In these T&Cs:
“Approvals” means all approvals, authorisations, permits, consents, determinations and licences which are issued, or required to be issued, by any Authority to permit the full and proper performance of the Service Provider’s obligations under these T&Cs;
“Authority” means any government or governmental, semi-governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, statutory corporation, instrumentality or entity;
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
“Confidential Information” means information, whether in visual, oral, documentary, electronic, machine- readable, tangible, intangible or any other form, relating to the Servicer Provider or any related entity of the Service Provider including but not limited to any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;
“Contract” means a contract formed as a result of the acceptance of an Order by the Service Provider;
“Control” has the meaning set out in the Corporations Act;
“Corporations Act” means the Corporations Act 2001 (Cth);
“Client” means the person set out in any quotation, offer or other document provided by the Service Provider (or, in the absence of such information, the client who placed the Order);
“Delivery Date” means the date for the delivery of the Services in a Contract;
“Insolvency Event” means any of the following, or any analogous, events:
(a) the Client disposes of the whole or any part of the Client’s assets, operations or business other than in the ordinary course of business;
(b) the Client ceases, or threatens to cease, carrying on business;
(c) the Client is unable to pay the Client’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Client’s assets, operations or business;
(e) any step is taken for the Client to enter into any arrangement or compromise with, or assignment for the benefit of, the Client’s creditors or any class of the Client’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Client’s assets, operations or business;
“Intellectual Property Rights” means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Order” means any written or verbal order by the Client to the Service Provider for Services;
“Representative” means any employee, servant, contractor, subcontractor, attorney, guardian, agent, partner, director or officer of a party;
“Price” means the price of the Services as nominated by the Service Provider from time to time;
“Services” means the services in a Contract and any services associated with the Goods;
“Service Provider” means Marilyn Moloney trading as Options Ageing Solutions ABN 97 613 298 014;
and “T&Cs” means these Terms and Conditions of Supply.
These T&Cs, and no terms and conditions of the Client, will apply to any Order for any supply of Services by the Service Provider to the Client.
3. Acceptance of Terms and Placement of Orders for Services
3.1 Any quotation by the Service Provider, including the package prices detailed on the Service Provider’s website does not constitute an offer to supply.
3.2 Unless otherwise stated by the Service Provider, any quotation by the Service Provider will remain valid for 14 days from the date of the quotation provided that the Service Provider may withdraw or vary a quotation at any time prior to the Service Provider’s acceptance of an Order.
3.3 Any Order by the Client to the Service Provider and/or any acceptance of any Services by the Client will constitute agreement to these T&Cs by the Client.
3.4 No Order by the Client will be binding on the Service Provider unless the Service Provider accepts the Order.
3.5 If the Service Provider accepts an Order, the parties will have created a binding Contract and the Service Provider will supply the Services to the Client, and the Client will pay the Price to the Service Provider in accordance with the terms of the Contract (which will include these T&Cs), but the Contract will be subject to:
(a) the Client providing the Service Provider correct details and information as reasonably requested by the Service Provider in accordance with clause 3.7 of these T&Cs.
3.6 The Client is not entitled to cancel any Order or Contract and must pay to the Service Provider any costs associated with the Client purporting to cancel any Order or Contract.
3.7 The Client must provide to the Service Provider all information, documents, instructions, reports and facts relevant to the Services and performance of the Service Provider’s obligations, at the time the Client requests any quotation from the Service Provider, prior to providing any Order to the Service Provider or upon request from the Service Provider from time-to-time in the reasonable course of supplying the Services.
3.8 If at any time the Service Provider considers that any information, documents, instructions, reports or facts provided by the Client to the Service Provider are not sufficient to enable the Service Provider to supply the Services to the Client in accordance with the Contract, the Client must, at the Client’s cost, provide such further information, documents or assistance as the Service Provider considers reasonably necessary.
3.9 The Service Provider will be entitled to rely on the accuracy of any information, documents, instructions, reports and facts provided by the Client.
3.10 If there are any errors in any information, documents, instructions, reports or facts provided by the Client to the Service Provider, the Service Provider will, in addition to the Service Provider’s other rights under these T&Cs or at law, be entitled to vary the Price.
3.11 The Service Provider may cancel any Contract at any time prior to delivery of the Services with no liability other than to repay any amount of the Price paid in advance of the cancellation.
4.1 Unless otherwise agreed by the Service Provider in writing, the Price will be the amount stated in the Contract and is subject to variation (whether before or after the acceptance of an Order or before or after the formation of a Contract or during the term of a Contract).
4.2 Unless otherwise agreed by the Service Provider in writing, the Service Provider may invoice the Client for Services on the date the Service Provider supplies the Services.
4.3 Unless otherwise stated by the Service Provider in writing, the Price is exclusive of GST.
4.4 The Client must not withhold, make deductions from, or set-off, payment of any money owed to the Service Provider for any reason.
4.5 The Service Provider may charge, in addition to the Price, any other fees, charges and surcharges that the Service Provider notifies to the Client from time to time.
5. Deposit and Payment Terms
5.1 The Client and/or Client’s Representative must make payments for the Services as follows:
(a) For the Starter Package: within fourteen (14) days of consultation and receipt of a Tax Invoice from the Service Provider.
(b) For the Standard & Advance Packages: invoiced by the Serviced Provider at the following stages:
(i) 25% of the total quoted costs upfront as a deposit for the Services; and
(ii) the balance of 75% of the total quoted costs to be paid upon within fourteen (14) days of completion of the Services.
(c) For Case Management:
(i) Case management fees are determined on an hourly rate basis. The Service Provider’s hourly rate is currently $65 plus GST (if applicable).
(ii) All case management fees are to be paid monthly upon receipt of a Tax Invoice from the Service Provider in advance, with the first payment due upon consultation and following payments due calendar monthly thereafter;
(d) Respite fees: are to be negotiated on an individual basis with the Client and/or Client’s Representative and are to be paid within fourteen (14) days of consultation and receipt of a Tax Invoice from the Service Provider.
5.2 To the extent that the payment terms contained within any quotation supplied by the Service Provider to the Client differs from Clause 5.1, then the payment terms contained within the quotation will override the contents of clause 5.1 to the extent of any inconsistency.
5.3 The Client acknowledges and agrees that payment for the Services are payable whether the Client accepts the recommendations of the Service provider or not.
5.4 For the avoidance of any doubt, if a Client’s Representative is acting on behalf of the Client under a Power of Attorney or Guardianship Order or in any other capacity to provide instructions to the Service Provider, then they are personally liable for payment of the Services under these T&Cs.
6. Confidential Information and Intellectual Property
6.1 The Client will not use, or disclose to any third party, any Confidential Information disclosed to the Client.
6.2 No supply of Services to the Client will grant to the Client any Intellectual Property rights in respect of the Services.
6.3 The Service Provider may, in providing the Services to the Client, be required to provide the Client’s Confidential Information and any further information required to complete the Services in accordance with 3.7 – 3.10 of these T&Cs to third party Authorities. The Client acknowledges and agrees that the Service Provider may be required to disclose this information as part of the requested Services and further acknowledges and agrees that the Service Provider is not liable for the use and storage of this information by the third party Authorities.
7. Statutory Warranties
7.1 The Service Provider does not warrant the Services are fit for any purpose whether or not made known to the Service Provider or any member of the Service Provider’s Representative.
7.2 The Service Provider excludes all express and implied conditions and warranties in relation to the Services except those conditions or warranties that cannot be excluded by law and the Service Provider’s liability under any such conditions or warranties is limited to, at the Service Provider’s option, the outcome of the Services or resupplying the Services.
7.3 Nothing in these T&Cs are intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or any Fair Trading Act except to the extent permitted by such Acts.
8.1 The Service Provider’s liability for any Liability or Claim in relation to these T&Cs, any Contract, and any supply of Services (whether under statute, contract, tort, negligence or otherwise) will be limited to the amount of the Price paid by the Client to the Service Provider.
8.2 The Service Provider will not be liable to the Client for any Liability or Claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.
9. Release and Indemnity
The Client indemnifies the Service Provider and each member of the Service Provider’s Representative from and against any Liability or Claim arising directly or indirectly in relation to:
(a) the accuracy of all information provided by the Client to the Service Provider in relation to the Services or any other matters;
(b) the Client’s breach of these T&Cs or any Contract;
(c) the negligence or wilful misconduct of the Client or any member of the Client’s Representative;
(d) the Service Provider or any member of the Service Provider’s Representative delivering the Services in accordance with the Client’s instructions;
(e) damage to the property of the Client or any third party during any delivery of Services;
(f) the Services not being fit for any particular purpose;
(g) the Client or any member of the Client’s Representative directly or indirectly causing any delay in the supply of any Services;
(h) the Service Provider having to resupply the Services, or undertake any rework, as a result of the actions or omissions of the Client or any third party;
(i) the storage and use of any information provided to third party Authorities by the Service Provider upon instructions by the Client or any member of the Client’s Representative in relation to the Services;
(j) the Client or any member of the Client’s Representative purporting to cancel any Order or Contract; and
(k) any proceedings, claims and demands in relation to any secured property.
10.1 The Service Provider may immediately terminate, or suspend the performance of, any Contract and the Client must immediately pay any money owed to the Service Provider if:
(a) the Client breaches a term of these T&Cs or any Contract and does not remedy the breach within 7 days of receiving a notice from the Service Provider requiring the Client to do so;
(b) the Client breaches a term of these T&Cs or any Contract which is not capable of remedy;
(c) the Service Provider becomes aware that the Client has provide false information to the Service Provider which the Service Provider relies upon in corresponding with any Authority in providing its services;
(d) the Service Provider becomes aware that the Client has provide false information to an Authority, which the Service Provider relies upon in in providing its services;
(e) there is any change in the Control of the Client; or
(f) an Insolvency Event arises in relation to the Client.
11.1 The parties agree:
(a) these T&Cs or any Contract may only be amended with the Service Provider’s express written agreement;
(b) any waiver by the Service Provider must be express and in writing;
(c) the Service Provider’s rights under these T&Cs or any Contract do not exclude any other rights of the Service Provider;
(d) in the event of any dispute, the Service Provider’s records will be conclusive evidence;
(e) the actions of any person claiming to have the Client’s authority will bind the Client to the extent permitted by law;
(f) if any provision of these T&Cs or any Contract is unenforceable, the provision will be severed and the remaining provisions will continue to apply;
(g) the Service Provider may assign any rights or benefits under any Contract or these T&Cs or any Contract to any third party; and
(h) these T&Cs and any Contract will be governed by the laws of, and the parties submit to the jurisdiction of the courts of, the State of Victoria.
11.2 In these T&Cs:
(a) a reference to a party includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;
(b) a reference to a person includes a natural person, body corporate, partnership, trust, association or any other entity;
(c) any agreement, representation, warranty or indemnity by two or more parties binds those parties jointly and severally;
(d) any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;
(e) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these T&Cs; and
(f) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day.