The User has requested that Mobility and the Registered Agency Provider coordinate to sequester the Identified Funds for the provision of the services provided by Registered Providers of Supports on the Platform. The sequestering of the Identified Funds will be governed by the terms set out in this Agreement.
TERMS OF SERVICE
1. Definitions and Interpretation
1.1 In this Agreement unless the context otherwise requires:
Agreement means this agreement between the User, Mobility and the Registered Agency Provider.
Dispute means any dispute or difference between any or all of the parties concerning the subject matter of the Agreement.
Identified Funds means the funds identified by the User as being required for receiving services from Registered Providers of Supports on the Platform.
Mobility means Mobility Australia Pty Ltd (ABN: 15 637 098 518).
Platform means the Mobility platform operated by Mobility and accessible via web, app or mobile device.
Parties means the User, the Registered Agency Provider and Mobility and Party means any one of them.
Registered Agency Provider means the Registered Provider of Supports identified by the User as managing the National Disability Insurance Scheme funding for the User.
Registered Providers of Supports has the meaning given under the National Disability Insurance Scheme Act 2016 (Cth).
User means the applicable user requesting the provision of the Services on the Platform.
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.
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; and
(f) the words “including” and “includes”, and any variants of those words, shall be read as if followed by the words “without limitation”.
2. Sequestering Funds
2.1 The Parties acknowledge and agree that Mobility acts as a sub-contractor of the Registered Agency Provider for the purposes of managing the Identified Funds on behalf of the User.
2.2 The Registered Agency Provider agrees to sequester the Identified Funds and ensure that they are only accessible to the User through the Platform, unless the User directly requests that the Identified Funds be used for some other purpose.
2.3 Mobility agrees that it will ensure, via the Platform, that the Identified Funds remain sequestered and are only used where:
(a) the User arranges to receive funding from a Provider under the Platform; and
(b) the Provider is a Registered Providers of Supports.
3. Responsibilities of Mobility
(a) keep an accurate record of the disability 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.
Mobility indemnifies the Registered Agency Provider against any loss, claim, damage, liability, cost or expense arising directly in connection with Mobility’s breach of this Agreement, negligence or act of fraud or Wilful Misconduct (except and to the extent that the Registered Agency Provider or third party causes or contributes to such breach or negligent act or omission).
(a) The User may terminate this Agreement at any time by providing written notice to both the Registered Agency Provider and Mobility.
(b) Either the Registered Agency Provider or Mobility may terminate this Agreement at any time by providing 1 months’ prior written notice to the other Parties, without assigning any reason for doing so.
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.
7.1 If any Dispute arises under this Agreement:
(a) the Parties must make diligent and good faith efforts to resolve the Dispute within 14 days of the Parties receiving a notice from a Party providing a notice advising of the dispute;
(b) if the Parties cannot resolve the Dispute under clause 1(a), the any 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.
7.2 Nothing in this clause 7 prejudices the right of a Party to seek injunctive or urgent interlocutory relief.
7.3 This clause 7 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.
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.
This Agreement may be executed in several counterparts, including where it is deemed executed by the User through the User’s agreement to comply with the Agreement on the Platform, all of which together will constitute one and the same agreement.
8.4 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.
8.6 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.
8.7 Joint and several liability
If either party to the Agreement constitutes two or more persons then they shall be bound jointly and severally.
8.8 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.
8.9 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.