TERMS & CONDITIONS
ToolMates Hire Pty Ltd ABN 56 608 211 570 (referred to as ToolMates Hire) provides a booking platform, payment platform, searchable directory, social network and introductory service between a renter who requires tools and/or trailers for hire (Renter) and an owner who is able to provide such tools, vehicles and/or trailers for hire (Owner) (collectively, the Services). The Services are available on the ToolMates Hire website at www.toolmateshire.com.au (Site) and on the ToolMates Hire mobile application (App).
These Marketplace Terms and Conditions (Terms) forma binding legal agreement between ToolMates Hire, its directors, officers, employees, successors and assignees, and each person, organisation or entity using the Services (referred to as User). By using the Site, the App and Services, each User agrees to comply with and be legally bound by these Terms. Please read the Terms carefully. If there are any questions, the User is encouraged to contact ToolMates Hire using the contact details at the end of these Terms.
The User’s use of the Site, the App and the Services indicates that:
- the User has had sufficient opportunity to access the Terms and contact ToolMates Hire;
- the User has read, accepted and will comply with the Terms;
- the User has legal capacity to enter into a contract for sale; and
- the User is 18 years or older.
If this is not correct, or if the User does not agree to these Terms, the User is not permitted to use any of the Services.
These Terms may be amended from time to time, without prior notice. Use of our Services following any such amendments will be deemed to be confirmation that the User accepts those amendments. ToolMates Hire recommends that each User check the current Terms, before continuing use of the Services. ToolMates Hire’s agents, employees and third parties do not have authority to change the Terms.
These Terms supplement and incorporate:
2. Introductory Service Only
- The Site, the App and the Services provide a booking platform, payment platform, searchable directory, social network and an online introductory platform for Renters and Owners through which:
- Owners will be able to:
- create a listing (Listing) on the Site and App;
- advertise the availability of Owner tools and trailers (Owner Products); and
- request the guarantee program from ToolMates Hire for the Owner Products.
- Renters will be able to:
- search directories;
- view Listings;
- request Owner Products; and
- contact Owners using the link provided on the Site and the App and contact the Owner by telephone to arrange collection of the Owner Products from the Owner’s nominated address.
- A Owner must set out all relevant information in a Listing such as: time, date, location and availability of an Owner Product, the fee for hire of an Owner Product and any other terms and conditions applicable to the hire of a Owner Product.
- A Renter will be able to book and pay for an Owner Product through the Site and App. When a Renter orders an Owner Product (Provisional Booking), an authorisation amount and if applicable, a bond, will be charged but not processed to the Renter’s account. By completing the Provisional Booking, the Renter accepts any terms and conditions set out in the relevant Listing.
- Upon completion of a Provisional Booking, the Renter will receive: (i) a PIN which will sent by way of a email and/or text message to the Renter’s email account or mobile which the Renter must provide to the owner upon collection of the Owner Products to confirm that the Renter wishes to proceed with the Provisional Booking.
- The Renter may inspect the Owner Products following the Provisional Booking and the booking is only confirmed once the Renter has provided the PIN to the Owner.
- When the Owner enters the PIN into their account, the Provisional Booking is confirmed and the Owners Fees, as defined in clause 9(c) of these Terms, is transferred to the Owner (Booking).
- The Owner will receive notification by email that the Booking has been completed and can then provide the Owner Products to the Renter.
- A User may create a profile as per information requested on the Site and App (Profile).
- Renters can view the Profiles of Owners, and contact Owners via the Site or App to make arrangements with the Owners.
- Each User understands and agrees that the Site and the App is an online introductory platform only, and that ToolMates Hire’s responsibilities are limited to facilitating the availability of the Site, the App and the Services.
- ToolMates Hire is not a party to any agreement entered into between Renter and Owner. ToolMates Hire is not a referrer or booking agent, and provides no such related services. ToolMates Hire has no control over the conduct of Renters, Owners and any other users of the Site, the App and the Services. ToolMates Hire disclaims all liability in this regard, as set out in these Terms. ToolMates Hire reserves the right to remove any Listing at any time for any reason.
- Any arrangement between Renter and Owner is solely between Renter and Owner. It is strictly and expressly not part of the User’s agreement with ToolMates Hire.
3. Online Registration
- A User can browse and view Listings, the Site and App as an unregistered user of the Site or App. A User must register on the Site and create an account (Account) to access some Services and features on the Site and the App, including making a Listing, creating a Profile, contact another User, include comments on the Site or App and making a Booking.
- Each User may only have one (1) Account on the Site and App including a Profile.
- Basic information is required when registering on the Site for an Account. Each User is required to provide certain information including name, email address, and location and select a username and password.
- Each User agrees to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. ToolMates Hire reserves the right to suspend or terminate any User’s Account and his/her access to the Site, App and Services if any information provided to ToolMates Hire proves to be inaccurate, not current or incomplete.
- It is the User’s responsibility to keep its Account details, username and password confidential. The User is liable for all activity on its Account, including purchases made using its account details. The User agrees that it will not disclose its password to any third party and that it will take sole responsibility for any activities or actions under its Account, whether or not it has authorised such activities or actions.
- The User will immediately notify ToolMates Hire of any unauthorised use of its Account.
4. Users and User Profiles
- Users who have created an Account are permitted to create Profiles. The User’s Profile for its use of the Site and App is created from the personal information it provides to ToolMates Hire.
- Each User acknowledges and agrees that it is responsible for its own Profile.
- Users can access the Site and App to communicate with other Users and obtain or provide Owner Products.
- If a Renter contacts an Owner and requests Owner Products, any agreement entered into is between the Renter and Owner. ToolMates Hire is not a party to the agreement.
- Each User acknowledges and agrees that any communications entered into with another User is at his or her own risk. ToolMates Hire does not provide a User with and cannot guarantee that other Users have genuine intentions.
- Each User should report to ToolMates Hire, any activities or requests of Users which are, or which the User reasonably believes to be:
- illegal; or
- likely to have a negative effect on the reputation of ToolMates Hire, the Site, the App, Services and/or a User.
- Each User acknowledges and agrees that while the Site allows Users to communicate with each other, Users are not permitted to share the contact information of other Users.
- Each User represents and warrants that any content that it provides and Profile and Listing that it’s posts:
- will not breach any agreements it has entered into with any third parties;
- will be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any User in its local area and country; and
- will not conflict with the rights of third parties.
- For the avoidance of doubt, ToolMates Hire assumes no responsibility for a User’s compliance with any applicable laws, rules and regulations.
- ToolMates Hire reserves the right, at any time and without prior notice, to remove or disable access to any Account and/or Profile and/or Listing for any reason, including Accounts and/or Profiles and/or Listings that ToolMates Hire, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, the App or Services.
- Each User warrants that throughout the term of these Terms that:
- there are no legal restrictions preventing it from agreeing to these Terms;
- it will cooperate with ToolMates Hire and provide ToolMates Hire with information that is reasonably necessary to enable ToolMates Hire to perform the Services as requested by ToolMates Hire from time to time, and comply with these requests in a timely manner,;
- the information it provides to ToolMates Hire is true, correct and complete;
- it will not infringe any third party rights in working with ToolMates Hire and receiving the Services; and
- it is responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at its cost, and for providing ToolMates Hire with the necessary consents, licences and permissions.
5. Owner and Owner Products
- The Owner agrees to only list products which are less than 5 years old and are in a safe working condition. The Owner agrees that it cannot list vehicles, plant or machinery. An Owner may list a trailer on the condition that the trailer is registered at all times and the Owner has obtained relevant insurance to cover rental situations. ToolMates Hire must be provided with a copy of the trailer registration and insurance certificate prior to listing on the Site.
- Owners who are Commercial Operators may list products, however by doing so the Commercial Operator warrants that they have all relevant licences and insurances to hire the Owner’s Product.
- Only Owners who are Commercial Operators may list explosive tools or nail guns on the Site or App. An Owner wishing to list such items must contact ToolMates Hire separately and provide evidence of current compliance applicable safety standards and current insurance for the product prior to listing.
- The Owner must provide the Owner Products to the Renter upon confirmation of the Booking. The Owner acknowledges that it is a breach of these Terms to hire the Owner Products to the Renter prior to the Booking.
- The Owner may elect to opt in to the ToolMates Hire guarantee program for the Owner Products through the ToolMates Hire Site in the event of theft (by a third party or Renter) or damage to the Owner Products as defined on the Site. The rates for participation in the guarantee program are listed on the Site or App.
- The Owner warrants that when Listing an Owner Product, the Owner Product: (i) is available for hire by the Renter at the time and date specified; (ii) the Owner Product is in existence and that the Owner is the legal Owner of the Owner Products; (iii) the Owner Product description and photographs on the Listing are true and accurate and that any flaws/defects are included in the Listing; (iv) the Owner Product is fit for the purpose listed; (v) has the correct Owner Fees included in the Listing and that the Owner will not alter the Owner Fees after such Listing; (vi) may include a bond with its Listing at the Owner’s discretion and that the bond must be in accordance with the Site requirements (Bond).
- The Owner may retain any applicable Bond from the Renter for the use of the Owner Products in the event of a genuine claim including but not limited to the Owner Product being lost or stolen and damage to the Owner Product other than fair wear and tear. In the event the Owner Product is returned to the Owner damaged, the Owner must only claim the appropriate portion of the Bond for the damage caused to the Owner Products and the Owner must provide the Renter with written evidence as to why it has made a claim on the Bond.
- If the Owner chooses to participate in the Guarantee Program, the Bond will be set as determined in clause 11 of these Terms. If the Owner does not participate in the guarantee program, the Owner must choose the value of the Bond.
- The Owner acknowledges that ToolMates Hire will charge the Owner a transaction fee if a claim is made on the Bond.
- If no genuine claim is made by the Owner in respect of the Owner Products within three (3) days of the due date for the return of the Owner Products to the Owner by the Renter, the Owner must return the Bond in full to the Renter.
- In the event of any dispute between the Renter and the Owner in relation to Bond, the Renter and the Owner must comply with clause 13 of these Terms.
- In the event the Renter wishes to extend the hire term for the Owner Products, the Owner acknowledges and agrees that this must be completed on the Site and not directly with the Owner.
- ToolMates recommends the Owner complete a condition report in respect of the Owner Products at the commencement and cessation of the hire term. Such condition report will also assist in the event a Bond is claimed from the Renter.
6. Renter and Owner Products
- The Renter acknowledges that it is a breach of these Terms to hire the Owner Products from the Owner prior to the Booking.
- The Renter warrants that it has the necessary skill, valid licence and experience to use the Owner Products.
- The Renter warrants that it will not complete a Booking unless it is satisfied with the Listing description and believes that the Owner Products are fit for the Renter’s purpose. If the Renter is unsatisfied with the Owner Products, it must not complete the Booking.
- ToolMates recommends the Renter complete its own condition report in respect of the Owner Products at the commencement and cessation of the hire term to assist in the event of dispute with the Owner.
- The Renter acknowledges and agrees: (i) that the Owner’s Product will remain in their care, custody and control throughout the Booking; (ii) that it will return the Owners Product to the Owner at the end of the Booking in the same state and condition as when it took possession; (iii) that it will not damage the Owners Product during the Booking; (iv) that it will not alter, manipulate or otherwise change the structure, appearance, features or functionality of the Owner’s Product; (v) that it will follow any safety instructions or operational instructions provided by the Owner.
- The Renter acknowledges and agrees: (i) that it will pay all fines and infringements incurred by him/her during the use of the Owner Products; (ii) that upon receipt of any such fine or infringement by the Owner, the Owner will notify the police/law enforcement and/or government agency of the Renter’s details; and (iii) in respect of sub-clause (b) of this clause, you provide the Owner and/or ToolMates Hire with such consent; (iv) it is responsible for any towing fees or costs in respect of the Owner Products.
- The Renter acknowledges and agrees: (i) that an Owner may include a Bond with its Listing for the Owner Product at its discretion; (ii) that the Owner may retain any applicable portion of the Bond for the use of the Owner Products in the event that the Owners Product is damaged or stolen; (iv) that by accepting a Booking, it agrees to pay the Bond to the Owner; (v) that If no genuine claim is made by the Owner in respect of the Owner Products within three (3) days of return of the Owner Products to the Owner by the Renter, the Bond will automatically be returned to the Renter; (vi) in the event of any dispute between the Renter and the Owner in relation to bond, the Renter and the Owner must comply with clause 13 of these Terms.
- The Renter acknowledges and agrees that in the event of a claim on the guarantee program by an Owner for the Owner Products, ToolMates Hire may to issue an invoice to the Renter for the cost of the replacement/repairs required for the Owner Products. In the event the Renter fails to pay the invoice amount to ToolMates Hire within 14 days from the invoice date, ToolMates Hire reserves the right to terminate the Renter’s Account and/or commence recovery action against the Renter in accordance with these Terms.
- The Renter acknowledges that it will only provide the PIN to the Owner after inspection of the Owner’s Products, and that by providing the PIN you acknowledge you are happy with the condition of the Owner’s Product.
- In the event the Renter wishes to extend the hire term for the Owner Products, the Renter acknowledges and agrees that this must be completed on the Site and not directly with the Owner.
7. Ratings and Reviews
- Users may rate a Profile (Rating), which determines the popularity of individual Profiles. Renters may also provide feedback to Owners regarding Owner Products hired by that Renter (Review).
- Ratings and Reviews of an Owner can be viewed by any User. Ratings and Reviews will remain viewable until the relevant Owner’s Account, Profile and Listing is removed or terminated.
- Renters and Owners must provide true, fair and accurate information in their Review.
- If, in ToolMates Hire’s reasonable assessment, the Review is untrue, unfair, inaccurate, offensive or inappropriate, ToolMates Hire may delete the Review or ban the User from posting the Review. ToolMates Hire does not undertake to review each Review made by a User.
- To the fullest extent permitted by law, ToolMates Hire is not responsible for the content of any Reviews.
8. Forums, FAQs and DIY
- The Site and App has a forum on which Users are able to communicate and a FAQs area where Users may send questions to each other by way of private messaging.
- ToolMates Hire asks Users to limit their discussions to topics which are relevant to ToolMates Hire’s Site, App and Services.
- ToolMates Hire reserves the right to remove any posts/questions by Users which ToolMates Hire, at its sole discretion, deems to be inappropriate.
- Users acknowledge and agree that they are not permitted to post posts or ask questions which contain foul language, illegal material, defamatory comments, business advertisements, spam, religious debates, comments which incite fear, and/or any form of abuse, insults or personal attacks.
- The Site and App may contain do it yourself and other instructional information. Users acknowledge and agree that the Site, App, Services and instructional information are intended for inspirational purposes only. They do not take into account your own personal circumstances. They are not intended to be advice, they are not intended to be relied upon and they are not a substitute for professional advice based on your personal circumstances.
9. Collection of Owner Products
- The Renter is to arrange collection of any Owner Products from the Owner. ToolMates Hire is not involved in the collection process.
- A Renter is required to refer to collection information provided by the Owner in the relevant Listing/Booking confirmation or contact the Owner directly to confirm: (i) when the Owner Product is available for collection; (ii) when risk of loss, damage or deterioration to any Owner Product will pass to the Renter; and (iii) what to do if a Owner Product is delayed, damaged or goes missing in the collection process.
- On collection of the Owners Product, the Owner is required to demonstrated to the Renter: (i) that the Owners Product is in good working order; and (ii) how to operate the Owners Product safely.
- Payments for Renters and Owners differ.
- Renters and Owners are not required to pay any fees for their registration on our Site or App but may be required to pay Fees for any other Services that they request which are available on our Site (Fees).
- Renters acknowledge that the use of the Services may result in charges to them for the Owner Products including the hire fee, any applicable bond and taxes (Owner Fees).
- The Owner acknowledges that a successful Booking will result in charges to them for an agreed commission fee as set out on the Site (Commission Fees).
- Each User agrees to pay the relevant Fees/Owner Fees/Commission Fees, in the currency specified on the Site and App, at the time that it makes/receives a Booking.
- Goods and Services Tax (GST) will be charged where applicable.
- The User may pay for the Services by credit card or PayPal. The payment will be processed upon receipt of the request for a Booking. The User must not pay, or attempt to pay, for the Services directly to the Owner or through any fraudulent or unlawful means. If a User’s payment is not able to be successfully processed then the request for a Booking may be cancelled.
- Both the Owner and Renter may be charged a fee regarding their use of their credit card or PayPal account. Please refer to the credit card or PayPal website as relevant for information on these fees.
- In the absence of fraud or mistake, all payments made are final and the User shall not have the right to cancel its purchase for any reason and further each User agrees to satisfy all such payments made, with exception to action taken under the Refund Policy set out in these Terms.
- If the User makes a payment by debit or credit card including through PayPal, the User warrants that the information provided to ToolMates Hire is true, accurate and complete, that the User is authorised to use the debit or credit card to make the payment, that the payment will be honoured by the card issuer, and that the User will maintain sufficient funds in the account to cover the purchase price.
- Nothing prevents ToolMates Hire from taking any action necessary to recover any unpaid fees. If the User fails to pay, the User’s information will be passed on for collection and or legal action. The User acknowledges and agrees that it is liable for and will pay all costs including debt collection, Commission Fees, solicitor’s fees and any out of pocket expense. If the User at any time exceeds ToolMates Hire’s payment terms and as a result are passed on for collection and or legal action, ToolMates Hire may place a default against the User with a credit reporting agency.
- ToolMates Hire’s pricing structure or payment methods may be amended from time to time at its sole discretion.
11. Guarantee Program
- If you are a Commercial Operator you are not entitled to utilise the Guarantee Program.
- If the Owner elects to opt in to the ToolMates Hire Guarantee Program, the Bond will be automatically set at 20% of the replacement value of the Owners Product as determined by the Owner (Replacement Value).
- In the event of theft of the Owner Product (by a third party or Renter), the Owner must report the theft to the police within 24 hours of becoming aware of the theft/within 24 hours from the day following the return date of the Owner Products. Failure to do so will prevent the Owner from making any claim on the Guarantee Program.
- The Owner must report the theft or damage of the Owners Product to ToolMates Hire within 3 days of the end of the Booking. If the Owner does not notify ToolMates Hire within 3 days, the Bond will be automatically repaid to the Renter and the Owner’s right to claim any part of the Bond or Guarantee Program will irrevocably lapse.
- In the event the Owner makes a claim on the Bond and/or in accordance with the Guarantee Program for damage to the Owner Product, the Owner must provide ToolMates Hire with a receipt indicating the value of the Owner Product to replace or repair the product. If further information is requested by ToolMates Hire, the Owner agrees to provide the necessary information to ToolMates Hire in a timely manner and to cooperate with ToolMates Hire in good faith.
- ToolMates Hire will use the Bond or part thereof to compensate the Owner for any loss or damage to the Owner’s Product.
- If the Owner has elected to opt into the Guarantee Program and the loss or damage exceeds the value of the Bond, ToolMates Hire will pay to the Owner the difference between the Bond and the Replacement Value of the Owners Product under the Guarantee Program.
- If the Owner has elected not to opt into the Guarantee Program, ToolMates Hire will not be responsible or liable for any damage or loss suffered by the Owner in excess of the Bond.
12. Offers and Promotions
- ToolMates Hire may, from time to time, make offers or promotions which may be applicable to the Services.
- The conditions of such offers or promotions will be specified on the Site.
- The User acknowledges and agrees that ToolMates Hire may, at its sole discretion, remove or extend any offers or promotions, and ToolMates Hire will not be responsible or liable for any potential loss or damage which the User incurs as a result of the removal or extension of any offers or promotions.
13. Dispute Resolution
- By using our Site, App and Services, each User agrees that any legal remedy or liability that he or she may seek to obtain for actions or omissions of a Renter, Owner, or other third party, will be limited to a claim against the Renter, Owner or other third party, who caused harm to him or her.
- ToolMates Hire encourages Users to communicate directly with the relevant Renter, Owner or third party to resolve any disputes. If a Renter is not satisfied with an Owner’s response or an Owner is not satisfied with a Renter’s response, the Renter and Owner agree to the follow the dispute resolution procedure as detailed in subclause (d)(i) and (d)(ii) of this clause.
- ToolMates Hire welcomes feedback from its Users. ToolMates Hire seeks to resolve concerns quickly and effectively. If any User has any feedback or questions about the Services, please contact any member of the staff.
- If there are any complaints from a User, ToolMates Hire will aim to respond and provide a suitable solution within 45 days. If a User is not satisfied with ToolMates Hire’s response, the User and ToolMates Hire agree to the following dispute resolution procedure:
- The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The User and ToolMates Hire agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
- If a resolution cannot be agreed upon at the Initial Meeting, either the User or ToolMates Hire may refer the matter to a mediator. If the User and ToolMates Hire 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. Each party to the dispute must attend the mediation in good faith, to seek to resolve the dispute.
- Any attempts made by a party to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of either party under these Terms, by law or in equity.
14. Cancellation of Registration
- Users can deactivate their Account at any time via the Site or App.
- Users can cancel a Provisional Booking on the Site or App at any time until the PIN provided by ToolMates Hire is provided by the Renter to the Owner and the Owner Products are collected.
- We do not provide refunds for the Services.
- Any cancellation, exchange or refund of an Owner Product is strictly a matter between the Renter and the Owner only. The terms and conditions agreed to between the Renter and Owner should be set out clearly in the Listing in respect of the Owner Product.
- Refunds may be provided by PayPal. Any refund provided is strictly a matter between the Renter and PayPal.
16. Consumer Guarantees
- Consumer legislation in Australia including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth) provides consumers with guarantees that cannot be excluded, restricted or modified (Rights). Similar consumer protection laws and regulations in other countries may provide consumers with similar guarantees.
- If the User is a consumer as defined in the ACL, the following notice applies to the User from ToolMates Hire: “We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.”
17. Intellectual Property
- All logos, slogans, content, designs, diagrams, drawings, graphics, images, layouts, appearance, videos, ideas, methods, databases, codes, algorithms, software, fees, pricing, notes, documents, domain names, confidential information, copyright, rights in circuit layouts (or similar rights), registered or unregistered trade marks, trade names, patent, know-how, trade secret and any other intellectual or industrial property whether such rights are capable of being registered or not (collectively Intellectual Property), including but not limited to copyright which subsists in all creative and literary works displayed on the Site, the App and Services, the layout, appearance and look of the Site and App, together with any applications for registration and any rights to registration or renewal of such rights anywhere in the world, whether created before or after the date of these Terms and whether used or contained in the Site is owned, controlled or licensed to ToolMates Hire (or its affiliates and/or third party licensors as applicable).
- The User agrees that, as between the User and ToolMates Hire, ToolMates Hire owns or holds the relevant licence to all Intellectual Property rights in the Site, the App and Services, and that nothing in these Terms constitutes a transfer of any Intellectual Property. The Intellectual Property, Site, App and Services are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary or industrial rights whether such rights are capable of being registered or not, and also may have security components that protect digital information only as authorised by ToolMates Hire or the owner of the content.
- Some Intellectual Property used in connection with the Site, App and Services are the trademarks of their respective owners (collectively Third Party Marks).
- ToolMates Hire’s Intellectual Property and Third Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of ToolMates Hire or the applicable trademark holder or Intellectual Property owner.
- Users of the Site do not obtain any interest or licence in the Intellectual Property or Third Party Marks without the prior written permission of ToolMates Hire or the applicable Intellectual Property owner. Users may not do anything which interferes with or breaches the Intellectual Property rights.
18. User Licence
- Subject to these Terms, ToolMates Hire grants the User a personal, non-exclusive, non-transferable, limited and revocable licence to use the Site, App and Services for its own personal and/or non-commercial use only on a computer or mobile device owned or controlled by the User as permitted in accordance with these Terms (User Licence), and not to use the Site, App and Services in any other way or for any other purpose, apart from local fair dealing legislation in accordance with the Copyright Act 1968 (Cth). All other uses are prohibited without ToolMates Hire’s prior written consent.
- The right to use the Site, App and Services is licensed to the User and not being sold to the User. A User has no rights in the Site, App and Services other than to use it in accordance with these Terms.
- This Agreement and User Licence governs any updates to, or supplements or replacements for the Site, App and Services, unless separate Terms accompany such updates, supplements or replacements, in which case the separate Terms will apply.
19. Permitted and Prohibited Conduct
- The User is solely responsible for compliance with any and all laws, rules, regulations, including but not limited to tax obligations that may apply to its use of the Site, App and Services. In connection with the User’s use of the Site, App and Services, the User may not and agrees that it will not:
- use the Site, App or Services for any commercial or other purposes that are not expressly permitted by these Terms;
- register for more than one Account or register for an Account on behalf of another individual and/or entity;
- use the Services to find a Owner and then complete, or assist another individual to complete, a Booking or transaction independent of the Services in order to circumvent the obligation to pay any fees related to ToolMates Hire’s provision of the Services;
- post any Review or upload any content (including but not limited to User Content) that is offensive, contains nudity or inappropriate language, contains racial or religious ranting or discrimination or defames another User, Profile or Listing;
- submit any false or misleading information;
- as a Owner, offer any Owner Products that it does not intend to honour or cannot provide;
- as a Renter, make any offers or Bookings to the Owner that it does not intend to honour;
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations;
- copy, store or otherwise access any information contained on the Site, App and Services or content for purposes not expressly permitted by these Terms;
- infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
- use the Site, App or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
- use the Site, App or Services in connection with the distribution of unsolicited commercial email, i.e. spam or advertisements;
- stalk or harass any other user of the Services or collect or store any personally identifiable information about any other user other than for purposes of transacting as a User on the Site or App;
- use, display, mirror or frame the Site or App, or any individual element within the Site or App, Services, ToolMates Hire’s name, any ToolMates Hire trademark, logo or other Intellectual Property, information, or the layout and design of any page or form contained on a page, without ToolMates Hire’s express written consent; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
- The Site, App, Services, and Intellectual Property are protected by copyright, trademark, and other laws of Australia and international countries. The User acknowledges and agrees that the Site, App, Services and Intellectual Property, including all associated intellectual property rights are the exclusive property of ToolMates Hire and its licensors. The User will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, App and Services, or Intellectual Property.
- The User must not post, upload, publish, submit or transmit any content that:
- infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- is fraudulent, false, misleading or deceptive;
- denigrates ToolMates Hire, the Site, the App, Services, a Renter, or a Owner;
- violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- is defamatory, obscene, pornographic, vulgar, offensive, promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
- is violent or threatening or promotes violence or actions that are threatening to any other person; or
- promotes illegal or harmful activities or substances.
21. User Content
- Users are permitted to post, upload, publish, submit or transmit relevant information and content (User Content). By making available any User Content or any Intellectual Property on or through the Site, App and Services, the User grants to ToolMates Hire a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content and Intellectual Property, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content and Intellectual Property on, through, or by means of the Site, App and Services.
- The User agrees that it is solely responsible for all User Content and Intellectual Property that it makes available through the Site, App and Services. The User represents and warrants that:
- it is either the sole and exclusive owner of all User Content and Intellectual Property that it makes available through the Site, App and Services, or that it has all rights, licences, consents and releases that are necessary to grant to ToolMates Hire the rights in such User Content or Intellectual Property, as contemplated under these Terms; and
- neither the User Content nor the posting, uploading, publication, submission or transmittal of the User Content or ToolMates Hire’s use of the User Content (or any portion thereof) on, through or by means of the Site, App and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- ToolMates Hire may at its sole discretion remove any User Content that is offensive or in breach of these Terms.
- ToolMates Hire does not guarantee that Owner Products will be requested by any Renter, nor does ToolMates Hire guarantee that Renters will be able to find desirable Owners or Owner Products.
- ToolMates Hire does not endorse any Renter, Owner, Profile, Listing or Owner Products. ToolMates Hire requires Renters and Owners to confirm that they have provided accurate information. ToolMates Hire does not perform any sort of background checks of Renters and Owners, and does not confirm, any Renter or Owner’s identity, Profile, Listing, insurances and/or Owner Products.
- ToolMates Hire cannot and does not control the content contained in any Profiles or Listings or the condition, legality or suitability of any Renters or Owner Products. Renters are responsible for determining the identity and suitability of Owners that they contact via the Services and the Owner Products.
- ToolMates Hire accepts no responsibility for and makes no representations or warranties to the User or to any other person or entity as to the reliability, accuracy or completeness of the information contained on the Site or the App. ToolMates Hire disclaims any and all liability related to any and all Renter, Owner, Profiles, Listings, Owner Products.
- ToolMates Hire recommends all Owners check the identification of the Renters prior to the provision of the Owner Products. ToolMates Hire also recommends all Renters exercise due skill and care in verifying the identity of any Owners prior to the provision of the Owner Products.
- By using the Site, App or Services, the User agrees that any legal remedy or liability that it seeks to obtain for actions or omissions of other Renters or Owners or other third parties will be limited to a claim against the Renter or Owner or other third party who caused it harm. ToolMates Hire encourages the User to communicate directly with the relevant Renter or Owner on the Site, App and Services regarding any communications or arrangements made between them and to resolve any dispute between them.
- To the fullest extent allowable under applicable law, ToolMates Hire disclaims all warranties, representations and conditions, whether express or implied, including any warranties, representations and conditions that the Site, App or Services are merchantable, of satisfactory quality, reliable, accurate, complete, suitable or fit for a particular purpose or need, non-infringing or free of defects or errors.
- For the avoidance of doubt, ToolMates Hire is not responsible for any duties, fees, taxation, visa or immigration matters associated under these Terms. ToolMates Hire advises that all Users using the Site, App and Services should seek advice in relation to these matters.
- Each Renter and Owner who uses the Site, App and the Services does so at their own risk.
- ToolMates Hire excludes all express and implied conditions and warranties, except for the User’s Rights, to the fullest extent permitted by law, including but not limited to:
- ToolMates Hire expressly disclaims any implied or express guarantees, warranties, representations or conditions of any kind, which are not stated in these Terms;
- ToolMates Hire does not warrant that the Site, the App, the Services, content on the Site or App (including pictures, videos, sound clips, resumes, links etc.), or the User’s access to the Site, the App or the Services will be error free, that any defects will be corrected or that the Site, the App or the server which stores and transmits material to the User is free of viruses or any other harmful components;
- ToolMates Hire takes no responsibility for, and will not be liable for, the Site, the App, the Services, the Renter, the Owner and the Owner Products being unavailable or not in existence, of a particular standard of workmanship, failing to meet the Profile description (including photographs), failing to meet the Listing description, failing to meet the User’s needs, being of less than merchantable quality or are fit for Renter’s purpose; and
- ToolMates Hire will not be liable for any loss, damage, costs or expense whether direct, indirect, incidental, special, consequential and/or incidental, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal, bodily injury, death or emotional distress, loss of revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on the User’s information systems or costs of replacement goods, or otherwise, suffered by the User or claims made against the User, arising out of or in connection with the Site, the App, Services, content on the Site or App, inability to access or use the Site, the App, the Services, any Profile, any Listing, the Owner Products, the Owner Products or the Terms, even if ToolMates Hire was expressly advised of the likelihood of such loss or damage.
- The User agrees not to attempt to impose liability on, or seek any legal remedy from ToolMates Hire with respect to such actions or omissions.
23. Limitation of Liability
- ToolMates Hire’s total liability arising out of or in connection with the Site, the App, the Services or the Terms, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by the User to ToolMates Hire in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
- The limitations of damages set forth above are fundamental elements of the basis of the bargain between ToolMates Hire and the User. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to the User.
- This limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose. The limitations of liability provided in these terms inure to the benefit of ToolMates Hire.
- Each User agrees to defend and indemnify and hold ToolMates Hire (and ToolMates Hire’s parent, related bodies corporate, officers, directors, contractors, employees and agents) harmless from and against any claims, actions, suits, demands, damages, liabilities, costs or expenses (including legal costs and expenses on a full indemnity basis), including in tort, contract or negligence, arising out of or connected to the User’s use of or access to the Services; any breach by the User of these Terms; any wilful, unlawful or negligent act or omission by the User; and any violation by the User of any applicable laws or the rights of any third party.
- ToolMates Hire reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defences.
- This defence and indemnification obligation will survive these Terms and the User’s use of the Site, App or Services. These Terms, and any rights and licences granted hereunder, may not be transferred or assigned by the User, but may be assigned by ToolMates Hire without restriction.
- Accuracy: While ToolMates Hire will endeavour to keep the information up to date and correct, ToolMates Hire makes no representations, warranties or guarantee, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services, or related graphics contained on the Site or App for any particular purpose. The User hereby acknowledges that such information and materials may contain mistakes, inaccuracies or errors and ToolMates Hire expressly excludes any liability for such to the fullest extent permissible by law.
- Security: ToolMates Hire has a secured business system with an A Grade SSL Connection and cyber/privacy insurance to protect all User transactions and to ensure maximum security. A secured third party processor (Paypal) who have Level 1 PCI DSS compliance processes all credit card payments. ToolMates Hire also uses a leased privilege access model for any secure business systems.
- Termination: Termination: ToolMates Hire reserves the right to refuse supply of the Services required by any User, terminate any User’s Account, terminate its contract with any User, and remove or edit content on the Site or App at its sole discretion, without incurring any liability to the User. If ToolMates Hire decides to terminate a User’s Account any of the following may occur, with or without notice to the User: (a) the User’s Account will be deactivated, its password will be disabled and it will not be able to access the Site, App, Services, its Account or its User Content; (b) any pending or future Booking (in respect of a Renter or Owner) will be immediately terminated; (c) ToolMates Hire may communicate to the relevant Renter or Owner that the Booking has been cancelled; (d) ToolMates Hire may refund the Renter in full, regardless of the cancellation and refund policy; (e) ToolMates Hire may contact Renter to inform them of potential alternative Owner Products available from different Owner on the Site, App and Services; and (f) the User will not be entitled to any compensation for Bookings that were cancelled as a result of a suspension, deactivation or termination of their Account.
- Fraudulent Activities: Each User acknowledges and agrees that, in the event ToolMates Hire reasonably suspects that there are fraudulent activities occurring within the Site, App and Services, ToolMates Hire reserves the right to immediately terminate any Accounts involved in such activities, contact the relevant authorities and provide all necessary information to assist in proceedings and investigations.
- Force Majeure: ToolMates Hire will not be liable for any delay or failure to perform its obligations under the Terms if such delay is due to any circumstance beyond its reasonable control.
- Notice: Any notice in connection with the Terms will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given or to such other address or email address as may from time to time be notified in writing to the other party.
- Waiver: Any failure by a party to insist upon strict performance by the other of any provision in the Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by ToolMates Hire of any of the Terms shall be effective unless ToolMates Hire expressly states that it is a waiver and ToolMates Hire communicates it to the User in writing.
- Assignment: A User must not assign any rights and obligations under the Terms whether in whole or in part without ToolMates Hire’s prior written consent.
- Severability: If any of the Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
- Jurisdiction and Applicable Law: These Terms, use of this Site, the App, the Services and any dispute arising out of any User’s use of the Site, App or Services is subject to the laws of New South Wales, Australia, and subject to the exclusive jurisdiction of the New South Wales courts. The Site and App may be accessed throughout Australia and overseas. ToolMates Hire makes no representation that the content of the Site and App complies with the laws (including intellectual property laws) of any country outside Australia. If a User accesses the Site or App from outside Australia, it does so as its own risk and are responsible for complying with the laws in the place where he/she accesses the Site or App.
- Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between ToolMates Hire and each User, and supersede any prior agreement, understanding or arrangement between ToolMates Hire and each User, whether oral or in writing.
- Definitions: Commercial Operator means a user who lists tools for rent in the course of business.
For questions and notices, please contact:
ToolMates Hire Pty Ltd
PO BOX 3244 MARRICKVILLE METRO, NSW, 2204
LegalVision ILP Pty Ltd owns the copyright in this document and use without permission is prohibited.