispute resolution procedure:
24.1.1 the Complainant must provide a Dispute Notice to the Respondent;
24.1.2 upon receipt of a Dispute Notice by the Respondent, the Parties will arrange to meet in good faith to seek to resolve the Dispute amicably by agreement between them;
24.1.3 if the parties cannot resolve the Dispute within two (2) weeks of the Dispute Notice having been received by the Respondent, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the Complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation recommended by the mediator, in good faith, to seek to resolve the Dispute through mediation.
24.2 Each Party will bear their own legal costs in any Dispute.
24.3 The cost of a mediator appointed pursuant to this clause 24 will be shared equally between each Party.
24.4 Any attempts made by the Parties to resolve a Dispute pursuant to this clause will be without prejudice to any other rights or entitlements of the parties under this Agreement, by law or in equity. For the avoidance of doubt, nothing in this clause prejudices the right of either party to seek urgent injunctive, interlocutory or declaratory relief from a court in connection with the Dispute without first having to attempt to resolve the Dispute in accordance with this clause 24.
25.1 A notice or communication must be in writing, in English and may be delivered by any electronic means, including emails to the email address the Practitioner has registered on the Platform from time to time.
26.1 In this Agreement:
Agreement means this software licence agreement.
Abandon the Booking means a decision made by the Practitioner to cancel a Booking the Practitioner can no longer attend by clicking the “Abandon Booking” function on the Platform.
ATO means the Australian Taxation Office.
Blys means Get Blys Pty Ltd ACN 611 428 927.
Blys Platform means the database of Practitioners on the Platform.
Practitioner means a registered health and wellness professional on the Blys Platform who has been granted a licence by Blys to use, and access the Platform, on terms identical or substantially similar to the terms set out in this Agreement.
Booking means an accepted Booking Request (which can be extended after the Therapist has accepted the Booking Request) for the provision of the Services which has been processed on the Platform and communicated to the Practitioner via the Platform and accepted by the Practitioner in accordance with clause 3 of this Agreement.
Booking Request means a booking request made through the Platform by a Customer for a Practitioner to provide Services.
Business means business operated by Blys under the trading name ‘Blys’ including without limitation the operation of the Mobile Application and the Website.
Business Day means a day which is not a Saturday, Sunday or bank or public holiday in the relevant state or territory in which the Therapist is resident.
Complainant means the Party who raises a Dispute pursuant to clause 24.
Confidential Information means the terms of this Agreement and any information about Blys, its operations, products, Business, Services and Customers and any information, the disclosure of which could be detrimental to the interests of Blys, as acquired by the Practitioner (or any of its employees or agents) whilst, or as a result of, performing the Services which is not in the public domain, other than as a result of breach of confidence, and the confidential information of the Practitioner which relates to the subject matter of this Agreement.
Customers means the individuals or businesses that use the Platform to place a Booking Request for Services.
Dispute means a dispute, controversy or claim arising out of or in connection with this Agreement.
Dispute Notice means a written notice given to the Respondent that explains the nature of the Dispute, what outcome the Complainant wishes to achieve and what action the Complainant believes will settle the Dispute.
GST means Goods and Services Tax pursuant to A New Tax System (Goods & Services Tax) Act 1999 (Cth) and the related imposition Act of the Commonwealth.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, confidential information, trade secrets and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
Licence means the licence granted to the Practitioner to use the Platform pursuant to this Agreement.
Licence Fee means an amount (inclusive of GST) of the Service Fee payable to the Practitioner and specified for a Booking, being the fee charged and invoiced by Blys to the Practitioner under clause 6 of this Agreement unless otherwise specified by Blys.
Losses mean any and all actions, claims, proceedings, judgments, demands, liabilities, losses, costs (including reasonable legal costs), expenses, penalties, fines and damages which may be brought or awarded against Blys or suffered, incurred or paid by Blys (howsoever arising) in respect of, arising out of or in connection with the Services provided by the Practitioner (or any of the Practitioner’s employees or agents), a violation of any law by the Practitioner, or a breach of the terms, conditions, covenants, warranties and representations (express or implied) contained in this Agreement on the part of the Practitioner (or any of the Practitioner’s employees or agents).
Professional Equipment means equipment required by the Practitioner to be able to provide the Services, such equipment includes but not limited to a massage table, massage oils, relaxing music and clean towels.
Service Fee means the amount inclusive of GST displayed on the Platform as being payable by the Customer on completion of a Booking Request which can be subject to change if the Customer extends the Booking Time of the Services.
Services means all health, wellness, beauty and other services provided as part of massage therapy, beauty therapy and other therapeutic treatments, to be provided by a Practitioner under this Agreement.
Service Time means the length of the Services requested by the Customer in the Booking Request.
Mobile Application means Apple or Android apps owned and operated by Blys.
Onboarding means the registration process to use and access the Platform.
Parties means the parties to this Agreement and Party means any one of them.
Platform means the suite of software applications operated by Blys including the Support that enables a Customer to book a Practitioner via the Mobile Application or the Website.
Property means, with respect to each Booking, the location chosen by the Customer for the Practitioner to provide the Services.
Processing Date means the Wednesday of each calendar week for any Bookings completed by the Practitioner up until 12.00am on that Monday.
Qualifications means a current and valid professional qualification issued by a recognised establishment.
Respondent means the Party required to respond to the Complainant.
Rebooking Request means a Booking Request made by a Customer requesting the Practitioner as a Specific Practitioner.
Specific Practitioner means a specific Practitioner a Customer has used before as requested in a Rebooking Request.
Support means the technical and customer service support, resources and information, payment and maintenance services for the Platform and updates to the Platform software that Blys may make generally available to the Practitioner as part of the Licence Fee.
Taxes means income tax, payroll tax, stamp duty, GST, superannuation and all other applicable taxes.
Term means the period that commences as set out in clause 2.2 and ends when the Licence is terminated in accordance with this Agreement.
Termination Event has the meaning given to that term in clause 20.1.
Website means the website at the domain name https://getblys.com.au/ (or such other domain name as Blys may use in relation to the Business from time to time).
27.1 Assignment: This Agreement is personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld). Any purported dealing in breach of this clause is of no effect. Blys will be entitled to require any assignee of the Practitioner to execute an assignment document under which the assignee acknowledges and agrees to be bound by this Agreement, as varied or amended from time to time, as if it were in place of the Practitioner.
27.2 Waiver or variation of rights: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
27.3 Powers, rights and remedies: Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.
27.4 Consents and Approvals: Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or Approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or Approval or give consent or Approval conditionally or unconditionally.
27.5 Further assurance: Each Party must from time to time and in a timely manner do all things reasonably required of it by the other Party to give effect to this Agreement.
27.6 Entire agreement and understanding: In respect of the subject matter of this Agreement: this Agreement contains the entire understanding between the Parties; all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement; and each of the Parties has relied entirely on its own enquiries before entering into this Agreement.
27.7 Governing law and jurisdiction: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.
28.1 In this Agreement unless the context otherwise indicates:
28.1.1 words in the singular include the plural and vice versa;
28.1.2 headings are for convenience and do not affect the interpretation of this Agreement;
28.1.3 a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Agreement;
28.1.4 if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
28.1.5 neither this Agreement nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting or because a party relies on this deed or any part of it to protect itself;
28.1.6 “includes” and similar words mean includes without limitation; and
28.1.7 a reference to time is to local time in New South Wales.