Terms and Conditions

PLEASE READ THESE TERMS IN FULL BEFORE USING THE GUARDBAY PLATFORM AND/OR SERVICES.

PLEASE NOTE:

Guardbay is an online marketplace facilitating connections and transactions between Employers and Guards. Guardbay provides a platform only and Guardbay does not engage Guards or provide Security Services.
By using the Guardbay Platform and/or Services, You agree and acknowledge that:
1. You are not a person under 18 years of age;
2. You are legally bound by these Terms, as amended from time to time; and
3. Any engagement for Security Services is between an Employer User and a Guard User only, Guardbay is not a party to any such contract for services and/or employment; however, the Guardbay Platform must be used for all payments in accordance with clause 10 below, and Guardbay may hold funds as security for transactions facilitated through the Platform.
By using the Guardbay Platform and/or Services, You agree to the limitations of liability, warranties and indemnities set out in these Terms.

AGREEMENT

1. Interpretation and Definitions

In these Terms, capitalised terms are defined in the Dictionary at clause 15 or the clause where it first appears.
Unless expressed to the contrary in these Terms:
1. words importing:
  - the singular include the plural and vice versa;
  - any gender include the other genders;
2. if a word or phrase is defined, cognate words and phrases have corresponding definitions;
3. a reference to a person includes a firm, unincorporated association, corporation and a government or statutory body or authority, and includes legal personal representatives, agents, successors and permitted assigns;
4. a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments and replacements of any of them;
5. a right includes a benefit, remedy, discretion, authority or power;
6. a reference to “includes”, “for example” and other similar phrases are not limited to what else might be included.

2. Access to the Platform and Services

By accessing the Guardbay Platform and/or Services, You warrant and agree to Guardbay and any User that:
1. if You are an individual, you are not less than 18 years old;
2. if You are an organisation, company or other entity, that You:
  - are validly incorporated; and
  - have full power, authority and corporate approvals necessary to enter into this Agreement and any Guard Contract;
3. You have the right, authority and capacity to enter into this Agreement;
4. You will abide by:
  - all the terms and conditions of this Agreement;
  - all of Guardbay’s policies as posted on the Platform from time to time, Our Code of Conduct, and any relevant code of ethical behaviour that applies to You as a Guard or Employer; and
  - the User Standards and refrain from engaging in Prohibited Conduct as set out in clause 8 below; and
  - the Payment Terms set out in clause 10 below;
5. neither You, nor anyone at Your Site:
  - has been convicted of any serious criminal offence, or any criminal offence involving violence, dishonesty, any sexual offence, or any offence relating to the safety of children or vulnerable persons, any offence relating to workplace health and safety, or any offence which may reasonably be considered relevant to the provision or receipt of Security Services (Adverse Conduct);
  - is the subject of a complaint, claim, investigation, or other legal action, charge, proceedings or other litigation (Legal Action) in respect of any Adverse Conduct;
  - has ever been the subject of Legal Action in respect of Adverse Conduct that has not been notified in writing to Guardbay;
  - has engaged in any conduct that would prevent you from lawfully and safely providing Security Services;
  - has been and/or is currently required to register as a sex offender in any jurisdiction or with any governmental entity;
6. any information provided by You is true and not misleading; and
7. You will act in good faith and not misuse the Platform or the Services so as to cause harm or loss to Guardbay or any other User:
  (each, and collectively, User Eligibility Criteria).
If You do not satisfy all of the User Eligibility Criteria, You must not create a User Account or use the Platform and/or Services as a User, but You may access the Platform on a limited basis as a Visitor. A Visitor may browse the Platform in accordance with this Agreement, but will not have access to User Services unless they become a User.

3. Your Account

To use Our Services, you must set up a User Account. To do so, You will be required to provide true and accurate identity and other information, and nominate Account Credentials to access Your Account.
If You create Your Account on behalf of a third party including any business or entity, You represent that You have the authority to represent such third party and bind the third party to this Agreement.
In setting up or using a User Account, You:
1. warrant that all information You provide to Us is true, accurate, current and complete, that pseudonyms are not permitted to be used, and You agree to maintain and promptly update such information to keep the information true, accurate, current and complete;
2. agree that you will not transfer or share your Account Credentials with any other person;
3. agree not to register for more than one Guard or Employer User Account;
4. are solely responsible for: maintaining the confidentiality of Your Account Credentials; any and all use of Your Account Credentials and Your Account; all activities that occur under or in connection with Your Account Credentials or Your Account; and any act or omission of any Users who access the Platform and/or Services under Your Account Credentials; and
5. acknowledge and agree that: We rely on Account Credentials to know whether Users accessing the Platform and using the Services are authorised to do so; and if someone (whether or not you) accesses our Platform and/or Services using Your Account Credentials, We will rely on the Account Credentials, and assume that it is You who is accessing the Platform and/or Services.
You acknowledge and agree that Guardbay may make the information that You provide (including personal information) accessible to Government bodies or agencies, or others, if We believe doing so is prudent in connection with any law, direction, guideline, determination or recommendation made by an applicable Government body or agency.

4. Verification of Users

Verification disclaimer: You agree and acknowledge that Users may make representations to You about themselves or the services they are lawfully able to provide, including Security Services, via the Platform or in other communications. You are solely responsible for:
1. making Your own inquiries and making your own decision regarding whether to engage a User to provide Security Services (or to accept a request for Security Services); and
2. verifying any document, information or representation given to you by a User which has not previously been verified by Guardbay or a provider to Guardbay. Documents and information verified by Guardbay are set out in the Verification Policy, noted on a User’s profile on the Platform, or otherwise outlined on the Platform.
Verification checks: In accepting an application to create a User Account, Guardbay may conduct certain checks and require a User to provide information relevant to any mandatory criteria relevant to the Services to be provided (Verification Checks).
Guardbay may also verify other information, including:
1. independently verifying a statement made by any User or Visitor on the Platform;
2. verifying that any User meets any of the eligibility criteria established by Guardbay from time to time, including funding verification;
3. worker screening checks;
4. identification verifications;
5. credential, qualification and training verification; and/or
6. using available public records to conduct searches and checks.
Compulsory information: Guardbay may require a User to complete all information on their Platform Account profile marked as compulsory before accepting an application to create a User Account.
Verification Consent: In creating Your Account or otherwise seeking to become a User, You agree and consent to Guardbay conducting the Verification Checks at any time in its sole and absolute discretion, and agree to provide Guardbay with such information or documentation as We may reasonably request in order to do so, and You authorise Guardbay and its Authorised Representatives to conduct any such Verification Checks.
Verification Policy: Unless expressly stated otherwise, the steps that Guardbay takes to verify information are strictly limited to those set out in any Verification Policy and any relevant legislation.
No warranty or liability: In conducting any verification steps or checks, Guardbay may rely on publicly available information including from government registers, and/or information provided by third parties. Guardbay gives no warranty, makes no representation as to, and accepts no liability in respect of, the accuracy, reliability or quality of any such information.
Except as set out in this clause, Guardbay does not, and is not required to, verify information provided by a User or Visitor.

5. Use of the Platform and Content

Prohibited Content: Content of any of the following kinds is prohibited:
1. Offensive, defamatory, distressing, harmful, insulting, intimidating, menacing, harassing, discriminatory, unlawful, false or misleading, content of any kind;
2. Content that poses, or may pose, a risk to any person;
3. Content that threatens, harasses, humiliates or ridicules any person, or is otherwise unlawful, or encourages or incites any such activity;
4. Content posted, uploaded, published or disseminated without the lawful owner’s permission, or breaches any obligation of confidentiality;
5. Any false or misleading statements, representations or advertising, (including but not limited to representations about the User’s identity, qualifications, experience or reputation);
6. Advertising or promoting goods or services other than Security Services;
7. Personal information about a person that is posted, uploaded, published or disseminated without that person’s prior consent or in breach of any privacy law, or is contrary to Guardbay’s Privacy Policy;
8. Content that infringes another person’s copyright, trade mark or any other intellectual property right;(i) Content containing a person’s Account Credentials or Content able to be used to access a person’s User Account other than in accordance with this Agreement or without the account holder’s consent;
9. Content that may cause Guardbay to breach any law or otherwise expose Guardbay to liability;
10. Content including any virus, worm, trojan, or other malicious or unauthorised code or disabling feature to or via the Platform or the Services, or which may breach the requirements or cause the loss of services of Guardbay’s internet service providers or other suppliers;
11. Content likely to interfere with or disrupt the proper and intended operation of the Platform or the Services, or that contains any means of automatically searching or mining data from the Platform; or
12. Content contrary to any of Guardbay’s policies or code of conduct;
(each, and collectively, Prohibited Content).
Content sourced by/from others: When You access the Platform and/or Services, You may obtain access to Content posted by other Users or third parties. You agree and acknowledge that:
1. Guardbay provides a platform only, that acts as a forum for venue for the online distribution and publication of Content, and Guardbay does not verify that Content;
2. Guardbay makes no warranties or representations in relation to the Content, its accuracy, completeness, quality, currency or otherwise, and is not responsible for any Content;
3. the Content posted by others may include Prohibited Content;
4. Guardbay may, but is not obliged to, take any action it considers (in its sole and absolute discretion) appropriate with respect to Content that it considers is Prohibited Content, may expose Guardbay to liability, harm Guardbay’s business operation or reputation, cause Guardbay to lose the services of its suppliers; and
5. Guardbay reserves the right to reject or modify Content, at its discretion.
Your Content: You are solely responsible for all Content that You post, email or otherwise make available on the Platform and/or Services, and You:
1. grant Guardbay a non-exclusive, royalty-free, worldwide perpetual license that is capable of being sub-licensed, in respect of all of Your copyright and other intellectual property rights related to Content that You post or contribute to the Platform;
2. agree that any such Content or any derivative works thereof, may be disseminated, distributed, publicly displayed, reproduced, used, sublicensed, posted, or published by Guardbay, and searched, displayed, printed or otherwise used or exploited by Visitors and Users;
3. agree that any such Content, deidentified data related to You and/or data about Your usage is Our exclusive property;
4. must not post or upload any Prohibited Content; and
5. warrant that none of the Content you post or upload is Prohibited Content or infringes the rights, including but not limited to copyright and other intellectual property rights, of any person.
Feedback, Ratings and Reviews: By using the Platform and posting information, including a review (Feedback), You grant Us an unrestricted, worldwide, royalty-free, sub-licensable licence to use, reproduce, publish, communicate to the public, modify, and adapt Your Feedback posted on the Platform for the purpose of publishing that Feedback on the Platform and as otherwise permitted by this Agreement. You may use any Feedback that is about You provided that you use it in a way that is not misleading or deceptive and is in accordance with Guardbay’s policies as posted on the Platform from time to time.

6. Intellectual property

You agree and acknowledge that the deidentified data referenced in clause 5.3 and Our Technology are our intellectual property and/or licensed to Us under Australian and international copyright or trade mark laws, and may be subject to other intellectual property and proprietary rights and laws (Our IP). Title to Our IP at all times remains with us or the licensor, and nothing in this Agreement is, or is intended to be, a transfer of, or to create, any rights (including any licence) in Our IP.
You must not copy, modify, reproduce, republish, post, transmit, sell, offer for sale or redistribute Our Technology and/or Our IP in any way without our prior written permission, and the prior written permission of any applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology and Our IP.
Certain of the names, logos, and other materials displayed on the Platform or in the Services constitute trade marks, trade names, service marks or logos (Marks) of Guardbay or other entities. You are not authorised to use any Marks, and ownership will at all times remain with Us or those other entities who own the Marks.
Any use of third party software provided in connection with the Platform and/or Services will be governed by relevant third party licenses and not by this Agreement.

7. Security Services and the Guard Contract

Guard Contract:
1. Guardbay provides an online marketplace that allows Employers to connect with Guards. Guardbay facilitates only, and does not engage or employ Guards or provide Security Services.
2. When an Employer engages a Guard through the Platform, the Guard and Employer contract with each other directly. Guardbay is not a party to that contract, except to facilitate payments.
3. The Guard solely decides whether to accept an offer from an Employer to provide Security Services, and the Employer solely decides whether to engage a Guard to provide Security Services.
Relationships: You have entered into this Agreement on the basis that You are an independent contractor or employer. Guards, including any other person engaged or employed by any Guard are not employees, contractors, agents or franchisees of Guardbay. Guardbay does not employ any User or any other person associated with the services that a Guard provides. Nothing in this Agreement or a Guard Contract or Your use of the Platform and/or Services is intended to give rise to any such relationship, or any relationship of partnership or joint venture.You acknowledge and agree that Guardbay does not:
1. provide or arrange for the provision of Security Services; or
2. direct, or exercise any control over, any User as to how or where or when any Security Services are provided; or
3. operate a referral service or employment agency and does not recommend or endorse any particular User; or
4. provide advice regarding the quality or suitability of any particular User for any Security Services, and no information on Guardbay’s Platform and/or Services should be construed as legal or security advice; or
5. participate in any interactions or arrangements between Guards and Employers for any Security Services provision, except to provide the Platform and/or Services to facilitate those interactions, including any processing or security of payments; or
6. involve itself in the terms of a Guard Contract between Employers and Guards or control their engagement with each other, including regulating or managing any workplace laws, workers’ compensation compliance, or any workplace health and safety laws; or
7. set or determine the agreed level of payment for and/or remuneration for the provision of the Security Services.
Indemnity: You acknowledge and agree as follows:
1. The Employer and the Guard, for each Guard Contract, indemnify and hold Guardbay indemnified against any cost, charge, tax, penalty or other expense incurred in connection with an assertion that Guardbay is liable to make any payment relating to a Guard Contract; and in this context, “any payment” includes but is not limited to payroll tax, PAYG withholding, superannuation, workers’ compensation insurance premiums or similar liabilities, and/or any other charge, penalty or amount arising in connection with worker and employer (or similar) relationships;
2. Guardbay acts only as the host of an online marketplace for the provision of selected information and payments between Users;
3. Guardbay has no control over and is not responsible for any acts or omissions of any Users on or off Guardbay’s Platform and/or Services;
4. Guardbay relies on the information provided by Users except as otherwise verified in accordance with our Verification Policy;
5. Guardbay makes no representation or warranty regarding the quality of any Security Services or any other services provided by any User; and
6. Guardbay is not responsible for the interactions between Users, including under any Guard Contract.
Guard Contract essentials: The Employer and the Guard may enter into a Guard Contract on such terms as they agree, but the following must be (and are agreed as) terms incorporated into every Guard Contract:
1. The Guard must charge for the Security Services at the Agreed Price, as agreed between the Employer and the Guard;
2. The Agreed Price must not be less than the rates, terms and entitlements prevailing at the time for equivalent employees under the Security Services Industry Award, plus any Guard Fee;
3. Guardbay or its Authorised Representatives are authorised to issue an invoice for the Security Services on behalf of the Guard in connection with each Security Service;
4. Guardbay or its Authorised Representatives are irrevocably authorised to collect payment from the Employer, including by debiting the Employer’s nominated bank account or credit card or other method agreed between Guardbay and the Employer, and/or to hold funds as security for the Guard pending completion of the Security Service;
5. The Guard must comply with any relevant Guard code of conduct and ethical behaviour and any applicable workplace health and safety policies or procedures;
6. The Employer must comply with any relevant Employer code of conduct and ethical behaviour and any applicable workplace health and safety policies or procedures;
7. The Guard warrants to the Employer and Guardbay that:
  - they are lawfully capable of providing, and where relevant, have the necessary licences, qualifications and skills to provide the Security Services to the Employer;
  - they are not prohibited from providing the Security Services;
  - they are and will, for the duration of any Guard Contract, continue to be an Australian citizen and/or a person legally authorised to work in Australia;
  - they are not a partner, employee, independent contractor or agent of Guardbay;
  - they will not engage in any Diversion Conduct as set out in clause 11 below;
  - if they are providing services in an Employer’s home, workplace and/or other nominated locations, the Guard has inspected those locations to ensure that it is a safe work environment each time the Guard arrives at the Employer’s nominated location/s;
  - they have made themselves aware of and will comply with all laws and regulations relating to the provision of the Security Services, including any workplace laws and any applicable workplace health and safety laws, policies, procedures, or directions given by an Employer in relation to the provision of Security Services pursuant to any Guard Contract; and
  - they are not employed or engaged by Guardbay;
8. The Employer warrants to the Guard and Guardbay that:
Connecting with the Platform:
1. Employers can connect with potential Guards through the Platform by uploading the information regarding the requested Security Services, the Employer, and the Employer’s payment details, as required by the Platform, and providing their consent to the debiting or charging of the Fees, along with any other taxes, charges, penalties or other amounts applicable (or, in the reasonable opinion of Guardbay, at risk of being applicable) in connection with the contracting of the Guard.
2. Guards can receive offers to provide Security Services and connect with potential Employers by uploading the information regarding the Guard and the Security Services they wish to offer and are qualified to provide, and the Guard’s payment details, as required by the Platform.
3. When an offer by a Guard is accepted by the Employer, the Guard and Employer will enter into a Guard Contract with each other and Guardbay may release related personal information and require payment in connection with the Guard Contract.
Service Logs:
1. In connection with each Security Service, the Guard must generate via the Platform an electronic service log as soon as practicable, that includes the start time, end time and any service notes for the relevant Security Service (Service Log).
2. The Employer will be notified of the Service Log via the Platform, email or other notification. The Employer must approve or reject the Service Log as soon as practicable after notification, and within any such time limit indicated on the Platform (Review Period).
3. The Employer will be deemed to have approved the Service Log if it is approved through the Platform or if the Service Log is not rejected before the expiration of the Review Period.

8. User Standards

User Standards: All Users are required to abide by the following standards to ensure the integrity of the Services and their fair and proper use:
1. Communications between Users is for the sole purpose of connecting Employers and Guards for purposes relating to Security Services.
2. If You receive personal information for any other User through the use of the Services, You may use the information: only for the purpose of conducting a transaction through the Platform and/or Services with that User, and You must not use another User’s personal information for any other purpose; and only in accordance with any relevant law, direction, guideline, determination or recommendation made by an applicable Government body or agency.
3. Users must not discuss with a third party any information gained about other Users (whether Employers, Guards, or data related to them) in the course of the supply of the Security Services.
4. Users must not reproduce, duplicate, copy, sell, resell or exploit the Platform and/or Services, or any portion of them.
5. Users must not use or permit use of the Platform and/or Services for any purpose other than for purposes which Guardbay expressly provides the Platform and/or Services.
Prohibited Conduct: Users must not do any of the following:
1. make use of the Platform to recruit or subcontract any other User for the provision of services of a similar nature to the Security Services;
2. contact another User for any purpose other than as set out in this Agreement;
3. harass, intimidate or otherwise engage in illegal or offensive behaviour with respect to any other User, or use the Platform to stalk another person;
4. conduct or promote any illegal activities while using the Platform and/or Services;
5. upload, distribute or print any Prohibited Content;
6. use the Platform and/or Services to generate unsolicited email advertisements or spam;
7. allow, enable, or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via email;
8. misuse or attempt to interfere with the Platform and/or Services, including by:
  - attempting to reverse engineer or jeopardise the correct functioning of the Platform, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Platform, or attempt to gain access to secured portions of the Platform and/or Services to which they do not possess access rights;
  - uploading or transmitting to the Platform any form of virus, worm, trojan horse, or other malicious code;
  - interfering in any way with the proper functioning of the Platform and/or Services or interfere with or disrupt any servers or networks connected to the Platform and/or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Platform and/or Services;
  - using any high volume automatic, electronic or manual process to access, search, harvest, “screen scrape”, monitor, “mine” information from the Platform and/or Services (including without limitation robots, spiders or scripts) or copy any static or dynamic web page on the Platform or the content contained on any such web page for commercial use without Guardbay’s prior express written permission; or
  - mirror or frame the Platform or any content, place pop-up windows over its pages, or otherwise affect the display of its pages; and/or
  - impersonate any person or entity, or otherwise misrepresent an affiliation with a person or entity.

9. Limitation of warranty, liability, and indemnity

Statutory rights not affected: Nothing in this Agreement limits any right or obligation that You may have under the Australian Consumer Law (ACL), including any consumer guarantee or right to refund, or any other right under any law, to the extent that it cannot lawfully be excluded or limited.
Risk of use: You agree and acknowledge that, subject to clause 9.1, Your use of the Platform and/or Services, and any material or information downloaded or otherwise obtained through the use of the Platform and/or Services, is at Your sole discretion and risk. You are solely responsible and liable for any damage, including damage to Your computer or loss of data that results from the download of such material and/or information. You agree and acknowledge that:
1. Guardbay’s Services, the Platform and all Content on it are provided on an “as is” and “as available” basis, and (to the extent permitted by law or as otherwise provided in this Agreement) without any warranty or representation of any kind either express or implied;
2. You assume all responsibility in connection with choosing any Guard, whether or not You obtain information about such Guard on or through the Platform; and
3. no advice or information, whether oral or written, obtained by You from Us through the Platform, Services, or otherwise will create any warranty, representation or guarantee not expressly stated in this Agreement.
Exclusion and limitation of warranty: To the fullest extent permitted by law, Guardbay disclaims and excludes all warranties and representations of any kind, whether express or implied, in respect of the Platform and the Services, including but not limited to any warranty:
1. as to fitness for a particular use or purpose, non-infringement, operability, condition, value, accuracy of data and system integration;
2. that the Platform and/or Services will meet Your requirements;
3. that the Platform will be accurate, reliable, uninterrupted, secure or error-free;
4. that the Platform, or the server that makes it available, will be uninterrupted, timely, secure, free of viruses, errors or other harmful components;
5. as to the results that may be obtained from the use of the Platform and/or Services; and
6. that errors in the Platform and/or Services will be corrected.
No liability for conduct of other Users: To the fullest extent permitted by law, Guardbay expressly disclaims, and You expressly release Guardbay and each of its Authorised Representatives from any and all liability whatsoever for any damages, claims and/or controversies that have arisen or may arise from and/or in any way relate to any acts or omissions of Users on or off the Platform, including without limitation in connection with any provision of Security Services by any Guard.
Exclusion of liability: To the fullest extent permitted by law, Guardbay and each of its Authorised Representatives will not be liable to You or any third party, whether in contract, warranty, tort (including negligence and strict liability), statute, or otherwise, for:
1. any injury, loss or damage suffered by any Guard or Employer in relation to the provision of any Security Services;
2. any Services rendered, or not rendered, by any Guard;
3. any other claims that may arise directly or indirectly from the provision of Security Services or any other conduct of any Guard;
4. any indirect, special, incidental, consequential or exemplary damages that may be incurred by You;
5. any loss of income, revenue, goodwill, business, profits and/or data (whether direct or indirect) that may be incurred by You;
6. any claim, damage, or loss which may be incurred by You arising from, out of or related to:
  - our use of, or access to, or the inability to use or to access, the Platform and/or Services;
  - any suspension and/or termination of your use of and/or Your access to the Platform and/or Services as set out in clause 13 below;
  - Your transactions involving the Platform;
  - any act or omission of any User (including any Guard or Employer);
  - Your breach of this Agreement, or any contravention of any law or rights of a third party by You;
  - any statements and/or representations (including misstatements or misrepresentations) made by any User on or off the Platform;
  - any statements and/or representations made by Guardbay in reliance of any warranties and/or representations made by Users or other third parties;
  - any of Your Content and/or information that You submit, post or transmit through the Platform and/or Services;
  - the quality, accuracy, reliability, timeliness or completeness of any background check or verification, whether provided by Guardbay or through any third party verification services, communicated to You in connection with the Platform, the Services or any Security Services;
  - the use of information provided by any third party verification service;
  - transactions between You and any third party merchants or service providers;
  - any information appearing on third party merchant or service provider platforms, or any other platform linked to our Platform;
  - any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines arising in connection with the Platform and/or Services; and
  - any disputes that arise between Users or between a Guard and an Employer in relation to Security Services.
Each exclusion of liability above is a separate term of this Agreement.
General limitation and exclusion: Subject to clause 9.1, and to the fullest extent permitted by law, all liability of Guardbay, and each of its Authorised Representatives, to the User:
1. is limited to the refund of amounts paid by the User to Guardbay for Services in the 12 months prior to the date on which the liability arose;
2. excludes any liability for any indirect, consequential or pure economic loss; and
3. is reduced to the extent that the liability arises out of the negligent or wrongful act or omission of the User or any third party.
Indemnities given by Users: You agree to indemnify, defend and hold Guardbay and its Authorised Representatives harmless from and against any and all third party claims, liabilities, demands, proceedings, losses, costs, expenses, fees (including legal costs on an indemnity basis) and damages (actual, special and consequential) of every kind and nature, known and unknown, incurred by Guardbay or any of its Authorised Representatives or made by any third party (including a Guard, Employer or another User) due to or arising out of, or in any way in connection with:
1. Your breach of this Agreement, or any contravention of any law or rights of a third party by You;
2. Your use of the Platform and the Services;
3. any other Services You provide as a Guard, or otherwise;
4. Your transactions involving the Platform;
5. any of Your Content and/or information that You submit, post or transmit through the Platform and/or Services;
6. any statement or representation you make to, or any conduct you engage in towards, another User;
7. in the case of Guards, the provision of Security Services by You or any of Your officers, employee, contractor, agent, representative or other personnel (as applicable), or any Guard Contract to which you are a party;
8. in the case of Employers, the provision of Security Services to, or receipt of Security Services by, You, or otherwise arising out of or in connection with any Guard Contract to which you are a party; and
9. any claim arising out of any employment relationship, including but not limited to any industrial instrument and/or statutory entitlement, including superannuation obligations.
User acknowledgment: You agree and acknowledge that the exclusions and limitations of liability and warranty in, and the indemnity given by You under, this clause 9 are reasonable to protect the legitimate interests of Guardbay in circumstances where:
1. Guardbay does not provide the Security Services, and acts as a platform only; and
2. any Guard Contract and any engagement to provide Security Services is between You and the Guard or Employer (as applicable).
Guard and Employer liability unaffected: Nothing in this Agreement is intended to limit any liability owed by a Guard to an Employer, or by an Employer to a Guard, including for any claim as a consumer under the ACL, or to limit or modify any right or remedy the Employer has against the Guard for failure of a statutory guarantee under the ACL.
Bar to claims: Guardbay and any of its Authorised Representatives may plead this Agreement in bar to any claim, action, proceeding, class action or suit brought by You against Guardbay or any of its Authorised Representatives in any proceeding or claim commenced in breach of this clause 9.
Each subclause has effect despite severance: You acknowledge and agree that each of the above clauses, subclauses and parts of subclauses within clause 9 above that contain limitations, disclaimers, exclusions and/or indemnities in favour of Guardbay are each to be interpreted as a separate term of this Agreement, severable and/or in effect despite severance of related words, phrases, terms or subclauses, provided there remain words capable of having a clear meaning or effect in favour of Guardbay.

10. Payment terms, fees and payment processing

Fees payable by Employers: Employers will pay Guardbay or its Authorised Representative:
1. the Employer Fee; and
2. the Agreed Price, which Guardbay or its Authorised Representative will accept on behalf of the Guard; and
3. any other costs reasonably incurred by Guardbay (including costs incurred by its Authorised Representatives) in connection with enforcing or attempting to enforce its rights under this Agreement.
Fees payable by Guards: The Guard agrees to:
1. receive the Agreed Price, less any Guard Fee;
2. authorise Guardbay, as agent for the Guard, to remit any insurance premiums or other expenses the Guard has authorised; and
3. pay any other costs reasonably incurred by Guardbay (including costs incurred by its Authorised Representatives) in connection with enforcing or attempting to enforce its rights under this Agreement.
Changes to fees: Guardbay reserves the right, at any time, to amend its fees and/or billing methods as notified on the Platform.
Payment processing: You agree and acknowledge that:
1. all payments relating to Security Services must be made through the payment channels notified by Guardbay, and in accordance with this Agreement;
2. Guardbay is not responsible for, and will not reimburse any fees incurred by You from Your bank or other financial institution, including without limitation overdraft charges, insufficient funds charges, interest charges, or finance charges, which may have occurred as a result of charges debited or withdrawn by Guardbay (or its Authorised Representatives);
3. Guardbay may commingle and deposit funds transferred to Guardbay in accordance with the terms and conditions of this Agreement (Held Funds) with other funds of Guardbay in any account, at any institution, or in any other manner Guardbay may decide in its sole discretion from time to time;
4. commingled funds may be used by Guardbay (or where applicable, its Authorised Representatives) to pay other Guards and/or for general commercial and corporate purposes;
5. You will not receive interest or other earnings on funds that Guardbay (or its Authorised Representatives) handles or holds on Your behalf, and Guardbay (or its Authorised Representatives) may receive interest on those funds;
6. Guardbay has no obligation to hold any Held Funds in a separate account;
7. nothing in this Agreement gives rise to any security interest or makes a User a secured creditor of Guardbay (or, where applicable, its Authorised Representatives); and
8. third party payment processing: Guardbay may use third party payment processing services to process bank account information and payments, and Guardbay expressly disclaims any and all liability for any claims or damages related to Guardbay’s use of third party payment processing services and such transfers, including without limitation, any damage that may result should any such information be released to any third parties.
Authorisation: The Employer authorises Guardbay (or its Authorised Representatives) to collect payment of all Fees from the Employer, including by debiting the Employer’s nominated bank account or credit card or other method agreed between Guardbay and the Employer.
Each Guard and each Employer is solely responsible for the accuracy of the bank account or credit card details they provide to Guardbay. Guardbay is not liable for any funds incorrectly deposited, or stolen by hackers or other bad actors, or not deposited due to inaccurate or incomplete bank details or credit card details provided by a Guard and/or Employer.
If Your existing nominated bank account or credit card is cancelled, suspended or is otherwise not usable, You must immediately provide Guardbay with details for an alternative nominated bank account or credit card which can be used to meet Your obligations under this Agreement.
Invoices and payment:
1. Where the Employer has nominated payment by credit or debit card or direct debit of a bank account, Guardbay (or its Authorised Representative) may deduct payment upon approval or deemed approval of a Service Log under clause 7.6, in accordance with any invoice relating to the Service Log.
2. All invoices issued under this Agreement must be paid within 7 days of issue, and time is of the essence.
3. Guardbay will provide to the Guard copies of Invoices which are issued under this Agreement on their behalf, and remit to the Guard the net amount collected from the Employer on their behalf.
4. Guardbay reserves the right to correct any errors in the payment of Guardbay fees even if it has already requested and/or received payment.
5. The Employer will remain responsible for any and all applicable fees, including Guardbay Fees and/or bank or credit card fees, in connection with any refund or chargeback of a payment.
Payment default: If You fail to pay an amount in accordance with this Agreement (for example, if Your nominated direct debit account or credit card is declined), Your Account may be suspended and You will be liable and may be charged for any non-payment fee published by Guardbay (or Authorised Representatives) on the Platform, and charged other amounts by the issuer of your nominated bank account or credit card.

11. Restraints and Diversion

The conduct referred to in this clause is Diversion Conduct.
You are strictly prohibited from:
1. avoiding or diverting amounts otherwise payable to Guardbay; or
2. encouraging or soliciting any User to avoid making payments through the Platform or paying any Fee.
Guards must not during the Restraint Period:
1. provide or seek to provide Security Services to any person to whom the Guard was introduced via the Platform, other than via the Platform and in accordance with this Agreement; or
2. directly invoice an Employer, or accept any payment from an Employer other than through the Platform, for the provision of Security Services; and
each Guard must account to Guardbay for any amount received from an Employer in breach of this clause. The “Restraint Period” in this clause is the longest of the following timeframes that is lawfully enforceable: five years; three years; two years; one year; six months; three months.
You must immediately notify Guardbay if a User requests that you make or receive payment directly or through any channels other than those provided or specified by Guardbay as contemplated by this Agreement.
In the event of any breach of this clause 11, You agree to pay Guardbay the greater of:
1. the total fees that would have been payable to Guardbay under the terms and conditions of this Agreement had the Security Services been organised via the Platform in accordance with the terms of this Agreement; or
2. $10,000.
You agree that the amounts set out in this clause 11 are a genuine pre-estimate of Guardbay’s potential loss should a Guard or Employer breach this clause.

12. Suspension and termination

We may at any time, by giving You notice in accordance with clause 14.1:
1. immediately modify, suspend or discontinue access to the Platform and/or Services, if it is reasonably necessary for Guardbay to carry out any maintenance, updates or business operations; and/or
2. immediately modify, limit, suspend or terminate Your Account, Your access or Your use of the Platform and/or Services, if We consider that You have posted any Prohibited Content, engaged in any Prohibited Conduct or are in breach of this Agreement.
You agree that Guardbay will not be liable to You or any other party arising out of any:
1. suspension or termination of Your access to the Platform and/or Services, or deletion of Your Account or Your Content; or
2. modification or discontinuance of the Platform and/or Services, in accordance with the terms of this Agreement.
Either party may terminate this agreement by notice at any time for any reason.
Suspension or termination of Your Account will in no way modify, change or void any payment obligations You may have incurred through Your use of the Platform and/or any Services, whether such obligation is to Guardbay or its Authorised Representatives or a third party.

13. Dispute resolution

Any disputes arising out of or in connection with the Security Services received by an Employer must be resolved directly between the Employer and the Guard.
We may, but have no obligation to, monitor or request information regarding disputes that You may have with Users, Guards or other Employers.
If a dispute arises between You and Guardbay in connection with this Agreement, including any difference in understanding as to the Services and/or Fees or any assertion likely to cause Guardbay reputational harm if made public, You agree to let us know immediately and to keep the dispute subject matter confidential until We have had a reasonable opportunity to attempt to resolve it amicably in accordance with clause 13.4.
For any adverse assertion or claim against Guardbay:
1. either party may elect to resolve the dispute in a cost effective manner through a binding non-appearance-based mediation.
2. in the event of an unsuccessful mediation, and in circumstances where both parties to any dispute agree in writing, arbitration may be initiated through an established alternative dispute resolution (ADR) provider in Australia, which is to be selected by You from a panel of established ADR providers that Guardbay may provide to You.
3. the ADR provider and the parties must comply with the following rules:
  - the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, and such method shall be chosen by the party initiating the arbitration; and
  - the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
If the parties elect arbitration under this clause You must not commence any court process until the arbitration has been determined, provided that nothing in this clause prevents any party from seeking urgent injunctive relief. This Agreement may be pleaded in bar to any proceeding commenced in breach of this clause.
Guardbay may recover its legal costs and related expenses on an indemnity basis in connection with any breach, or (in the reasonable opinion of Guardbay) any threatened or likely breach, of this clause 13.
If any proceeding by or against You is commenced under any provision of any bankruptcy or insolvency law, Guardbay will be entitled to recover all legal costs and related expenses (on an indemnity basis) incurred in connection with the enforcement or attempted enforcement of this Agreement.

14. General

Notices: We will give notice and provide communications to You by email, by posting on the Platform, or other reasonable electronic means. You must give notice to Us in writing via email to info@guardbay.app or as otherwise expressly provided. Please report any violations of this Agreement to info@guardbay.app.
Electronic communications: You consent to receiving communications from Us in an electronic form, and agree that all terms and conditions, Agreements, notices, documents, disclosures, and other communications (Communications) that We provide to You electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Your consent to receive Communications and do business electronically, and our Agreement to do so, applies to all of Your interactions and transactions with Us.
Governing law and jurisdiction: This Agreement and the relationship between You and Guardbay, will be governed by the laws of the State of Queensland, Australia. The parties agree to the exclusive jurisdiction of the courts situated in Brisbane, Queensland, the Federal Court of Australia, and courts that may determine appeals from those Courts.
Assignment: You must not transfer, assign or delegate Your right and/or duties under this Agreement to anyone else and any attempted assignment or delegation is void. We may assign or novate this Agreement at any time by giving notice to You and without obtaining Your consent.
Beyond control: Guardbay and its Authorised Representatives are not liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond Our reasonable control. This includes, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, floods, storms, explosions, acts of god, pandemic, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.
Delay and waiver: Any delay or failure by Guardbay to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by Us will have effect unless such waiver is set forth in writing, signed by Us, nor will any such waiver of any breach or default constitute a waiver of any subsequent or similar breach or default.
Whole agreement: This Agreement constitutes the entire Agreement between You and Guardbay with respect to its subject matter, and supersedes all prior oral or written understandings, communications or agreements.
Severability: If for any reason a court holds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be read down to the minimum extent necessary so as to give full effect to the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
Survival: All provisions that by their nature survive expiration or termination of this Agreement shall so survive, including without limitation, clauses 9 and 14, all other limitations on liability explicitly set forth herein and our proprietary rights in and to the Platform, Content provided by Us, Our Technology and the Services.
Amendments: We may amend the terms of this Agreement from time to time by publishing the amended terms to Our Platform or by giving electronic notice to You. It is Your responsibility to check the Platform from time to time to view any amendments to this Agreement. The amendment takes effect upon your express acknowledgement or when you continue after publication to access and/or use the Platform and/or Services.

15. Dictionary

In this Agreement:

“ACL” means the Australian Consumer Law at Schedule 2 of the Competition and Consumer Act 2010 and its associated Regulations as amended from time to time;
“Account Credentials” means the selected unique User ID and password chosen by a User when setting up Your Account;
“Agreed Price” the amount agreed to be payable between a Guard and an Employer for Security Services in connection with a Guard Contract; note: the Agreed Price must not be less than the rates, terms and entitlements prevailing at the time for equivalent employees under the Security Services Industry Award, plus any Guard Fee;
“Agreement” means the agreement made between You and Guardbay on the terms set out herein, and which incorporates all policies and terms and conditions referred to herein;
“Associate” has the meaning set out in the Corporations Act 2001, as amended from time to time;
“Authorised Representatives” means:
Guardbay or any of its Related Bodies Corporate; and

any employee, consultant, agent, nominee, licensor, supplier, assignee or representative of Guardbay or any of its Related Bodies Corporate approved in writing by Guardbay.
“Content” means all information and materials contained on the Platform that are posted by Users, or any information the User provides to another User via the Platform and/or the Services;
“Employer” refers to Users, representatives or entities seeking to engage a Guard or otherwise access Security Services;
“Employer Fee” means any Fee published on the Platform as chargeable by Guardbay to an Employer, which is likely to be expressed (but not necessarily) as a percentage of the Agreed Price;
“Fee” means any fee implemented by Guardbay from time to time in connection with use of the Platform and/or Services, and includes the Employer Fee and any Guard Fee;
“Feedback” means any feedback, rating or comment obtained by Guardbay in connection with Users;
“Guard” refers to people or entities providing or seeking or purporting to provide Security Services in the Platform;
“Guard Contract” means an agreement (in any form) for a Guard to provide Security Services to an Employer formed as a result of the use of the Platform and/or Services;
“Guard Fee” means any Fee published on the Platform as chargeable by Guardbay to a Guard, which is likely to be expressed (but not necessarily) as a percentage of the Agreed Price;
“Guardbay”, “We”, “Us” or “Our” means Guardbay Pty Ltd ACN 676 507 421;
“Guardbay’s Code of Conduct” means Guardbay’s code of conduct available at the Guardbay website, as updated from time to time;
“Invoice” means an invoice for Security Services provided by a Guard to an Employer that is made available through the Platform on behalf of the Guard or an invoice provided by Guardbay (or its Authorised Representatives) for Fees. A combined invoice may be provided by Guardbay or an Authorised Representative on behalf of both the Guard and Guardbay for payment processing services (Combined Invoice). Where a Combined Invoice is issued, it replaces the requirement for the Guard or Guardbay to issue separate invoices in respect of the items covered in the Combined Invoice;
“Our Technology” means the software, code, proprietary methods and systems used to provide the Platform and/or Services;
“Payment Terms” means the terms relating to payments as more specifically set out in clause 10;
“Platform” means the online marketplace made available by Guardbay, including without limitation all websites and/or subpages, the Guardbay app, and any other affiliated platform that may be introduced from time to time;
“Privacy Policy” means the Guardbay Privacy Policy available at https://guardbay.app/privacy-policy/ as amended from time to time;
“Prohibited Conduct” has the meaning given in clause 8.2;
“Prohibited Content” has the meaning given in clause 5.1;
“Related Bodies Corporate” has the meaning set out in the Corporations Act 2001, as amended from time to time;
“Security Services” means home security, mobile security, commercial or venue security, crowd control, loss prevention, or similar or other services approved from time to time by Guardbay;
“Services” means Guardbay’s products, software, services and Platforms (collectively, the “Services”);
“User” means a person or organisation who establishes an account with Guardbay, and includes Employers and Guards;
“User Account” means a User account with Guardbay;
“User Eligibility Criteria” means the criteria set out in clause 2.1;
“User Services” means the Services only available to Users;
“User Standards” means the standards as set out in clause 8;
“Verification Policy” means the Guardbay verification policy in place from time to time which sets out the details of what information is verified by Guardbay and the processes undertaken to verify the information provided. The policy is available at: https://guardbay.app.
“Visitor” means a browser of the Platform, not a User;
“You”, “Your”, “User”, or “Users” also refer to anyone accessing the Services and/or Platform for any reason, and includes Guards and Employers; and
“Your Site” means any location at which You propose to provide or receive or in fact provide or receive Security Services.