Platform Terms

Last Updated: March 28th, 2024

1. Platform and Services

Use of Platform
1. These Terms and Conditions apply to Service Providers and Customers who wish to use the Platform.
2. When you read these Terms and Conditions, you will see that there are:
  1. terms that apply to both Service Providers and Customers. Where this is the case, the Terms and Conditions refer to “you” or “your”;
  2. terms that only apply to Service Providers. Where this is the case, the Terms and Conditions refer to “Service Provider”;
  3. terms that only apply to Customers. Where this is the case, the Terms and Conditions refer to “Customer”; and
  4. terms that only apply to us. Where this is the case, the Terms and Conditions refer to “we”, “us” or “our”.
3. You should read the entire Terms and Conditions and our Privacy Policy carefully before you use the Platform or any of the Services.
4. By using the Platform, you expressly represent and warrant that you are agreeing to accept and comply with these Terms and Conditions.
Who can use the Platform?
1. The Platform offers Service Providers with a transaction and project management platform that enables Service Providers to:
  1. create a Project for a specific Customer;
  2. set the Release Conditions and payment requirements for the Project;
  3. access escrow services for Project Funds; and
  4. manage the payment for the Project.
2. To use the Platform, a Service Provider must first open a Witzer Wallet in accordance with clause 5. Once a Service Provider has opened a Witzer Wallet, it can create a Project in accordance with clause 1.3. There is no limit on the number of Projects a Service Provider can create in the Platform.
3. Once a Service Provider has created a Project it can then invite a Customer to use the Platform, open a Witzer Wallet, accept a Project and manage Project Funds.
Creation of a Project
1. In order to use the Platform, the Service Provider must create a Project on the Platform. To create a Project, the Service Provider must provide all information requested on the Platform for Project creation including (but not limited to):
  1. the details and scope of the Project;
  2. attaching any Project Documents;
  3. the total amount of Project Funds required to be paid for the Project;
  4. the value of the Commitment Amount; and
  5. the Release Conditions.
2. Following the creation of a Project, the Service Provider must provide the required details of the Customer into the Platform. Before uploading any Customer details in the Platform, the Service Provider will ensure that it is permitted to do so under the Project Documents or has otherwise notified the Customer that its details will be uploaded in the Platform and referred the Customer to our Privacy Policy.
3. The Platform will generate an invitation to the Customer to create a Witzer Wallet, join the Platform, review the Project and then be linked to the Project. To share the link with the Customer, the Service Provider must copy the link and send it directly to the Customer either via email or text message.
4. Before a Customer can use the Platform or accept a Project, it must open a Witzer Wallet under clause 5. Once the Customer has opened a Witzer Wallet it can review and accept a Project.
5. Once a Customer has opened a Witzer Wallet in accordance with clause 5 and accepted an invitation to join a Project from the Service Provider, the Customer will be linked to that Project.
Project Funds
1. Once a Project has been created by a Service Provider and a Customer has opened a Witzer Wallet and accepted a Project, the Customer is able to pay Project Funds into the Platform in accordance with clause 2, which are held in escrow until the Release Conditions have been met and agreed by both the Customer and Service Provider.
2. Once the Release Conditions have been met, we will release the proportion of the Project Funds that relate to the Release Conditions to the Service Provider.
Amending, varying, changing or cancelling a Project
1. If a Customer and Service Provider agree to amend, vary, alter or otherwise change the agreed Project, including any changes to the Project Funds, Milestone Payments, Commitment Amount, Project Documents or Release Conditions, the changes must be updated in the Platform and Project and agreed by both the Customer and Service Provider.
2. If a Customer and Service Provider agree to cancel a Project, this must be updated in the Platform and agreed by both the Customer and the Service Provider using the project cancellation feature as follows:
  1. Where no Project Funds have been drawn down in accordance with clauses 2, 3 or 4 and the Service Provider has not commenced providing services to the Customer, the Service Provider and Customer have the Cancellation Period to agree on the distribution of Project Funds or make a claim in respect of the Project Funds. Once the Cancellation Period expires, we will cancel the Project and:
    1. all Project Funds will be refunded to the Customer unless a different distribution was agreed, or a claim was made, during the Cancellation Period;
    2. if a different distribution is agreed, we will distribute the Project Funds in accordance with that agree distribution;
    3. if a claim was made by the Service Provider during the Cancellation Period (Cancellation Claim), the Customer has a further 10 business days to consider whether to accept the Cancellation Claim. We will only pay a Cancellation Claim to the Service Provider if the Customer has agreed to pay the claim using the functionality in the Platform. If the Customer doesn’t agree to a Cancellation Claim, then the Project Funds will be returned to the Customer and the Customer and Service Provider must resolve any dispute in relation to the Cancellation Claim outside of the Platform;
    4. if a Service Provider or Customer lodges a Tribunal Dispute during the Cancellation Period, notifies us of the Tribunal Dispute and provides us with any evidence we reasonably require to evidence the existence of the Tribunal Dispute, then clause 1.6 applies.
  2. Where the Project is cancelled after the Service Provider has commenced providing services to the Customer and for which Project Funds are held in the Platform, the Project Funds will be applied as follows:
    1. Project Funds that have not been credited to the Service Provider’s Witzer Wallet under clause 4, the Service Provider and Customer must agree as to how these Project Funds should be paid during the Cancellation Period. Once the Cancellation Period expires, we will cancel the Project and:
      1. if a distribution is agreed, we will distribute the Project Funds in accordance with that agree distribution;
      2. If, during the Cancellation Period, the Service Provider updates the Project under clause 4 and makes one or more requests in relation to Milestone Payments, then the Customer has a further 10 business days to review all the requests made under clause 4 and either confirm that the Release Conditions are satisfied or deny the request for all Milestone Payments. If the Customer,
        agrees the Release Condition is satisfied for a Milestone Payment, the Milestone Payment will be credited to the Service Provider’s Witzer Wallet and any balance in the Project Funds will be refunded to the Customer; and
        
        rejects the Release Condition for a Milestone Payment, we will not credit the Milestone Payment to the Service Provider’s Witzer Wallet and the Service Provider and Customer must resolve any dispute in relation to the Milestone Payment outside of the Platform.

For the avoidance of doubt, the above process will be followed for each request made in respect of a Milestone Payment by the Service Provider as part of the cancellation process.

if a Service Provider or Customer lodges a Tribunal Dispute during the Cancellation Period, notifies us of the Tribunal Dispute and provides us with any evidence we reasonably require to evidence the existence of the Tribunal Dispute, then clause 1.6 applies.
Project Funds that have been credited to the Service Provider’s Witzer Wallet will be paid to the Service Provider after a Withdrawal Request has been made under clause 4.2.

On cancellation of the Project or any time beforehand, the Service Provider may request payment of any funds credited to its Witzer Wallet via a Withdrawal Request under clause 4.2.

Tribunal Disputes
1. A Service Provider or Customer may lodge a Tribunal Dispute at any time outside of this Platform in relation to any proposed or actual payment of Project Funds in accordance with these Terms and Conditions.
2. If a Service Provider or Customer lodges a Tribunal Dispute before a payment has been made in accordance with this these Terms and Conditions, then we will:
  1. distribute any Project Funds that are not Disputed Funds otherwise in accordance with these Terms and Conditions;
  2. hold all Disputed Funds until a copy of the Tribunal Decision has been provided to us by either the Service Provider or Customer; and
  3. only distribute Disputed Funds in accordance with Tribunal Decision. We will distribute the Disputed Funds in accordance with the Tribunal Decision regardless of whether they may be any rights to appeal the Tribunal Decision.
3. If a Service Provider or Customer lodges a Tribunal Dispute after a payment has been made in accordance with this these Terms and Conditions, then:
  1. we will only distribute Disputed Funds if we are holding Project Funds and such distribution will not cause the Commitment Amount to fall below the required level;
  2. will not distribute Dispute Funds if we are not holding Project Funds or such distribution will cause the Commitment Amount to fall below the required level; and
  3. if we do not make a payment under clause 1.6(c)(ii), any recovery of the Disputed Funds must be managed by outside of the Platform and we will not be responsible or liable for any loss that a person may suffer if it cannot recover the Disputed Funds in accordance with a Tribunal Decision.
Project Documentation

A Service Provider and Customer must separately agree to the Project Documentation before creating a Project in the Platform. The Platform is not a substitute for preparing and agreeing to the Project Documentation and does not constitute or document any legal relationship between the Service Provider and Customer in relation to the provision of any goods or services. The Platform is merely a tool to assist with the project management of the Project and to facilitate the payment for the services provided. We are not under any duty or obligation to inquire into or verify the terms and provisions of any Project Documentation. It is the sole responsibility of the Service Provider and Customer to review and confirm that the details for a Project are correct and reflect the Project Documentation (as amended from time to time).

Project Disputes

The Customer and Service Provider are solely responsible for settling any disputes between them relating to the provision of goods or services by the Service Provider, the Project Documents, the Release Conditions, the value of the Project Funds, Commitment Amount, Milestone Payments or any other aspect of the Project. The Customer and Service Provider will release and hold us harmless in respect of any such dispute and we will not be liable for any loss the Service Provider or Customer experience.

2. Project Funds

Customer to provide Project Funds
1. Once the Customer has accepted a Project, the Customer must transfer any required Project Funds to their Witzer Wallet using one of the accepted payment methods detailed in the Platform from time to time.
2. Once we receive the Project Funds, we will credit the cleared Project Funds to the Customer’s Witzer Wallet and will act as escrow agent over the Project Funds in the Platform until the Release Conditions have been met and approved in accordance with clause 4.
3. The Service Provider is not entitled to and cannot access any Project Funds until the Release Conditions have been met and approved in accordance with clause 4.
4. The Platform will provide a record of any Project Funds that are processed in accordance with clause 2.1(a).
Commitment Amount
1. The Customer must ensure that at all times the amount of Project Funds in the Platform does not fall below the Commitment Amount.
2. If the amount of the Project Funds in the Platform falls below the Commitment Amount and there are unpaid Milestone Payments, the Platform will provide a notification to the Service Provider and Customer specifying the amount that the Customer must transfer to the Platform to ensure that the amount of Project Funds held in the Customer’s Witzer Wallet is at least equal to the Commitment Amount for the remaining Milestone Payments.
3. The Platform will provide a record of any transactions processed in accordance with clause 2.2(b).
Holding of Project Funds

While the Project Funds are held in escrow, we will hold and disburse, and otherwise exercise exclusive control over the Project Funds on the terms and conditions set out in these Terms and Conditions.

3. Escrow Conditions

Release of Funds

After receiving an instruction (otherwise than in accordance with clause 10.2) from both the Service Provider and the Customer that the Release Conditions for a Milestone Payment have been met, we will release from the Commitment Amount the relevant Milestone Payment and credit this amount to the Service Provider’s Witzer Wallet. Once this amount has been credited to the Service Provider’s Witzer Wallet, those funds belong to the Service Provider and the Service Provider can request payment of those funds in accordance with clause 4.

Re-payment of Project Funds early
1. The Customer may request for any amount of Project Funds held in the Platform to be refunded to the Customer.
2. We will process a request made in accordance with clause 3.2(a) provided that:
  1. any requested refund does not cause the Project Funds to fall below the Commitment Amount; and
  2. any requested refund does not relate to funds that have been credited to the Service Provider in accordance with clause 3.1.
3. If a request under clause 3.2(a) will cause the Project Funds held in the Platform to fall below the Commitment Amount, we will only refund the difference between the Project Funds held in the Witzer Wallet and the Commitment Amount. We will not be able to process any refund request if the Project Funds are equal to or less than the Commitment Amount unless both the Service Provider and Customer agree to amend the required Commitment Amount using the functionality provided in the Platform.
Duration of holding funds

The Project Funds will be held in the Platform until otherwise dealt with in accordance with these Terms and Conditions.

4. Milestone Payments

Confirmation
1. When the Service Provider updates the Project to confirm that they have provided goods or services which trigger a Release Condition for a Milestone Payment, the Customer will be notified to confirm the Release Condition has been met.
2. Once the Release Condition is confirmed by both the Customer and the Service Provider, we will debit the amount of the Milestone Payment from the Customer’s Witzer Wallet and will credit the amount to the Service Provider’s Witzer Wallet.
3. Once the Service Provider and Customer confirm the Release Condition and the Milestone Payment is accepted and approved, this is final and cannot be cancelled or changed. Any dispute in relation to this Milestone Payment must be separately resolved outside of the Platform by the Service Provider and Customer.
Withdrawal Request
1. The Service Provider can request payment of any amount credited to their Witzer Wallet under clause 4.1 by making a Withdrawal Request.
2. Before we process a Withdrawal Request, the Service Provider must nominate the bank account for payment and must confirm that the bank account details provided are correct. We will usually process a Withdrawal Request within 2 business days of receiving it. It may take up to 4 business days for the Service Provider to receive cleared funds in its nominated bank account. These timeframes are indicative only and not service standards. We will endeavour to process Withdrawal Requests in a timely manner. However, please note that the receipt of cleared funds is managed by banks and payment providers, which is outside of our control. We are not responsible or liable for any delay in the receipt of cleared funds payable in respect of a Withdrawal Request.
Errors
1. It is the sole responsibility of the Customer and Service Provider to ensure that the Release Conditions have been met and that the Milestone Payment amount is correct. We are not responsible for any overpayment or underpayment (including rectifying any such overpayment or underpayment), except where we are directly responsible due to an error with or in the Platform. You indemnify and hold us harmless in respect of any liability arising as a result of any overpayment or underpayment to any person.
2. If you are required to provide bank account details in connection with any payment under these Terms and Conditions, it is your sole responsibility to ensure that the nominated bank account details provided are correct. You indemnify and hold us harmless in respect of any liability arising as a result of any payment we process to the incorrect bank account where you have provided the incorrect bank account details to us. While we will endeavour to help recover any funds paid to the wrong bank account, we are under no obligation to compensate you or pay any additional amounts to you where you have provided the incorrect bank details.

5. Witzer Wallet

Eligibility and application
1. You must register for a Witzer Wallet to access the Platform.
2. A Service Provider is able to register for a Witzer Wallet via our Website.
3. A Customer is only able to register for a Witzer Wallet via our Website after being invited by a Service Provider in accordance with clause 1.3(b).
4. To be eligible to open a Witzer Wallet with us, you must be either an Entity or an individual over the age of 18 and hold an Australian bank account.
5. The Platform is only available to Service Providers located or operating in Australia and to Customers who are located in Australia.
6. When applying for a Witzer Wallet, you must provide any additional information reasonably requested by us in order for us to provide complete access to the Platform, including all information we require to comply with our Privacy Policy, any Relevant Laws and any other internal policieserr or procedures. This may include the collection of certain identification documents.
Agency
1. You warrant that if you are creating a Witzer Wallet on behalf of an Entity you are authorised to create a Witzer Wallet and to use the Platform as an agent of the Entity.
2. We may, in our complete discretion, require you to produce evidence that you are authorised to act on behalf of the Entity and you must provide us with any information we reasonably request for this purpose.
Changes
1. You may only make changes to your Witzer Wallet with our consent. We may require you to comply with additional security procedures before we consent to making any changes. No changes to your Witzer Wallet are taken to have occurred until you have received confirmation of such changes.
2. We are not responsible for any loss that you suffer due to a delay in us providing you with the required confirmation of changes made to your Witzer Wallet.
Use of Witzer Wallet
1. Your Witzer Wallet is to be used only by the Witzer Wallet holder. Use of your Witzer Wallet by any person not approved by us is a breach of these Terms and Conditions.
2. You may not assign or otherwise transfer your Witzer Wallet to any other person or entity, without our express written consent.
3. You are solely responsible for maintaining and protecting the confidentiality and security of your Witzer Wallet (including, but not limited to, your log-in credentials, two factor authentication device, email Witzer Wallets, bank account details, phone number and any other information provided in connection with your Witzer Wallet).
4. We are not responsible or liable for any unauthorised access to, or use of, your Witzer Wallet (even where you may not be aware of such unauthorised access) except to the extent we have failed to take reasonable steps to secure the Platform.

6. Maintaining Your Witzer Wallet

Obligations
1. You must not:
  1. Knowingly or recklessly provide us with false, misleading, inaccurate or incomplete information;
  2. Use our Platform for the purpose of obtaining, processing, distributing, viewing, assessing, analysing, copying or replicating any information, methods or processes related to the Platform (including without limitation by way of data scraping, the use of collection or accumulation tools and robotic or scripted responses);
  3. Reverse engineer, disassemble or otherwise attempt to construct, copy or replicate the Platform’s source code, formulas or processes;
  4. Interfere with the security of the Platform or the secure and safe use of the Platform by any other Witzer Wallet holder (including without limitation by way of distributing viruses, corrupted files or other similar software or programs that may damage the operation of any computer hardware or software or which are otherwise directed at the Platform);
  5. Use the Platform for any purpose that is unlawful or prohibited or in a way which infringes the intellectual property rights or other rights of any person (including us);
  6. Knowingly or recklessly use or take advantage of a process, technical or technological error, loophole or glitch on the Platform;
  7. Use the Platform or the information contained in it for commercial purposes which are competitive to the Platform or our business or which would otherwise be detrimental or prejudicial to our interests in any way;
  8. Use systematic, repetitive or other related methods which are designed to generate or obtain repetitive and repeated amounts of data or other information from or to the Platform or which may otherwise place an unreasonable load on the infrastructure of the Platform;
  9. Publish, post, distribute, disseminate or send ‘spam material’ or engage in any communication that is offensive, false, unlawful, defamatory, indecent, unfair or inappropriate in any way to others, which would reasonably be considered ‘spam’ or which is deliberately false, misleading, or deceptive (or likely to mislead or deceive);
  10. Collect or store personal data about other Witzer Wallet holders of the Platform, unless you are expressly permitted to do so under any Project Documentation or have obtained consent from the Witzer Wallet holder in accordance with the Relevant Law; or
  11. Do anything else which may interfere with or negatively affect the operation of our Platform or other Witzer Wallet holders.
2. You agree that you will not use any Witzer Wallet other than your own Witzer Wallet, access the Witzer Wallet of another Witzer Wallet holder or assist others in obtaining unauthorised access. If you use or obtain access to a Witzer Wallet, other than your own, this will result in immediate suspension and possible termination of your Witzer Wallet and the other Witzer Wallet holders Witzer Wallet. Where we suspend or terminate the Service Provider’s Witzer Wallet in this instance under clause 10, the Service Provider will not be able to create any new Projects and we will not be able to process any Project Funds that we hold in the Platform. Where we suspend or terminate the Customer’s Witzer Wallet in this instance, the Customer will not be able to pay any Project Funds into the Platform or approve any Release Conditions. A party may also be held liable for any losses incurred by us or any other Witzer Wallet holder. If a Project is not complete, the Service Provider and Customer must agree as to how the Project Funds are returned. If the Service Provider and Customer cannot agree we will return the Project Funds to the Customer within 28 business days of any such suspension or termination.
3. Where you violate or breach our Terms and Conditions, we may suspend or terminate your Witzer Wallet. Where we suspend or terminate the Service Provider’s Witzer Wallet in this instance under clause 10, the Service Provider will not be able to create any new Projects and we will not be able to process any Project Funds that we hold in the Platform. Where we suspend or terminate the Customer’s Witzer Wallet in this instance, the Customer will not be able to pay any Project Funds into the Platform or approve any Release Conditions.
4. We encourage you to report any problems or vulnerabilities with our Platform.

7. Obligations

Customer Obligations
1. The Customer must:
  1. ensure that it complies with all Relevant Laws in fulfilling their obligations or providing any services under these Terms and Conditions;
  2. perform its obligations under these Terms and Conditions in a timely, professional, ethical and businesslike manner;
  3. provide all information, assistance and access which is reasonably required for the Service Provider and for us to:
    1. perform any obligations under these Terms and Conditions;
    2. provide services under these Terms and Conditions;
    3. deal with any issues and complaints arising in connection with this Agreement, both during and after these Terms and Conditions;
    4. exercise any rights under these Terms and Conditions; and
    5. confirm the party is meeting its obligations under these Terms and Conditions;
  4. use reasonable endeavours to ensure that neither the Service Provider nor us are delayed or adversely affected by its failure to perform its obligations in accordance with these Terms and Conditions; and
  5. not do anything that diminishes the business reputation or damages the brand name of the Service Provider or us. This obligation survives expiry or termination of these Terms and Conditions.
Service Provider Obligations
1. The Service Provider must:
  1. ensure that it complies with all Relevant Laws in fulfilling their obligations or providing any services under these Terms and Conditions;
  2. perform its obligations under these Terms and Conditions in a timely, professional, ethical and businesslike manner;
  3. provide all information, assistance and access which is reasonably required for the Customer and for us to:
    1. perform any obligations under these Terms and Conditions;
    2. provide services under these Terms and Conditions;
    3. deal with any issues and complaints arising in connection with this Agreement, both during and after these Terms and Conditions;
    4. exercise any rights under these Terms and Conditions; and
    5. confirm the party is meeting its obligations under these Terms and Conditions;
  4. use reasonable endeavours to ensure that neither the Customer nor us are delayed or adversely affected by its failure to perform its obligations in accordance with these Terms and Conditions; and
  5. not do anything that diminishes the business reputation or damages the brand name of the Customer or us. This obligation survives expiry or termination of these Terms and Conditions.
Our Obligations
1. We must:
  1. ensure that we comply with all Relevant Laws in fulfilling our obligations or providing any services under these Terms and Conditions;
  2. perform our obligations under these Terms and Conditions in a timely, professional, ethical and businesslike manner;
  3. provide all information, assistance and access which is reasonably required for the Customer and for the Service Provider to:
    1. perform any obligations under these Terms and Conditions;
    2. provide services under these Terms and Conditions;
    3. deal with any issues and complaints arising in connection with this Agreement, both during and after these Terms and Conditions;
    4. exercise any rights under these Terms and Conditions; and
    5. confirm the Service Provider and Customer are meeting their obligations under these Terms and Conditions;
  4. use reasonable endeavours to ensure that neither the Customer nor us are delayed or adversely affected by its failure to perform its obligations in accordance with these Terms and Conditions; and
  5. not do anything that diminishes the business reputation or damages the brand name of the Customer or us. This obligation survives expiry or termination of these Terms and Conditions.

8. Fees and Interest

Platform Fee

The Service Provider is responsible for paying our Platform Fee each month.

Service Fees

The Service Provider is responsible for paying any applicable Service Fees each month.

Interest
1. In exchange for the Services being provided, we will be entitled to any interest earned on the Project Funds in the Platform. You will not be entitled to any interest earned on the Project Funds.
2. We will be responsible for the payment of all bank fees, costs or charges for maintaining or transacting from the Platform.
Changes

We may change our Platform Fee at any time by providing you with 30 days’ written notice in accordance with clause 19(b). The new Platform Fee will be applied the next month after expiry of the notice. You may terminate these Terms and Conditions under clause 10 if you don’t agree to any change to our Platform Fee.

9. No Encumbrance

At no time will the Customer or Service Provider or any other person be entitled to any security interest, lien, right, claim or action whatsoever in respect of or in relation to the Project Funds. The Customer and Service Provider is only entitled to payment in accordance with these Terms and Conditions.

10. Termination

Termination rights
1. You may close your Witzer Wallet at any time, provided that you do not have any active Projects, and provided you comply with any Witzer Wallet closure requirements. If you have any active Projects, you will need to cancel these Projects in accordance with clause 1.5 before your Witzer Wallet can be closed. The Project Funds for each cancelled Project will dealt with in accordance with clause 1.5.
2. We may suspend, limit, restrict, deactivate or terminate your access to the Platform, including your Witzer Wallet, if:
  1. You gain or attempt to gain unauthorised access to the Platform or another Witzer Wallet holder’s Witzer Wallet;
  2. There is a technical or operational difficulty;
  3. You use, or we reasonably suspect you of using, the Platform in order to perform illegal or criminal activities, fraud or financial crime including any breach of the laws regarding sanctions and bribery;
  4. Your use of the Platform is subject to any pending investigation, litigation or government proceeding;
  5. You fail to pay or fraudulently pay for any transactions;
  6. We are unable to support your use;
  7. We have concerns about the security of your Witzer Wallet or that a transaction is suspicious, fraudulent, erroneous or illegal;
  8. You take any action that may circumvent these Terms and Conditions or our control by abusing any promotions, rewards or referral programs that we may offer at any given time;
  9. You breach any terms of this Terms and Conditions or our Privacy Policy;
  10. You falsify information in relation to your Witzer Wallet or you mislead us (including by omitting information we reasonably require) in relation to opening or administering your Witzer Wallet; and
  11. We receive a request from a law enforcement or government agency to do so.
3. Where a Witzer Wallet is suspended, limited, restricted, deactivated or terminated, we will:
  1. If the Witzer Wallet is a Service Provider Witzer Wallet, we will only pay funds credited to the Service Provider’s Witzer Wallet as if a Withdrawal Request has been made under clause 4.2 and will not process any further Milestone Payments;
  2. If the Witzer Wallet is the Customer’s Witzer Wallet, we will not process any further Milestone Payments and the Service Provider and Customer must agree on how the Project Funds should be paid if the Release Conditions have not been met. If the Service Provider and Customer cannot agree, we will return the Project Funds to the Customer within 10 business days of any such suspension or termination.
Procedures on termination
1. If you have any funds credited or returned to your Witzer Wallet in accordance with clause 10.1, we will pay these funds to your linked or nominated bank account on of your Witzer Waller.
2. If you want to retain a copy of any information uploaded or submitted to a Project, you must download a copy of this information before your Witzer Wallet is closed.

11. Platform Updates

Updates to Platform

We may implement an update or upgrade to any part of the Platform from time to time during scheduled maintenance windows and will notify you in advance if any such update or upgrade will materially impact the usage of the Platform.

12. Warranties

Warranties

To the maximum extent permitted by law, we do not provide any warranty in relation to your use of the Platform and we do not provide any warranty that the information displayed on our Platform is up-to-date, accurate or complete.

Consumer Rights

As a consumer, you have certain rights under the Competition and Consumer Act 2010 (Cth) (Consumer Rights). These Consumer Rights include statutory guarantees under the Australian Consumer Law that goods will be of acceptable quality, match their description and be fit for any purpose made known to the consumer, and that services supplied will be provided with due care and skill and be reasonably fit for any specified purpose. When a statutory guarantee is breached, consumers are entitled to a range of remedies including, in some cases, damages for reasonably foreseeable losses. Nothing in these Terms and Conditions is intended to exclude, restrict, or modify any of your Consumer Rights, including by limiting our liability or imposing liability on you in a manner which would be considered unfair under the relevant consumer protection laws.

13. Indemnity

Your indemnity
1. To the maximum extent permitted by law, you hereby agree to indemnify us, and our partners, officers, directors, employees and agents against any action, liability, cost, claim, demand, loss, damage, proceeding or expense (Loss) of any nature arising under tort, statute, equity, contract or some other cause of action that we suffer as a result of:
  1. your negligent or wrongful acts or omissions;
  2. your breach of any law, regulation or rules;
  3. any damage that you cause to our Platform or any other Witzer Wallet holder, person or Entity;
  4. your use of the Platform or Services; or
  5. your violation of these Terms and Conditions or Privacy Policy,

but you will not be liable for any Loss to the extent such Loss is the direct result of our negligent or wrongful acts or omissions.

Our indemnity
1. To the maximum extent permitted by law, we hereby agree to indemnify you, and your partners, officers, directors, employees and agents against any action, liability, cost, claim, demand, loss, damage, proceeding or expense (Loss) of any nature arising under tort, statute, equity, contract or some other cause of action that you suffer as a result of:
  1. our negligent or wrongful acts or omissions;
  2. our breach of any law, regulation or rules; or
  3. our violation of these Terms and Conditions or Privacy Policy,

but we will not be liable for any Loss to the extent such Loss is the direct result of your negligent or wrongful acts or omissions.

Survival

This clause 13 will survive the expiry or termination of these Terms and Conditions.

14. Limitation of liability

No liability

Under no circumstances, will we be liable for any loss that you may experience or suffer as a result of any of the following:

any details of the Project being incorrect, incomplete, out of date or not reflecting the Project Documentation (as amended from time to time);
a Project Dispute under clause 1.7;
any errors under clause 4.3, unless the error directly resulted from or in the Platform;
for taking any actions permitted under these Terms and Conditions for a breach of these Terms and Conditions;
the quality of the good or service provided by the Service Provider in connection with the Project; or
any other matter relating to the Project that does not specifically relate to the Services that we provide under these Terms and Conditions.
Liability Cap
1. Our total aggregate liability to you under these Terms and Conditions is limited to:
  1. For the Service Provider, the sum of all Withdrawal Requests that the Service Provider is entitled to in the 12 month period (or part thereof) prior to the liability arising
  2. For the Customer, the total of all Project Funds paid by the Customer into the Platform in relation to a Project in the 12 month period (or part thereof) prior to the liability arising.
2. Your total aggregate liability under these Terms and Conditions is limited to:
  1. For the Service Provider, the sum of all Withdrawal Requests that the Service Provider is entitled to in the 12 month period (or part thereof) prior to the liability arising
  2. For the Customer, the total of all Project Funds paid by the Customer into the Platform in relation to a Project in the 12 month period (or part thereof) prior to the liability arising.
Exclusion for Consequential Loss
1. Each party will not have any liability to any other party for fines, penalties, taxes (except GST) and any exemplary, aggravated or punitive damages, liquidated damages or any indirect or consequential loss (including but not limited to loss of business, loss of revenue, loss of contract, loss of production, lost opportunity costs), legal costs and expenses (except reasonable legal costs awarded by a court) arising in relation to these Terms and Conditions.
2. These Terms and Conditions do not govern liability for any loss in respect of the Project and any liability, indemnity or exclusion in relation to a Project must be separately agreed by the Service Provider and Customer and documented in the Project Documents.
Exclusion

The liability cap in clause 14.1 does not apply to:

clause 15 (Intellectual Property);
clause 16 (Privacy);
any liability arising from grossly negligent, intentionally wrongful or fraudulent acts or omission of a party; and
a claim by a third party that the use of the Platform, in accordance with these Terms and Conditions, infringes a third party’s intellectual property rights.

15. Intellectual Property

Rights
1. We grant to you a personal, non-exclusive, non-transferable, revocable and limited right to use the Platform. We reserve all rights, title and interest not expressly granted under this licence to the fullest extent possible under law. Any use of the Platform not specifically permitted under these Terms and Conditions is strictly prohibited.
2. You acknowledge and agree that the Platform is our property and is protected by intellectual property, copyright, and other applicable laws.
3. You may view, print and/or download a copy of any materials from the Platform on any device solely for your personal, use, provided you keep intact all copyright and other proprietary notices. You agree not to modify the material on the Platform in any manner or form, or to use modified versions of the Platform or any materials on the Platform, including without limitation for the purpose of obtaining unauthorised access to the Platform.
4. You agree not to access our Services by any means other than through the Platform.
5. The trademarks, service marks, product names, company names and logos used on the Platform are either owned by us or are licensed or used with permission from a third party owner. Any third party trademark, service mark, product name, company or logo remains the property of the respective owner.
6. The software, text, images, graphics, data, prices, transactions, charts, graphs, video, audio or other similar information used, displayed or otherwise made available on the Platform belong to us or is available to us under licence, unless otherwise stated. This information should not be copied, reproduced, modified, republished, uploaded, posted, transmitted, scraped, collected, or distributed in any form or by any means, whether manual or automated.

16. Privacy

Privacy Policy
1. When you use the Platform, we will collect personal information about you.
2. We agree to only use the Personal Information provided for the purposes of providing the Services, offering the Platform or exercising any rights that we may have under these Terms and Conditions or at law.
3. We will take all reasonable steps to ensure that the Personal Information is protected against misuse and loss, or unauthorised access, modification or disclosure.
4. We will collect, store, use or disclose any Personal Information in accordance with our Privacy Policy and Privacy Collection Notice on our Website.

17. Complaints

Complaints

If you have any general inquiries or wish to make a complaint about the Platform or our Servies or are in need of any technical assistance, please follow the relevant instructions in the Platform in order to contact us.

18. Dispute Resolution

Disputes

If a dispute (Dispute) arises out of or relates to these Terms and Conditions in relation to the operation of the Platform or our Service, a part may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause 18 except where the party seeks urgent interlocutory relief.

Notice of Dispute

A party to these Terms and Conditions claiming that a Dispute has arisen under or in relation to these Terms and Conditions must give written notice to the other relevant parties to the Dispute specifying the nature of the Dispute.

Parties must endeavour to resolve

On receipt of that notice by that relevant parties, the parties must endeavour to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them.

Referral to mediation

If the parties do not agree within five (5) business days of receipt of the notice (or such further period as agreed in writing by them) as to:

The dispute resolution technique and procedures to be adopted;
The timetable for all steps in those procedures; and
The selection and compensation of the independent person required for such
technique, the parties must mediate the Dispute with the Australian Disputes Centre (ADC).
Process for mediation
1. Any mediation required under this clause 18 is to be conducted in accordance with ADC Mediation Guidelines which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and which terms are deemed incorporated.
2. The parties to the Dispute will share the costs of the mediator and of the mediation (apart from costs of their own representation, if any) in equal shares.
3. At the conclusion of the mediation, the parties to the Dispute are not precluded from commencing legal proceedings or pursuing any other legal rights they may have in respect of the Dispute.

19. Miscellaneous

The Terms and Conditions which are current (as evidenced by being published on the Platform) on the date you view them on the Platform supersede all prior versions.
We will provide any required notices under these Terms and Conditions, using the email address provided when creating your Witzer Wallet. You may provide us notice using the contact information on our Website from time to time.
If any provision of the Terms and Conditions is held to be invalid, unenforceable or illegal for any reason, the remaining parts of the Terms and Conditions will be in full force and effect.
Nothing in these Terms and Conditions seeks to prevent us from complying with any reasonable direction made by any government regulator or entity and you acknowledge and agree that we may not be able to notify you of any action we are required to undertake as a result of a direction from a government regulator or entity.
We will not be held liable if we are unable to perform any obligations in these Terms and Conditions due to circumstances out of our control, including but not limited to, change of law, regulations or policy, a payment network being unavailable, or a Force Majeure Event.
These Terms and Conditions are governed by the laws of the State of Queensland and in the event that we have a legal dispute relating to this Platform or these Terms and Conditions, the courts of Queensland will have non-exclusive jurisdiction.

20. Definitions and interpretation

Definitions

The following words have these meanings in these Terms and Conditions unless the contrary intention appears:

API means an application programming interface, which is made available by us from time to time.

App means a mobile application made available by us that can be downloaded from the Apple App Store, Google Play Store or any other app store or market from time to time.

Cancellation Period means 28 business days.

Commitment Amount means the minimum amount of the Project Funds that must be held in the Platform for the duration of the Project.

Customer means a customer of the Service Provider.

Disputed Funds means, in relation to a Project, any dispute in relation to the payment of Project Funds in accordance with these Terms and Conditions.

Entity means one of the following:

a sole trader with an ABN;
a proprietary company;
an unlisted public company;
a listed public company;
a trust;
a partnership;
an association; or
a cooperative.

Force Majeure Event means any of the following causes provided that they are outside the reasonable control of the affected party and could not have been prevented or avoided by that party taking all reasonable steps:

an act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought or meteor;
war (declared or undeclared), invasion, act of a foreign enemy, act of terrorism, hostilities between nations, civil insurrection or militarily usurped power;
act of public enemy, sabotage, malicious damage, terrorism or civil unrest;
confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority;
industrial action not specific to a party; or
suspension of the provision or receipt of the Services (or part thereof) required by a Relevant Law or as a result of any order, proclamation, direction or similar act of any government agency or body in response to, or related to an epidemic or a pandemic.

Milestone Payment means a payment for completion of an agreed part of the Project.

Platform means the Website, App or any other API that is made available by us from time to time.

Platform Fee means the monthly subscription fee for access to the Platform notified by us from time to time.

Personnel means employees, officers, agents or subcontractors.

Personal Information has the meaning given in the Privacy Act 1988 (Cth).

Privacy Policy means the privacy policy that we have available on our Website from time to time, accessible at https://www.witzer.com.au/privacy.

Project means the provision of any good(s) and / or service(s) that is separately agreed between the Service Provider and Customer outside of the Platform, which is documented in the Project Documents.

Project Document means an agreement, quote, plans, drawings, invoice or any combination of these things that document the terms agreed between a Service Provider and Customer in relation to the scope and delivery of a Project.

Project Funds means the total value of the Project, being the sum of all Milestone Payments.

Release Conditions means the conditions agreed between the Customer and the Service Provider for the release of a Milestone Payment.

Relevant Law means any law, regulation, code, ordinance, rule or other legislative instrument, or any guideline issued by any regulator or statutory authority or any relevant industry codes including, without limitation the Corporations Act 2001 (Cth) and the Competition and Consumer Act 2010 (Cth).

Services means transaction and project management platform and escrow services.

Service Fees means fees payable by the Service Provider for the provision of any services we provide to the Service Provider (excluding the Servies) as agreed by us and the Service Provider from time to time.

Service Provider means a provider of goods or services to a Customer.

Terms and Conditions means these terms and conditions available from time to time on our Website.

Tribunal means any state or territory tribunal, court, ombudsman or other independent body in Australia that may adjudicate or hear any disputes relating to Projects.

Tribunal Decision means a decision of a Tribunal in relation to a Tribunal Dispute.

Tribunal Dispute means a dispute in relation to Project that may impact the payment of Project Funds in accordance with these Terms and Conditions.

Website means the internet site at the domain https://app.witzer.com.au/ or any other site or operated by us.

We, us or our means Witzer Ops Pty Ltd, ACN 661 719 553

Withdrawal Request means a request made by a Service Provider using the functionality in the Platform to have any funds credited to their Witzer Wallet transferred to the Service Provider’s nominated bank account.

Witzer Wallet means the account created to enable you to access and use the Platform.

You or your means either a Service Provider or Customer (as applicable).

Interpretation

In the interpretation of these Terms and Conditions, the following provisions apply unless the context otherwise requires:

headings are inserted for convenience only and do not affect the interpretation of these Terms and Conditions;
a reference in these Terms and Conditions to a business day means a day other than a Saturday or Sunday on which banks are open for business generally in Queensland;
if the day on which any act, matter or thing is to be done under these Terms and Conditions is not a business day, the act, matter or thing must be done on the next business day;
a reference in these Terms and Conditions to dollars or $ means Australian dollars and all amounts payable under this document are payable in Australian dollars, unless stated otherwise;
a reference in these Terms and Conditions to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision;
an expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency;
where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning;
a word which denotes the singular denotes the plural, a word which denotes the plural denotes the singular, and a reference to any gender denotes the other genders; and
references to the word ‘include’ or ‘including are to be construed without limitation.