Earthworks Connect Terms of Service

1. Introduction

1.1 The Earthworks Connect Platform Terms and Conditions, together with our Privacy Policy, comprise the terms of a legal agreement between the person or entity listed in the Registration Portal (you or your) and Birrahlee Earthmoving and Agricultural Group Pty Ltd (ACN 672 958 502) (Earthworks Connect, we, our or us (collectively, the agreement).
1.2 By accessing and using the Earthworks Connect Platform, you warrant that you have read this agreement and agree to be bound by this agreement. If you are using the Earthworks Connect Platform as a representative of an entity, you are agreeing to the agreement on behalf of that entity.

2. Earthwork Connect Platform

2.1 Earthworks Connect is the online platform to find trusted earthmoving and excavation contractors. Post jobs as job posters, get offers, and hire professionals as contractors for excavation, land clearing, site prep, and bulk earthworks quickly and easily.

We are a mere online marketplace or conduit for introducing Members (acting as Job Posters, Contractors or both). We are not a seller, re-seller, supplier, service provider, distributor, retailer, lessor or manufacturer of earthmoving products or services or a consumer, buyer or lessee of earthmoving equipment or services, and our role in providing you with access and use of the Earthworks Connect Platform should be construed strictly in this context only.

2.2 When you create an Account on the Earthworks Connect Platform, Earthworks Connect grants you a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence to download, access and use the Earthworks Connect Platform for the Membership Term. You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.

3. Changes

We reserve the right to change any provision of this agreement in any way and we may, in our absolute discretion, add, change or remove any functions or features of the Earthworks Connect Platform, any Member, any Job Listings, and any other earthmoving products or services offered on, or via, the Earthworks Connect Platform with, or without notice, to you. If we provide you with notice of changes to this agreement, we shall do so either by email or by posting it on the Earthworks Connect Platform.

4. Membership term 

4.1 This agreement commences on the date the Member creates an Account with us on, or via, the Earthworks Connect Platform (Commencement Date) and continues, unless terminated in accordance with clause 17 (Membership Term).

5. Account 

5.1 To access and use the Earthworks Connect Platform, the Member must create and set-up an account with us via the Registration Portal (Account).

5.2 Your Account will be operated by a username which will be your email address (User Name) and password (Password). You can change your Password at any time via the Registration Portal. We may at any time request that the owner of the Account provide identification to verify their identity.

5.3 In order to open an Account or otherwise access and use the Earthworks Connect Platform, you must:

(a) be over 18 years of age , and legally able to enter into contractual relations. Your continued use of the Account constitutes an acknowledgement by you that you are over 18 years of age; and

(b) provide accurate and complete registration information (including, but limited not to, your full name, mobile number, location (suburb and postcode) and profile picture or image). All Personal Information as well as the information you provide to set-up your Account is subject to our Privacy Policy.

5.4 In relation to your Account, you are responsible for:

(a) maintaining control over, and the confidentiality of, your Account and Password;

(b) keeping your Account registration information current, complete, accurate, and truthful. You must not impersonate another account holder or provide false identity information to gain access to or use the Earthworks Connect Platform. You will create only one account on the Earthworks Connect Platform; and

(c) for all activities or transactions that occur using your Account, User Name or Password. We are not liable for any Loss or damage arising out of, or in connection with, any unauthorised access or use of, your Account, User Name and Password. You must notify us immediately if you become aware that your Account or Password is being used without authorisation or any other security breach relating to your Account or Password;

5.5 Earthworks Connect will not be liable to you or any third party for:

(a) failing to update or change your Account, Job Listings, offers or any other details advertised, listed or displayed by you on, or via, the Earthworks Connect Platform following your request; or

(b) any Loss incurred by you or any third party as a result of, or in connection with, any content or information supplied by you which is uploaded by us to the Earthworks Connect Platform following your request.

5.6 Earthworks Connect has the right to suspend or terminate any Account or your access or use of all or any part of the Earthworks Connect Platform, at any time, if, in our opinion, you have failed to comply with any of the provisions of this agreement.

6. Your general obligations

To access and use the Earthworks Connect Platform, you must:

(a) open an Account with us via the Earthworks Connect Platform;

(b) provide us with all necessary co-operation and information to facilitate and provide the Earthworks Connect Platform including (but not limited to) proof of identity;

(d) obtain and maintain all equipment, hardware and software required by you to use and/or access the Earthworks Connect Platform;

(e) comply with all reasonable directions, policies and guidelines of Earthworks Connect as advised from time to time (including the Acceptable Use Policy); and

(f) carry out all of your responsibilities set out in this agreement in a timely and efficient manner.

7. Job Poster obligations

7.1 Provided you comply with your obligations under this agreement, you (as a Job Poster) may, at any time post, update, edit, delete or add Job Listings published or displayed by you on, or via, the Earthworks Connect Platform .

7.2 By publishing, displaying or posting Job Listings on, or via, the Earthworks Connect Platform, the Member (as a Job Poster) warrants that at all times that:

(a) you will comply with the Acceptable Use Policy; and

(b) all information provided by you in relation to the Job Listings is true, complete and accurate. You will immediately update your Member Profile if any of the Job Listings, details or information you submit or upload to the Earthworks Connect Platform is inaccurate, incomplete, or out of date. For example, if you have already purchased or rented earthmoving products subject of the Job Listing, the Job Listing should be removed from your Member Profile.

7.3 At any time during the Membership Term, Earthworks Connect may require you to provide any information that Earthworks Connect may require to verify your identity, Member Profile and the accuracy of any Job Listings displayed or published by you on, or via, the Earthworks Connect Platform.

7.4 The Member (as a Job Poster) acknowledges and agrees that, to the maximum extent permitted by Relevant Laws:

(a) Earthworks Connect is not responsible for monitoring or censoring Job Listings; however, we may (in our absolute discretion and with notice to you): (i) remove, modify, refuse to publish or alter the Job Listings if we consider that such Job Listings do not comply with this agreement (including our Acceptable Use Policy or any of our policies or guidelines published by us from time to time); and/or (ii) restrict, suspend or terminate your Account or your Member Profile on the Earthworks Connect Platform. For example, if we receive a report or complaint that your Job Listing has contravened the Intellectual Property Rights of a third party or your Job Listing relates to Prohibited Goods and Services;

(b) Earthworks Connect makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Earthworks Connect Platform, any earthmoving products and services offered for sale or rental by Contractors on, or via, the Earthworks Connect Platform, or any other ancillary products or services made available to you on, or via, the Earthworks Connect Platform. You acknowledge that any earthmoving products and services or any other ancillary products or services made available to you on, or via, the Earthworks Connect Platform are provided ‘as is’;

(c) Earthworks Connect makes no representations, warranties or guarantees in relation to: (i) the standard, quality or fitness for purpose of any earthmoving products and services supplied by Contractors; (ii) the reliability, expertise, legitimacy, repute, or credibility of any Contractor; or (iii) a Contractor’s ability or willingness to sell, provide, rent or deliver the earthmoving products and services to you;

(d) we are not responsible to you or anyone else for any actions, activities, conduct or transactions (whether online or offline) that occur as a result of, or in connection with the purchase or rental of earthmoving products or services on, or via, the Earthworks Connect Platform;

(e) we do not control the supply, performance or delivery of the earthmoving products or services to Job Posters and we are not liable to you or anyone else for any Loss suffered by you as a result of the Contractor’s acts or omissions;

(f) the risk in the earthmoving products purchased by you, including from loss, theft, damage or destruction of the earthmoving products, remains with the Contractor until delivered to the Job Poster or collected by the Job Poster (as the case may be); and

(g) title to the earthmoving products passes to the Job Poster when the Contractor receives payment of the full purchase price for the earthmoving products from the Job Poster.

7.5 Any Offers you receive from Contractors through the Earthworks Connect Platform in response to your Job Listings will not include any Personal Information of the Contractor. Once you accept a Offer from a Contractor, we will share the Contractor’s contact details (name and phone number) with you so that you may contact and transact with the Contractor for the provision, rental or supply of earthmoving products and/or services .

7.6 Before accepting any Offer from a Contractor on, or via, the Earthworks Connect Platform, you (as a Job Poster) should carefully review the Member Profile of the Contractor and the Offer placed by the Contractor to satisfy yourself as to the suitability, condition and fitness of the Contractor and the earthmoving products and services provided by the Contractor, without relying upon the skills or judgment of Earthworks Connect or Contractor.

8. Contractor Obligations

8.1 At the time you (as a Contractor) create an Account with us, the Contractor must also create a Member Profile, which will include your registration information (including Personal Information) and information relating to the earthmoving products or services offered or supplied by you, such as:

(a) business name, business phone number, business address and Australian Business Number. You may also upload or submit any images, photographs, qualifications or licences on your Member Profile;

(b) [Can the profile of a Contractor list a description of the earthmoving products and services supplied by them?]; and (No)

(c) any other information that Earthworks Connect may require to verify your identity and Member Profile displayed or published by you on, or via, the Earthworks Connect Platform.

8.2 Provided you comply with your obligations under this agreement, you (as a Contractor) may, at any time post, publish, add or delete an offer published or displayed by you on, or via, the Earthworks Connect Platform.

8.3 Before submitting a Offer in response to a Job Listing published or posted by a Job Poster on, or via, the Earthworks Connect Platform, the Member (as a Contractor) should carefully review the Member Profile of the Job Poster and the job listing. We do not recommend or endorse any Job Poster (including Members Profiles) or any information, content or Job Listings published on a Member Profile, the Earthworks Connect Platform or our related social media pages.

8.4 If a Job Poster accepts an offer submitted by you on, or via, the Earthworks Connect Platform, you will:

(a) affect and maintain appropriate insurance policies sufficient to meet any claims arising from the performance of your obligations under this agreement and the provision of the earthmoving products and services;

(b) sell or rent the earthmoving products to the Job Poster or provide the earthmoving services to the Job Poster in accordance with the Job Listing and you will ensure that the earthmoving products and services supplied by you will be fit for purpose and meet the description, specifications and quality standards as described in the Job Listing or as required by Relevant Laws;

(c) ensure strict adherence to industry best practices and quality control protocols in respect of any earthmoving or labour jobs;

(d) if you rent earthmoving products to a Job Poster, you will make the earthmoving products available for the Job Poster to access and use for the duration of the rental period specified in the Job Listing (except where the Job Poster has breached this agreement and/or rental terms and conditions);

(e) arrange for the earthmoving products to be delivered to the Job Poster or collected by the Job Poster from the Contractor;

(f) ensure that the supply of earthmoving products and services by you will comply with all Relevant Laws, and you will not provide Prohibited Goods and Services to the Job Poster; and

(g) be responsible for invoicing the Job Poster for the earthmoving products and services and collection of payment from the Job Poster and all associated account finance and debt collection processes.

8.5 By submitting a Offer on, or via, the Earthworks Connect Platform, you warrant and guarantee that:

(a) you hold all necessary rights, licences, permits and consents to sell, supply or lease the earthmoving products and services to the Job Poster;

(b) any earthmoving products and services supplied to a Job Poster will be fit for purpose, of merchantable quality and free from defects (unless otherwise disclosed to the Job Poster prior to hiring or purchasing the earthmoving products) and is accurate;

(c) that all information or photographs you display, publish and upload to as part of your Offer is true, complete and accurate. You will immediately update your Offer if any information about you or the earthmoving products and services you offer to supply to the Job Poster is no longer accurate, complete or up to date (including, but not limited to, information relating to the description and availability of the earthmoving products and services); and

(d) in the event the Job Poster accepts your Offer, Earthworks Connect may disclose and share your contact details (full name and phone number) with the Job Poster.

9. Restrictions

9.1 You must not:

(a) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Earthworks Connect Platform available to any third party;

(b) violate the Intellectual Property Rights of a third party or the Earthworks Connect IP;

(c) impersonate or pose as any other person, or misrepresent your true legal identity in your dealings with us or any other user of the Earthworks Connect Platform;

(d) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Earthworks Connect Platform or your Account, including any images contained on the Earthworks Connect Platform which belong to other advertisers or us;

(e) access all or any part of the Earthworks Connect Platform in order to build a product, service or code which competes with the Earthworks Connect Platform; and

(f) data mine the Earthworks Connect Platform, conduct penetration testing of the Earthworks Connect Platform nor access, store, distribute or transmit any viruses, worms, trojans or other malicious code, or any material when using the Earthworks Connect Platform that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party or corrupts, damages, degrades or disrupts the operation of the Earthworks Connect Platform.

9.2 We reserve the right to limit your use of the Earthworks Connect Platform, your right to purchase, sell, lease or advertise earthmoving products and services and/or any other ancillary products or services made available to you on, or via, the Earthworks Connect Platform, including the right to restrict, suspend or terminate your Account if we believe you are in breach of this agreement or you are misusing the Earthworks Connect Platform.

10. Earthworks Connect obligations

10.1 Earthworks Connect shall use reasonable endeavours to provide you with access and use of the Earthworks Connect Platform.

10.2 The undertaking in clause 10.1 shall not apply in the event of:

(a) any non-conformance which is caused, or contributed, by your use of the Earthworks Connect Platform contrary to our instructions or the terms of this agreement;

(b) the unsuitability or malfunction of the Earthworks Connect Platform when used in conjunction with any software, platforms, applications and tools supplied by a third party provider; and

10.3 In the event that Earthworks Connect fails to provide you with access and use of the Earthworks Connect Platform in accordance with clause 10.1, we will use all reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 10.1.

11. Acceptable Use Policy

11.1 By downloading, accessing and using the Earthworks Connect Platform, you agree to comply with the rules for the acceptable use of the Earthworks Connect Platform as specified herein (Acceptable Use Policy).

11.2 You are solely responsible for the accuracy, currency, completeness and use of your Member Profile, Job Listings, Offers and any other information you publish, submit or post on, or via, the Earthworks Connect Platform, and you agree to post, submit or publish your Member Profile, Job Listings, Offers and other information on, or via, the Earthworks Connect Platform at your own risk. We accept no responsibility and assume no liability for any Member Profile, Job Listings, Offers and any other information posted, published or otherwise transmitted by you, any other Member or any third party on, or via, the Earthworks Connect Platform.

11.3 The Member acknowledges and agrees that Earthworks Connect is reliant on you for direction as to the extent Earthworks Connect is entitled to use, publish, transmit, market, promote, advertise or display your Offers and/or Job Listings on the Earthworks Connect Platform. By advertising, uploading, transmitting, posting or publishing Offers and/or Job Listings to the Earthworks Connect Platform, the Member (as a Contractor or Job Poster) warrants that at all times:

(a) you hold all necessary rights, licences and consents to upload or publish the Offers and/or Job Listings on, or via, the Earthworks Connect Platform;

(b) nothing in the Offers or Jobs Listings will cause you or us (or anyone else) to breach any Relevant Laws;

(c) no Offer or Job Listing is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or privacy or false and misleading;

(d) the Offer or Job Listing does not contain, nor will they cause, any software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

(e) nothing in the Offer or Job Listing would bring Earthworks Connect or the Earthworks Connect Platform, into disrepute or adversely affect the reputation and goodwill of the Earthworks Connect Platform or Earthworks Connect;

(f) the Offer or Job Listing does not infringe the Intellectual Property Rights or other rights of any person;

(g) the Offer or Job Listing do not relate to the sale or lease of Prohibited Goods and Services; or

(h) the Offer or Job Listing is true, accurate, complete and up-to-date.

11.4 The Member must not publish, post, transmit or upload Offers and/or Job Listings on, or via, the Earthworks Connect Platform that:

(a) are knowingly inaccurate, misleading or deceptive or fraudulent (including, but not limited to, as a result of you having impersonated another person or misrepresented your identity);

(b) are defamatory or harmful to another Member in any way, including by causing unreasonable embarrassment, annoyance, distress or alarm to another individual, including Earthworks Connect or our Personnel;

(c) are aimed at disparaging or damaging the reputation or goodwill of our business, the Earthworks Connect Platform, our social media pages, or any of our Personnel and third parties connected to us; or

(d) constitute or comprise any other material whatsoever which contravenes this agreement.

11.5 Earthworks Connect may, at our absolute discretion, monitor, censure, remove, modify, suspend or refuse to publish or alter any Job Listing or Offers (with or without notice to you) if:

(a) Earthworks Connect considers that such Offers or Job Listing does not comply with the Acceptable Use Policy, any other term of this agreement or any of our policies or guidelines published by Earthworks Connect from time to time); or

(b) Earthworks Connect receive a complaint from another Member or third party that you are infringing their Intellectual Property Rights or other rights. Earthworks Connect may investigate any complaint within a reasonable period of time and will let you know the outcome of its investigation.

11.6 You acknowledge and agree that it is your responsibility to:

(a) ensure that all communications with other Members, are polite, respectful and courteous;

(b) respect the privacy rights of other users and third parties; and

11.7 You may make a complaint that a Offer or Job Listing published by another Member contravenes the Acceptable Use Policy by emailing us at admin@earthworksconnect.com.au . Earthworks Connect shall use reasonable endeavours to investigate the complaint and remove any Offers or Job Listings that have been published in contravention of the Acceptable Use Policy within a reasonable period of time.

12. Intellectual Property Rights

12.1 You acknowledge that, notwithstanding anything else, Earthworks Connect and/or our licensors own all Intellectual Property Rights in the Earthworks Connect Platform, including any information, Content or technology that may be provided to, or accessed by, you in connection with your use of the Earthworks Connect Platform (and anything arising or generated therefrom) (collectively, the Earthworks Connect IP). Accessing and using Earthworks Connect Platform does not give you (or anyone else) ownership of, or any right, title or interest in any of the Earthworks Connect IP, all of which is, and will remain, owned by Earthworks Connect or our licensors.

12.2 All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Earthworks Connect Platform will automatically vest in, and are assigned to, Earthworks Connect.

12.3 By creating an Account, Member Profile and/or publishing, uploading or submitting Offers and Job Listings on, or via, the Earthworks Connect Platform, you grant Earthworks Connect for the Membership Term a royalty-free, non-exclusive, sub-licensable, transferable and worldwide licence to use your Account, Member Profile, Offers and Job Listings (including registration information and Personal Information) for the purpose of:

(a) providing you with access to, and use of the Earthworks Connect Platform and any ancillary products or services made available on, or via, the Earthworks Connect or for marketing purposes;

(b) informing you about other products or services that Earthworks Connect may offer from time to time or in relation to third party products and/or services offered by us;

(c) complying with a legal requirement, such as a law, regulation, court order, subpoena, warrant, legal proceedings or in response to a law enforcement agency request;

(d) using usage patterns, trends, and other statistical or behavioural data derived from use of the Earthworks Connect Platform for the purposes of providing, operating, maintaining, or improving the Earthworks Connect Platform or our other products and services; and

(e) sharing with an Affiliate or other third party (with whom Earthworks Connect may contract or be affiliated with from time to time) for the purposes of performing or improving the Earthworks Connect Platform.

13. Warranties

13.1 To the maximum extent permitted by Relevant Laws, Earthworks Connect excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the provision of the Earthworks Connect Platform.

13.2 Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.

13.3 You acknowledge and agree that, to the extent permitted by Relevant Laws, Earthworks Connect makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency, quality, safety or security of any Offers, Job Listings or the Earthworks Connect Platform (or any earthmoving products and services sold, rented or provided in connection with the Earthworks Connect Platform). Earthworks Connect will not be liable if the Earthworks Connect Platform is unavailable for any reason, including directly or indirectly as a result of:

(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;

(b) negligent, malicious or wilful acts or omissions of third parties (including Earthworks Connect’s third party service providers);

(c) maintenance (scheduled or unscheduled) carried out by Earthworks Connect or any third party service provider, including in respect of any of the systems or network used in connection with the provision of the Earthworks Connect Platform;

(d) services provided by third parties (including internet service providers) ceasing or becoming unavailable; or

(e) a Force Majeure Event.

13.4 We do not recommend or endorse any Job Poster (including any Job Listing) or Contractor (including any Offers), or any content, comments or submissions published, posted or appearing on the Earthworks Connect Platform or our related social media pages.

13.5 You acknowledge that, to the extent permitted by Relevant Laws, Earthworks Connect is not liable to you and we do not warrant:

(a) that the Offers, Jobs Listings or any other information or other content available or offered on, or via the Earthworks Connect Platform is accurate, complete, reliable, current or error-free or are suitable for any particular purpose or use under any specific conditions, and they are provided on an “as is” and “where is” basis’;

(b) the safety and security of any Job Listing, Offers or earthmoving products and services; or

14. Limitation of Liability

14.1 To the fullest extent permitted by Relevant Laws, Earthworks Connect will not be liable to you or any third party for any:

(a) Loss; and

(b) loss of, or damage to, any property or any personal injury or death to you, any other user or any third person,

arising out of, relating to or connected to, any Job Listing or Offers, the supply, rental, purchase or use of earthmoving products and services by Members, your access to or use of the Earthworks Connect Platform (or any other ancillary products or services made available to you on, or via, the Earthworks Connect Platform) and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

14.2 Under no circumstances will Earthworks Connect’s aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed :

(a) in the case of a Job Poster, the sum of $10; or

(b) in the case of a Contractor, the Offer Fees paid by you to us in the preceding one month from the date of the Claim.

14.3 You agree to defend, indemnify and hold Earthworks Connect, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of, or arising out of:

(a) the access and use by you, your Personnel, your Affiliates or any third party of the Earthworks Connect Platform (including the supply, rental, purchase or use of earthmoving products and services by Members);

(b) a breach by you, your Personnel or your Affiliates of any Relevant Laws or the Intellectual Property Rights of Earthworks Connect or any third party;

(d) any breach by you, your Personnel or your Affiliates of this agreement.

15. Privacy

15.1 All Personal Information you provide to open an Account, create a Member Profile and any Job Listings or Offer you upload, generate, share, or publish on, or via, the Earthworks Connect Platform, is subject to our Privacy Policy, which is incorporated into this agreement.

15.2 You warrant that, in relation to any Personal Information comprising your Account, Member Profile, Job Listings, Offers or any other information disclosed to Earthworks Connect on, or via, the Earthworks Connect Platform:

(a) it has been collected in accordance with Privacy Laws;

(b) you have the authority to upload, post, publish or otherwise transmit such information on, or via, the Earthworks Connect Platform; and

(c) you have obtained the informed consent of the individuals who are the subject of such Personal Information in order for Earthworks Connect to use, disclose, store, transfer, process or handle it.

16. Termination 

16.1 During the Membership Term you may terminate this agreement at any time by selecting the ‘delete Account’ function in the Profile Settings page in the Earthworks Connect Platform .

16.2 We may terminate or discontinue the Earthworks Connect App or any major functions or features of the Earthworks Connect App at any time by 30 days’ written notice to you, or by otherwise posting it on the Earthworks Connect Platform.

16.3 You agree that Earthworks Connect may, at any time and at our absolute discretion, with or without cause or any notice to you, terminate, suspend or block your access to (either temporarily or permanently):

(a) your Account, Member Profile, Offers, and/ or Job Listings;

(b) the Earthworks Connect Platform; and/or

16.4 Cause for such suspension or termination under clause 17.3 may include, but are not limited to:

(a) any serious or repeated breaches or violations of this agreement, our policies and guidelines (including our Privacy Policy and Acceptable Use Policy) and any other agreements entered into between the parties;

(b) the Member has contravened any Relevant Laws or the Member is under the age of 18 years;

(c) the Member has misused the Earthworks Connect Platform in any way, including, without limitation, if: (i) you (as a Job Poster) fail to pay the Contractor for the earthmoving products and/or services; or (ii) you (as a Contractor) fail to lease, sell or supply the earthmoving products and/or services to the Job Poster in accordance with the Offer;

(d) serious or repeated breaches or violations of Earthworks Connect or another person’s Intellectual Property Rights or privacy rights;

(e) your activities, conduct or transactions on, or, via, the Earthworks Connect Platform, brings, or has the capacity to bring, Earthworks Connect into disrepute (including, but not limited to, engaging in fraudulent or dishonest behaviour or theft); or

(f) requests by law enforcement or other government agencies.

16.5 You agree that all such suspensions or terminations shall be made at our absolute discretion and that we will not be liable to you or any third party for any such suspension or termination.

17. Effect of termination

17.1 On termination of this agreement for any reason:

(a) all licences and rights of access granted under this agreement will immediately terminate;

(b) you must immediately pay all outstanding fees owing to Earthworks Connect under this agreement; and

(c) Earthworks Connect will disable your Account and your Member Profile, your Job Listings and Offers will no longer be accessible by you through the Earthworks Connect Platform. All information that is no longer needed will be securely destroyed or de-identified within 30 days of the termination of the agreement; however, Earthworks Connect will be required to retain Personal Information (including basic registration information) in accordance with documentation retention and destruction laws. If you wish to reactivate your Account, you must do so within 30 days of termination of the agreement. If you do not re-activate your existing Account within 30 days, you will need to create a new Account to access and use the Earthworks Connect Platform.

18. Third party websites

18.1 The Earthworks Connect Platform or any Job Listings or Offers may contain third party content or content that may link to other websites, services, products or resources on the Internet, and other websites, services, products or resources may contain links to the Earthworks Connect Platform. These websites are not under our control and are not maintained by us. We are not responsible for the content of those websites, resources, products or services, and accept no responsibility for them or for any Loss or damage that may arise from your use of them (notwithstanding anything else contained herein). We only provide links to third party websites for your information and convenience.

18.2 Links, references or other connections to these websites, resources, products or services do not imply any endorsement of them or any association with their owners, operators or advertising material (as the context permits).

18.3 Your linking to or from these sites, or use of, or reliance on, such websites, resources, products or services is at your own risk. You should carefully review the terms and conditions and privacy policies of all off-site pages and other websites or third-party suppliers that you visit or transact with.

19. Dispute Resolution

19.1 The parties may, before resorting to court proceedings (except interlocutory or interim relief), refer any dispute between the parties under or relating to this Agreement initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days.

19.2 If the dispute is not resolved within this period, then either party may, in its absolute discretion, initiate court proceedings.

20. Force Majeure Event

Earthworks Connect will have no liability to you (or anyone else) under this agreement if we are prevented from or delayed in performing our obligations under this agreement or otherwise, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, natural disasters, pandemics, epidemics, sabotage, war, riot, civil commotion, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of hosting or data centre providers or other suppliers or sub-contractors, shortage of suppliers, equipment and materials, (Force Majeure Event).

21. Updates

21.1 Without notice to you, Earthworks Connect may, at our absolute discretion, from time to time:

(a) change, add or delete the functions, features, performance, or other characteristics of the Earthworks Connect Platform; or

(b) apply or install updates to, or new versions of, the Earthworks Connect Platform.

21.2 You acknowledge that the Content, Member Profiles, Offers and Job Listings on the Earthworks Connect Platform is subject to change at any time and may be out of date at any given time. Earthworks Connect are under no obligation to:

(a) update, correct or fix any Content, Member Profiles, Offers, Job Listings or errors in the Earthworks Connect Platform; and/or

(b) notify you of any changes to the Content, Member Profiles, Offers, Job Listings or the Earthworks Connect Platform, unless required by a Relevant Law to do so.

22. Notice 

22.1 By accessing and using the Earthworks Connect Platform, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the Earthworks Connect Platform. 

22.2 You acknowledge that all contracts, notices, information and other communication (notices) we may provide electronically comply with any legal requirements that such documents be in writing. 

22.3 Notice will be deemed received and properly served immediately when posted on the Earthworks Connect Platform or 24 hours after an email is sent to you. As proof of service, it is sufficient that the email was sent to the email address specified by you in the Registration Portal.

23. General

23.1 A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

23.2 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

23.3 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

23.4 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangements, understandings or agreements between them relating to the subject matter they cover.

23.5 Earthworks Connect may deduct from any amounts owing to you under this agreement from any amounts due or owing to us under this agreement (including under the indemnity in clause 15.3).

23.6 You may not assign, transfer or deal in any other manner with all or any of your rights or obligations under this agreement without our prior written consent. To the extent permitted by Relevant Laws, we may, at our absolute discretion, assign, transfer or deal in any other manner with all or any of our rights or obligations under this agreement without your prior written consent.

23.7 Clauses 5.6, 9, 11, 12.2, 13, 14, 15, 17, 18, 19, 20, 21, 23, 24 and any other obligation which is expressed to, or by its nature, survive expiry or termination of this agreement, will survive expiry or termination of this agreement and are enforceable at any time at law or in equity.

23.8 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.

23.9 The laws of the state of Queensland, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the courts of Queensland, Australia.

24. Support Services

24.1 Earthworks Connect may, at our absolute discretion, provide you with customer support services during Business Hours in accordance with the Earthworks Connect’s standard support services and maintenance policy (as amended from time to time).

24.2 If you require customer support services or you are having difficulties accessing and using Earthworks Connect Platform, you may contact us:

(a) via the ‘Help Centre’ page of the Earthworks Connect Platform; or

(b) by email at admin@earthworksconnect.com.au.

25. Definitions

25.1 In this agreement, the following words shall have the following meanings:

(a) Account has the meaning in clause 5.1.

(b) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.

(c) Offer means proposal to supply earthmoving products and/or services to a Job Poster which is published or submitted by a Contractor through the Earthworks Connect Platform in response to a Job Listing, and includes any videos, content, materials, works, text, graphics, photographs, images, and other data.

(d) Offer Fee means fee the Contractor pays to Earthworks Connect each time the Contractor places a offer on a Job Listing.

(e) Business Days means each day excluding Saturdays, Sundays, and public holidays in Queensland.

(f) Business Hours means 9:00 am to 5:00 pm on Business Days.

(g) Commencement Date has the meaning in clause 4.1.

(h) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the agreement: (i) direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense; (ii) loss of revenue, profit, income, bargain, opportunity, use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data, or loss of enjoyment or loss of Offer opportunity; (iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; (iv) loss or damage to any property, or for any personal injury or death; or (v) loss or damage of the nature set out above in clauses (i) to (iv) (inclusive) that is incurred or suffered by or to a third party.

(i) Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the Earthworks Connect Platform.

(j) Contractor means a Member who submits Offers on, or via, the Earthworks Connect Platform and who rent, sells or supplies earthmoving products and services.

(k) Earthworks Connect, we, our or us has the meaning given in clause 1.1, and where the context permits, our Personnel and Affiliates.

(l) Earthworks Connect IP has the meaning in clause 13.1.

(m) Earthworks Connect Platform means the online marketplace for earthmoving products and/or services (including all Intellectual Property Rights contained therein) owned and operated by Earthworks Connect and made available to Members via the Site.

(n) Force Majeure Event has the meaning in clause 21.

(o) Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information, databases or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in the future in any part of the world.

(p) Job Listing means an advertisement published by a Job Poster through the Earthworks Connect Platform in which the Job Poster invites Contractors to Offer to supply earthmoving products and/or services to the Job Poster, and includes any videos, content, materials, works, text, graphics, photographs, images, and other data.

(q) Job Poster means a Member who requires earthmoving products and/or services and publishes a Job Listing on, or via, the Earthworks Connect Platform.

(r) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including Consequential Loss.

(s) Member, you or your has the meaning in clause 1.1 and where the context permits, is a Contractor and/or Job Poster.

(t) Member Profile means the profile of a Member that is displayed on the Earthworks Connect Platform and which contains the Member’s profile information (including Personal Information) and may include Job Listings and/or Offers.

(u) Membership Term has the meaning in clause 4.1.

(v) Password has the meaning in clause 5.2.

(w) Personal Information has the same meaning that it has under Privacy Laws, namely information or an opinion about an identified individual or an individual who is reasonably identifiable, whether the information or opinion is true or not and recorded in a material form or not.

(x) Personnel means any officer, employee, agent, contractor, sub-contractor or consultant of a party.

(y) Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended), the Australian Privacy Principles and any other legislation, codes and policies relating to the handling of Personal Information.

(z) Privacy Policy means our privacy policy available at www.earthworksconnect.com.au/privacy or any other internet site notified by Earthworks Connect from time to time, which is incorporated into this agreement.

(aa) Prohibited Goods and Services means any goods, products or services that are volatile, explosive, flammable, hazardous or otherwise damaging or dangerous, banned products or services or any goods, products or services that are illegal or cannot be sold or offered for sale under any Relevant Law.

(bb) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements anywhere in the world.

(cc) Registration Portal means the registration portal on the Site used by Members to access, use and subscribe to the Earthworks Connect Platform.

(dd) Site means the Earthworks Connect website located at www.earthworksconnect.com.au and social media linked pages or any other internet site notified by Earthworks Connect from time to time.

(ee) User Name has the meaning in clause 5.2.