Service Agreement

Terms and Conditions

1. HOW TO READ THIS AGREEMENT
1.1 MEANING OF CAPITALISED WORDS AND PHRASES
Capitalised words and phrases used in these terms and conditions have the meaning given:
(a) by the words immediately preceding any bolded and bracketed word(s) or phrase(s); or
(b) in the definitions in clause 19 of this agreement.

2. DURATION AND RENEWAL OF THIS AGREEMENT
(a) This agreement will commence on the date you accept our Services and is applicable for the period of time we continue to provide you our Services (unless explicitly stated for any other section of this agreement).
(b) The parties may agree to extend this agreement by mutual agreement, including by conduct that indicates an intention to extend the Term.
(c) If any Services are supplied after the expiry of the Term, without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that these terms will not apply, the terms of this agreement will continue to apply for those Services.

3. ELIGIBILITY
By accepting this agreement, you acknowledge and agree that:
(a) you are at least 18 years old; and
(b) if you are accepting this agreement on behalf of another person (for example, a NDIS participant), you have the consent of that person to enter into this agreement and you represent and warrant that that person agrees to the terms and conditions of this agreement.

4. CLIENT OBLIGATIONS
4.1 CLIENT INFORMATION
As part of receiving the Services, the Client must provide the Service Provider with all documentation and information reasonably required by the Service Provider to perform the Services. The Client represents and warrants that it will notify Service Provider if and when any information (such as health circumstances) change.
4.2 COMPLIANCE WITH LAWS
The Client agrees that it will not, by receiving or requesting the Services:
(a) breach any applicable Laws (including any applicable privacy laws); or
(b) infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.

5. SERVICES
5.1 SERVICES
The Service Provider will perform the Services for the Client which may be either or both of:
(i) ConnectU – Assisting with Aged Care Navigation (ConnectU); or
(ii) Ride Companion – for Transportation Solutions (Ride Companion).
(a) The Service Provider will notify the Client if a variation is required.
(b) In any additional services are required in addition to the Services, then additional fees may apply.
5.2 THIRD PARTY TERMS AND CONDITIONS
(a) If the Service Provider is required to acquire goods or services supplied by a third party, the Client may be subject to the terms and conditions of that third party (‘Third Party Terms’).
(b) Provided that the Service Provider has notified the Client of such Third Party Terms and provided the Client with a copy of those terms, the Client agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Client or the Service Provider acquires as part of providing the goods or services and the Service Provider will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(c) The Client has the right to reject any Third Party Terms. If the Client rejects the Third Party Terms, the Service Provider cannot provide the Services to the Client and clause 15 will apply.
5.3 THIRD PARTY TRANSPORTATION FOR RIDE COMPANION
(a) If the Client has elected Ride Companion as part of the Services, the following additional terms will apply under this subclause.
(b) The Service Provider will utilise Uber Pacific Pty Ltd, an Australian company registered in New South Wales (ABN 96 622 366 116), registered at PKF Lawler, Level 8, 1 O’Connell Street, Sydney NSW 2000, Australia (“Uber Health") as a third party provider to assist in delivering the Services relating to aged care (or other) transportation.
(c) As part of this process, the Service Provider’s employees, contractors or agents may accompany the Client for the duration of the Service as agreed with the Client; and may assist with the transportation process to help Clients.
(d) By utilising these Services, you acknowledge the Service Provider is bound to the Uber Health Product Addendum to the Uber for Business General Terms and Conditions – Australia; which is an addendum to the Uber for Business General Terms and Conditions – Australia.
(e) You agree to the Uber Privacy Notice as part of using our Services.
(f) The Client acknowledges and agrees that the use of Uber Health as part of the aged care transportation Services provided by the Service Provider is at the Client's own risk. The Service Provider shall not be liable for any loss, damage, or injury suffered by the Client arising from or in connection with the use of Uber Health services, except to the extent that such loss, damage, or injury is caused or contributed to by the Service Provider or its agents, contractors, or employees.
(g) The Service Provider makes no warranties, guarantees or assurances in relation to Uber Health or its employees, agents, or contractors’ insurance policies.
(h) The Client further acknowledges that the Service Provider’s role in relation to Uber Health services is limited to facilitating the Client’s access to these services and that the Service Provider does not control or operate Uber Health.
(i) The Client agrees to notify the Service Provider immediately of any incidents, complaints, or issues that arise in connection with the use of Uber Health services. Any complaints will be forwarded to Uber Health as required by their policies.

6. DISCLAIMERS
These disclaimers are applicable to all of our Services.
(a) (Results not guaranteed) We cannot guarantee any outcome as part of your use of the Services. We cannot guarantee that our Services will be suitable for you.
(b) (Reliance on information) You acknowledge and agree that the Services are reliant on the information and/or documentation you provide to us about your health. You agree to provide us with updated, accurate and complete information about your health. If you fail to provide accurate or complete information, the Service Provider may terminate this agreement and you will be liable for any damage resulting from your failure to provide accurate or complete information. By using the Services, you represent and warrant that you have fully informed us of your medical history and any existing conditions, including injuries, physical restrictions, disabilities or predispositions to sickness or injury (Conditions) that may affect your participation in the Services or that if you are aware of such Conditions, you participate in any Services provided by the Service Prover entirely at your own risk.
(c) (Risk) You acknowledge and agree that there are risks in using our Services, including potential muscle pain and strains, joint pain and sprains, dizziness, nausea, vomiting, and the potential for more serious injuries such as disc injuries, nerve injuries, fractures, strokes and death. If at any point you wish to stop our Services, you must notify us immediately.
(d) (Personal Belongings) You are at all times when using the Services, responsible for your own personal items, money and belongings. We will not be liable for any loss, damage, theft or missing personal items, money and other belongings while you are using our Services.
(e) (Personal Aids) Any personal aid items or devices must be operated by you while we provide our Services. We will not be responsible, or voluntarily operate such items on your behalf.
(f) (Suitability) If we conclude, based on reasonable grounds, that our Services are not suitable for you, we will notify you in writing and reserve the right to stop providing Services to you. We may also provide you with recommendations for other service providers.
(g) (Reliance by third parties) The Services are intended solely for the benefit of the Client and are not to be used or relied upon by any third party. The Service Provider shall not be held responsible for any loss, damage, or injury sustained by any third party who chooses to rely on the Services provided to the Client. Any such use or reliance is at the third party's own risk.
(h) (Advice Disclaimer) Our Services (specifically ConnectU) do not contemplate any professional advice, that is to be construed as personal, health financial, legal, taxation, accounting or other advice. We recommend you consult your own independent advisors; and/or medical professionals as required.

7. FEES AND PAYMENT
7.1 FEES
(a) The Client must pay the Fees in the amounts, as nominated by the Service Provider from time to time via invoice to the Client.
(b) To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth) any Fees paid in accordance with this agreement are non-refundable.
7.2 INVOICES
The Service Provider will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees in accordance with the remittance method set out in an invoice.
7.3 SUSPENSION OF SERVICES
The Service Provider reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees in accordance with clause 7.1.
7.4 EXPENSES
Unless otherwise agreed in writing:
(a) the Client will bear all travel, accommodation, media and related expenses reasonably incurred by the Service Provider in connection with the Services; and
(b) any third party costs incurred by the Service Provider in the course of performing the Services may be billed to the Client, unless specifically otherwise agreed between the parties.
7.5 GST
Unless otherwise indicated, amounts payable under this agreement do not include GST. In relation to any GST payable for a taxable supply by the Service Provider, the Client must pay the GST subject to the Service Provider providing a tax invoice.
7.6 CARD SURCHARGES
The Service Provider reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

8. CONFIDENTIALITY & PRIVACY
8.1 PRIVACY
(a) The parties must comply with:
(i) if applicable, their respective obligations under the Privacy Act 1988 (Cth); and
(ii) the Service Provider’s privacy policy as in force from time to time.
(b) The Service Provider will keep the Client informed of any changes to its privacy policy during the Term.
(c) We may collect sensitive information about you during the course of providing the Services. You can read more about the type of information we collect by reading our privacy policy here: [insert link]. By agreeing to our our privacy and consent forms, you consent to your participation in the Services and the collection and use of your sensitive information in accordance with our privacy policy.
8.2 CONFIDENTIAL INFORMATION
The parties will not, during or at any time after the Term, disclose Confidential Information directly or indirectly to any third party, except:
(a) with the other party’s prior written consent;
(b) as required by Law; or
(c) to their Personnel on a need to know basis for the purposes of performing its obligations under this agreement (Additional Disclosees).
8.3 BREACH
If either party becomes aware of a suspected or actual breach of clause 8.2 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach. The parties agree that damages may not be a sufficient remedy for a breach of clause 8.2.
8.4 PERMITTED USE
A party may only use the Confidential Information of the other party for the purposes of exercising its rights or performing its obligations under this agreement.
8.5 RETURN
On termination or expiration of this agreement, each party must immediately return to the other party, or (if requested by the other party) destroy, any documents or other Material in its possession or control containing Confidential Information of the other party.
8.6 ADDITIONAL DISCLOSEES
Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 8. Each party will, when requested by the other party, arrange for an Additional Disclosee to execute a document in a form reasonably required by the other party to protect Confidential Information.

9. INTELLECTUAL PROPERTY
9.1 DEFINITIONS
In this clause, the following terms have the following meanings in relation to Intellectual Property Rights:
(a) Existing Material means Material of either party, other than New Material;
(b) New Material means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement; and
(c) Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
9.2 EXISTING MATERIAL
(a) With respect to Intellectual Property Rights in this clause 9:
(i) each party retains ownership of the Intellectual Property Rights in its Existing Material; and
(ii) nothing in this agreement transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.

(b) The Client grants to the Service Provider (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.
(c) The Client warrants that the Service Provider’s use of the Client’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify the Service Provider from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
(d) The Service Provider grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material, to the extent:
(i) such Existing Material is incorporated into the New Material; and
(ii) such use is reasonably required for the Client to enjoy the benefit of the Services.
9.3 NEW MATERIAL
(a) Intellectual Property Rights in New Material are immediately assigned to and vest in the Service Provider as those rights are created.
(b) The Service Provider grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use the New Material to the extent such use is reasonably required for the Client to enjoy the benefit of the Services.
9.4 THIRD PARTY INTELLECTUAL PROPERTY
The Service Provider warrants that:
(a) the provision of the Services to the Client; and
(b) the Client’s receipt and use of the Services for their intended purpose,
will not infringe the Intellectual Property Rights of any third party.

10. ACCREDITATIONS
Unless otherwise agreed in writing, the Service Provider retains the right to describe the Services and reproduce, publish and display the Services in the Service Provider’s portfolios and websites for the purposes of recognition or professional advancement, and to be credited with authorship of the Services in connection with such uses.

11. SUBCONTRACTING
The Service Provider may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.

12. WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

13. LIABILITY
13.1 LIABILITY
(a) To the maximum extent permitted by law and subject to clause 13.1(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Client to the Service Provider.
(b) Clause 13.1(a) does not apply to the Client’s liability in respect of loss or damage sustained by the Service Provider arising from the Client’s breach of:

(i) Clause 8 – Confidentiality & Privacy; or
(ii) Clause 9 – Intellectual Property.
13.2 CONSEQUENTIAL LOSS
To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by the Service Provider, except:
(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

14. IF THE PARTIES HAVE A DISPUTE
(a) If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.
(b) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).
(c) The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.
(d) If mediation does not resolve the issue, the parties must:
(i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
(ii)based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.
(e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).
(f) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement
(g) The process in this clause does not apply where a party requires an urgent injunction.

15. TERMINATION
15.1 TERMINATION FOR CONVENIENCE
(a) Either party may end this agreement for no reason, by providing notice to the other party.
(b) This agreement will end 10 Business Days after the day the notice is sent (the End Date).
(c) On the End Date, the Service Provider will provide an invoice to the Client for:

(i) any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);
(ii) any pre-approved third party costs the Service Provider has incurred on the Client’s behalf up to the End Date; and (together, the Outstanding Amounts)
(d) The Client will pay the Outstanding Amounts to the Service Provider on the End Date unless otherwise agreed in a written payment plan between the parties.
(e) Once the Outstanding Amounts have been paid, the Service Provider will hand over any completed deliverables.
(f) If the Service Provider terminates this agreement pursuant to this clause, the Service Provider will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.
15.2 TERMINATION FOR BREACH
(a) If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.
(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
(d) After the Rectification Period, the Notifying Party will:
(i) if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
(ii) if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
(f) Any disputes regarding termination under this clause must be dealt with in accordance with clause 14. The indemnities, warranties and liability caps in clause 13 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 15.1 will not limit or otherwise effect the Service Provider’s rights under this agreement, at law or otherwise in equity; the Service Provider’s losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.
15.3 OTHER CONSEQUENCES FOR TERMINATION
If this agreement ends, in addition to the specific consequences set out in clause 15.1 or 15.2 (as applicable), the parties will:
(a) return all property and Confidential Information to the other party;
(b) comply with all obligations that are by their nature intended to survive the end of this agreement, including without limitation; and
(c) stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 9.

16. FORCE MAJEURE
(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strike or other industrial action;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(c) Subject to compliance with clause 16(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.

17. NOTICES
(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.

18. GENERAL
18.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
18.2 BUSINESS DAYS
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
18.3 AMENDMENTS
This agreement may only be amended in accordance with a written agreement between the parties.
18.4 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
18.5 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
18.6 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
18.7 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
18.8 COUNTERPARTS
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
18.9 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
18.10 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
18.11 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

19. DEFINITIONS
In these terms and conditions, the following words and phrases have the following meaning:
Term Meaning
Business Day A day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in New South Wales, Australia.
Confidential Information Information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge.
Fees The amount payable by the Client to the Service Provider as notified to the Client via invoice or another method.
Intellectual Property Rights All copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world.
Laws Any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Services are performed or received and includes any industry codes of conduct.
Material Has the meaning given in clause 9.1.
Personnel Employees, secondees, agents and subcontractors (who are individuals), including employees and contractors (who are individuals) of subcontractors.
Services The services to be provided by the Service Provider to the Client; which may be either the ConnectU service; the Ride Companion service; and/or both of those services.
Term Has the meaning given in clause 2(a).
If you have any queries about this agreement or our Services, please contact us on:

Email: info@careh.com.au
Phone: 02 6189 8118
Post: 85A Travers Street, Wagga Wagga, NSW, 2650