Terms – Consumer

SERVICES AGREEMENT

CLIENT FORM
ClientYou and/or the entity named in the Quote. 
Service ProviderName: Above All Co Pty Ltd ABN 46 610 423 624Contact: Sean Llewelyn Jones Address: 12 Nunga Court, Mount Eliza, VIC 3930
Start DateThe date you agree to the Quote and the terms of this agreement. Even if you do not sign this agreement, you may still accept it by continuing to instruct us to complete the Services.
ServicesThe Service Provider will provide the services, itemised in the Quote, to the Client after the Start Date.
FeesFees: as itemised in the Quote. Due Date(s): An initial deposit of 50% is required. Invoices will be issued at any time after the commencement of the work under this agreement;Terms of payment of invoices will be specified in the invoices.
Fee Payment MethodDirect transfer, service m8 payment, stripe, or otherwise as agreed between the parties in writing. 

CLIENT TERMS

These Client Terms, together with any Client Form (defined in clause 1), set out the agreement (this ‘Agreement’) under the terms of which Above All Co Pty Ltd ABN 46 610 423 624 (the Service Provider) provides Services (defined in clause 2) to you or the company which you represent (the Client).

  1. CLIENT FORM, THIS AGREEMENT
    1. These Client Terms will apply to all the Client’s dealings with the Service Provider, including being incorporated in all agreements, quotations or orders under which the Service Provider is to provide services to the Client (each a Client Form) together with any additional terms included in such Client Form (provided such additional terms are recorded in writing).
    2. The Client will be taken to have accepted this Agreement if the Client accepts a Client Form, or if the Client orders, accepts or pays for any services provided by the Service Provider after receiving or becoming aware of this Agreement or these Client Terms.
    3. In the event of any inconsistency between these Client Terms and any Client Form, the clauses of these Client Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Client Form) will prevail over these Client Terms to the extent of any inconsistency.
  2. SERVICES

2.1 In consideration for the payment of the fees set out in the Client Form (Fees), the Service Provider will provide the Client with services set out in a Client Form (Services).

  1. Unless otherwise agreed, the Service Provider may, in its discretion:
    1. not commence work on any Services until the Client has paid any Fees or deposit payable in respect of such Services; and
    2. withhold delivery of Services until the Client has paid an invoice in respect of such Services.
  2. CALL-OUTS & DOWN-TIME
    1. Save for matters arising from a fault caused by the Service Providers’ services, the Client agrees the following fees shall apply for call-outs, per worker required:
      1. $198 (Including GST) for attending the worksite and up to 30 minutes work; and
      2. $135 (Including GST) for every 30 minutes work thereafter.
  1. CLIENT OBLIGATIONS
    1. PROVIDE INFORMATION AND LIAISON
      1. The Client must provide the Service Provider with all documentation, information and assistance reasonably required for the Service Provider to perform the Services.
      2. The Client agrees to liaise with the Service Provider as it reasonably requests for the purpose of enabling the Service Provider to provide the Services.
    2. CONFIDENTIALITY
      1. The parties agree that any information contained in the Quote is not to be shared to third parties, save for obtaining independent advice on the Services.
      2. The Client must not use the Quote to seek further quotations from competitors for the purpose of bargaining with the Service provider.  
  2. PAYMENT
    1. FEES
      1. The Client must pay to the Service Provider fees in the amounts and at the times set out in the Client Form or as otherwise agreed in writing.
    2. INVOICES
      1. Unless otherwise agreed in the Client Form:
        1. if the Service Provider issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and
        2. in all other circumstances, the Client must pay for all goods and services within 2 weeks of receiving an invoice for amounts payable.
    3. PAYMENT METHOD
      1. The Client must pay Fees using the fee payment method specified in the Client Form.
    4. EXPENSES
      1. Unless otherwise agreed in writing:
        1. the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by the Service Provider in connection with a Client Form; and
        2. 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 provided for in the Client Form.
    5. GST
      1. Unless otherwise indicated, amounts stated in a Client Form 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.
    6. CARD SURCHARGES
      1. 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).
    7. LATE PAYMENT
      1. The Service Provider reserves the right to charge any reasonable additional cost incurred by the Service Provider on account of the Client’s late payment, including weekly 10% compound interest charges on any amounts owing for late payments of invoices.
  3. CHANGES
    1. The Client must pay additional service fees for changes to Services requested by the Client which are outside the scope set out in the relevant Client Form (Changes).
    2. Unless otherwise agreed in writing, the Service Provider may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
  4. ACCREDITATIONS
    1. Unless otherwise agreed in writing:
      1. all displays or publications of any deliverables provided to the Client as part of the Services (Deliverables) must, if requested by the Service Provider, bear an accreditation and/or a copyright notice including the Service Provider’s name in the form, size and location as directed by the Service Provider; and
      2. the Service Provider retains the right to describe the Services and reproduce, publish and display the Deliverables 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 and Deliverables in connection with such uses.
  5. THIRD PARTY GOODS AND SERVICES
    1. 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’).
    2. 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.
  6. WARRANTIES
    1. To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
    2. 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.
  7. LIABILITY
    1. liability
      1. To the maximum extent permitted by law and subject to clause 9.1(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 under this agreement.
    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:

  1. in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
  2. to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).
  1. SUBCONTRACTING
    1. The Service Provider may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.
  2. Termination
    1. TERMINATION FOR CONVENIENCE
      1. Either party may end this agreement for no reason, by providing notice to the other party.
      2. This agreement will end 5 Business Days after the day the notice is sent (the End Date).
      3. On the End Date, the Service Provider will provide an invoice to the Client for:
        1. any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);
        2. any pre-approved third party costs the Service Provider has incurred on the Client’s behalf up to the End Date,

(together, the Outstanding Amounts)

  1. 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.
  2. Once the Outstanding Amounts have been paid, the Service Provider will hand over any completed deliverables. 
  3. 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.
  1. termination for breach
    1. 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.
    2. 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.
    3. The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
    4. After the Rectification Period, the Notifying Party will:
      1. if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
      2. if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
    5. Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed. 
    6. Any disputes regarding termination under this clause must be dealt with in accordance with clause 12. The indemnities, warranties and liability caps in clause 9 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 11.1 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.
  2. other consequences for termination

If this agreement ends, in addition to the specific consequences set out in clause 11.1 or 11.2 (as applicable), the parties will:

  1. return all property and Confidential Information to the other party;
  2. comply with all obligations that are by their nature intended to survive the end of this agreement; and
  3. stop using any materials that are no longer owned by, or licensed to, them when this agreement ends.
  1. if the parties have a dispute
    1. 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. 
    2. 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). 
    3. 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. 
    4. If mediation does not resolve the issue, the parties must:
      1. if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
      2. 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.
    5. The parties will follow the binding outcome of arbitration (or other agreed mechanism).
    6. 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.
    7. The process in this clause does not apply where a party requires an urgent injunction.
  2. NOTICES
    1. Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Client Form and the email’s subject heading must refer to the name and date of this agreement. 
    2. 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. 
    3. 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.
    4. Any notice sent the Service Provider in relation to a dispute concerning invoicing must be sent to [email protected].
  3. FORCE MAJEURE
    1. 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:
      1. act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
      2. strike or other industrial action; 
      3. war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
      4. 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.

  1. 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:
    1. reasonable details of the Force Majeure Event; and
    2. 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.
  2. Subject to compliance with clause 14(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.
  3. 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.
  4. GENERAL
    1. GOVERNING LAW AND JURISDICTION
      1. This Agreement is governed by the law applying in Victoria. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria 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.
    2. AMENDMENTS
      1. This Agreement may only be amended in accordance with a written agreement between the parties.
    3. WAIVER
      1. 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.
    4. SEVERANCE
      1. 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.
    5. JOINT AND SEVERAL LIABILITY
      1. An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
    6. ASSIGNMENT
      1. 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.
    7. COUNTERPARTS
      1. This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one Agreement.
    8. COSTS
      1. 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.
    9. ENTIRE AGREEMENT
      1. 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.
    10. INTERPRETATION
      1. (singular and plural) words in the singular includes the plural (and vice versa);
      2. (currency) a reference to $; or “dollar” is to Australian currency;
      3. (gender) words indicating a gender includes the corresponding words of any other gender;
      4. (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;
      5. (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;
      6. (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;
      7. (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;
      8. (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
      9. (headings) headings and words in bold type are for convenience only and do not affect interpretation;
      10. (includes) the word “includes” and similar words in any form is not a word of limitation; and
      11. (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.