AGREEMENT FOR THE PROVISION OF HOUSEHOLD SERVICES
Terms and Conditions
1 INTERPRETATION
1.1 Definitions
The following words have these meanings in the Agreement:
Agreement has the meaning given to that term in clause 2.1.
Care Bear Australia means Care Bear Australia Pty Limited of Unit 539, 7 Crescent Street, Waterloo, NSW 2017.
Care Bear Australia Personnel means any employees, contractors or persons engaged by contractors of Care Bear Australia who are involved in the provision of the Services and any other persons authorised by Care Bear Australia to be involved in the provision of the Services.
Fees means, subject to clause 9.3, the amount specified in Schedule 2 to be paid by the Cared as consideration for the Services.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other law dealing with the imposition or administration of a goods and services tax in Australia.
Premises means the premises the address of which is set out in Item 1 of Schedule 1.
Services means the services to be provided to the Cared by Care Bear Australia as set out in Schedule 2.
Terms and Conditions means these terms and conditions.
1.2 Interpretation
The following apply in the interpretation of the Agreement, unless the context requires otherwise:
(a) A reference to the Agreement or a similar term means either the agreement set out in this document and the schedules and annexure to it or the document and the schedules and annexure themselves, as the context requires.
(b) A reference to the Terms and Conditions or a similar term means either the agreement set out in the Terms and Conditions or pages [4] to [10] of this document, as the context requires.
(c) A reference to any Act, regulation, rule or similar instrument includes any consolidations, amendments or re-enactments of it, any replacements of it, and any regulation or other statutory instrument issued under it.
(d) A reference to the singular includes the plural number and vice versa.
(e) A reference to a gender includes a reference to each gender.
(f) A reference to a party means a person who is named as a party to the Agreement.
(g) Person includes a firm, corporation, body corporate, unincorporated association and a governmental authority.
(h) A reference to a party or a person includes that party's or person's executors, legal personal representatives, successors, liquidators, administrators, trustees in bankruptcy and similar officers and, where permitted under the Agreement, their substitutes and assigns.
(i) An agreement on the part of, or in favour of, two or more persons binds or is for the benefit of them both jointly and severally.
(j) Includes means includes but without limitation.
(k) Where a word or expression has a defined meaning, its other grammatical forms have a corresponding meaning.
(l) A reference to doing something includes an omission, statement or undertaking (whether or not in writing) and includes executing a document.
(m) A reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or an annexure to or of the Agreement.
1.3 A heading is for reference only. It does not affect the meaning or interpretation of the Agreement.
2 AGREEMENT
2.1 The provision of Services by Care Bear Australia to the Cared will be governed by the terms and conditions set out in:
(a) the Terms and Conditions;
(b) Schedule 1; and
(c) Schedule 2,
(Agreement).
2.2 In the event of any inconsistency between the Terms and Conditions and the terms and conditions in Schedule 2 or Schedule 1 then the Terms and Conditions will prevail to the extent of the inconsistency.
2.3 The terms and conditions of the Agreement will apply to the exclusion of any other terms or conditions in any other document issued by either of the parties relating to the subject matter of the Agreement.
2.4 The Agreement records the entire agreement between the parties and supersedes all previous negotiations, understandings, representations and agreements in relation to the subject matter of this Agreement.
2.5 Any quotation issued by Care Bear Australia is not and will not be construed as an offer capable of acceptance by the Cared.
3 TERM
The Agreement commences on the "Start Date" specified in Schedule 2 and continues until the "Expiry Date" specified in Schedule 2, unless it is terminated earlier in accordance with the terms and conditions of the Agreement.
4 RESPONSIBILITIES OF CARE BEAR AUSTRALIA
Care Bear Australia will provide the Services in accordance with:
4.1 the Agreement; and
4.2 all applicable legislation, Government permits, licences, authorisations and laws applicable to the Services.
5 EXCLUDED SERVICES
The Services will not include services which in the opinion of Care Bear Australia constitute or involve:
5.1 the provision of health services including administering medicine and other services of a medical nature;
5.2 the provision of financial advice; or
5.3 gaining access to, dealing with or maintaining the accounts held by the Cared with banks or other financial institutions.
6 RESPONSIBILITIES OF THE CARED
The Cared must:
6.1 provide Care Bear Australia Personnel with access to the Premises and the other property of the Cared to the extent necessary for the provision of the Services;
6.2 provide access to the Premises to an additional member of the Care Bear Australia Personnel (in addition to the person providing the Services) during the provision of the Services, including for the purposes of the supervision of the Services;
6.3 use their reasonable endeavours to ensure that Care Bear Australia is able to provide the Services in accordance with the Agreement;
6.4 ensure that the Premises and the other property referred to in clause 6.1 are "smoke-free";
6.5 notify Care Bear Australia immediately if any Care Bear Australia Personnel breaches a requirement of the Agreement;
6.6 avoid all physical contact with Care Bear Australia Personnel except to the extent to which that contact is necessary for the provision of the Services;
6.7 if requested by Care Bear Australia, take all necessary steps to instruct their bank or other financial institution to allow direct debit payments to be made to Care Bear Australia for the Fees, including completing all documentation required;
6.8 comply with all legislation and other law relevant to the provision of the Services
6.9 comply with all obligations in relation to the safety of a place of work which are imposed on an employer under occupational health and safety legislation as if:
(a) the Cared were the employer of the Care Bear Australia Personnel who are involved in the provision of the Services to the Cared; and
(b) the Premises and other property referred to in clause 6.1 were the place of work; and
6.10 only request services as set out in Schedule 2.
7 PRIVACY
7.1 The Cared provides the personal information (as defined in the Privacy Act 1988 (Cth)) included in this Agreement for the purposes of the provision of the Services and the protection of the well-being of the Cared.
7.2 The Cared consents to Care Bear Australia and Care Bear Australia Personnel disclosing to medical personnel that personal information when, in the opinion of a member of the Care Bear Australia Personnel, the Cared's state of health makes it reasonable to do so.
8 FEES & INVOICING
8.1 The Cared must pay Care Bear Australia the Fees set out in Schedule 2 for the provision of the Services by Care Bear Australia.
8.2 Care Bear Australia will provide the Cared with invoices in respect of each fortnight during which Services are provided. Care Bear Australia will endeavour to issue each invoice within 14 days after the relevant fortnight and must issue each invoice no later than 28 days after the relevant fortnight.
9 PAYMENT
9.1 Each invoice will be paid within 10 days of the date of the invoice. Payment may be made by cash (if hand delivered to the address nominated by Care Bear Australia), cheque (if mailed to the address set out on page 1 of this document), direct debit, electronic funds transfer or any other method approved by Care Bear Australia in writing. Payment may be made by the Cared or any other person nominated by the Cared.
9.2 If Schedule 2 states that the Cared is to reimburse Care Bear Australia for its reasonable out-of-pocket expenses related to provision of the Services, the Cared will reimburse those reasonable out-of-pocket expenses provided that Care Bear Australia is able to provide a receipt substantiating the expense.
9.3 Care Bear Australia may in its absolute discretion vary the Fees by providing the Cared with 28 days notice. The Variation will take effect 28 days after the Cared is notified .
10 GST
10.1 GST payable
(a) Terms used in this clause which are defined in the GST Law have the meanings given in that law.
(b) Amounts payable under the Agreement do not include GST, unless otherwise stated.
(c) If any payment made or other consideration given by a party (Payer) in connection with the Agreement does not include GST and is the consideration for a taxable supply for which the party who makes the supply (Supplier) is liable for GST, the Payer must, at the same time as the consideration is given, pay to the Supplier an additional amount equal to the amount of the consideration multiplied by the rate of GST under the GST Law.
10.2 Reimbursement of GST
Any reference in the Agreement to a cost or expense to be reimbursed by one party to another (Payee) includes any GST payable in connection with a taxable supply to which that cost or expense relates, less the amount of any input tax credit that the Payee or, if the Payee is a member of a GST group, the representative member of the GST group is entitled to claim.
11 WARRANTIES
11.1 The Cared warrants that prior to entering into the Agreement:
(a) the Cared had carefully read the Agreement;
(b) the Cared understood the effect of the Agreement;
(c) the Cared had been encouraged to and provided with an opportunity to arrange for independent legal advice in relation to the Agreement; and
(d) a third party had explained to the Cared the fundamental aspects of the Agreement and signed the Explanation Declaration in Annexure 1 to the Services Agreement.
11.2 The Cared warrants that the information provided by the Cared to Care Bear Australia including the information contained in Schedule 1 is true, accurate and correct.
12 EXCLUSION AND LIMITATION OF LIABILITY
12.1 Subject to any condition, warranty or right implied by the Trade Practices Act 1974 (Cth) or any other law which cannot by law be excluded by agreement, Care Bear Australia gives no warranties and all other implied conditions, warranties and rights are excluded.
12.2 Where any condition, warranty or right is implied by law and cannot be excluded, Care Bear Australia limits its liability for breach of that implied condition, warranty or right to the extent permitted by law.
12.3 Subject to clauses 12.1 and 12.2, and despite any implication arising from any other provisions of the Agreement, Care Bear Australia is not liable to the Cared in contract, in tort (including negligence), under any statute (to the extent permitted by law) or otherwise for, or in respect of, any indirect or consequential loss or damage suffered by the Cared or any other person arising out of any breach or other act or omission in connection with the Agreement.
12.4 The parties agree that indirect or consequential loss or damage, for the purpose of clause 12.3 means:
(a) any financial loss or expense;
(b) any expense incurred in connection with that loss or in mitigation or attempted mitigation of that loss; and
(c) payment of liquidated sums or damages in accordance with any other agreement,
even if those losses were in the contemplation of the parties at the time they entered into the Agreement.
12.5 Subject to this clause 12 and despite any implications arising from any other provisions of the Agreement, the total liability of Care Bear Australia in contract, in tort (including negligence), under statute (to the extent permitted by law) or otherwise for, or in respect of any direct loss or damage arising out of any breach or other act or omission in connection with the Agreement, together with any amounts payable under obligations of indemnity, restitution or other entitlements of the Cared to compensation, will not exceed 50% of the total Fees payable under the Agreement.
12.6 No demand, claim, action or proceeding, regardless of form, arising out of the Agreement may be made or brought by the Cared more than 1 month after the provision of the Services to which the demand, claim, action or proceeding relates.
13 INDEMNITY
The Cared indemnifies Care Bear Australia and its employees and contractors (Indemnified Parties), against any loss, damage, costs and expenses (including legal expenses) or liability reasonably suffered or incurred by the Indemnified Parties, directly or indirectly, in connection with:
13.1 any act or omission of the Cared including any breach by the Cared of any provision of the Agreement;
13.2 any injury to or death of persons or damage to property caused by the Cared in connection with the Agreement; and
13.3 any negligent or wilful act or omission of the Cared in connection with the Agreement.
14 TERMINATION
14.1 Termination by Care Bear Australia
(a) Subject to clause 14.1(b), Care Bear Australia may, in its absolute discretion, terminate this Agreement by providing 14 days notice to the Cared.
(b) Care Bear Australia may, in its absolute discretion, terminate the Agreement immediately and without notice if, in the opinion of Care Bear Australia, the safety of Care Bear Australia Personnel is threatened.
14.2 Termination by the Cared
The Cared may terminate this Agreement by providing Care Bear Australia with 14 days notice or payment in lieu of that 14 days notice.
14.3 Consequences of termination
(a) The Cared will pay Care Bear Australia all Fees and approved expenses outstanding in connection with Services provided up to the date the Agreement is terminated.
(b) Any termination of the Agreement made in accordance with the provisions of the Agreement will not prejudice the rights and liabilities of the parties in respect of the Agreement which existed prior to termination, unless otherwise provided in the Agreement.
15 DISPUTE RESOLUTION
The parties will attempt to resolve any disputes speedily by negotiation in good faith.
16 ASSIGNMENT AND SUB-CONTRACTING
16.1 Care Bear Australia may subcontract to any person the performance of its obligations under the Agreement.
16.2 Care Bear Australia may assign the Agreement by giving the Cared 14 days notice.
16.3 The Cared may not assign the Agreement or any part of it.
17 VARIATION
No provision of the Agreement nor a right conferred by it can be varied except in writing signed by the parties.
18 NO WAIVER
A waiver is effective only if in writing and properly signed by or on behalf of the party to be bound and is effective to the extent that the party giving it expressly states in writing.
19 NOTICES
19.1 Any notice given in connection with the Agreement must be in writing and must be addressed to a party and either:
(a) hand delivered to, or sent by post to:
(i) if to Care Bear Australia, the address set out on page 1 of this document;
(ii) if to the Cared, the address set out in Item 1 of Schedule 1,
or any other address the party notifies for the service of notices; or
(b) sent by fax to any fax number the party notifies for the service of notices.
19.2 A notice is taken to have been given:
(a) in the case of being hand delivered, on the date on which it is delivered;
(b) in the case of being sent by post, on the third day after the date of posting; and
(c) in the case of being sent by fax, at the time of dispatch as confirmed by a transmission report by the sending machine.
20 INVALIDITY
If any part of the Agreement is for any reason unenforceable, that part must be read down to the extent necessary to preserve its operation. If it cannot be read down, it must be severed.
21 COUNTERPARTS
If this document is signed in counterparts then:
21.1 each counterpart is deemed an original; and
21.2 together they constitute one agreement.
22 GOVERNING LAW
22.1 The Agreement is governed by the laws of New South Wales.
22.2 The parties submit to the jurisdiction of its courts.
Annexure 1 - Explanation Declaration
1. Purpose of Declaration
This declaration relates to the agreement (Agreement) for the provision of household services by Care Bear Australia Pty Limited (Care Bear Australia) to
[insert name of Cared] of
[insert address of Carerd] (the Cared).
The purpose of this declaration is to ensure that the Cared understands the effect of the Agreement before signing the Agreement.
This declaration should be made by a person who has used his or her reasonable endeavours to carefully read the Agreement and explain the effect of the Agreement to the Cared.
2. Declaration
I declare the following:
(a) I have used my reasonable endeavours to carefully read the Agreement;
(b) I understand the fundamental aspects of the Agreement;
(c) I have been encouraged to and provided with an opportunity to arrange for independent legal advice to be provided to myself and the Cared (or his or her legal agent) before the Cared signs the Agreement; and
(d) I have used my reasonable endeavours to explain to the Cared or, if the Agreement is to be signed on behalf of the Cared by the legal agent of the Cared, the legal agent of the Cared the fundamental aspects of the Agreement including but not limited to the following:
(i) Clause 12 contains several significant limitations on the liability of Care Bear Australia arising from a legal claim made by the Cared in connection with the Agreement. For example, clause 12.5 attempts to limit, to the extent permitted by law, the liability of Care Bear Australia for loss or damage suffered or incurred by the Cared and directly caused by any breach or other act or omission of Care Bear Australia or its employees or contractors in connection with the Agreement to an amount of [insert] and
(ii) Clause 13 provides that the Cared will compensate Care Bear Australia, its employees and contractors and make good any loss or damages suffered or incurred by Care Bear Australia, its employees or contractors in connection with any act or omission of the Cared in connection with the Agreement.