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Welcome to Sailor.com.au Legal Terms

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Legal Terms

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Last Updated: 17 DECEMBER 2019

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1. OVERVIEW

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Welcome to Sailor.com.au. Sailor.com.au provides a platform where businesses can find and connect with business professionals for their services. These terms and conditions ("Terms") govern the relationship between Netfusion Pty Limited and its related bodies corporate ("Sailor.com.au", "us" or "we"), the person or the entity registered with Sailor.com.au to provide services ("Sailing Expert") and businesses seeking an Sailing Expert to provide services to them ("Client").

Sailor.com.au facilitates the interaction between Sailing Experts and Clients and provides other ancillary services including payment and collection processing ("Sailor.com.au Services"). These Terms apply to Sailing Experts’ and Clients’ use of the Sailor.com.au platform and associated websites ("Site"), including the Sailor.com.au Services and Projects.

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A "Project" in these Terms means a project, assignment, job, task, work, deliverable, or requirement for services posted or uploaded to the Site by a Client and undertaken or provided by an Sailing Expert, a “Project” may also be referred to as a “Gig”.

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For the purposes of these Terms, "you" means (as applicable):

• the person or the entity registered with Sailor.com.au as either a Client or an Sailing Expert; and

• the individual, natural person accessing or using the Site including but not limited to a Client or an Sailing Expert.

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If you are registering with Sailor.com.au or accepting a Project on behalf of your employer or business organisation, ‘You’ in your individual capacity will be taken to have been duly authorised to act on your employer’s behalf and these Terms will be binding on your employer.

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We may from time to time, amend, update or change the Site including these Terms, without prior notice to you. Consequently, you should regularly check these Terms for changes. These are the current Terms and replace any other terms and conditions of use previously published for the Site.

Please read all of these Terms carefully before using the Site or Sailor.com.au Services. You understand that by checking the box, clicking the "Submit" button or by continuing to use the Site or Sailor.com.au Services, you are agreeing to be bound by these Terms, including any changes to the terms that may have been made since your prior use of the site.

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2. YOUR ACKNOWLEDGEMENTS REGARDING SAILOR.COM.AU SERVICES

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2.1 For Sailing Experts

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Sailor.com.au provides professionals and freelance service providers with the opportunity to be registered on its Site as an Sailing Expert. The Sailing Expert can, amongst other things, upload their profile, promote the Sailing Expert’s experience and background, be listed and appear on the Site, be reviewed or rated, and be considered for Projects. Sailing Experts may be contacted from time to time by Sailor.com.au for these and related purposes.

 

2.2 For Clients

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A company, business or a customer can be registered as a Client on the Site in order to view the Site, review and access Sailing Expert profiles made available on the Site, seek out Sailing Experts, or otherwise receive a connection to, or introduction to Sailing Experts, for the purposes of engaging an Sailing Expert for a Project.

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2.3 The Sailor.com.au Services

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Sailor.com.au is an online platform where Clients are able to access, review, and receive an introduction, connection or referral to Sailing Experts who have registered with the Site.

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Clients and Sailing Experts acknowledge that Sailor.com.au is not a party to and will not have any liability with respect to the Projects or service arrangements as between Client and Sailing Experts.

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Any terms agreed between the Client and Sailing Expert in relation to a Project will be binding on the Client and the Sailing Expert and, to the extent that those terms conflict with these Terms, those terms will take priority as between the Client and the Sailing Expert (but shall not bind Sailor.com.au in any way). Any terms which attempt to alter or modify these Terms as they apply to Sailor.com.au must be agreed by Sailor.com.au in writing.

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Sailor.com.au relies on the information that Sailing Experts and Clients provide for the Sailing Expert profiles and Project Briefs on the Site. Sailor.com.au makes no representations as to the reliability, capability, or qualifications of any Sailing Experts or the quality, security or legality of any services provided by such Sailing Experts, and Sailor.com.au disclaims any and all liability relating thereto. Sailor.com.au does not direct, has no control over, makes no representations, and does not guarantee the quality, safety or legality of services advertised, the truth or accuracy of listings, the qualifications, background, or identities of Sailing Experts, the ability of Sailing Experts to deliver services, or that an Sailing Expert can or will actually complete a project.

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Without limiting the foregoing, to the extent permitted by law, Sailor.com.au makes no warranties, express or implied regarding or relating to the Sailing Experts or the Projects.

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3. REGISTERED INFORMATION

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When you sign up, you may be requested to provide your name, email address, work/position title, phone number and information about your company and such other information to enable your registration as either a Client or Sailing Expert.

Sailing Experts will be requested to provide further information in relation to your qualifications and professional experience (your "Credentials"). In doing so, you agree that you:

• are not impersonating any person or entity;

• are not violating any applicable law regarding use of personal or identification information;

• are authorised to create an account in the name of the company or organisation or otherwise hold yourself out as having an association with that company or organisation; and

• will provide, on demand from Sailor.com.au, verification of your Credentials in such form as required by Sailor.com.au.

 

For Sailing Experts, we may, from time to time, use any of your Credentials to make our own enquiries (either by Sailor.com.au or by a third party engaged by us) as to the completeness, accuracy or truthfulness of your Credentials. If we request evidence and you fail to provide it within the time requested, we may suspend or cancel your account (without prejudice to any other remedies we may have). Should we suspect or identify an individual to be inappropriately or unlawfully using any person or company’s identity or the Site in a way that is unlawful or inappropriate, we may without notice to you, disclose that information to any relevant persons or authorities.

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4. SAILING EXPERT PROVISIONS

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4.1 Joining as a Sailing Expert

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Sailing Experts will have joined upon verifying your account, completing the platform registration and agreeing to these Terms.

You can participate in the Sailor.com.au Services only if you are not restricted from doing so by contractual, fiduciary or other obligations. By joining Sailor.com.au, you are representing that you are not restricted from doing so and that you have obtained all necessary approvals.

 

4.2 Acceptance and Scope of Projects

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Clients can post Project Briefs on the Sailor.com.au platform or otherwise be introduced to Sailing Experts through Sailor.com.au and/or the Sailor.com.au platform for Projects.

Sailing Experts are free to accept or decline any Projects, provided however, that you may accept only those Projects:

• for which you have the requisite knowledge/Sailing Expertise to deliver and complete the Project;

• that do not present a conflict of interest or breach any express or implied terms of any contract or of any other obligation legally binding upon you; and

• that relate to matters that you are permitted to discuss under applicable law and any obligations you may owe to another party (including contractual, employment, or otherwise).

• You are expected to accept or decline a Project within two (2) business days and to adhere to any schedule or program you establish with the Client regarding the delivery of the Project.

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Sailor.com.au makes no representation regarding the frequency, quantity, or type of invitations to Projects you will receive or in which you will be chosen to participate.

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4.3 Sailing Expert Conduct

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Sailing Experts must act with the utmost professionalism and courtesy in any dealings with Clients and with Sailor.com.au. In performing any Project for a Client, the Sailing Expert must:

• use a high standard of care and skill to be expected of a professional sailor who regularly acts on projects or engagements like, and at least as sophisticated as, the Project;

• make all necessary enquiries of the Client to ascertain the Client's requirements and objectives, including the Client's requirements in relation to the Sailing Expert's capabilities;

• immediately inform the Client of any matter which may cause any budget or estimate of Fees to be revised;

• comply with any Client policy, direction, instruction, brief, program, or schedule;

• comply with all applicable laws; and

• subject to clause 13, obtain any required insurances which may include professional indemnity, public liability and/or workers' compensation insurance and provide evidence of such insurance upon request.

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4.4 Marketing and Disclosure

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Unless permitted in writing by the Client or required by law, you will not refer to the Client or its business (including the Client's customers or the Client's customers' business) in any of your marketing materials, website, social media or other publications outside the Sailor.com.au platform.

 

4.5 False and misleading information

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You agree that you will not provide any false or misleading information or information which may mislead or deceive Sailor.com.au, Clients, or any other party in respect of any Project.

You further agree not to provide any financial or investment advice to any Client, including, without limitation, any ratings or securities recommendations, unless you hold all necessary qualifications and licences and you have agreed in writing with the Client.

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4.6 Warranties

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You warrant and represent that:

the information you provide is and shall remain complete, accurate, true and correct and that you will update information held by Sailor.com.au as soon as possible after any changes and in any case prior to a Project;

you have never been: (i) convicted of an indictable offense; or (ii) the subject of an investigation by a regulator or other regulatory authority (state, federal or foreign); or (iii) a defendant in any proceeding where fraud or violation of laws or regulations including the taking of a false oath, the making of a false report, perjury or bribery or conspiracy to commit any such offense is alleged;

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if you hold a professional licence, you have not been subject to any disciplinary actions with respect to that licence by any state, federal, foreign, or professional body in the past 5 years;

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all work, documents and other deliverables produced by you in relation to a Project are reasonably suitable in all respects for the Client’s purposes.

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4.7 Independent Contractor

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Any work performed on a Project facilitated through Sailor.com.au shall be performed as an independent contractor of the Client, and you are not and shall not be deemed to be an employee or agent of Sailor.com.au or of any Client. You shall not be entitled to any benefits provided by Sailor.com.au to its employees, and Sailor.com.au will not make deductions from any of the payments due to you for income tax, insurance or similar purposes except if required by law or as specified under clause 13.

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Unless otherwise agreed with the Client, you shall provide, at your expense, all tools and equipment necessary to perform work on a Project and you will ensure they are suitable for the services you are supplying and are maintained in good and safe working condition.

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4.8 Third Party Payroll Providers

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You may be required to sign up with a third party payroll provider ("TPPP") in order to work with particular Clients. You acknowledge and agree that the TPPP is not a related body corporate, associate or agent of Sailor.com.au and Sailor.com.au is not a party to any terms you sign with the TPPP. Where you sign up with a TPPP, all payments under clause 7 below will be made to you by the TPPP after deducting superannuation (paid to your nominated fund), taxes and other amounts as required by law.

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5. CLIENT PROVISIONS

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5.1 Joining as a Client

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You may join as a Client by completing all required documentation and training, including without limitation that which relates to our compliance framework and procedures.

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5.2 Set-up and Scope of Projects

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Clients are free to search, screen, and request Projects with Sailing Experts, via the Site or with the support of our team, consistent with the Sailor.com.au Services you have agreed with Sailor.com.au.

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Sailing Experts are free to accept or decline Projects at their discretion (subject to the Sailing Expert Provisions in section 4 above).

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You understand that an Sailing Expert's capacity to supply their services may be limited by other Projects or obligations they may have to entities or institutions with which they are affiliated or employed. To the extent you know about any such limitations or obligations, you agree to respect them in your interactions with Sailing Experts.

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5.3 Client Conduct

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Clients must act with the utmost professionalism and courtesy in any dealings with Sailing Experts and with Sailor.com.au. In using the Sailor.com.au Services, Clients must:

• use clear, complete and accurate information to describe the Project;

• make all necessary enquiries and satisfy yourself as to whether the Sailing Expert meets your requirements and objectives, including your requirements in relation to capabilities; and

• ensure the Sailing Expert has in place its own appropriate insurance policies, including professional indemnity, public liability and/or workers’ compensation, in respect of any Project.

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5.4 Conflicts

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Clients confirm that you shall not knowingly or recklessly use the Sailor.com.au Services to access Sailing Experts who are employed by a company reasonably considered a direct competitor of yours or a direct competitor of your clients, or, if applicable, one of your business units, actively managed portfolio companies, affiliates or subsidiaries or the client you are acting on behalf of. You will neither request nor have any discussion with any such Sailing Expert.

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5.5 Other Limitations on Use

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Clients agree to not ask Sailing Experts for advice or recommendations on financial matters, stocks, other investments, any ratings or securities, legal, medical, accounting or financial planning without first ensuring the Sailing Expert holds all necessary qualifications and licences and you have the appropriate terms of engagement in place.

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You may use and apply in your business the opinions and insights you obtain during Projects, but you may not identify or quote Sailing Experts or attribute insights or opinions to Sailing Experts or Sailor.com.au without the prior written consent of the Sailing Expert or Sailor.com.au (as applicable).

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You may use the Sailor.com.au Services only in strict accordance with these Terms, and you agree that you will not use Sailor.com.au Services to compete directly or indirectly with Sailor.com.au or any of the Sailor.com.au Services.

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5.6 Use of Materials

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Subject to section 9 below and any agreement between the Sailing Expert and the Client, Clients agree that any written materials provided to you in connection with a Project or the Sailor.com.au Services are for your own use and you may not redistribute, disseminate, publish, or display such material, in whole or in part, to any third parties without the prior written permission of the Sailing Expert (where applicable) and Sailor.com.au, except to your regulators and professional advisors on an as needed basis.

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6. CONFIDENTIALITY

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The confidentiality undertakings in this clause apply to Sailing Experts and Clients in respect of Confidential Information obtained by them (the "Recipient") from another party, which may be the Client, Sailing Expert, Sailor.com.au or any third-party (the "Discloser").

A Recipient must not use, disclose, solicit, make available or misappropriate, directly or indirectly, any Confidential Information, trade secrets, or other proprietary information of a Discloser without that Discloser’s prior written permission except as may be required by applicable law or legal process.

Where the Recipient is legally required to disclose the Confidential Information, the Recipient shall inform the Discloser of the requirement as soon as reasonably practicable and liaise with that party prior to disclosing any of that party’s Confidential Information.

In this clause, "Confidential Information" includes any documents or information created, received or obtained (as applicable):

• by Sailor.com.au from or on behalf of a Client or any other party in respect of any Project;

• by the Sailing Expert from or on behalf of a Client, Sailor.com.au or any other party in respect of any Project;

• by the Client from or on behalf of the Sailing Expert, Sailor.com.au or any other party in respect of any Project; and

• all non-public information pertaining to the Client’s or Sailor.com.au's business (including, without limitation, past, present or future structure, business activities, strategies, and assets; products and their methods of production and distribution; financial affairs; network, communications, and technology; clients, customers, suppliers, distributors and their financial affairs, and any content marked confidential or that is by its nature confidential),

 

but excludes any information that a Recipient can show:

• is already in the public domain (through no breach of these Terms or other obligation of confidentiality);

• was known to the Recipient prior to its disclosure by the Discloser;

• was independently developed by the Recipient without breach of any obligation owed to the Discloser; or

• is received from a third party without breach of any obligation owed to the Discloser.

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The Recipient must notify the Discloser immediately upon becoming aware of a suspected or actual breach of this obligation.

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7. PAYMENT FOR SERVICES

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7.1 Fees

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Each Client and Sailing Expert is free to negotiate and agree the hourly, daily or other rates in respect of a Project ("Sailing Expert Fees"). In determining and agreeing the Sailing Expert Fees, the Sailing Expert should take into account any amounts to be deducted from the fees prior to payment to the Sailing Expert under these Terms and/or as agreed with Sailor.com.au or a TPPP (where applicable).

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Unless otherwise agreed in writing between the Client and Sailing Expert, Sailing Experts will only be paid for the time spent working for Clients on Projects at the agreed rate and will not be paid for wait time or time set aside if a Project with a Client does not occur.

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The Client and Sailing Expert must notify Sailor.com.au of the key terms (such as Project commencement, Project end date, conclusion of Project and fees payable to the Sailing Expert) prior to commencement (or immediately following commencement) of the Project. Unless otherwise agreed between Client and Sailing Expert, Sailing Expert Fees are exclusive of GST.

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Sailor.com.au will receive a fee in respect of the Sailor.com.au Services ("Service Fee") as agreed in writing between the Client and Sailor.com.au in accordance with the Sailor.com.au Pricing & Payments Procedures Procedures. Sailor.com.au will be entitled to receive the Service Fee in respect of any Projects undertaken by an Sailing Expert introduced by Sailor.com.au, regardless of whether the Client and Sailing Expert had a previous relationship.

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7.2 Invoicing

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The invoicing method depends on the basis on which the Client has engaged with Sailor.com.au. The standard invoicing method in clauses 7.2.1 and 7.2.2 below applies unless Sailor.com.au agrees in writing that clause 7.2.3 applies.

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7.2.1 Standard invoicing for Clients

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For all Projects:

The Sailing Expert must submit a payment claim via the Sailor.com.au Site in accordance with Sailor.com.au's Pricing and Payments Procedures, or at such other times as agreed with the Client and notified to Sailor.com.au.

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Payment claims submitted more than 90 days after completion of the relevant services, without Sailor.com.au’s consent, may not be accepted for payment.

Sailor.com.au will submit the Sailing Expert’s payment claim to the Client (in the form of a tax invoice) for approval within two (2) business days of the Sailing Expert submitting a valid payment claim in accordance with the Pricing and Payment Procedures and subject to any other reasonable requirements of the Client (timesheets, expense receipts, PO number etc.).

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The tax invoice will include the Service Fee and the applicable Sailing Expert Fees (including any GST payable).

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Unless otherwise agreed by Sailor.com.au in writing, if the Client does not either approve or dispute the tax invoice within five (5) business days from the date of its receipt by the Client, it will be deemed to have been approved by the Client.

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Invoicing and payments by Sailor.com.au will (where possible) be on the basis of Sailor.com.au acting as the intermediary that facilitated the supply and acquisition between the Client and the Sailing Expert in accordance Subdivision 153-B of the A New Tax System (Goods and Services Tax) Act 1999. The Sailing Expert will not invoice the Client directly.

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7.2.2 Invoice disputes and payments

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If the Client disputes the tax invoice, the Sailing Expert must liaise with the Client and based on such liaison, may provide an amended payment claim which will be submitted by Sailor.com.au to the Client for approval.

Within one (1) business day of:

• approval (or deemed approval) of the tax invoice by the Client; or

• receipt of an amended payment claim under paragraph (a) above,

the Client will pay the payment claim, unless otherwise expressly agreed by Sailor.com.au in writing.

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The Client acknowledges and agrees that the timing for payments provided in this section 7.2 is critical to ensure the timely and smooth provision of services and is therefore a material term. Without limitation, where undisputed or approved tax invoices issued by Sailor.com.au are not paid in accordance with these Terms, Sailor.com.au may charge late payment fees of 0.35% of any outstanding amount for each week it remains unpaid.

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Within 5 business days of the date that Sailor.com.au has received cleared funds from the Client, Sailor.com.au (or the TPPP, where applicable) will pay the Sailing Expert the amount of the approved (or amended) payment claim after deduction of the Service Fee, GST and other amounts Sailor.com.au (and the TPPP, where applicable) is entitled to deduct under this Agreement or applicable law.

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7.2.3 Invoicing for Direct Pay Clients

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Where agreed in writing by Sailor.com.au, a Client may manage payments for Projects directly with Sailing Experts ("Direct Pay Clients"). For all Projects for Direct Pay Clients, the Client and Sailing Expert must immediately provide all information required by Sailor.com.au to calculate the Service Fee. Failure to do so is a material breach of these Terms. Following receipt of all required information, Sailor.com.au will issue a tax invoice to the Client for the Service Fee. The Sailing Expert is responsible for:

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• agreeing payment terms with the Client;

• issuing a tax invoice(s) in respect of the Sailing Expert Fees directly to the Client at the frequency and time agreed between the Sailing Expert and the Client; and

• following up directly with Clients for any overdue payments.

For these Projects, Sailing Experts will not receive any payment from Sailor.com.au, nor will Sailor.com.au be responsible for or involved in assisting Sailing Experts to recover outstanding Sailing Expert Fees.

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Sailing Experts and Direct Pay Clients agree to indemnify, defend and hold harmless Sailor.com.au and its affiliates, successors and assigns (and its and their officers, directors, employees and agents) from and against any and all claims, damages, liabilities, losses, settlements, costs and expenses (including without limitation legal fees and court costs) which arise out of or in relation to payment of Sailing Expert Fees by Direct Pay Clients.

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7.3 Taxes and Duties

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If required by any applicable tax law, and/or if applicable to a Project, Sailor.com.au (or the TPPP, where applicable) shall withhold and remit the amount of any tax from payments owed to the Sailing Expert. Upon payment of any such amount to the appropriate government entity or agency Sailor.com.au shall have no obligation to pay such amount to the Sailing Expert.

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The Client and the Sailing Expert will be responsible for determining whether they are required by applicable law to remit any taxes to the appropriate authorities, and if so, to pay (or cause to be paid) when due all taxes for which the Client and the Sailing Expert are respectively liable in relation to the performance of the Project.

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Clients and Sailing Experts agree to indemnify, defend and hold harmless, Sailor.com.au, its related entities, affiliates, successors and assigns (and its and their officers, employees and agents) from and against any and all claims, damages, liabilities, losses, settlements, costs, taxes, levies, charges, penalties and expenses which arise out of payments made to Sailing Experts by Clients including, but not limited to, any payroll tax, superannuation, GST or PAYG obligations.

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8. TERMINATION

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8.1 Termination of Terms

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Sailor.com.au or the Sailing Expert or Client (as applicable) may terminate these Terms at any time, for any reason, effective upon written notice to the other party (or by Sailor.com.au terminating or suspending your account), provided always, that any such termination for convenience will not affect the validity of any contracts for Projects that have been executed prior to termination and these Terms will continue to apply with respect to such Projects.

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8.2 Termination of registration

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Sailor.com.au reserves the right to suspend your profile or cancel your registration as an Sailing Expert or Client (as applicable), at any time, on Sailor.com.au forming the view in its absolute discretion that Sailor.com.au’s brand, operations (including the Site, any blogs or membership) or business (including its Client’s, partner’s or affiliate’s business) may be adversely affected or harmed as a result of your continued registration as an Sailing Expert or Client. Upon termination you must cease using the Site and Sailor.com.au Services.

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8.3 Termination of Projects

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A Client may notify the Sailing Expert at any stage prior to the appointment of the Sailing Expert for a Project that it no longer requires the Sailing Expert for the Project, and such notice will have immediate effect. In these circumstances the Sailing Expert is not entitled to any payment in connection with the Project.

A Client may suspend or terminate a Project provided that the Client gives the Sailing Expert and Sailor.com.au the following notice of termination of Project:

• for Projects of less than four weeks, 1 day's notice in writing; or

• for Projects of four weeks or more or where the Project involves the Sailing Expert working on a regular or systematic basis, 1 week's notice in writing.

 

In each case the Client may elect to make a payment in lieu of notice. Termination will not relieve Client of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination.

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8.4 Survival

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Clauses 1, 2.3, 6, 7, 8.4, 9, 10, 11, 12 and 13 survive termination of these Terms.

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9. INTELLECTUAL PROPERTY

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Some of the Projects will allow or require the Sailing Expert to provide deliverables or content to the Client ("Sailing Expert Content"). Unless otherwise agreed between the Sailing Expert and the Client, the Sailing Expert retains ownership of all intellectual property rights in the Sailing Expert Content.

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In the absence of any specific agreement between the Sailing Expert and the Client, the Sailing Expert grants to the Client a worldwide, non-exclusive, royalty free, perpetual and irrevocable licence to use, develop and modify the intellectual property rights in the Sailing Expert Content to the extent required by the Client to receive the full benefit of the Project.

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Sailor.com.au is not responsible for any Sailing Expert or Client's use or misappropriation of any intellectual property rights during or following the course of the services. Any agreements or disputes regarding intellectual property rights in Sailing Expert Content shall be between the Sailing Expert and the Client.

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10. INTRODUCTIONS

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10.1 Non-solicitation

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Where a Client and Sailing Expert have been introduced through Sailor.com.au, you must not:

• enter into any form of contract of employment (in which the Sailing Expert becomes an employee of the Client), contract for services, independent contractor agreement or any other contract or arrangement by which the Sailing Expert is to provide services to the Client (whether individually or through a third party intermediary); or

• approach, solicit, entice, offer to perform services (or in case of the Client, receive services), or otherwise engage or be engaged for reward (directly or indirectly), with any Client or Sailing Expert,

• in any way other than through the Sailor.com.au Services without the Client paying Sailor.com.au an Introduction Fee.

• These obligations apply for so long as the Sailing Expert or Client is registered with Sailor.com.au, and for 12 months from the later of:

• the time a Client first identifies an Sailing Expert through the Sailor.com.au Services; or

• the time an Sailing Expert completes its last Project with a Client,

• (the "Non-solicitation Period") regardless of any relationship or previous dealings between the parties. This means that during the Non-Solicitation Period, you must use the Sailor.com.au Services as your exclusive method to engage with each other unless Sailor.com.au agrees (in writing) to the payment of an Introduction Fee.

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THE CLIENT AND SAILING EXPERT MUST IMMEDIATELY NOTIFY SAILOR.COM.AU IN WRITING OF ANY APPROACH, ENGAGEMENT OR CONTRACT CONTEMPLATED BY THIS CLAUSE. FAILURE TO DO SO IS A MATERIAL BREACH OF THESE TERMS.

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