Terms of Engagement
1.1 In these Terms:
“Address” means the address at which the Services are to be delivered as specified in the Pre-Assessment Form.
“Australian Consumer Law” and “ACL” means Schedule 2 of the Competition and Consumer Act 2010.
“$A”, “Dollar” and “$” mean Australian Dollars.
“Client” means the person to whom the Services are to be delivered as stated in the Pre-Assessment Form.
“Company” means Nurse Watch Pty Ltd ACN 617 666 707 and includes its successors or assigns.
“Contract” means the agreement between the Company and the Client for the provision of Services in accordance with the Terms.
“Day” means a calendar day.
“Effective Date” means the date of the duly completed and submitted Pre-Assessment Form or such other day as notified by Company.
“Information” means information supplied by or on behalf of the Client to Company to assist in the performance of this Contract including medical history, prescriptions and other relevant information.
“Nominated Personnel” means the person(s) nominated by the Client in the Pre-Assessment Form who is to provide the Services to the Client.
“Pre-Assessment Form” means the form detailing the selected Services completed on the Company website by the Client (or their representative) to which these Terms are deemed to be annexed.
“Security” means direct debit authority or credit card authorisation or such other security acceptable to Company.
“Services” means the services specified in the Pre-Assessment Form to be provided by the Company to the Client.
“Service Fee” means the price for the Services specified in the Pre-Assessment Form.
“Special Conditions” means the special conditions, if any, included in the Pre-Assessment Form.
“Terms” means these Engagement Terms together with the Pre-Assessment Form and any Information and any variations to the same.
2. CONTRACT AND ACCEPTANCE
2.1 The Client shall be deemed to have accepted these Terms at the time of acceptance of the same following completion and submission of the Pre-Assessment Form on Company’s website.
2.2 The Contract constitutes the entire agreement between the parties in relation to the Services and no variation or amendment of these Terms shall be effective unless expressly agreed in writing by the parties.
2.3 Company shall provide the Services to the Client for the Service Fee in accordance with these Terms.
2.4 The Contact shall enter into force on the Effective Date.
3.1 Company may, before it commences any work, require the Client to provide Security to secure the Client’s obligations under these Terms.
3.2 Until such Security is provided Company shall be under no obligation to provide Services.
3.3 Company shall have recourse to the Security if it remains unpaid after the time for payment where at least 5 days have elapsed since it notified the Client of an intention to have recourse.
4. SERVICE FEE
4.1 Company shall invoice the Client for the Service Fee in advance or at such times as stated in the Pre-Assessment Form, or where not so stated, from time to time as Company in its sole discretion considers appropriate. Payment for Services shall be effected by way of credit or debit card unless Company agrees to accept other forms of payment.
4.2 If any goods and services tax (GST) is payable for the supply of Services under these Terms, the Service Fee will be increased in accordance with the GST payable. If GST is payable, Company will provide the Client with a tax invoice or a document adequate to entitle the Client to claim an input tax credit.
4.3 All invoices shall be due and payable within 7 days of the date of the invoice.
4.4 All payments to be made by the Client shall be made without set off or counterclaim and shall be free and clear of and without deduction.
4.5 Without prejudice to any other right of Company, Company shall have the right to charge interest at its discretion computed on a daily basis at the rate of Commonwealth Bank’s Calculated Cash Rate plus 2% per annum on any overdue amount from the date on which payment was due or such later date as Company determines to that on which it was made (whether before or after judgment). The Client shall reimburse Company for all costs and expenses (including legal costs on an indemnity basis) incurred in the collection of any overdue amount. The Client acknowledges and agrees that such charges are a reasonable estimate of the likely damage to be suffered by Company for overdue payment.
4.6 If the Service Fee or any instalment of it is not paid by the due date for payment, Company may suspend all further deliveries of the Services to the Client until payment is made in full on all outstanding invoices.
5. HEALTH INSURANCE
5.1 Clients have responsibility to ensure that they contact their health fund to determine their level of cover and whether their policy will cover any of the costs associated with the Services.
6. OTHER EXPENSES
6.1 Other health professionals or providers may be involved in providing part of the Client’s Services and in this case the Client understands that the Service Fee does not include such fees or charges unless specifically stated otherwise.
7. PERFORMANCE OF SERVICES
7.1 Company shall use reasonable endeavours to provide the Services on the dates and at the times specified in the Pre-Assessment Form. Time shall not be of the essence in relation to the provision of the Services.
7.2 Company shall use reasonable endeavours to ensure that the Services are performed by the Nominated Personnel. Company does not guarantee that Services will be provided by the Nominated Personnel. If Company discovers that Services cannot be performed by the Nominated Personnel, Company reserves the right to use other suitably qualified personnel to provide the Services.
7.3 Company shall be entitled to subcontract any part of the Services to a third party provided that Company shall remain liable to the Client for the performance of any subcontracted Services. Subcontracted personnel may include allied health providers including physiotherapists, registered nurses or other service providers.
7.4 If these Terms provide for instalments, each instalment of the Services shall be deemed to be the subject of a separate Contract and no default or failure by Company in respect of any one or more instalments of the Services shall affect these Terms in respect of the Services previously delivered or undelivered Services.
7.5 The Client shall not be entitled to reject any delivery or any Services or any instalment of the Services unless it establishes that Company has failed substantially to meet all of its obligations in respect of those Services.
8. CANCELLATION OF SERVICES AND CANCELLATION FEES
8.1 Company reserves the right to charge a cancellation fee if the Client cancels a Service or part of the Service. In the event a Service is cancelled due to no fault on the part of Company, Company is entitled to charge the Client for all out of pocket costs and expenses incurred in relation to the cancellation of a Service including fees and charges charged to Company by third party service providers or subcontractors plus an administrative fee equal to 10% of the Service Fee. If a Service is cancelled within 24 hours of the booked service time, Company is entitled to charge 100% of the Service Fee plus an administration fee equal to 10% of the relevant Service Fee.
9.1 If you are procuring the Services for a person other than yourself, you warrant that you are duly authorised to procure the Service for such person.
9.2 Company may request written evidence of such authority and you must promptly provide the same to the satisfaction of Company. If you do not, Company reserves the right to terminate the Services.
10. WARRANTIES AND LIMIT OF LIABILITY
10.1 If this Contract is for a “consumer transaction” for the purpose of the Australian Consumer Law, the Client has the benefit of statutory “consumer guarantees” pursuant to the ACL. Nothing in this Contract affects such guarantees.
10.2 Company warrants that services supplied under these Terms shall be performed with due care and skill and fit for purpose, if specified in these Terms.
10.3 To the maximum extent permitted by law all other express and implied terms, liabilities, representations, conditions and warranties are hereby expressly negatived and excluded.
10.4 Subject to the ACL, the liability of Company to the Client is in relation to services limited to either:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
10.5 Subject to all rights and remedies which are provided pursuant to legislation and which by law cannot be excluded by agreements between the Parties, the amount Company may be obliged to pay to the Client for breach (or series of breaches) of Company’s obligations under this Contract shall not exceed an amount equal to the Service Fee.
10.6 Notwithstanding any other clause of this Contract and subject to the ACL, Company shall not be liable to the Client under these Terms, in tort, in contract, in equity, by operation of statute or otherwise for any kind of indirect or consequential loss; loss of opportunity; loss of revenue; loss of profit or anticipated profit; loss of contracts; loss of goodwill; loss arising from business interruption; or liability arising out of or in connection with pollution or contamination, arising out of or in connection with this Contract, or the work conducted under it, incurred or suffered by a party, or any other person.
10.7 The Parties agree that, to the extent permitted by law, the remedies of the Client under this clause are the only remedies of the Client and are to the exclusion of all other remedies under these Terms, in tort, in contract, in equity, by operation of statute or otherwise.
10.8 Company’s obligations under this Contract shall be reduced to the extent the Client’s acts or omissions have contributed to any losses, including provision of ambiguous, erroneous, defective or incomplete Information.
11. RISKY ACTIVITY
11.1 In this clause, Risky Activity means:
(c) any behaviour contrary to, or inconsistent with, the instructions or recommendations of the Company;
(d) using any equipment, treatment or medication contrary to, or inconsistent with, any instructions or recommendation of the manufacturer or a medical professional;
(e) refusing any treatment or medication.
11.2 The Client is permitted to engage in Risky Activity after signing a “Risk Release Deed”. A Client choosing to engage in Risky Activity is taken to agree with the provisions of this clause 11.
11.3 Company disclaims any and all liability arising in connection with the Client’s Risky Behaviour. All Risky Behaviour is taken solely at Client’s sole risk and against the Company’s recommendation.
11.4 Client agrees that it will have no claim or right of action whatsoever against the Company in relation to the Client’s Risky Behaviour. To the extent that such claim exists, the Client hereby irrevocably waives such claim, and releases and forever discharges the Company from any and all liability, claim or loss in respect of such claim.
11.5 Client irrevocably agrees to indemnify and keep indemnified the Company against any loss, claims or liability howsoever arising in connection with the Client’s Risky Behaviour.
12. FORCE MAJEURE
12.1 Notwithstanding any other provision of these Terms Company shall not be liable for any:
(b) damage generated by delays; or
(c) inability to perform any of its duties or obligations under these Terms;
(d) directly or indirectly resulting from or due to or as a consequence of acts of God, strikes or other labour disturbances or disputes, factory shutdowns, prolonged failure of any energy or fuel supply, accidents, or any cause of delay whatsoever, whether or not of a kind previously specified in this clause or of a different kind reasonably beyond the control of Company whether or not its occurrence could be foreseen at the Effective Date.
12.2 Company shall notify the Client of any such occurrence as soon as possible after the occurrence comes to its notice. Company shall also notify the Client after the occurrence has ceased or been overcome, and shall provide a statement of:
(a) the reasons why these occurrences were beyond the reasonable control of Company;
(b) the effect of these occurrences on Company’s performance of its obligations under these Terms; and
(c) the period of delay and extension of time required as a result.
13. ACCESS TO AND CONDITION OF ADDRESS
13.1 The Client shall ensure that Company’s employees, agents or subcontractors are given reasonable access to the Address. In the event access conditions on the date of commencement of the Services are different to those which Company could have reasonably anticipated as at the date of the Pre-Assessment Form or did anticipate at the time of any prior inspection (if carried out), Company may delay performance of these Terms until such time as reasonable access is available to Company.
13.2 If access to and/ or the conditions at the Address is materially different to that which Company could have reasonably anticipated as at the date of the Pre-Assessment Form or did anticipate at the time of any pre-Pre-Assessment Form inspection (if carried out), Company shall be entitled to adjust the Service Fee.
14. HEALTH AND SAFETY RISKS
14.1 The Client warrants that it has advised, and shall at all times keep advised, Company of any conditions which are known or which ought reasonably be known to the Client, to exist at the Address which may pose a risk to the health and safety of Company’s employees, agents or subcontractors.
15. PRIVACY STATEMENT
15.1 By accepting these Terms the Client accepts Company’s Privacy Statement and warrants that it has read and understood the Privacy Statement.
16.1 Without prejudice to any accrued rights or liabilities, Company may terminate these Terms if the Client if:
(a) if the Client fails to pay Company invoices for Services by the due date for payment of those invoices; or
(b) in the opinion of Company in its sole discretion, an unacceptable work, health and safety incident has occurred or exists.
17.1 Company may assign or novate all or any of its rights, obligations or interests under these Terms without the prior written consent of the other party.
18.1 This Contract is governed by the laws of the state of New South Wales.