Terms and Conditions

Driving Instructor Terms and Conditions

Parties

This Agreement is between –

· Smart Licence Pty Ltd (ABN: 667 664 735) trading as Smart Licence (Smart Licence); and

· the Driving Instructor who has signed up to the Smart Licence platform in accordance with this Agreement (Driving Instructor);

each a Party and together the Parties.

Smart Licence Disclosures

Smart Licence’s complete terms and conditions are contained below, but some important points for Driving Instructor to know before they join Smart Licence as a Driving Instructor are set out below:

· Smart Licence may amend this Agreement or the features of the Smart Licence service at any time, by providing written notice to Driving Instructor;

· Driving Instructor’s contact information will be passed on to a Learner who elects to purchase driving bookings from them;

· To the maximum extent permitted by law, any fees payable by Driving Instructor to Smart Licence are non‑refundable;

· To the maximum extent permitted by law, Smart Licence shall have no Liability to Driving Instructor for any loss or corruption of data, or any scheduled or emergency maintenance that causes the platform to be unavailable.

· Smart Licence’s aggregate liability for any Liability arising from or in connection with this Agreement will be limited to, at Smart Licence’s sole discretion, repaying Driving Instructor the amount of the fees paid by Driving Instructor to Smart Licence during the term; and

· Smart Licence may terminate Driving Instructor’s Agreement with it at any time by giving 30 days’ written notice.

· Smart Licence may terminate Driving Instructor’s Agreement without notice if there is a breach of this agreement, the Code of Conduct or the Payment Policy.

Nothing in these terms limits Driving Instructor’s rights under the Australian Consumer Law.

ABOUT THIS AGREEMENT

This Agreement covers the two ways in which you can use the Smart Licence platform.

Smart Licence Marketplace means the online marketplace, where Driving Instructors and Learners are connected by Smart Licence.
Private Learner Feature means the features available on Smart Licence, which allows Driving Instructors to manage bookings and payments for their Private Clients.

TERM OF AGREEMENT

This Agreement commences when Driving Instructor accepts these terms and conditions by clicking “I accept” or registering on the Smart Licence platform, and continues until terminated in accordance with this Agreement. By accepting this Agreement, Driving Instructor acknowledges that it has read, understands and agrees to comply with the terms of this Agreement.

SMART LICENCE MARKETPLACE

The following clauses apply to the use of the Smart Licence Marketplace Services:

Relationship of the parties

The Driving Instructor acknowledges and agrees that –

· they are independent of Smart Licence and are not an agent, employee, contractor or subcontractor of Smart Licence;

· the Smart Licence website is the conduit between Driving Instructors and Learners. Smart Licence provides the platform to users (including hosting and maintaining the platform), utilises marketing strategies to gain potential Learners to purchase bookings from the platform, and processes payments and facilitates bookings between Learners and Driving Instructors (together the Smart Licence Marketplace Services);

· Smart Licence may from time to time share details of driving instructors with Learners, including but not limited to; Driving Instructor’s full name, driving registration number and Working With Children Certificate number;

· any agreement to undertake driving lessons is between the Learner and the independent Driving Instructor to which Smart Licence is not a party;

· Smart Licence is not liable or responsible for the conduct, acts or omissions of Driving Instructors or Learners;

· the Driving Instructor retains the right to use other software application services to provide driving bookings and to engage in any occupation or other business;

· it is the Driving Instructor’s sole responsibility at the commencement of each booking, to check and verify that each Learner has a current and valid Learner Permit, or any other driver’s licence type, that lawfully allows that Learner to drive in the state in which they are undertaking driving bookings, such that if a Learner does not have the same, the Driving Instructor must:

o refuse to provide a booking to that Learner; and

o notify Smart Licence immediately.

· Smart Licence does not check or carry out searches or due diligence on Learners. Driving Instructors are always responsible for and obliged to take all reasonable precautions in relation to their personal and vehicle safety and security and Smart Licence is not responsible or liable for any physical, mental or emotional loss, claim, harm or damage suffered as a result or in connection with, or as a consequence of, accepting (or refusing to accept), or taking on a Learner for a booking.

Warranties by Driving Instructor

The Driving Instructor warrants that they have done all of the following –

· complied with all requirements in their state or territory of operation to become a fully qualified driving instructor;

· they have no health or medical issues that may prevent them from being fit to drive or instruct Learners;

· they have no police or criminal history and have no pending investigations or charges against them;

· they have successfully passed a National Police Criminal History Check;

· they have passed a Working With Children check and have provided the reference number to Smart Licence; and

· personally checked and verified that each Learner has a current and valid driver’s licence at the commencement of each driving booking, in accordance with clause 2.7 above.

Driving Instructor’s Use of Smart Licence Marketplace

The Driving Instructor agrees –

· they are required to have a username and password to access and use the Smart Licence website;

· that they will not divulge their username or password to anyone or allow others to use it on their behalf;

· that they will only use the Smart Licence website for its intended purpose, which is to connect Driving Instructors with Learners;

· that they will keep Learners’ data secure;

· the information they have provided is current, true and correct;

· to amend their details whenever their circumstances change as a matter of priority;

· not to use the Smart Licence platform for any illicit purposes including to disseminate hate speech or similar views; and

· not to use the Smart Licence platform to promote any third parties.

Fidelity

The Driving Instructor agrees:

· not to book a Learner for bookings through any other means other than through the Smart Licence Marketplace;

· not to do any acts or omit to do things that damage or may damage the reputation of Smart Licence.

The Driving Instructor agrees that a breach of this clause will result in immediate termination of the Agreement pursuant to the Events of Termination clause, and removal from the Smart Licence website and platform.

Policies

The Driving Instructor warrants that they have read and understood the following documents:

· The Smart Licence Driving Instructor Code of Conduct;

· the Payment Policy;

· the Smart Licence Privacy Policy; and

· the Smart Licence Policies and Procedures that may be provided to Driving Instructors from time to time.

The Driving Instructor further warrants that they agree to the Policies and agree to any amendments as made from time to time. The parties agree that all Policies and subsequent amendments are binding on the parties. Links to the Policies can be found in the Schedule to this document.

Quality Assurance

The Driving Instructor acknowledges and agrees that –

· Smart Licence is dedicated to providing ‘real time bookings’ and providing services that allow Learners to have control over the date and time of their bookings;

· Smart Licence maintains and expects only the highest quality of services from Driving Instructors;

· Smart Licence relies on its reputation with Learners to secure word of mouth sales and to generate customers and bookings; and

· the Driving Instructor must adhere to and comply with all standards determined by Smart Licence in carrying out its services, as set out in, but not limited to, the Quality Assurance clause.

The Driving Instructor agrees –

· to be respectful to Learners and Smart Licence staff;

· to ensure that they are available and willing to take all bookings made on date and at times as allocated as ‘available’ by the Driving Instructor;

· to maintain an accurate diary and calendar of all bookings agreed to (in accordance with calendar clauses);

· to arrive on time for all bookings with Learners;

· to maintain a professional appearance while conducting bookings with Learners;

· to ensure that their vehicle is clean, roadworthy, meeting testing requirements and a safe working environment;

· not to behave in a discriminatory, demeaning or derogatory way, or use threatening, abusive or offensive language towards Learners or Smart Licence staff;

· not to eat or drink while conducting bookings;

· not to use a mobile phone or similar electronic device while conducting bookings; and

· not to take or accept money, money’s worth, tips or other types of bribes from Learners.

If the Driving Instructor receives poor feedback from a Learner, whether based on a failure to comply with the Quality Assurance provisions or otherwise, Smart Licence may at its sole and absolute discretion immediately terminate the Driving Instructor’s registration with Smart Licence.

Insurance

The Driving Instructor is solely and absolutely responsible for holding and maintaining the insurance set out in this clause, and further warrants that they –

· have been appropriately endorsed by the relevant insurance provider for the insurance referred to in this clause;

· hold the appropriate levels of public liability and personal indemnity insurance;

· have current compulsory third party vehicle insurance;

· hold the appropriate level of comprehensive car insurance that covers accidents that occur while the Driving Instructor is instructing a Learner;

· have informed their comprehensive car insurance provider that they are conducting driving lessons;

· have received an endorsement by their insurance provider confirming the information referred to above;

· will inform Smart Licence when any form of insurance lapses;

· have a vehicle that has a dual pedal control;

· will only conduct a booking in a vehicle that is –

o registered as a driving vehicle with Smart Licence;

o registered in their own name (or a company controlled by them); or

o fitted with operational dual pedal controls.

· will provide information to Smart Licence regarding the make, vehicle registration number, model and year of the vehicle, together with a photo of the car.

Certification Verification Requirements

Smart Licence requires that Driving Instructors produce a copy of their –

· C Class driver’s licence which is valid in the state in which the Driving Instructor operates; and

· Driving Instructor Licence which is valid in the state in which the Driving Instructor operates; and

· working with children credentials.

Driving Instructors agree to notify Smart Licence when these certifications lapse.

Vehicle Requirements

Driving Instructors agree that their vehicle is to remain at all times –

· roadworthy;

· clean;

· well maintained;

· registered; and

· overall fit for conducting driving lessons.

Driving Instructors agree to notify Smart Licence immediately when they intend to use a different vehicle to conduct driving bookings and may not use a different vehicle unless and until they have notified Smart Licence.

Tax Compliance

Driving Instructors agree to comply with all Australian tax requirements including paying any applicable GST if transacting through the Smart Licence or associated websites. In particular, Driving Instructors acknowledge that they will be required to charge and remit GST on taxable supplies if they are registered or are required to be registered for GST in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and Driving Instructors are responsible for paying this.

Booking Prices and Payments

· The Driving Instructor appoints Smart Licence as the limited payment collection agent solely for the purpose of accepting the booking payment.

· The Driving Instructor agrees that the payment made by the Learner to Smart Licence shall be considered the same as payment made directly by the Learner to the Driving Instructor, and is a discharge of the booking.

· Driving Instructors are responsible for setting their own rates for bookings over which Smart Licence has no control.

o In the case of driving test packages, Smart Licence’s suggested retail price for one test package consisting of a 45 minute lesson and the use of the Driving Instructor’s vehicle for the driving test is $225 per one driving test package (Driving Test Package). The price of a test package may be automatically set to our suggested retail price for existing Driving Instructors. Driving Instructors can set their preferred rate during sign up and at any stage after that.

· Subject to applicable clauses, in return for Smart Licence providing the Driving Instructor with the connection to the Learner, payment collection of the booking fee and processing and support services, the Driving Instructor agrees to pay Smart Licence –

o a service fee calculated at 25% of the applicable rate as referred to in the Booking Prices clause, which is inclusive of GST (the Service Fee), and which will apply regardless of the actual price for or allocated to that booking by the Driving Instructor; and

o a Payout Processing Fee of $0.28 + 0.39% for each payout.

o a Monthly Account Fee of $2.20, charged in your first payout each month.

· The Monthly Account Fee will be charged if at least one booking payment has been processed in the relevant calendar month.

· The Service Fee will be amended to reflect any Discount Bands or promotions applied to a booking.

· Smart Licence will render a tax invoice to the Driving Instructor for the Service Fee, the payout processing fee and the Account Fee on the date of each payment.

Driving Instructor Payment Terms

· Learners will pay Driving Instructors for each booking delivered by that Driving Instructor.

· Smart Licence will forward all payments to the Driving Instructor every payout, based on all accrued booking payments as delivered by the Driving Instructor in the previous payout period and in accordance with the Payment Policy.

· Smart Licence will provide to the Driving Instructor an invoice for each payment, setting out the following for each booking –

o booking ID, date and duration of booking;

o price of booking set by the Driving Instructor;

o Service Fees deducted;

o Payout Processing Fees deducted;

o Monthly Account Fees deducted; and

o GST.

· Smart Licence may amend the rate of the Service fee, the Payout Processing Fee, or the Monthly Account Fee on 30 days’ notice to the Driving Instructor. The revised fees will then from that time be deemed to take effect automatically.

· Driving Instructors bear all risk associated with non-payments by Learners.

· Driving Instructors are required to inform Smart Licence immediately if they believe that a Learner is acting fraudulently in relation to payments.

Refund of booking payments

If Smart Licence believes a booking payment that has been made to a Driving Instructor should be refunded to a Learner or a third party, Smart Licence will forfeit its Service Fee and, either of the following will also apply -

· if the booking payment has not yet been received by the Driving Instructor, Smart Licence will deduct the allocated revenue share subject to the refund from the Driving Instructor’s next payment; or

· if the Driving Instructor has received payment for the booking, Smart Licence will deduct the equivalent payment from the Driving Instructor’s next payment if that payment contains sufficient funds to cover the refund amount.

Calendar System

Driving Instructors agree to update their own calendar immediately when notified of a Learner booking through Smart Licence.

Driving Instructors agree to update the Smart Licence calendar portal when other Learners book privately through the Driving Instructor so that Smart Licence bookings are not booked during this time.

Booking Cancellation/Rescheduling Fee

· If a Learner cancels or reschedules a booking more than 24 hours before a booking, the Learner will receive a credit for 100% of the full booking charge, and the Driving Instructor will receive no payment for that booking.

· If a Learner cancels or reschedules a lesson 24 hours or less before the lesson is due to start, the Driving Instructor may at its sole discretion charge the Learner for the full price of the lesson.

Events of Termination

Smart Licence may, in its discretion, restrict, suspend or remove a Driving Instructor’s registration on our Platform upon providing Written Notice under the following circumstances –

· where a Driving Instructor breaches this Agreement or our Code of Conduct;

· where a Driving Instructor has committed an offence, including where the Driving Instructor has been charged with or has been convicted of a criminal offence;

· where a Driving Instructor’s working with children credentials have been falsified or have expired;

· where a Driving Instructor is no longer a licensed driver or not otherwise permitted by law to be a licensed driving instructor;

· where a Driving Instructor is the subject of legal proceedings relating to a motor vehicle accident;

· where a third party conducts a driving booking on the Driving Instructor’s behalf;

· where the Driving Instructor conducts a driving booking in a vehicle other than that (or those) of which Smart Licence has been notified; and

· where the Driving Instructor receives poor Learner feedback or accumulates a poor rating as determined by Smart Licence.

If a failure of a Driving Instructor to perform their obligations under this Agreement is not rectified within 7 days, Smart Licence may restrict, suspend or cancel a Driving Instructor’s registration on the Smart Licence website without giving notice to the Driving Instructor.

Smart Licence will remove the ability for Learners to book bookings with Driving Instructors immediately when any form of documentation or insurance that Smart Licence has in its records expired.

A Driving Instructor may terminate this Agreement by de‑registering their account on the Smart Licence website and platform, in which event the Driving Instructor agrees –

· that all Driving Instructor data and information will be retained by Smart Licence for an indefinite period unless that Driving Instructor expressly requests that Smart Licence permanently delete their data and information.

PRIVATE LEARNER FEATURE (Private Learner)

The following clauses apply to the use of the Private Learner Feature (Private Learner).

Private Learner Services

· Smart Licence provides Driving Instructors with the ability to utilise the Private Learner Feature (Private Learner), software which allows Driving Instructors to view, manage and take payment for their Private Client bookings, as well as facilitating automated communications with the Private Client (Private Learner Services).

· Driving Instructors may be granted access to the Private Learner Feature, and can utilise the Private Learner Services by inviting their clients who they have sourced independently of Smart Licence and have not engaged the Driving Instructor previously through the Smart Licence Marketplace (Private Learners).

· In consideration of Driving Instructor’s payment of the Private Learner Admin Fees, Smart Licence agrees to provide the Private Learner Services, and any other services it agrees to provide as set out in Driving Instructor’s Smart Licence account.

· Smart Licence agrees to use its best endeavours to make the Private Learner Feature available at all times. However, from time‑to‑time Smart Licence may perform reasonable scheduled and emergency maintenance, and the Private Learner Feature may be unavailable during the times Smart Licence is performing such maintenance.

· Should Driving Instructor be unable to access the Private Learner Feature, or should Driving Instructor have any other questions or issues impacting on Driving Instructor’s use and enjoyment of the platform, Driving Instructor must raise a support ticket via Smart Licence’s support portal. Smart Licence will endeavour to respond to any support requests in a reasonable period.

· Driving Instructor acknowledges and agrees that the Private Learner Feature may be reliant on, or interface with third party systems that are not provided by Smart Licence (for example, payment system providers) (Third Party Services). To the maximum extent permitted by law, Smart Licence shall have no Liability for any Third Party Services, or any unavailability of the Platform due to a failure of the Third Party Services.

· Driving Instructor acknowledges and agrees that data loss is an unavoidable risk when using any software. To the extent Driving Instructor inputs any data into the Private Learner Feature, Driving Instructor agrees to maintain a backup copy of any data Driving Instructor inputs into the platform.

Inviting Learners to Smart Licence

Driving Instructors can invite their Private Clients to Smart Licence, by sharing their unique link with the Private Client, via email, phone, website or any other means. By clicking the link, the Private client will then be asked to create a Smart Licence account, and will be able to book in and pay for driving bookings with the Driving Instructor who has invited them to the Smart Licence platform.

Driving Instructors can also invite their Private Clients to Smart Licence by entering their contact information directly into the Private Learner Feature. The Private Learner will then receive a SMS or email inviting them to book in and pay for driving bookings with the Driving Instructor who has invited them to create an account for Smart Licence. Where a Driving Instructor elects to invite a Learner to Smart Licence by entering their contact information directly into the Private Learner Feature on their behalf, the Driving Instructor warrants:

· it has consent from the Learner to collect and share the Learner’s personal information with Smart Licence for the purposes of inviting them to Smart Licence; and

· the Private Learner has given consent to the Driving Instructor for Smart Licence to contact them.

Driving Instructor’s use of the Private Learner Feature

When using the Private Learner Feature, the Driving Instructor warrants and agrees that:

· the Driving Instructor has read and agrees to the terms and conditions set out in this Agreement relating to the use of the Private Learner Feature;

· the Driving Instructor will inform Smart Licence immediately if the details of the Driving Instructor change, including its payment details; and

· the Driving Instructor may have obligations to its Private Clients under the Australian Consumer Law, and must agree to abide by the Australian Consumer Law at all times.

It is the Driving Instructor’s responsibility to contact the Learner if they are unavailable at the time a Private Client has booked a booking, or is otherwise unable to provide the services that the Private Client has booked them for.

The Driving Instructor must ensure that the terms and conditions of purchase of driving bookings between it and the Private Learner are clear at the time of purchase. Smart Licence may provide some example terms and conditions for Driving Instructor to use, but recommends Driving Instructor gets its own independent legal advice as to whether these are appropriate for them. Any terms and conditions provided are to be used at the Driving Instructor’s sole risk.

Private Learner Payment Terms

In return for Smart Licence providing the Driving Instructor with the Smart Licence platform, sms notifications, customer service support, and payment collection of the booking fee, the Driving Instructor agrees to pay Smart Licence an Admin Fee calculated at 2.4% of the applicable booking payment, which is inclusive of GST (the “Private Learner Admin Fee”), and which will apply regardless of the actual price charged for or allocated to that booking by the Driving Instructor.

· The Private Learner Admin Fee will be amended to reflect any Discount Bands applied to a booking.

· Smart Licence may amend the Private Learner Admin Fee on 30 days’ notice to the Driving Instructor. The revised fees will be deemed to take effect automatically after the expiry of the 30‑day notice period.

· Driving Instructors bear all risk associated with non‑payments by Learners. Note that if a Private Learner successfully disputes payment for the booking via a ‘chargeback’, Smart Licence will immediately invoice the Driving Instructor for the Private Learner Service Fee, which is to be paid in accordance with the payment terms set out in the invoice.

Intellectual Property

Driving Instructor agrees that Smart Licence owns all Intellectual Property in the Private Learner Feature.

Smart Licence authorises Driving Instructor to use the Intellectual Property in the Private Learner Feature solely for Driving Instructor’s limited commercial use. Driving Instructor must not exploit any Intellectual Property in the Private Learner Feature for any other purpose, nor allow, aid or facilitate such use by any third party. Use must be limited to Driving Instructor only.

Driving Instructor must not, without Smart Licence’s prior written consent:

· copy, in whole or in part, any of the Intellectual Property in the Private Learner Feature;

· breach any intellectual property rights connected with the Private Learner Feature, including (without limitation) altering or modifying any of Smart Licence’s Intellectual Property, causing any of Smart Licence’s Intellectual Property to be framed or embedded in another website, or creating derivative works from any of Smart Licence’s Intellectual Property.

Termination

· A Driving Instructor may terminate this Agreement by de‑registering their account on the Smart Licence website and platform.

· Smart Licence may terminate this Agreement at any time by giving 30 days written notice to Driving Instructor.

· Smart Licence may terminate this Agreement at any time with written notice to Driving Instructor where Driving Instructor has breached a material term of this Agreement that has not been remedied within 5 Business Days.

· Where Driving Instructor’s access to the Smart Licence Marketplace has been terminated, Driving Instructor’s access to the Private Learner Feature will also be immediately terminated.

· Should Smart Licence suspect that Driving Instructor is in breach of the terms of the Agreement relating to the use of the Private Learner Feature, Smart Licence may suspend Driving Instructor’s access to the Smart Licence Marketplace and Private Learner Feature while Smart Licence investigates the suspected breach.

· This clause will survive termination or expiry of this Agreement.

GENERAL

The following clauses apply to both the Marketplace Services and the Private Learner Services.

Australian Consumer Law

Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer Driving Instructor with rights, warranties, guarantees and remedies relating to the provision of the Private Learner Feature Services and Smart Licence Marketplace Services by Smart Licence to Driving Instructor which cannot be excluded, restricted or modified (Consumer Law Rights).

If the ACL applies to Driving Instructor as a consumer, nothing in these Terms excludes Driving Instructor’s Consumer Law Rights as a consumer under the ACL. Driving Instructor agrees that Smart Licence’s Liability for the Private Learner Feature Services and Smart Licence Marketplace Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.

Subject to Driving Instructor Consumer Law Rights, Smart Licence excludes all express and implied warranties, and all material, work and services are provided to Driving Instructor without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

This clause will survive the termination or expiry of this Agreement.

Liability

Despite anything to the contrary, and to the maximum extent permitted by law:

· Driving Instructor agrees to indemnify Smart Licence, and hold Smart Licence harmless, for any Liability Smart Licence incurs due to Driving Instructor’s breach of this Agreement;

· neither Party will be responsible for Consequential Loss;

· each Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party or any of that Party’s personnel, including any failure by that Party to mitigate its losses; and

· Smart Licence’s aggregate liability for any Liability arising from or in connection with this Agreement will be limited to Smart Licence resupplying the Private Learner Feature to Driving Instructor or, in Smart Licence’s sole discretion, to Smart Licence repaying Driving Instructor the amount of the fees paid by Driving Instructor to Smart Licence during the term.

This clause will survive termination or expiry of this Agreement.

Confidentiality

Driving Instructors are not to use Learner information except for the express purpose of providing driving bookings.

Indemnity

Driving Instructors agree to indemnify and protect Smart Licence against any actions, damages, claims, demands, prosecutions, fines and penalties including through negligence which occur as a result or in relation to their actions as a Driving Instructor.

These indemnity clauses survive termination of the Agreement.

Privacy

Smart Licence and Driving Instructors agree to adhere to the Australian Privacy Principles from time to time in force (if applicable).

Driving Instructors agree to Smart Licence using Driving Instructor information and personal data for marketing purposes.

Driving Instructors may obtain access to personal information that Smart Licence has on record by submitting a support ticket to Smart Licence’s support portal. By entering into this Agreement Driving Instructors acknowledge that they have read the Privacy Policy and agree to the Smart Licence Privacy Policy as amended from time to time.

Intellectual Property

The Driving Instructor agrees that all intellectual property and copyright rights over or in connection with Smart Licence products and resources are owned by Smart Licence exclusively.

Force Majeure

Neither Smart Licence or Driving Instructors are liable to the other or considered to be in default under this Agreement if and to the extent that such party’s performance of this Agreement is delayed or prevented by reason of force majeure, which is defined for this Agreement to mean an event that is beyond the reasonable control of the party affected and occurs without such party’s fault or negligence.

Arbitration

If any dispute arises between a Driving Instructor and Smart Licence, the following procedures apply –

· If the dispute is not resolved within 14 days, the parties agree to refer the matter to a mediator in accordance with the following procedure –

o the parties agree to hire a mediator to mediate over the dispute;

o the mediation will take place via an agreed video conferencing platform; and

o the mediator will follow the mediation procedure set out by the Resolution Institute.

· If the mediation process fails, the parties agree to refer the matter to an arbitrator in accordance with the following procedures –

o the arbitration is to be conducted by a single arbitrator who is to be agreed by the parties;

o if the parties are unable to agree on the arbitrator within 14 days, the arbitrator is to be appointed by the President of the Institute of Arbitrators Australia;

o the arbitration will be conducted in accordance with the Rules of Conduct of commercial arbitrators and any guidelines issued by the Institute of Arbitrators; and

o the parties agree that the decision of the arbitrator is binding on the parties.

The costs of mediation or arbitration are to be shared equally between the parties.

No Waiver

A failure or delay by Smart Licence in exercising a right does not constitute a waiver of Smart Licence’s rights to pursue an action.

No Assignment of Agreement

The Driving Instructor is not allowed to sell, assign, sub‑lease or transfer this Agreement to anyone else.

Modification of Agreement

Smart Licence may change this Agreement from time to time upon written notice to the Driving Instructor.

Subject to the notice provisions:

· a Driving Instructor who continues to use the Smart Licence website and accept bookings from Learners is considered to accept the new terms as updated from time to time; and

· it is the responsibility of the Driving Instructor to read through the amended terms and conditions as required from time to time.

Notice

Notices provided under this Agreement may be provided by –

· email;

· any other form of electronic communication, including via the Smart Licence website; or

· by any other means used on a regular basis by both parties.

Severability

This Agreement is to be interpreted in a way that renders the provisions valid and enforceable to the maximum extent possible.

Governing Law

This Agreement is governed by the laws of South Australia. The parties submit to the non‑exclusive jurisdiction of the courts of South Australia.

Entire Agreement

This Agreement represents the entire agreement between the parties, along with any documents referred to herein. This Agreement supersedes any previous understandings or agreements, whether oral or written.

Definitions

The following words carry the following meanings:

· Agreement means this document as amended from time to time along with any documents referred to in this document;

· Australian Consumer Law means the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth);

· Private Learner Feature means the feature available on Smart Licence, which allows Driving Instructors to manage bookings and payments for Private Clients;

· Code of Conduct means the Smart Licence Driving Instructor Code of Conduct;

· 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;

· Discount Band means the discount applied where multiple bookings have been booked as set out in the Payment Policy;

· Driving Instructor means the person who has contracted with Smart Licence to become a Driving Instructor through the Smart Licence online website platform;

· Event of Termination means those events set out in the Events of Termination clause;

· Smart Licence means Smart Licence Pty Ltd;

· Smart Licence Marketplace means the online marketplace, where Driving Instructors and Learners are connected by Smart Licence;

· Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, 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;

· Learner means a person who is at least 16 years old or older who has booked a driving booking through Smart Licence, and a secondary account holder who has purchased the driving booking for the Learner;

· 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 this Agreement or otherwise;

· Payment Policy means the Smart Licence Payment Policy;

· Policies means the Payment Policy, the Privacy Policy, and the Driving Instructor Code of Conduct;

· Privacy Policy means the Smart Licence Privacy Policy;

· Private Clients has the meaning given to it in the Private Learner clauses;

· Written Notice includes notification given by email or SMS.

Interpretation

In the interpretation of this Agreement:

· every aspect of this document with the exception of the headings are substantive parts of this Agreement and are to be read accordingly;

· headings are used for convenience, but are not to be interpreted as part of this Agreement;

· when the singular is mentioned, it also means the plural of that word, and vice versa;

· words specifying one gender includes all other genders; and

· when legislation is referred to, the legislation includes all rules, ordinances, by laws, orders, regulations, consolidations, rewrites, amendments, re‑enactments and replacements of that same legislation.

In the event of any inconsistency between the provisions of this Agreement and the Payment Policy, this Agreement shall prevail.

SCHEDULE 1 - Smart Licence Payment Policy

The Smart Licence Payment Policy can be accessed from Smart Licence’s support portal or as provided to Driving Instructors.

SCHEDULE 2 - Smart Licence Privacy Policy

The Smart Licence Privacy Policy can be accessed from Smart Licence’s support portal or as provided to Driving Instructors.

SCHEDULE 3 – Smart Licence Driving Instructor Code of Conduct

The Smart Licence Driving Instructor Code of Conduct can be accessed from Smart Licence’s support portal or as provided to Driving Instructors.