These Terms are important and should be read carefully. Any questions about these Terms must be directed to us in writing at [email protected] before engaging our Services.
Subject to any subsequent agreements you may be required to enter with Us, these Terms constitute the entire agreement between you and us and supersedes all prior agreements, conduct, representations and understandings. You confirm you have not entered into this agreement on the basis of any representation that is not expressly incorporated into these Terms.
1 DEFINITIONS
1.1 Booking Form means the booking form you are required to complete prior to engaging our Services and includes (but is not limited to) information about the participant, NDIS number, support coordinator details, NDIS Funding which is to be used and more.
1.2 NDIA means the National Disability Insurance Agency responsible for administering, implementing and managing the NDIS and is established by the NDIS Act.
1.3 NDIS Act means the National Disability Insurance Scheme Act 2013 (Cth).
1.4 NDIS means the National Disability Insurance Scheme and is established by the NDIS Act.
1.5 NDIS Pricing Arrangements and Price Limits means the NDIS Pricing Arrangements and Price Limits document issued by the NDIA, and which may be updated from year to year.
1.6 NDIS Funding means funding provided by the NDIS to the NDIS Participant. NDIS Funding includes the following support categories applicable to our Services:
(a) Core (1 and 4 codes);
(b) Increased Social and Community Participation (9 codes); and
(c) Capacity Building – Improved Daily Living (15 codes).
1.7 NDIS Participant means a user of our Services who has NDIS funding, whether in a self or plan managed capacity.
1.8 Private Participant means a user of our Services who is not self or plan managed and is required to fund our Services though a means other than via NDIS Funding (i.e. privately).
1.9 Registration Form means the registration form which outlines details of our Services and associated Fees, and which is available on our Site.
1.10 Short Notice Cancellation means a short notice cancellation in circumstances where the participant does not show up for a scheduled support within a reasonable time, or is not present at the agreed place and within a reasonable time when we are travelling to deliver the support, or, has provided us less than seven days’ notice for a support to be provided.
1.11 Service Agreement means the Service Agreement between us and the participant.
1.12 Services means the provision of:
(a) disability support, including autism consultants, social workers etc;
(b) peer program (16 weeks);
(c) term programs (8 weeks);
(d) school holiday programs;
(e) facilitation of recreational activities for disabled and impaired children; and
(f) any other Services offered by us in the future.
2 ACCEPTANCE OF TERMS
2.1 We will provide you with a copy of these Terms before you engage our Services as listed on our Site.
2.2 By paying any amount to us in respect to the Services or otherwise instructing us to proceed with the Services in writing, you acknowledge that you have read and understood the Terms and agree to be bound by them, and all our other policies.
3 VARIATIONS TO TERMS
3.1 We reserve the right to update and change these Terms from time to time without notice.
3.2 You will be subject to the Terms in force at the time when you engage our Services, unless agreed otherwise by both parties in writing.
3.3 The updated Terms will be taken to have effect on the date of publication.
3.4 Your continued use of our Services, and the Site constitutes your acceptance of the updated Terms and is taken as your agreement to be bound by these updated Terms.
3.5 Should you object or disagree to the Terms, your only remedy is to contact us at [email protected] and immediately discontinue your use of the Services.
4 NDIA REGISTRATION
4.1 You understand and acknowledge that we are not registered with the NDIA.
5 FEES
5.1 The fees for our Services (Fees) are as indicated in our Service agreement /Registration Form.
5.2 All Fees for our Services are in Australian Dollars (AUD).
5.3 All Fees are exclusive of GST (if applicable) unless indicated otherwise, and exclude delivery charges and customs duty and other taxes, if applicable.
5.4 For clarity, Fees are GST exempt where NDIS Funding is being used for a NDIS Participant for the purposes of paying the Fees.
5.5 All Private Participants will have GST applied to invoices.
5.6 Where there are insufficient NDIS Funds to pay us for the Services, you accept that you are personally responsible for attending to payment. Such Fees will also include the addition of GST to the applicable invoice.
5.7 We reserve the right to modify, cancel and limit any Services at any time.
6 PAYMENTS AND NDIS FUNDING
6.1 We will send you invoices for our Services after the completion of our Services.
6.2 If the NDIS Participant is:
(a) NDIS plan-managed: we will issue the invoice to the NDIS Participant’s plan manager; or
(b) NDIS self-managed: we will issue the invoice to the NDIS Participant directly.
6.3 If the participant is a Private Participant, we will issue the invoice to the Private Participant directly.
6.4 You acknowledge that the delivery of some of our Services is subject to NDIS Funding being available to the participant. We will not be liable for any loss suffered as a result of such suspension or termination of any NDIS Funding.
6.5 If you fail to pay our Fees when due, as indicated on the invoice, you acknowledge that we reserve the right to suspend or terminate the delivery of our Services. We will not be liable for any loss suffered by you as a result of such suspension or termination.
6.6 We reserve the right to on-sell or otherwise authorise a debt-collection or other authorised agency to collect any amount not paid by you.
6.7 You must pay us all Fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to the Services provided.
7 GENERAL DISCLAIMER
7.1 We offer a number of Services on our Site from time to time.
7.2 You acknowledge and agree that each Service offering may have different terms, prices and Fees, as displayed on our Site or as contained in any contract entered into with you and us for those Services.
7.3 We provide the Services on an “as-is” and “as available” basis and whilst every effort is taken to ensure the content provided and the Site is accurate, we make no representations and give no guarantees or warranties about the currency, suitability, reliability, availability, timeliness and/or accuracy of the content and the Site for any purpose.
7.4 It is your responsibility to independently verify the information made available on the Site.
7.5 Nothing on the Site or any of the content or Services is a promise or guarantee of results, future earnings or progress. Any information given (including case studies) is purely based on experience and is for illustrative purposes only. Information provided may not always be tailored specifically for your particular situation.
7.6 You acknowledge and agree that we, our employees, affiliates and representatives are not responsible for decisions that you may make, or for any consequences, undesired or otherwise, that may flow from your engagement of the Site or the Services offered on the Site.
7.7 Any testimonials and examples of our Services, wherever published (online or in print) are not to be taken as a guarantee that you will achieve the same or similar results.
7.8 We make no warranty, representation, or guarantee regarding the suitability of our Services for any particular purpose, nor do we assume any liability whatsoever arising out of the application or use of any Service. It is your responsibility to independently determine suitability of any Service and to test and verify the same.
7.9 Any timelines or delivery dates are provided by us on an estimated basis only. We make no guarantee that these timelines or delivery dates will be met as there may be interfering factors beyond our control, and we are not responsible for any delay in the delivery of our Services.
7.10 You acknowledge and agree that any results to be attained by you are dependent upon you solely.
7.11 We provide support, guidance, and tools for you to set goals, determine priorities and achieve results, but any decision you make, and the consequences that flow from such decisions, is your sole responsibility. Your success depends on many factors, including your dedication, participation, desire, and motivation.
8 REGISTERING YOUR DETAILS
8.1 Before you purchase our Services, you must complete the Booking Form.
8.2 You must provide accurate, complete and up-to-date information, as requested, and it is your responsibility to inform us of any changes to the information.
8.3 We may at any time request a form of identification to verify your identity.
8.4 If you create an account to an online portal, you acknowledge and agree that:
(a) you are solely responsible for protection and confidentiality of any password or member identification that may be issued to or subscribed for by you from time to time (Password);
(b) you will not reveal (or cause to be revealed through any act or omission) your Password to any other person;
(c) you will immediately notify us if your Password is lost or becomes known to any other person; and
(d) you are solely responsible for all access to and use of the online portal via your Password, whether such access or use is by you or any other person.
8.5 To the extent that you provide personal information, we will treat such information strictly in accordance with our Privacy Policy.
8.6 You must ensure the security and confidentiality of your online portal account details, including any username and/or Password. You must notify us immediately if they become aware of any unauthorised use of your registered details.
9 YOUR OBLIGATIONS
9.1 During the delivery of our Services, you agree to:
(a) respond promptly to our communications in relation to the Services;
(b) provide, within a reasonable amount of time, accurate, complete and current information or documentation reasonably required by us to perform the Services; and
(c) act in good faith.
9.2 When providing our Services, we may request that you provide us with responses, feedback, completed questionnaires and forms, copy content, images, and other information so we can best deliver our Services. You agree that you will provide any such information in a timely manner. Any delays in receiving this information may result in information not being provided by us to you.
10 CONFIDENTIALITY
10.1 Each party (Recipient) must keep secret and confidential and not disclose any Confidential Information (which is or has been disclosed to the recipient by the other party, its representatives or advisers), or these Terms, except:
(a) where the information is in the public domain as at the date of these Terms (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);
(b) if the Recipient is required to disclose the information by applicable law or the rules of any other document with statutory content requirements, provided that the Recipient has to the extent practicable having regard to those obligations and the required timing of the disclosure consulted with the provider of the information as to the form and content of the disclosure;
(c) where the disclosure is expressly permitted under these Terms or is required to give effect to these Terms;
(d) if disclosure is made to its personnel to the extent necessary to enable the Recipient to properly perform its obligations under these Terms or to conduct their business generally, in which case the Recipient must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
(e) where the disclosure is required for use in legal proceedings regarding these Terms; or
(f) if the party to whom the information relates has consented in writing before the disclosure.
10.2 Each Recipient must ensure that its personnel comply in all respects with the Recipient’s obligations under this clause.
10.3 Definitions:
(a) Confidential Information of a party means all information (in any form):
(i) relating to or arising from the Services;
(ii) that concerns that party’s business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, client lists, pricing, and other business processes);
but does not include information that:
(iii) is or becomes independently developed or known by a party through no breach of these Terms by that party; or
(iv) becomes publicly available, without breach of these Terms;
10.4 This clause survives termination or expiry of these Terms.
11 INTELLECTUAL PROPERTY AND MORAL RIGHTS
11.1 Intellectual Property Rights in Contract Materials and Existing Materials
You agree that:
(a) we will own all rights in and to the Contract Materials, as defined below, including any Intellectual Property Rights which subsist in the Contract Materials, or which may be obtained from the Contract Materials created from the date you engage our Services; and
(b) we retain ownership over the Existing Materials, as defined below, and you acknowledge that you do not acquire any ownership rights by using the Existing Materials.
11.2 Moral Rights
(a) To the extent permitted by applicable Law, we are unconditionally and irrevocably:
(i) do not consent to the following acts or omissions in respect of all Contract Materials created by us in the course of providing the Services:
(A) any use of the Contract Materials that does not identify us as the author;
(B) falsely attributing the authorship of the Contract Materials or any content of the Contract materials to you;
(C) materially altering the style, format, colours, content or layout of the Contract Materials and dealing in any way with the altered Contract Materials;
(D) reproducing, communicating, adapting, publishing or exhibiting the Contract Materials, or
(E) adding any additional content or information to the Contract Materials; and
(ii) do not waive all of our Moral Rights in the Contract Materials.
11.3 Definitions
Contract Materials means materials, including but not limited to, works, behaviour plans, treatment plans, ideas, concepts, designs, websites, inventions, developments, improvements, systems, accounts created for you or other materials or information created, made or discovered by us:
(a) in the course of providing our Services; and/or
(b) as a result of using your resources (including the Confidential Information and Intellectual Property Rights).
Contract Materials do not include our work methodologies, reports, sources, third party websites and the links contained therein, licensed software, programs, accounts belonging to us or created for other clients, stock photography licences, licences to third party service providers which we may provide to you from time to time in relation to our Services.
Existing Materials means materials, including, but not limited to, our works, work methodology, reports, ideas, concepts, designs, inventions, developments, improvements, stock photography licences, licences to third party service providers, licensed software, accounts belonging to us or created for other clients, systems, other materials, information, sources, programs, accounts created, made or discovered by us prior to providing our Services to you or outside the scope of our Services that we use or supply in the course of the provision of our Services.
Intellectual Property Rights means all present and future rights conferred by law in or in relation to copyright, trade marks, designs, circuit layouts, plant varieties, business and domain names, inventions and confidential information and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
These rights include:
(a) all rights in all applications to register these rights;
(b) all renewals and extensions of these rights; and
(c) all rights in the nature of these rights, such as Moral Rights.
Moral Rights means:
(a) rights of integrity of authorship or performership;
(b) rights of attribution of authorship or performership;
(c) rights not to have authorship or performership falsely attributed;
(d) conferred by the Copyright Act 1968 (Cth); and
(e) rights of a similar nature that exist, or may come to exist, anywhere in the world.
11.4 This clause 11 survives termination or expiry of these Terms.
12 COPYRIGHT AND TRADE MARK NOTICES
12.1 All material on our Site including (but not limited to) templates, text, graphics, information architecture and coding (Our Content), is subject to copyright. While you may browse or print our Content for non-commercial, personal or internal business use, you must obtain our prior written permission if you would like to use, copy or reproduce it. Modification of our Content for any other purpose is a violation of our copyright and other proprietary rights and is strictly prohibited.
12.2 You acknowledge that you do not acquire any ownership rights by using the Site or our Content.
12.3 The trade marks, logos, and service marks displayed on our Site to denote our brand are either registered or unregistered trade marks of us (Our Marks). Our Marks, whether registered or unregistered, may not be used in connection with any product or service that does not belong to us, in any manner that is likely to cause confusion with customers, or in any manner that disparages us.
12.4 Nothing contained on our Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any our Marks without our express written permission.
12.5 You agree that damages may be an inadequate remedy to a breach of these Terms and acknowledge that we will be entitled to seek injunctive relief if such steps are necessary to prevent violations of its intellectual property rights.
12.6 This clause survives termination of these Terms.
13 RIGHT TO SUSPEND, TERMINATE, REFUND AND CLAIM FOR A SHORT NOTICE CANCELLATION
13.1 We reserve the right to suspend or terminate your use of the Site or our Services generally if you breach these Terms, as determined by us in our sole discretion.
13.2 Any Short Notice Cancellations will be dealt with in accordance with the NDIS Pricing Arrangements and Price Limits and any Service Agreement between us and you.
13.3 Refunds are not provided for our Services, other than in accordance with the Australian Consumer Law (“ACL”), as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) and in accordance with the NDIS Pricing Arrangements and Price Limits.
13.4 Any refund requests will be assessed on a case-by-case basis, in accordance with the costs associated with each Service delivered by us.
14 LIABILITY IS LIMITED
14.1 We provide the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by Law. Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the services that are not expressly set out in these Terms to the maximum extent permitted by Law.
14.2 Without limiting the generality of clause 14.1, we expressly exclude any liability in contract, tort or otherwise for any injury, damage, loss, delay or inconvenience caused directly or indirectly by your use of our Services.
14.3 Subject to the other terms of this clause, our maximum aggregate liability owed to you in for any loss or damage or injury arising out of or in connection with the supply of our Services under these Terms, including any breach by us of these Terms however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by you under these Terms in the one month period preceding the matter or the event giving rise to the claim.
14.4 The disclaimers, limitations of liability and indemnities within these Terms do not exclude rights that may not be excluded by law, including but not limited to, those rights under the Australian Consumer Law.
14.5 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law that cannot be excluded, our total liability to you for that failure is limited to, at our option, to the resupply of the Services or the payment of the cost of resupply.
14.6 Subject to the other terms of this clause, we exclude any liability owed to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms, including any loss of profits, loss of sales or business, loss of production, loss of agreements, loss of business opportunity, loss of anticipated savings, loss of or damage to goodwill or reputation or loss of use or corruption of data or information.
14.7 This clause applies to the fullest extent permitted by Law and shall survive termination of these Terms.
15 INDEMNITY
15.1 You agree to indemnify us and our officers, agents, partners, directors, shareholders and employees and subcontractors, against any direct losses, liabilities, costs, charges or expenses and all interest, penalties, and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by us arising out of or in connection with:
(a) your use of our Services;
(b) any claim made against us or you by a third party arising out of or in connection with the provision of our Services and/or these Terms;
(c) any breach of these Terms by you, including any failure to pay any Fees on time;
(d) any reliance by you or a third party on our Services or any advice or information provided in connection with the provision of our Services and/or these Terms; and
(e) the enforcement of these Terms.
15.2 You must make payments under this clause in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by Law.
15.3 We are not responsible, and expressly limit our liability to the extent permitted by law, which is without limitation to your rights under the ACL, for damages of any kind arising out of use, reference to, or reliance or use on any information contained within our Site or by engaging our service.
15.4 This clause survives the termination of these Terms.
16 NO DISPARAGEMENT
16.1 At all times, you must not make any public or private statement or comment, whether oral or in writing by any method, which in our reasonable opinion is adverse to the interest, reputation or commercial standing of our business or is in any respect a disparaging remark or representation about us and/or any of our Services.
16.2 Should you breach this clause, you hereby indemnify us in accordance with clause 15 above.
17 FORCE MAJEURE
17.1 We will not be in breach of these Terms or liable to you for any Loss that you may incur as a direct result of our failing or being prevented, hindered or delayed in the performance of our obligations under these Terms where such prevention, hindrance or delay results from a Force Majeure Event.
17.2 If a Force Majeure Event occurs, we will notify you (Non-affected Party) in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
17.3 On providing the notice in the above clause, we will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, we will continue to use all reasonable endeavours to perform those obligations.
17.4 The performance of the affected obligations will be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
17.5 References to a Force Majeure Event in this clause means: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, cyber-attack, service attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence or other natural disaster;
(d) epidemic, pandemic, health emergencies, disease;
(e) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(f) interruption or failure of utility services (including the inability to use public, private telecommunications networks, servers or third-party hosting platforms); and
(g) the acts, decrees, legislation, regulations or restrictions of any Government Agency;
however, does not include a lack of funds.
17.6 References to Loss in this clause means: any loss, liability, cost, charge, expense, Tax, Duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
18 LINKED WEBSITES, AFFILIATES OR SPONSORS
18.1 Any links to other websites on our Site, which are not operated by us are not controlled by us and we accept no responsibility for them or for any loss or damage that may arise from your use of them. Your use of any linked sites will be subject to the terms of use and service contained within each such site.
18.2 As affiliates of certain services we may also receive compensation for recommending, endorsing or promoting services as featured on our Site or in the course of delivering our services. Any affiliation or sponsorship is for remuneration purposes only and is not an expression of our own recommendation, endorsement or promotion of those services which are not our own.
18.3 We make no representation or warranty as to the recommendations, endorsements or promotions we make of certain services, unless expressly stated otherwise. You acknowledge and agree that any remuneration or other non-monetary benefit we receive from our affiliated, endorsed or sponsored services is for the purposes of that affiliation, endorsement and sponsorship only. We expressly disclaim any liability arising from your use or reliance of any recommended, endorsed or promoted services by us which are not our own and caution you to make your own independent inquiry prior to any such use or purchase.
19 SEVERABILITY
19.1 If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.
20 NO ASSIGNMENT
20.1 You cannot transfer or assign your rights in accordance with these Terms, including any membership or registration with us, without our prior written consent.
20.2 We may assign or transfer our rights and obligations under these Terms at any time, upon prior written notice to you of at least 4 calendar weeks.
21 SUB-CONTRACTING
21.1 We are free to sub-contract any of our obligations under these Terms, but such sub-contracting will not release us from our liabilities under these Terms.
22 BINDING ON SUCCESSORS
22.1 These Terms shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
23 DISPUTE RESOLUTION
23.1 If a dispute arises between the parties in relation to these Terms, the dispute must be dealt with in accordance with this clause.
23.2 Any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute.
23.3 In the case of claims against us, all notices are to be provided to [email protected].
23.4 If the dispute is not resolved by agreement within 5 business days of the Second Party receiving the notice referred to above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further 5 business days or failing agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited.
23.5 Once a mediator is appointed, the parties agree that:
(a) The costs of the mediator shall be borne equally between the disputing parties.
(b) The chosen mediator shall determine the procedures for mediation.
(c) The chosen mediator will not have the power or authority to make any other determination in relation to the dispute.
23.6 If the parties have not mediated a resolution of the dispute within 10 business days of the selection of a mediator, neither party shall be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it considers fit in relation to the dispute.
23.7 Nothing in this clause prevents a party from commencing proceedings seeking urgent interlocutory relief from a court of competent jurisdiction to hear the matter, if, in that party’s reasonable opinion, it is necessary to protect their rights.
23.8 Despite the existence of a dispute the parties must continue to comply with their obligations under these Terms.
23.9 This clause survives termination of these Terms.
24 APPLICABLE LAW
24.1 These Terms shall be construed in accordance with and governed by the laws of Queensland, Australia. You consent to the exclusive jurisdiction of the courts in Queensland to determine any matter or dispute which arises between us.
25 YOUR FEEDBACK
25.1 We welcome enquiries or feedback on our Site. Unless specifically stated by you, we shall treat any information you provide us with, as non-proprietary and non-confidential. Please see our Privacy Policy for further details.
25.2 If you have questions or comments regarding this Site or our Services, please email us at [email protected].
© Progressive Legal Pty Ltd – All legal rights reserved (2024). These Terms were last updated on 21 April 2024.
