Terms and Conditions - Trade Services Agreement (General)
These terms and conditions (Terms) are between DIGITAL BRAND BUILDERS PTY LTD trading as Aged Care & Medical (ACN 164 689 294) (we, us or our) and you, the person or entity stated in the Quote (you or your), together the Parties and each a Party. Together, these terms and conditions and the Quote (attached to these Terms or the Quote) form the entire agreement under which we will provide the Job to you (Terms).
Background
A. We are a service provider, providing a range of home and outdoor maintenance services, as set out in the Quote (Job).
B. You have requested the Job as set out in the Quote.
1. Acceptance
1.1 You are taken to accept these Terms by the earlier of:
(a) confirming that you accept these Terms via the platforms or applications through which we provide these Terms to you, including our website;
(b) making full or part payment of the Quote; or
(c) instructing us (whether orally or in writing) to proceed with the Job.
1.2. These Terms commence on the date you accept them in accordance with clause 1.1 (Commencement Date), and will continue until we have completed the Job (as reasonably determined by us), unless otherwise agreed in writing between the Parties (Term).
2. Jobs
2.1 In consideration of your payment of the Service Fee, we will provide the Job, whether ourselves or through our Personnel:
(a) in accordance with these Terms and all applicable Laws and regulations;
(b) with due care, skill and diligence;
(c) in a proper and professional manner, and in accordance with best industry practice.
2.2 If these Terms expresses a time within which the Jobs are to be supplied, we will use reasonable endeavours to complete the scheduled Job by such time, but you agree that such time is an estimate only.
2.3 All variations to the Jobs must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation to the scope of the Jobs or our obligations under these Terms, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.
3. Your Obligations
3.1 You agree to:
(a) promptly provide us with all information in connection with the Jobs and these Terms that we may reasonably request;
(b) ensure that we have access to the Premises to deliver the Jobs and for us to access the Premises free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the Parties;
(c) cooperate with us and provide us with all information that you reasonably require in order for us to provide the Jobs under these Terms; and
(d) Comply with our reasonable requests or requirements (including any after-care instructions, manuals or policies) included in the Quote.
3.2 You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 3.
4. Service Fee and Payment
4.1 In consideration for us providing the Job, you agree to pay all amounts due under these Terms in accordance with the Payment Terms.
4.2 Payment Terms: We will issue invoices to you prior to providing the Job. You must pay us the Service Fee set out in our Quote, and all other amounts due and payable under these Terms, using the payment method set out in our invoice, within 14 days from the date of our invoice, or as otherwise agreed between the Parties.
4.3 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under these Terms or at Law):
(a) after a period of 5 Business Days from the relevant due date, cease providing the Jobs, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); and/or
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms.
5. GST
5.1 If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
5.2 If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
5.3 If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
5.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Jobs Tax) Act 1999 (Cth).
6. Warranties and Representations
6.1 Each Party represents and warrants that:
(a) it has full legal capacity, right, authority and power to enter into these Terms, to perform its obligations under these Terms, and to carry on its business; and
(b) these Terms constitutes a legal, valid and binding agreement, enforceable in accordance with its terms.
6.2 You represent and warrant that all information and documentation that you provide to us in connection with these Terms is true, correct and complete.
6.3 This clause 6 will survive the termination of these Terms.
7. Privacy
7.1 If you are required to provide us with Personal Information so that we can provide the Jobs, you agree to comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth), and any other applicable Laws relating to privacy (Privacy Laws).
7.2 Without limiting this clause 7, you must ensure that:
(a) you have collected, used, stored and otherwise dealt with Personal Information in accordance with all Privacy Laws;
(b) we are capable of collecting, using, storing and otherwise dealing with Personal Information, in the manner contemplated by these Terms, without infringing any third party rights or violating any Privacy Laws.
7.3 Without limiting this clause 7, you agree to only disclose Personal Information to us if:
(a) you are authorised by the Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by these Terms; and
(b) you have informed the individual to whom the Personal Information relates, that their Personal Information will be disclosed to us.
7.4 We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under these Terms, and in accordance with any applicable Laws.
8. Australian Consumer Law
8.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Jobs by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in these Terms excludes those Consumer Law Rights.
8.2 Subject to your Consumer Law Rights, we provide all material, work and Jobs (including the Jobs) to you without conditions or warranties of any kind, implied or otherwise, whether in statute, at Law or on any other basis, except where expressly set out in these Terms.
8.3 This clause 8 will survive the termination or expiry of these Terms.
9. Latent Conditions
9.1 If we encounter any condition, event, circumstance, matter or thing in, on or around the Premises or otherwise that could not have reasonably been foreseen or anticipated by us as at the date start date of the Job Brief, and that would or would likely result in us, you or any third party suffering or incurring additional cost or delay, or would require a change to a Quote, the Jobs, the Service Fee, or these Terms (Latent Condition), during the provision of the Jobs, we will notify you as soon as reasonably practicable after becoming aware of the Latent Condition.
9.2 Any additional works, materials, costs or delays that we suffer or incur as a result of any Latent Conditions, or any instructions or directions given by you that are in addition to the Jobs, will constitute a deemed variation.
9.3 Any deemed variation for a Latent Condition, including in relation to the Service Fee, will be handled in accordance with clause 2.3.
10. Liability
10.1 To the maximum extent allowed under law, we will have no liability for delays caused by one or more of the following events or circumstances:
(a) a variation or deemed variation;
(b) an act, omission or breach by you of these Terms;
(c) our inability to access the Premises;
(d) inclement weather;
(e) any other event or circumstance beyond our reasonable control (including Force Majeure Events).
10.2 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) (where our Jobs are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Jobs again or paying the cost of having the Jobs supplied again; and
(d) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Service Fee paid by you to us in respect of the supply of the relevant Jobs to which the Liability relates.
10.3 This clause 10 will survive the termination or expiry of these Terms.
11. Termination
11.1 These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 14 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) (to the extent permitted under the Corporations Act 2001 (Cth)) any step is taken to enter into any arrangement between the Defaulting Party and its creditors, any step is taken to appoint a receiver, a receiver and manager, a liquidator, a provisional liquidator or like person of the whole or any part of the Defaulting Party’s assets or business, the Defaulting Party is bankrupt, or the Defaulting Party is unable to pay its debts as they fall due.
11.2 Upon expiry or termination of these Terms:
(f) without limiting and subject to your Consumer Law Rights, any payments made by you to us for Jobs already performed are not refundable to you;
(g) by us pursuant to clause 11.1, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
(h) we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 7.
11.3 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
11.4 This clause 11 will survive the termination or expiry of these Terms.
12. General
12.1 Amendment: Subject to clauses 2.3, these Terms may only be amended by written instrument executed by the Parties.
12.2 Assignment: Subject to clauses 12.3 and 12.12, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
12.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
12.4 Counterparts: These Terms may be executed in any number of counterparts that together will form one instrument.
12.5 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 12.5. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute.
If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the Australian Disputes Centre, to be conducted in Melbourne, Victoria, in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation.
Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
12.6 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
(a) as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
Where the Force Majeure Event prevents a Party from performing a material obligation under these Terms for a period in excess of 60 days, then the other Party may by notice terminate these Terms, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under these Terms.
12.7 Further Assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.
12.8 Governing Law: These Terms is governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
12.9 Notices: Any notice given under these Terms must be in writing addressed to the addresses set out in these Terms, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
12.10 Relationship of Parties: These Terms is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
12.11 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
12.12 Subcontracting: We may subcontract the provision of any part of the Jobs without your prior written consent. We agree that any subcontracting does not discharge us from any liability under these Terms and that we are liable for the acts and omissions of our subcontractor.
12.13 Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to these Terms does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing and will be effective only to the extent specifically stated.
13. Definitions
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them below:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Business Day means a day on which banks are open for general banking business in Melbourne, Victoria, excluding Saturdays, Sundays and public holidays.
Confidential Information means information which:
(a) is disclosed to the receiving Party in connection with these Terms at any time;
(b) relates to the disclosing Party’s business, assets or affairs; or
(c) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Service Fee will not constitute “Consequential Loss”.
Consumer Law Rights has the meaning given in clause 8.1.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Latent Condition takes the meaning given to it in clause 9.1.
Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with these Terms or the supply of the Jobs.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.
Personal Information means information or an opinion, whether true or not and whether recorded in a material form or not, about an individual who is identified or reasonably identifiable.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Premises means any place where we perform the Jobs or as otherwise identified in a Job Brief.
Receiving Party means the Party receiving Confidential Information from or on behalf of the Disclosing Party.
Service Fee means the price set out in the Quote, as adjusted in accordance with these Terms.
Quote means the quote (including any online quote) which we provide to you in connection with these Terms or the Jobs.
14. Interpretation
14.1 In these Terms, unless the context otherwise requires:
(a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a person includes a natural person, body corporate, partnership, joint venture, association, government or statutory body;
(d) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns;
(e) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(f) a reference to time is to local time in Melbourne, Victoria; and
(g) a reference to $ or dollars refers to the currency of Australia from time to time.
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