Terms and Conditions
These terms and conditions (Terms) are entered into between CyberMarket Group Pty Ltd (ABN 67 638 791 652) (we, us or our) and you, the person or entity using our marketplace, together the Parties and each a Party. These Terms supplement and incorporate our privacy policy, website terms of use and any guidelines or code of conduct posted on the Platform.
We provide a platform where business owners (Client) and IT technical experts (Consultants) or IT technical consultancies (Consultancies) can connect and enter into arrangements together for the Consultants or Consultancies to provide IT services to Clients (Platform). The Platform is available at https://cybermarket.com and via other channels or addresses which we may choose to make available from time to time.
In these Terms, you means (as applicable) (1) the person or entity registered with us as either a Client, Consultant or Consultancy; or (2) the individual accessing or using the Platform.
If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.
Consultants may have their own Account on the Platform or they may request to be part of a Consultancy Account (request to be confirmed by the administrator of the Consultancy Account). Each individual wishing to use a Consultancy Account must be registered as a Consultant on the Platform and a Subscription Fee paid for that sub-account.
We provide the Platform to users (including hosting and maintaining the Platform and processing payments on behalf of users (together the CyberMarket Services). You understand and agree that we only make available the Platform and the CyberMarket Services. We are not party to any agreement entered into between a Client and a Consultant or Consultancy and we have no control over the conduct of Clients, Consultants, Consultancies or any other users of the Platform.
Acceptance
You accept these Terms by checking the box and clicking “I accept” when you register to use our Platform (or similar) or by using and accessing the Platform or the services.
You must be 18 years or older to use the Platform.
We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended terms. If you do not agree to the amendment, you may terminate these Terms in accordance with the “Cancelling Subscriptions” clause.
Accounts
You must register on the Platform and create an Account to access the Platform’s features.
You must provide us with basic information when registering for an Account including your business name (where applicable), contact name, contact address, email address and time zone and you must choose a password. If you are a Consultant or Consultancy, you will also have the opportunity to upload industry certifications and you must choose whether you are a Consultant or part of a Consultancy.
We may review your request for an Account before approving the request. We may request additional information as reasonably required by us. If you do not provide us with the information we reasonably request, we may refuse to create an Account for you. If you provide us with any information which indicates you are not a fit and proper person to be provided with an Account, we may refuse to provide you with an Account, in our sole discretion.
Once you have registered an Account, you must choose your subscription and make payment of the Subscription Fees which are based on the number of authorised users on the Account.
You agree to provide accurate, current and complete information during the registration process and regularly update such information to keep it accurate, current and complete.
If you are registering as an individual, then your Account is personal to you and you must not transfer it to others or allow other to operate it, or operate under it. If a legal entity such as a company has created an account, you, the legal entity, are the Account owner, and regardless of any change in any contact details, you will remain responsible for your Account as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account. We may, at our discretion, refuse any change to the Account owner.
You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including Proposals made or accepted using your Account details. You agree to immediately notify us of any unauthorised use of your Account. You must not share your log-in details with any other person. All users of the Platform must be registered with a separate log-in.
Using the Platform
A Client wanting to procure services from a Consultant or Consultancy registers for an Account and then creates a post setting the details of the services they require or the project to be performed (Proposal). While creating the Proposal, Clients can require Consultants or Consultancies to sign a non disclosure agreement to protect the information in the Proposal and the subsequent discussions between the parties. Clients can also set a timeframe for responses to the Proposal as well as the idea budget and other details.
Proposals can be made public (and available to all users of the Platform including users without an Account) or can be made private (the Client will invite Consultants and Consultancies to view the Proposal). Clients can also invite Consultants or Consultancies to join a panel of their preferred service providers.
A Consultant or Consultancy with an Account can review Proposals, communicate both publicly and privately with the Client and make a response to a Proposal including by attaching documentation for the Client.
By posting a Proposal and responding to a Proposal, each party warrants and represents that they are legally entitled to enter into that relationship.
Where the Client accepts a response to a Proposal submitted by a Consultant or Consultancy, an engagement is created on the terms and conditions set out in the Proposal (or as otherwise subsequently agreed between the Parties) (Engagement).
A Proposal should set out the key details of a proposed Engagement, including but not limited to, the terms and conditions for the Engagement and the fees payable to the Consultant or Consultancy. Proposals may contain milestones and Fees to be paid in relation to the milestones
Upon an Engagement being created, the Client and Consultant or Consultancy may enter into their own written agreements in relation to the Engagement, setting out the terms, conditions and expectations in relation to the Engagement, the engagement fees payable by the Client (Engagement Fees) and the milestones (Milestones) by which the services should be performed (Engagement Agreement). Where the parties do not implement an Engagement Agreement, the Engagement will be conducted on the terms and conditions set out in the Proposal.
You are solely responsible for the terms and implementation of the Engagement Agreement or Proposal and we accept no responsibility or liability in relation to the Engagement Agreement or Proposal. To the extent there is an inconsistency between the Engagement Agreement or Proposal, or any other additional terms and conditions, and these Terms, these Terms will prevail.
Communication
We may contact you via the Platform using in-Account notifications, or via off-Platform communication channels, such as email.
Clients, Consultants and Consultancies can communicate privately using our private messaging service.
Payment
Subscription Fees
In consideration for us providing the Platform, we will charge the subscription fees set out on the Platform (Subscription Fee) and you agree to pay the relevant Subscription Fees according to the subscription you select when registering for your Account. Your credit/debit card will be debited the amount of the relevant Subscription Fees.
The Subscription Fee will be charged upfront on a monthly basis for month to month Subscriptions and upfront on a yearly basis for annual Subscriptions on the calendar day corresponding to when you created your Account (Payment Date). In some cases, your Payment Date may change, for example, if payment is unable to be processed or if your subscription began on a day not contained in a given month.
Subscriptions automatically continue until cancelled in accordance with the cancellation clause below.
We may modify our subscriptions and the Subscription Fees from time to time. For month to month Subscriptions, any price changes will apply to you no earlier than 30 days following notice to you. For annual Subscriptions, the price changes will apply to you no earlier than the start of your renewed subscription. The notice may be provided at any time via email or via notification to your Account. If you do not agree to the price change, you may cancel your Subscription in accordance with the cancellation clause below.
Changing your subscription
Your subscription is based on the number of authorised users who have access to your Account. You (the administrator of the Account) may, at any time, upgrade or downgrade your subscription to increase or decrease the number of authorised users by changing your subscription in your Account and paying the relevant Subscription Fees for the increase pro-rata for the remainder the current subscription period or by us providing a pro-rata refund for the decreased number of authorised users for the remainder the current subscription period. All future Subscription Fees will be based on the new number of authorised users on the Account.
Cancelling Subscriptions
You may cancel your subscription at any time before the next Payment Date in the Account page / manage subscriptions (or similar) section of your Account settings.
The cancellation will apply to the next month for month to month subscriptions or the next year for annual subscriptions.
If you cancel your subscription less than 7 business days before the next Payment Date, you will be charged the Subscription Fee on the next Payment Date and the cancellation will become effective for the following month for month to month Subscriptions or the next year for annual Subscriptions.
Engagement Fees and Service Fee
Both Clients and Consultants or Consultancies must pay us a service fee for every Engagement as set out on the Platform (Service Fee).
The Client agrees to pay the Consultant or Consultancy the Engagement Fees as agreed in the accepted Proposal or Engagement Agreement, as the case may be. We accept no responsibility or liability in respect of the payment, or non-payment of the Engagement Fees by the Client. At the same time as the Client pays the Engagement to us to hold on their behalf, the Client must also pay the relevant Service Fee (Client Service Fee).
Upon receipt of the Engagement Fees and Client Service Fee from the Client, we will hold the Engagement Fees on behalf of the relevant Consultant or Consultancy until such time as the relevant Milestone is accepted as complete by the Client. We will then pay the Engagement Fees to the relevant Consultant or Consultancy, minus the relevant Service Fee (Consultant Service Fee) to the bank account notified in the Consultant or Consultancy’s Account.
If you are a Consultant or Consultancy, you appoint us as your limited payment collection agent, solely for the purpose of accepting the Engagement Fees from the relevant Client. You agree that we will not be required to pay you any amount until we have received the Engagement Fees from the relevant Client, that we will deduct the Consultant Service Fee from any Engagement Fees we receive and that we may grant refunds to Clients in accordance with these Terms (including where a Client disputes the services you have provided and we determine that the Client is entitled to a refund).
General
To the extent permitted by law, the Subscription Fee and Service Fee are non refundable.
We provide a number of payment methods on the Platform, including, where applicable our third party payment processor. The payment method you choose may be subject to additional terms and conditions imposed by the applicable third party payment processor. By making payment through a third party payment processor, you accept the applicable terms and conditions.
In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the payment.
Refunds and Cancellation Policy
The cancellation of an Engagement organised through the Platform, or refund of Engagement Fees paid in respect of any services provided or to be provided by a Consultant or Consultancy is strictly a matter between the relevant Client and Consultant or Consultancy. The terms and conditions for cancellations or refunds in respect of an Engagement should be agreed between the Client and Consultant or Consultancy and clearly set out in the relevant Proposal or Engagement Agreement, subject to the following clauses:
(1) a Client and Consultant or Consultancy can mutually agree to cancel an Engagement; or
(2) where one party makes reasonable attempts to contact the other party in order to fulfil their obligations under the Engagement and those attempts are unsuccessful or unanswered, the Engagement may be deemed cancelled.
Where a Client has not indicated that a Milestone is complete but a Consultant or Consultancy believes it is completed or for other disputes between a Client and Consultant or Consultancy, we encourage parties to attempt to resolve disputes (including claims for cancellations or refunds) with the other party directly and in good faith, either on the Platform or through external communication methods. In the event that a dispute cannot be resolved through these means, the parties may choose to resolve the dispute in any manner agreed between the parties or otherwise in accordance with applicable laws. We reserve the right to assist in the determination of any dispute at the request of either party, in which case both parties must provide any evidence or documentation we reasonably request and any determination we make, is at our discretion.
Reviews
A Client may review their experience with a Consultant or Consultancy on the Platform, and a Consultant or Consultancy may review their experience with the Client on the Platform (each a Review).
Reviews can be viewed by any user and will remain viewable until the relevant Account is removed or terminated.
You agree to provide true, fair and accurate information in your Review. If we consider that the Review is untrue, unfair, inaccurate, offensive or inappropriate, we may delete the Review or ban you from posting the Review. We do not undertake to review each Review. To the maximum extent permitted by law, we are not responsible for the content of any Reviews.
You can write a Review about a user if you have had an experience with that user, which means that (1) as a Client, you have engaged the Consultant or Consultancy through the Platform; (2) as a Consultant or Consultancy, you have been engaged by a Client through the Platform; or (3) you can otherwise document your interaction with the user in relation to the Platform, including via correspondence (collectively referred to as a User Experience).
You may only write a Review about a Client, Consultant or Consultancy you have worked with directly through the Platform, and only in respect of a Proposal or Engagement initiated through the Platform. Your User Experience must have occurred in the 12 months prior to you writing a Review. You are not permitted to write a Review about somebody else’s User Experience, such as that of a family member, colleague, competitor or friend, you can only write about your own experience.
You are encouraged to be specific and factual in your Reviews. If you have been offered an incentive by a user to write a Review, you should include information about this in your Review.
Content
We may allow you to (1) post, upload, publish, send or receive relevant content and information, including Reviews (User Content) on or through our Platform; and/or (2) access and view User Content and the content and information we make available on the Platform (CyberMarket Content and together with User Content, Content).
Unless otherwise indicated, we own or licence all rights, title and interest (including Intellectual Property Rights) in our Platform and all of the CyberMarket Content. Your use of our Platform and your use of and access to any CyberMarket Content does not grant or transfer to you any rights, title or interest in relation to our Platform or the CyberMarket Content.
You must not, without the prior written consent of ourselves or the owner of the Content (as applicable) or except as expressly permitted by these Terms, (1) copy or use, in whole or in part, any Content; (2) reproduce, reverse engineer, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or (3) breach any Intellectual Property Rights connected with our Platform, including by altering or modifying any of the Content, causing any of the Content to be framed or embedded in another website, or creating derivative works from the Content.
Subject to your compliance with these Terms, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform and access and view any CyberMarket Content, in accordance with these Terms. All other uses are prohibited without our prior written consent.
You grant us a non-exclusive, revocable, non-sublicensable and non transferable right and licence to use the User Content you provide to us in order for you to benefit from the CyberMarket Services and, in relation to Reviews, a right and license to use, view, distribute, communicate, copy, store, modify and exploit in any manner the Review including to promote the Platform in any media or promotional material.
You agree that you are solely responsible for all User Content that you make available on or through our Platform. You represent and warrant that (1) you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and (2) neither the User Content nor the posting, uploading, publication, sending or receiving of the User Content or our use of the User Content on, through or by means of our Platform will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Despite anything to the contrary, to the maximum extent permitted by law, you agree to indemnify us and hold us harmless in respect of any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with the User Content you make available on or through the Platform, including as a result of an Intellectual Property Breach.
The Content is not comprehensive and is for general information purposes only. It does not take into account your specific needs, objectives or circumstances, and is not advice. While we use reasonable attempts to ensure the accuracy and completeness of the Content, to the extent permitted by law, we make no representation or warranty regarding the Content. The Content is subject to change without notice. We do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate or out-of-date.
Warranties
You represent, warrant and agree that:
(a) you will not use our Platform, including the Content, in any way that competes with our business;
(b) there are no legal restrictions preventing you from entering into these Terms;
(c) all information and documentation that you provide to us in connection with these Terms is true, correct and complete;
(d) you have not relied on any representations or warranties made by us in relation to the Platform (including as to whether the Platform is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
(e) you will be responsible for the use of any part of the Platform, and you must ensure that no person uses any part of the Platform: (1) to break any law or infringe any person’s rights (including Intellectual Property Rights) (2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or (3) in any way that damages, interferes with or interrupts the supply of the Platform; and
(f) you are responsible for complying with all laws, rules and regulations which apply to providing the services in any Proposal or Engagement.
If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
As a Client, the services provided by a Consultant or Consultancy may also confer on you certain rights under the ACL.
This clause will survive the termination or expiry of these Terms.
Exclusions to liability
Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) your acts or omissions;
(b) any use or application of the CyberMarket Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
(c) any aspect of the user interaction including the services offered by the Consultant or Consultancy, the description of the services requested or offered, any advice provided, the performance of services or supply and delivery of the services by the Consultant or Consultancy;
(d) any works, services, goods, materials or items which do not form part of the CyberMarket Services (as expressed in these Terms), or which have not been provided by us;
(e) any third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Platform may be contingent on, or impacted by;
(f) the CyberMarket Services being unavailable, or any delay in us providing the CyberMarket Services to you, for whatever reason; and/or
(g) any event outside of our reasonable control.
This clause will survive the termination or expiry of these Terms.
Despite anything to the contrary, to the maximum extent permitted by law:
(a) we will not be liable for Consequential Loss;
(b) our liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you; and
This clause will survive the termination or expiry of these Terms.
Your Account and these Terms may be terminated by you at any time, using the ‘cancel Account’ functionality (or similar) in your in the Account page section of your Account settings.
We may suspend your Account or terminate these Terms immediately upon written notice to you, if:
(a) you breach any material provision of these Terms which cannot be remedied;
(b) you breach any provision of these Terms and that breach has not been remedied within 5 business days of being notified by us;
(c) you repeatedly receive reviews below 3 stars;
(d) there is any reason outside our control which has the effect of compromising our ability to provide the CyberMarket Services; or
(e) you are unable to pay your debts as they fall due.
These Terms will terminate immediately upon written notice by you, if we:
(a) are in breach of a material term of these Terms, and that breach has not been remedied within 10 business days of being notified by you; or
(b) are unable to pay our debts as they fall due.
Upon expiry or termination of these Terms:
(a) we will remove your access to the Platform;
(b) we will immediately cease providing the CyberMarket Services;
(c) you agree that any payments made by you to us are not refundable to you; and
(d) we will cancel any existing Proposals or Engagements.
Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
This clause will survive the termination or expiry of these Terms.
Insurance
You acknowledge and agree it is your responsibility to make your own investigations and receive professional advice on the insurance you require as either a Client or a Consultant or Consultancy. As a Client you further acknowledge and accept that it is your responsibility to confirm the insurance coverage of any Consultant or Consultancy you appoint in respect of an Engagement. We accept no responsibility or liability, and you waive and release us from any and all liability in respect of any matters of insurance of a Client or a Consultant or Consultancy on the Platform.
Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent.
Disputes: In relation to a dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) between a Client and us, or a Consultant or Consultancy and us, a party may not commence court proceedings relating to a Dispute without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute. If the parties cannot agree how to resolve the Dispute at that initial meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, either party may ask the Queensland Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the parties. Nothing in this clause will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.
Governing law: These Terms governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Notices: Any notice given under these Terms must be in writing addressed to us at the address at the end of these Terms or to you at the address in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
Definitions
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Intellectual Property Breach means any breach by you of any of our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties).
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.
For any questions or notices, please contact us at:
CyberMarket Group Pty Ltd (ABN 67 638 791 652)
Email: contact@cybermarket.com
Last update: 11 March 2021
