Using the Platform the User has requested, and the Provider has accepted, to provide the Services for the Agreed Fee. The provision of those Services will be governed by the terms set out in this Agreement and the applicable Supplementary Service Terms.
TERMS OF SERVICE
1. Definitions and Interpretation
1.1 In this Agreement unless the context otherwise requires:
Agreed Fee means the fee agreed by the User and Provider for the Services on the Platform.
Agreement means this agreement between the User and the Provider.
Delivery Time means the date and time for the provision of the Services accepted by the User and the Provider on the Platform.
Dispute means any dispute or difference between any or all of the parties concerning the subject matter of the Agreement.
Location means the location for the provision of the Services accepted by the User and the Provider on the Platform.
Platform means the Mobility platform operated by Mobility Australia Pty Ltd and accessible via web, app or mobile device.
Provider means the provider who has agreed on the Platform to provide the Services to the User.
Relevant Laws means the relevant laws set out in the applicable Supplementary Service Terms for those Services.
Services means the services requested by the User on the Platform as selected from the following categories: disability services, therapy services (otherwise known as allied health services), aged care services, babysitting services or food services.
Service Terms and Conditions means the terms and conditions set out in the Applicable Supplementary Service Terms for those Services.
Supplementary Service Terms means:
Wilful Misconduct means with respect to a party:
(a) any fraud, fraudulent concealment or dishonesty by or on behalf of that party;
(b) criminal conduct by or on behalf of that party; or
(c) any breach, act or omission done or omitted to be done by or on behalf of that party with deliberate, knowing or reckless disregard for foreseeable, harmful and avoidable consequences.
User means the applicable user requesting the provision of the Services on the Platform.
1.2 In this Agreement, unless the context otherwise indicates:
(a) references to persons include firms, corporations and any other organisation having legal capacity;
(b) words importing the singular only also include the plural and vice versa;
(c) references to any party to this Agreement include its successors or permitted assigns;
(d) headings are for convenience only and shall not be taken into consideration in the interpretation of the Agreement;
(e) references to this Agreement and any deed, agreement or instrument are deemed to include references to this Agreement or such other deed, agreement or instrument as amended, novated, supplemented, varied or replaced from time to time;
(f) words denoting any gender include all genders;
(g) references to any legislation or to any section or provision of any legislation include any:
(h) statutory modification or re-enactment of, or any statutory provision substituted for, that legislation, section or provision;
(i) ordinances, by-laws, regulations and other statutory instruments issued under that legislation, section or provision;
(j) the words “including” and “includes”, and any variants of those words, shall be read as if followed by the words “without limitation”;
(k) references to this Agreement incorporates the applicable Supplementary Service Terms; and
(l) a reference to a clause, Appendix, Part, Schedule, or exhibit is a reference to a clause, Appendix, Schedule, Part or exhibit of or to this Agreement, unless otherwise specified.
2.1 The Provider must perform the Services at the Location at the Delivery Time.
2.2 The User shall pay the Provider the Agreed Fee in accordance with the applicable Supplementary Service Terms for due and proper performance of the Services.
2.3 The Provider will be solely liable for the payment of all applicable Taxes, excluding GST, which arise in connection with, or apply to, Services or any payments made under this Agreement.
3. Responsibilities of Provider
3.1 The Provider agrees to:
(a) keep an accurate record of the Services provided to the User;
(b) communicate openly and honestly in a timely manner;
(c) treat the User with courtesy and respect;
(d) listen to the User’s feedback and resolve problems in a timely manner;
(e) protect the User’s privacy and confidential information; and
(f) provide supports in a manner consistent with all relevant laws.
3.2 The Provider warrants that:
(a) it will comply with all Relevant Laws in supplying the Services and the provision of Services will comply with all Relevant Laws; and
(b) the Provider has full capacity and all necessary licences, permits and consents to enter into and to perform Services under this Agreement.
4. Responsibilities of User
The User agrees to:
(a) provide access to the Location at the Delivery Time for the Provider to provide the Services;
(b) treat the Provider with courtesy and respect; and
(c) talk to, or communicate with, the Provider if the User has any concerns about the Services being provided.
To the extent caused or contributed to by the Provider, the Provider indemnifies the User against any loss, claim, damage, liability, cost or expense arising directly in connection with:
(a) death and injury to the Provider or any of its personnel and any loss of or damage to any of the Provider’s property;
(b) death or injury to the Provider, or loss of or damage to any of the Provider’s property;
(c) the Provider’s breach of this Agreement, negligence or act of fraud or Wilful Misconduct;
(d) any additional indemnities set out in Schedule 1.
The User or the Provider may, by notifying the other party on the Platform prior to the Delivery Time and making any relevant payments required under with the Service Terms and Conditions, terminate the provision of the Services and this Agreement without assigning any reason for doing so, including to obtain Services from a third party.
The Provider shall:
(a) comply with the Privacy Act 1988 (Cth) in respect of all personal information (as defined in the Privacy Act) that is collected, held, used, disclosed and otherwise handled by them in respect of the User; and
(b) ensure that the personal information of the User is not transferred, or able to be accessed by persons, outside Australia without the User’s prior written consent.
8.1 Terms used in this clause have the meanings given to them in the A New Tax Services (Goods and Services Tax) Act 1999 (Cth).
8.2 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this document are exclusive of GST.
8.3 If GST is imposed on any supply made under or in accordance with this document, the recipient of the taxable supply must pay to the Supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this document.
8.4 If this document requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense plus any GST payable by the other party.
8.5 If, at any time prior to a payment being made under this Agreement, an adjustment event arises in respect of any supply made by a party under this document, a corresponding adjustment must be made between the parties in respect of any amount paid to that party by the other party and payments to give effect to the adjustment must be made and the Supplier must issue an adjustment note.
9.1 If any Dispute arises under this Agreement:
(a) the User and the Provider must make diligent and good faith efforts to resolve the Dispute within 14 days of a party receiving a notice from the other party providing a notice advising of the dispute;
(b) if the parties cannot resolve the Dispute under clause 1(a), the either party may refer the Dispute to mediation. The identity of the mediator must be agreed between the parties or, failing agreement, appointed by the President of the relevant Victorian Institute of Law. The mediator’s costs will be borne by both parties equally; and
(c) if the parties are still not able to resolve the Dispute through mediation, the Dispute may be referred to a court in the appropriate jurisdiction.
9.2 Nothing in this clause 9 prejudices the right of a party to seek injunctive or urgent interlocutory relief.
9.3 This clause 9 survives termination or expiry of this Agreement.
The parties acknowledge and agree that they will only contact each other via the instant messaging service provided through the Platform, and that they will not contact the other, or otherwise use any of the other’s personal information, other than for the purpose of providing or receiving the Services.
No modification, alteration of or addition to the Agreement shall be binding on the parties unless it is acknowledged by an authorised representative on behalf of each of the parties.
10.3 Relationship between parties
The parties acknowledge and agree that the Agreement and the performance of the Agreement does not represent or imply a partnership, agency, fiduciary relationship, employment relationship, joint venture, distribution or any other category of commercial or personal relationship between the parties recognised at law or in equity as giving rise to forms of specific rights and obligations.
(a) Any provision of, or a right or remedy arising under, the Agreement which is prohibited or unenforceable in any jurisdiction is ineffective in that jurisdiction only to the extent of that prohibition or unenforceability.
(b) If any provision of the Agreement is unenforceable in any jurisdiction, it does not affect the enforceability of that provision in any other jurisdiction or the enforceability of the remaining provisions in any jurisdiction.
10.5 Strict compliance
In the absence of an express provision to the contrary, failure or omission by a party to the Agreement at any time to enforce or require strict or timely compliance with any provision of the Agreement or any related document shall not impair the ability of that party to exercise the rights and remedies it otherwise has in respect of a breach of any such provision.
10.6 Joint and several liability
If either party to the Agreement constitutes two or more persons then they shall be bound jointly and severally.
10.7 Entire agreement
This Agreement (incorporating the applicable Supplementary Service Terms) constitutes the entire agreement between the parties and sets out a full statement of the contractual rights and liabilities of the User and the Provider in relation to the Services.
10.8 Governing law and jurisdiction
The Agreement (incorporating the applicable Supplementary Service Terms) is governed by the laws in force in the jurisdiction set out in the state where the Services are performed and the parties submit to the non-exclusive jurisdiction of the courts of that jurisdiction.