Services Agreement

Using the Platform, the User and Supplier have agreed that the Supplier will provide the Services for the Agreed Fee. The provision of those Services are governed by the terms set out in this Agreement.

SERVICE AGREEMENT

1. Definitions and Interpretation

1.1 In this Agreement unless the context otherwise requires:

Account means your account on the Mobility platform operated by Mobility and accessible via web, app or mobile device.

Agreed Fee means the fee agreed by the User and Supplier for the Services on the Platform (which includes the Platform Service Fee charged by Mobility to the Supplier).

Agreement means this Services Agreement between the User and the Supplier.

Delivery Time means the date and time for the provision of the Services agreed between the User and the Supplier on the Platform (or any other time agreed between the User and Supplier).

Dispute means any dispute or difference between the Supplier and the User concerning the subject matter of this Agreement.

Location means the location for the provision of the Services agreed between the User and the Supplier on the Platform (or any other location agreed between the User and Supplier).

Platform means the Mobility platform operated by Mobility and accessible via web, app or mobile device.

Platform Service Fee means the fee charged by Mobility to the Supplier for use of the Platform and opportunity to connect with Users through the Platform.

Supplier means the supplier who has agreed on the Platform to provide the Services to the User.

Mobility means Mobility Australia Pty Ltd (ACN: 637 098 518).

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.

Services Completion Notification means the notification provided to Mobility by way of confirmation on the Platform that Services have been completed.

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 this 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”; and

(k) 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. Payment

2.1 The Supplier will provide the Services at the Location at the Delivery Time.

2.2 The User will pay the Supplier the Agreed Fee for the proper provision of the Services provided by the Supplier in accordance with the User’s request and Supplier’s acceptance on the Platform. The Agreed Fee becomes due and payable once a Services Completion Notification is submitted by the Supplier.

2.3 The Supplier is solely liable for the payment of all applicable taxes which arise in connection with, or apply to, Services or any payments made under this Agreement (unless expressly stated otherwise).

2.4 The Agreed Fee is comprised of the following parts:

(a) the fee set by the Supplier to perform the Services (“Supplier Fee”); and

(b) the Platform Service Fee (which will include GST).

2.5 The Supplier Fee will be paid to the Supplier as follows:

(a) an amount equivalent to the superannuation guarantee charge rate at the time the Services were Supplier into the Supplier’s nominated superannuation fund; and

(b) the balance into the Supplier’s nominated bank account.

2.6 The contribution of amounts referred to in clause 2.5(a) are made without any admission (and, with the express denial) that the Supplier is an employee at law or for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth).

2.7 The Supplier is solely responsible for paying all taxes required by law in respect of the provision of the Services.

2.8 If the User is dissatisfied with the Services provided by the Supplier, it is entitled to dispute the amount charged by the Supplier in accordance with clause 9 of this Agreement.  The Supplier may, as part of the resolution of a Dispute, be required to refund some of all of the Agreed Fee.

3. Responsibilities of Supplier

3.1 The Supplier must:

(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) provide the Services in a manner it deems fit and appropriate having regard to:

(i) the nature of the Services being provided; and

(ii) all applicable laws, regulations, policies and rules (or similar) relating to the provision of Services or the Supplier’s profession;

(e) protect the User’s privacy and confidential information;

(f) have full capacity and all necessary qualifications, licences, permits and consents to enter into and to provide Services under this Agreement; and

(g) provide supports in a manner consistent with all laws, regulations and professional standards applicable to the Supplier (including privacy, anti-discrimination and occupational health and safety).

3.2 The Supplier:

(a) has absolute discretion about the manner in which it provides the Services;

(b) will provide all necessary equipment to properly provide the Services.

3.3 The Supplier agrees that, when performing providing Services which require a vehicle:

(a) unless consented to by the User, the Supplier will not transport or allow individuals inside their vehicle other than the User (and any individuals authorised by that User);

(b) they will transport Users directly to their specified destination, as directed by the User, without unauthorised interruptions or stops;

(c) they will hold and maintain:

(i) a valid driver’s license; and

(ii) all other required qualifications, licenses, permits, work entitlements, approvals and authority required to provide the Services;

(iii) comprehensive motor vehicle insurance for any vehicle being used in connection with the Services; and

(d) their vehicle is:

(i) properly registered, licensed and generally suitable to operate as a passenger transportation vehicle;

(ii) owned or leased by them or otherwise in their lawful possession;

(iii) kept in a clean and sanitary condition; and

(iv) maintained in good operating condition.

4. Responsibilities of User

The User must:

(a) provide access to the Location at the Delivery Time to enable the Supplier to provide the Services;

(b) treat the Supplier with courtesy and respect;

(c) talk to, or communicate with, the Supplier if the User has any concerns about the Services being provided; and

(d) pay the Supplier the Agreed Fee for Services following the provision of Services by the Supplier, or as otherwise required under this Agreement.

5. Indemnity

(a) To the extent caused or contributed to by the Supplier, the Supplier indemnifies the User against any loss, claim, damage, liability, cost or expense arising directly in connection with:

(i) death or injury to the Supplier or any of its personnel and any loss of or damage to any of the Supplier’s property;

(ii) the Supplier’s breach of this Agreement, negligence or act of fraud or Wilful Misconduct;

(iii) any additional indemnities set out in Schedule 1.

(b) The Supplier indemnifies the User against any loss, claim, damage, liability, cost or expense arising from any claim by the Supplier (or any person on their behalf) for or relating to employment entitlements or workers’ compensation claims arising out of the provision of the Services.

6. Cancellation Policy

(a) Either the User or the Supplier may, by notifying the other party on the Platform at any time prior to the Delivery Time, cancel the provision of the Services and this Agreement without assigning any reason for doing so, including to obtain Services from a third party.

(b) If the User cancels the Services and this Agreement more than 24 hours prior to the Delivery Time, the User is not required to make any payment of, and the Supplier is not entitled to, the Agreed Fee.

(c) If the User cancels the Services and this Agreement within 0 to 2 hours of the scheduled Delivery Time, the User is required to pay the entire Agreed Fee to the Supplier, up to a maximum amount of $125.

(d) If the User cancels the Services and this Agreement within 2 to 24 hours of the Delivery Time, the User is required to pay an amount equivalent to one hour of the Agreed Fee to the Supplier.

7. Privacy

The Supplier must:

(a) comply with the Privacy Act 1988 (Cth) (“Privacy Act”) 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. GST

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. Disputes

9.1 If any Dispute arises under this Agreement:

(a) the User and the Supplier must make 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 9.1(a), then either party may refer the Dispute to mediation, before a mediator agreed between the parties or, failing agreement, appointed by the President of the Law Institute of Victoria, the costs of which 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.

10. General

10.1 Contact

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.

10.2 Amendments

No modification, alteration of or addition to this Agreement shall be binding on the parties unless it is agreed to by each of the parties in writing (including an authorised representative on behalf of any party if required or appropriate).

10.3 Relationship between parties

(a) The Supplier is engaged by the User to provide the Services in accordance with the request and acceptance through the Platform.

(b) The parties acknowledge and agree that this Agreement and the performance of this Agreement does not constitute, 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.

(c) The parties acknowledge and agree that the Supplier is providing the Services as part of conducting their own business, not for or on behalf of any other business, person, entity or organisation (including Mobility and the User).

(d) The parties acknowledge and agree that nothing in this Agreement constitutes the Supplier to be an employee, agent or partner of Mobility or any of its related entities.

10.4 Severability

(a) Any provision of, or a right or remedy arising under this 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 this 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 the Supplier or the User to this Agreement at any time to enforce or require strict or timely compliance with any provision of this 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 this Agreement constitutes two or more persons then they shall be bound jointly and severally.

10.7 Entire agreement

This Agreement constitutes the entire agreement between the User and the Supplier and sets out a full statement of the contractual rights and liabilities of the User and the Supplier in relation to the provision of the Services.

10.8 Governing law and jurisdiction

This Agreement is governed by the laws in force in the jurisdiction set out in the state where the Services are provided and the parties submit to the non-exclusive jurisdiction of the courts of that jurisdiction.