Fleet Claims Portal & Fleet Customer Portal - Terms of Use -

  1. Definitions and Interpretation
    In this agreement, a reference to:
    1. the singular includes the plural and vice versa, references to one gender includes the other, and anything includes the whole and each part of it;
    2. "include" is not to be construed as a word of limitation;
    3. headings have no effect on the interpretation of the provisions;
    4. a document or legislation includes any variation, novation or replacement of it, and reference to any legislation includes reference to any rules or regulations imposed under that legislation. Law includes common law, principles of equity and legislation; and
    5. a person includes a person, sole trader, firm, partnership, committee and incorporated and unincorporated bodies, and a person's successors, assigns and personal representatives. Where a person is comprised of more than one legal person, the obligations of those persons are joint and several.
    "agreement" means this agreement as amended from time to time consisting of the details, the terms and conditions, and all of its items, schedules and annexures;
    "business day" means any day of the week other than Saturday, Sunday or any statutory holiday in the State where you conduct your business;
    "claims" means any claim, action, proceeding, judgment, damage, loss, cost, expense or liability howsoever incurred or suffered by or brought or made or recovered against that person and howsoever arising, (whether or not presently ascertained, immediate, future or contingent);
    "client" means an individual who is a user and who has been introduced to you, accepted your quotation and engaged you to provide the vehicle repair services via the platform. A client includes both retail clients and fleet clients. A "retail client" is an individual client who does not have a corporate relationship with us and must pay you directly for the vehicle repair services prior to or on completion of those vehicle repair services. A "fleet client" is a corporate client (or its representative) that has a corporate relationship with us (e.g. channels multiple fleet vehicles through the platform) and has pre-agreed payment terms with respect to payment of the vehicle repair services;
    "confidential material" means information that:
    1. is or relates to our documents, submissions, consultations, policies, strategies, practices and procedures which are by their nature confidential and include any such information contained in material we provide you, including documents, equipment, information and data stored by any means; and
    2. is notified (whether in writing or not) to you by us as being confidential,
    but does not include information that:
    1. is or becomes public knowledge other than by breach of this agreement;
    2. has been independently developed or acquired by you; or
    3. has been notified to you by us as not being confidential;
    "details" means the first section of this agreement;
    "duties" means your duties as set out in Item 7 of the details;
    "GST" has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
    "invoice" means a valid tax invoice or data in a format required by us, that:
    1. clearly sets out the amount that is due for payment, is correctly calculated and is in respect of goods and services that have been provided in accordance with this agreement;
    2. sets out details of the goods and services provided, and sets out or is accompanied by any other details or reports required by us; and
    3. specifies the vehicle to which the invoice and charges relate;
    "job" means an advertised repair job of a damaged vehicle submitted by a user on the platform for consideration, quotation and tendering by you;
    "loss" means any loss, damage, cost, interest, expense, fee, penalty, fine, forfeiture, assessment, liability or award of damages and includes legal costs on an indemnity basis and indirect, incidental or consequential loss;
    "platform" means the DingGo website, mobile website, mobile application (app), any associated or inter-platform communications (e.g. emails, internal messages etc.) and any software relating to the foregoing, and any hypertext links linking to external sites (if any);
    "platform fee" means the platform use and access fee set out in Item 9 of the details, payable by you to us for providing you with access to and use of the platform in accordance with clause 2.1 of this agreement;
    "personal information" has the meaning it has in section 6 of the Privacy Act 1988 (Cth);
    "representatives" means those persons who you appoint from time to time to liaise with us in relation to all aspects of this agreement and who you acknowledge have all necessary authorities required to bind you in respect of any decisions made by them in respect to this agreement. Until we are notified by you in writing to the contrary, your representatives are those persons whose names are listed in Item 1 of the details alongside the heading "Contact name & Position";
    "service levels" means the service levels specified by us from time to time and which includes the service levels more fully described in Item 8 of the details;
    "terms and conditions" means these general terms and conditions;
    "us", "we", "our" or "DingGo" means DingGo AU Pty Ltd (ACN 630 000 823) and its successors and assigns;
    "user" means a user of the platform (whether a client or not), who has access to the platform and may transact through it as contemplated in this agreement;
    "vehicle repair services" means the vehicle repair services (including panel beating, windscreen repair, part replacement, wheel repair, paint work) to a vehicle offered and provided by you to clients, and transacted through the platform, and authorised by us;
    "you" or "your" means the party whose details appear in Item 1 of the details and includes your officers, employees, agents, subcontractors, representatives, successors and assigns.
  2. Basis of Agreement and General Obligations
    1. We will provide you with access to and use of the platform for you to consider, quote and tender for jobs submitted by users on the platform. You agree to access and use the platform in accordance with this agreement and any terms and conditions applicable to the platform. You acknowledge and accept that your use of the platform is at your own risk.
    2. Once a user has accepted your quotation and engages you to perform the vehicle repair services, the user automatically becomes a client, and you must provide the vehicle repair services to that client in accordance with this agreement. You acknowledge and agree that we act solely as an intermediary between you and the client, and we are wholly excluded from and in no way a party to any contract or contractual relationship that may arise or come into existence between you and the client, whether pursuant to this agreement or otherwise.
    3. You acknowledge and agree to use the platform, undertake your duties and perform the vehicle repair services, from the commencement date, on the terms of this agreement.
    4. This agreement will commence on the date that you sign it (digitally or otherwise) and, subject to the remaining provisions of this agreement, will continue until terminated by either of us on notice in writing given to the other.
    5. You acknowledge and accept that we do not guarantee a minimum number of users, jobs or clients.
    6. You must:
      1. undertake your duties and perform the vehicle repair services:
        1. in a professional manner with all due care and skill; and
        2. within your capabilities and/or formal qualifications;
      2. ensure that the vehicle repair services are provided by persons having the necessary qualifications and who are fit and suitable to perform them, and to the standard required by this agreement;
      3. accept full responsibility and liability for the vehicle repair services, including honoring your workmanship warranty and rectifying any defects or faults in the vehicle repair services (including in relation to your workmanship, replacement parts and/or paint works), in a timely manner, for a minimum 3 year period or greater, if specified in Item 6 of the details;
      4. keep up to date records of the vehicle repair services performed by you, including updating the platform in a timely manner as requested by us or when you update any job details for other reasons;
      5. comply with all of the service levels; and
      6. undertake your duties and perform the vehicle repair services in accordance with the terms of this agreement.
    7. You represent and warrant that:
      1. all information provided by you to us before entering into this agreement as well as all information provided by you in this agreement, is true, complete and accurate in all respects and is not misleading in any way;
      2. you have and will continue to have the power, authority and all necessary consents to enter into this agreement;
      3. you are registered and will maintain registration for GST;
      4. you comply with and will continue to comply with any laws, regulations, and the like that apply to your activities when undertaking your duties and performing the vehicle repair services under this agreement; and
      5. you possess all necessary registrations, licenses, permits and/or approvals ("licenses") which are required for or in connection with undertaking your duties and performing the vehicle repair services, and you agree to maintain the licenses for the term of this agreement.
    8. You must:
      1. use your best endeavors to promote our business interests;
      2. not, and must ensure that each of your employees do not, engage in any conduct that is illegal, unethical, misleading or deceptive; and
      3. not impair or damage:
        1. our goodwill or reputation; or
        2. our marketing strategy or competitive standing.
  3. Set-offs
    If you have not paid any amount at any time due and payable by you to us (whether under this agreement or otherwise), we will be entitled to withhold payment and claim set off in respect of payments due to us on your account.
  4. Representatives
    You must ensure that the representatives meet with us regularly during the currency of this agreement (and as required by us) to discuss and provide us with updates on current market trends, service levels, vehicle repair services pricing and any other relevant matters within the motor vehicle industry.
  5. Your responsibilities
    1. You agree to promptly respond to enquiries from any client.
    2. You will notify us as soon as you become aware of any issue or dispute arising in connection with your duties or the vehicle repair services.
    3. You will keep us and the client informed of the status of each job by engaging in the platform when required in a timely manner.
    4. You must at all times during the term continually take reasonable steps to improve the manner in which you undertake your duties and perform the vehicle repair services, including by:
      1. identifying and applying techniques and tools in the industry relating to the vehicle repair services that would benefit the clients and you operationally or financially; and
      2. implementing programs, practices and measures designed to improve your levels of performance.
    5. If, in our opinion (acting reasonably), market conditions change, we may initiate a platform fee review by notice to you. Each party's representatives will, within 7 days of the notice, meet to discuss, and agree, a revised platform fee. Each party will act fairly and reasonably to negotiate and agree a revised platform fee.
  6. Platform Fee, Invoicing and Payments
    1. You agree to pay to us the platform fee in accordance with this agreement.
    2. The parties acknowledge that all jobs/vehicle repair services are considered for retail clients, unless otherwise stated on our platform or by us through other means.
    3. In relation to a retail client, you acknowledge and agree as follows:
      1. it is the retail client's responsibility to pay you for the vehicle repair services and such transaction will be facilitated between you and the retail client directly;
      2. prior to or on completion of the vehicle repair services, the retail client will pay to you the full amount of the total invoice value with respect to the relevant vehicle repair services, being the amount quoted by you to the retail client on the platform ("total invoice value") or a revised quoted price that is accepted by the retail client for additional work/change of scope of works ("revised quote price");
      3. invoicing, reconciliation, collection and enforcement of all amounts payable by the retail client to you pursuant to clause 6.3(b) is solely your responsibility, unless we provide you with written notice in advance that we are collecting any amount from the retail client on your behalf; and
      4. we will issue you with an invoice for the platform fee immediately following completion of the vehicle repair services, and our invoice is payable by you within 14 days of receipt.
    4. If a retail client engages you to perform vehicle repair services and elects to make payment for such vehicle repair services:
      1. using a third-party payment provider (e.g. Zip Pay, AfterPay etc.); or
      2. using any other online payment option offered by us via the platform (e.g. credit card, PayPal), whether currently available or in the future,
      we will:
      1. facilitate payment of the full amount of the total invoice value by the retail client, using either the third-party payment provider or other online payment option offered by us via the platform (as the case may be);
      2. within 7 days of completion of the vehicle repair services, issue an invoice on your behalf to the retail client for the full amount of the total invoice value;
      3. collect payment on your behalf from the third-party payment provider or other payment option source (as the case may be) for the full amount of the total invoice value; and
      4. then, within 14 days of receipt by us from the relevant provider/source of the amount equal to the total invoice value in cleared funds, pay to you an amount equal to the total invoice value less the platform fee less any other fees, expenses and charges incurred by us (due to our compliance with this clause 6.4), by electronic funds transfer to the bank account as nominated by you in Item 3 of the details as amended from time to time by written notice to us from you, or otherwise as agreed by the parties.
      For clarity, any additional amounts (i.e. in addition to the total invoice value) payable by the retail client to you due to a revised quoted price is a separate transaction and is the retail client's sole responsibility. Such transaction will be facilitated between you and the retail client directly and otherwise in accordance with clause 6.3.
    5. For fleet clients, we will:
      1. immediately on completion of the vehicle repair services, issue an invoice on your behalf to the fleet client for the total invoice value (with respect to the relevant vehicle repair services, being the amount quoted by you to the fleet client on the platform);
      2. collect payment on your behalf from the fleet client for the full amount of the total invoice value; and
      3. then, within 7 days of receipt by us from the fleet client of the amount equal to the total invoice value in cleared funds, pay to you an amount equal to the total invoice value less the platform fee less any other fees, expenses and charges incurred by us (due to our compliance with this clause 6.5), by electronic funds transfer to the bank account as nominated by you in Item 3 of the details as amended from time to time by written notice to us from you, or otherwise as agreed by the parties.
      For clarity, any additional amounts (i.e. in addition to the total invoice value) payable by the fleet client to you due to a revised quoted price that is accepted by the fleet client for additional work/change of scope of works (again, the "revised quote price") is a separate transaction, and:
      1. the fleet client is solely responsible and liable for such revised quoted price;
      2. you must advise us of the revised quoted price and any additional amounts payable by the fleet client to you within 7 days of your acceptance of the revised quoted price, by written notice to us from you; and
      3. all additional amounts payable by the fleet client to you will be dealt with in the same manner as set out in this clause 6.5, except that we will issue an invoice on your behalf to the fleet client for the additional amounts immediately on completion of the vehicle repair services with respect to the revised quoted price.
    6. We may, without limiting any other right we may have, defer or withhold payment of any invoice (or any part of it) or any amounts payable to you if, in our reasonable opinion, you have failed to render the vehicle repair services to the standards required by this agreement or have failed to provide a material part of the vehicle repair services, until the vehicle repair services have been completed to our satisfaction.
    7. You agree that we and/or a client (as the case may be) are not liable or required to pay for any invoice or other amounts that:
      1. relate to vehicle repair services or additional work/change of scope of work that a client has advised to be incorrectly approved; and
      2. are in respect of vehicle repair performed by you more than six (6) months prior.
    8. You must not contact the fleet clients directly for payment of invoices or other amounts issued pursuant to this agreement.
  7. Subcontracting and assignment
    1. You must not, without our prior consent, subcontract the performance of your duties, the vehicle repair services or any part of your duties or the vehicle repair services.
    2. Where we have consented to you subcontracting any of your duties or the vehicle repair services, you represent and warrant that:
      1. any subcontract will be on the same terms as this agreement;
      2. you will not be relieved of any of your liabilities or obligations under this agreement by virtue of any subcontract. You will be liable to us for all acts and omission of a subcontractor, any employee or agent of a subcontractor or any third party retained by you, as fully as if they were your acts or omissions;
      3. you have ensured that any subcontractor engaged by you effects and maintains insurance and provides indemnities to the same extent as required of you under this agreement; and
      4. you will promptly make all payments due to any subcontractor.
    3. You must not assign and/or novate the whole or part of this agreement without our prior written consent.
    4. We may assign and/or novate the whole or part of this agreement to any of our related entities or to any entity to which we may sell or transfer our business as a going concern.
  8. Ownership and use of confidential material
    1. Confidential material is and will remain our property and you may only use that confidential material for the purpose of providing the services or otherwise in accordance with any conditions notified to you by us.
    2. On the expiration or earlier termination of this agreement, you must return to us any confidential material in your possession or control.
    3. Except as provided in this agreement, you must not disclose confidential material to any person without our prior written consent, except to the extent that the confidential material is:
      1. required or authorised to be disclosed by law;
      2. generally available to the public; or
      3. in your possession without restriction in relation to disclosure before the date you received it from us.
    4. You must:
      1. comply with any reasonable direction relating to the confidential material and personal information; and
      2. with regards to any personal information obtained during the course of undertaking your duties and/or performance of the vehicle repair services under this agreement, comply with the Australian Privacy Act 1988 (Cth).
    5. You must immediately notify us if you become aware that:
      1. a disclosure of confidential material or personal information may be required by law; or
      2. an unauthorised disclosure of confidential material or personal information has occurred.
  9. Data protection and Privacy
    1. You will take all appropriate measures (including anti-virus software, virus databases, patches and encryption of data) to prevent unauthorised or unlawful use or disclosure of, or accidental loss or destruction of personal information.
    2. You must, in relation to personal information collected, used or disclosed in accordance with this agreement:
      1. use, access, retain or disclose personal information obtained in connection with the agreement only for the purpose for which the personal information was acquired and for no other purpose;
      2. not do any act or omission or engage in any practice that would breach any Australian Privacy Principles; and
      3. not transfer or permit the transfer of any personal information obtained in connection with this agreement outside Australia or permit any personal information to be accessed, viewed or copied by any person outside Australia without our prior written consent.
    3. You must within 5 business days after our written request to you give to us all data, information and documentation in relation to any or all of the clients and in a format reasonably requested by us.
  10. Intellectual Property
    We will exclusively own all intellectual property in everything you prepare, create, deliver or discover when undertaking your duties and performing the vehicle repair services under this agreement immediately on its creation (and to the extent that such title does not vest in us on creation, it is assigned by you to us). You must do everything we require, including sign, and procure the signing of, all documents to give effect to this clause 10. For the avoidance of doubt, this clause 10 only applies to intellectual property that relates specifically and exclusively to this agreement, the platform and our business, and not to any other intellectual property developed by you during the term of this agreement.
  11. Insurance
    1. You must hold and maintain for the term of this agreement:
      1. all insurance coverage required to be effected by you by law;
      2. public liability insurance with coverage in the amount specified in Item 4 of the details in respect of each claim (but in any case no less than $5 million in respect of each claim);
      3. professional indemnity insurance with coverage in the amount specified in Item 4 of the details in respect of each claim (but in any case no less than $2 million in respect of each claim); and
      4. workers compensation insurance including insurance against liability for death and injury to your employees to the extent required by law,
      with a reputable insurer and you must produce evidence of, or any other information with regards to, that insurance as required or requested by us.
    2. This insurance requirement will not in any way affect any of your obligations, responsibilities and liabilities under this agreement or law.
  12. Termination
    1. We may terminate this agreement immediately, if you
      1. are or become bankrupt or insolvent, enter into voluntary administration or make any arrangement with your creditors or take advantage of any statute for the relief of insolvent debtors;
      2. are in breach of a provision of this agreement, where that breach:
        1. if capable of being remedied, is not remedied within the period specified in a notice by us, or
        2. is not capable of being remedied; or
      3. are in breach of a service level specified in Item 8 more than once in any 2-month period.
    2. If this agreement is terminated:
      1. we will only be liable for payments under this agreement due and payable before the date of termination; and
      2. you must:
        1. not take any further jobs from any clients or be engaged by any clients to provide vehicle repair services via the platform;
        2. take all available steps to minimise loss resulting from that termination; and
        3. unless instructed to the contrary whether in writing or otherwise, complete any part of your duties and the vehicle repair services which by their nature require to be completed.
    3. Upon termination of this agreement, each party must immediately cease all use of any trademarks or logos used by the other party.
    4. Nothing in this clause 12 prejudices any of our other rights or remedies in respect of any breach of this agreement.
  13. Indemnity
    1. You indemnify each of us and our respective employees and related entities, against all or any claims arising out of or in connection with your duties, the vehicle repair services, your breach of any provision of this agreement or your negligent acts or omissions or those of your employees, related entities, agents or subcontractors, in connection with this agreement.
    2. You must, at your expense, make good the amount of all claims (including all loss) the subject of the indemnity in clause 13.1, and we may deduct the amount, or any part of it, from any moneys due or becoming due to you.
  14. Workplace Health and Safety
    You must adopt workplace health and safety work practices, policies and standards that fully comply with the Work Health and Safety Act 2011 (Cth) or similar Act (as amended from time to time).
  15. Environmental Protection
    You must:
    1. take all necessary action to protect and preserve the environment from harm arising from carrying out your duties and the vehicle repair services; and
    2. comply with all legal requirements relating to the environment.
  16. Benefit
    You acknowledge that we provide the platform for the benefit of you and the clients, and you agree that a breach of this agreement, or unlawful or negligent act or omission by you in relation to your duties, the vehicle repair services or the performance or failure to perform this agreement may result in a loss being suffered by the client.
  17. Notices
    Unless otherwise specified in this agreement, any notice, including any other communication, required to be given or sent to either party under this agreement must be in writing. A notice will be deemed to have been given:
    1. if delivered by hand, on delivery;
    2. if sent by prepaid mail, on the expiration of 2 business days after the date on which it was sent; or
    3. if sent by electronic mail or message via the platform, 2 hours after the email or message has been sent (as recorded on the device from which the sender sent the email or message) unless the sender receives an automated message that the email or message was not delivered.
  18. Other terms
    1. GST: If an amount payable under this agreement is not stated as GST inclusive, then the amount is GST exclusive and the following will apply:
      1. a recipient of a taxable supply under or in connection with this agreement must pay to the supplier, in addition to the consideration for the taxable supply, an amount equal to any GST paid or payable by the supplier in respect of the taxable supply; and
      2. the recipient must make the payment to the supplier when the consideration or part of it is provided, except that the recipient need not pay any amount referable to GST unless the recipient has received the invoice for the taxable supply.
    2. Relationship: Nothing in this agreement constitutes you, or your employees, agents or subcontractors as employees, partners or agents of ours or creates any employment, partnership or agency for any purpose. You must not represent yourself, and must ensure your employees, agents and subcontractors do not represent themselves, as being our employees, partners or agents.
    3. Entire agreement: This agreement (and any terms and conditions applicable to the platform) comprises the entire agreement between the parties in relation to your duties and the vehicle repair services, and supersedes any representations, negotiations, writings, memoranda and other agreements, including any of your documents in relation to the vehicle repair services.
    4. Severability and inconsistency: Any provision of this agreement that is illegal, void or unenforceable will not form part of this agreement to the extent of that illegality, voidness or unenforceability. The remaining provisions of this agreement will not be invalidated by an illegal, void or unenforceable provision.
    5. Variation: We may vary this agreement by notice to you. If you continue to undertake your duties and perform the vehicle repair services after such notice, you accept the variation and you are bound by it. This agreement may also be varied by the written agreement of both of us.
    6. Waiver: Failure or omission by us at any time to enforce or require strict or timely compliance with any provision of this agreement will not affect or impair that provision in any way or the rights and remedies that we may have in respect of that provision.
    7. Applicable law: This agreement is governed by and construed in accordance with the law for the time being in force in New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales
  19. Dispute Resolution
    1. If a bona fide dispute arises out of, or connection with this agreement, then either party may notify the other party in writing of the dispute providing sufficient detail to identify the nature of the dispute and the reasonable basis for the dispute.
    2. Without limiting a party's right to seek urgent injunctive relief, the parties will attempt in good faith to resolve any dispute or claim arising out of, or in relation to this agreement. Within two (2) business days after notice has been given under clause 19.1, the parties will meet at least once to undertake genuine negotiations by representatives of each party with authority to settle the dispute.
    3. If resolution of the dispute is not achieved by a meeting of each party's representatives in clause 19.2, then either party may take legal proceedings to resolve the dispute.
    4. Notwithstanding the existence of a dispute, each party will continue to perform their respective obligations under the agreement.
  20. Modern Slavery
    1. You must not engage in any of the following practices in connection with providing your vehicle repair services:
      1. trafficking in persons, being the recruitment, harbouring and movement of any person for the purposes of exploitation through modern slavery;
      2. slavery, being the exercise of powers of ownership over any person;
      3. servitude or forced labour, being the restriction of any person’s personal freedom to stop working for you or leave their place of work;
      4. debt bondage, where any person’s services are pledged as security for a debt and the debt is manifestly excessive or the person’s services are not applied to liquidate the debt, or the length and nature of the services are not limited and defined; or
      5. deceptive recruiting for labour or services, where any person is deceived about whether they will be exploited through a type of modern slavery.