1.1 In this Agreement unless the context requires otherwise:
The singular includes the plural and vice versa.
A reference to one gender includes a reference to all other genders.
A reference to a party that is a corporation includes a reference to all related corporations as that term is defined under the Corporations Act (Cth) 2001.
Headings to clauses are included for the sake of convenience only and do not affect the interpretation of the clauses to which they relate.
References to any statute or statutory provision includes that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any orders, regulations, instruments or other subordinate legislation made under the relevant statute.
This Agreement binds each party's legal personal representatives, successors and assigns.
Where a party comprises two or more persons the rights and obligations of such persons pursuant to this Agreement will endure for the benefit of and bind all of them jointly and each of them severally.
All amounts stated in this Agreement are amounts in Australian Dollars.
The Schedule forms part of this Agreement and is to be read together with the clauses stated herein.
1.2 In this Agreement, unless the context requires otherwise, the following expressions have the following meaning:
“Agreement” means this Service Agreement between Sort It Now and the Client.
“Business Days” means Mondays to Fridays except for public holidays in the State of Victoria.
“Commencement Date” means the commencement date of this Agreement and, if set out in the Schedule, means the date that is set out in the Schedule as being the Commencement Date of this Agreement.
“Confidential Information” means all confidential information belonging to a Party and includes confidential computerised or electronic systems and processes, written materials, custom written guides, financial information, new ideas, strategies, product and service plans, unpublished works, marketing plans and studies, forecasts, computer programs, databases, computer codes, concepts and designs, records, technical specifications, product design, and any document that is marked as being confidential.
“Client” means the person engaging Sort It Now to provide the Services and Party to this Agreement.
“Client Contact Details” means those contact details for the Client and, if set out in the Schedule, means those contact details set out in the Schedule.
“Deposit Amount” means the deposit amount payable by the Client to Sort It Now in accordance with this Agreement and includes any amount as set out in the Schedule (if any).
“Deposit Payment Date” means the date that Sort It Now requires the Deposit Payment Amount to be paid by the Client to Sort It Now and, if set out in the Schedule, means that date set out in the Schedule.
“Designated Premises” means the designated premises for the Service(s) to be provided and, if set out in the Schedule, includes the designated premises as set out in the Schedule.
“End Date” means the date that this Agreement ends and, if set out in the Schedule, means the end date as set out in the Schedule.
“Force Majeure Event” means any event or circumstance or combination of events and circumstances which is beyond the control of Sort It Now and is not a risk for which Sort It Now is responsible for under this Agreement and cannot, or the effects of which cannot, be prevented, overcome or remedied by the exercise of a standard of care and diligence reasonably expected of Sort it Now.
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).
“Materials” means any boxes, files, folders and all products and materials used by Sort It Now in relation to the provision of the Services and including, but not limited to, any services provided by Sort it Now for the benefit of the Client.
“Notice” means a written notice given in accordance with the provisions of this Agreement.
“Party” means a party to this Agreement.
“Payment Amount” means the amount agreed to be paid by the Client to Sort It Now for the provision of the Services and includes (a) any amount set out in any invoice provided by Sort It Now to the Client; and (b) also includes any amount if set out in the Schedule.
“Payment Due Date” means the date that any Service is provided by Sort It Now for the Client or any other date as specified by Sort it Now from time to time.
“Penalty Interest” means that maximum amount of penalty interest as permitted by applicable legislation.
“Photograph” means that image or photograph as described in the Schedule.
“Schedule” means the schedule to this Agreement.
“Services” means the professional organising services provided by Sort It Now for the benefit of the Client and including, but not limited to consulting, work place organising, paper work and digital solutions, home organising and decluttering, preparing home for sale, estate clearance, relocation services, speaking, workshops, personal coaching, project management and any service(s provided by Sort It Now for the benefit of the Client whatsoever and whether or not set out in the Schedule.
“Sort It Now” means Ms Nicola Kay Evans of 3/389 Neerim Road, Carnegie VIC 3163, trading as Sort It Now ABN 51 523 571 364.
2.1 The Client agrees to pay the Payment Amount to Sort It Now on the Payment Date as consideration for the Services and the Client agrees to pay any additional amount that may be required by the GST Act by the Payment Date as directed by Sort It Now.
2.2 Sort It Now agrees to provide the Services to the Client at the Designated Premises in accordance with this Agreement.
2.3 The Client must pay the Deposit Amount as directed by Sort It Now and that Deposit Amount must be paid by the Deposit Payment Date.
Goods and Services Tax
2.4 Where the GST Act applies, the Client agrees to pay any applicable Goods and Services Tax charged to the Client in respect of the Services and the Client acknowledges that the Payment Amount provided to the Client by Sort It Now may be the Goods and Services Tax exclusive amount in which case Goods and Services Tax still remains payable by the Client.
Method of Payment
2.5 The Payment Amount must be paid by way of direct bank deposit, electronic funds transfer, cash credit card, through pay pal, cheque, or any other method specified by Sort It Now from time to time.
2.6 In the event of non-payment you will be liable for all legal costs (on a solicitor and client basis) incurred by Sort It Now in recovering the debt together with interest.
3. REFUND AND CANCELLATION
3.1 No refund will be paid by Sort It Now to the Client if the Services cannot be completed as a result of the Client failing to provide Sort It Now access to the Designated Premises at scheduled start time.
3.2 No refund will be paid by Sort It Now to the Client in relation to a gift voucher(s) or any other circumstance reasonably considered by Sort It Now so as not to warrant a refund as the circumstances could otherwise permit or allow.
3.3 Sort It Now is hereby entitled to invoice client at 50% of the Payment Amount (or equivalent cost/hours in case of package or redemption of gift voucher), as paid by the Client, in the case that the Client cancels any time whereby the Services (or ay part thereof) were set to be provided, if that cancellation was made within 48 hours of that scheduled appointment time.
3.4 In the case that the Client cancels any time whereby the Services (or ay part thereof) were set to be provided the Client has the right to reschedule and Sort It Now may waiver its right to invoice client at 50% of the Payment Amount (or equivalent cost/hours in case of package or redemption of gift voucher) despite any other provision of this Agreement including above. Any deposit paid will be retained and carried over to rescheduled date.
4.1 During the course of Sort It Now’s appointment, Confidential Information may come to either Parties’ possession or control. All Confidential Information is totally confidential whether or not there is a statement to that effect attached to the information.
4.2 The Parties agree that during Sort It Now’s appointment and at all times after Sort It Now’s appointment has ended to use best endeavors to keep the Confidential Information confidential, unless otherwise required by law or Court Order to disclose such Confidential Information.
4.3 The Confidential Information will cease to be confidential if it becomes publicly known other than as a result of a breach of a confidentiality obligation or if that information is required to be disclosed by law.
5. SORT IT NOW BEST ENDEAVOURS
Sort It Now warrants to the Client that it will exercise best endeavors as follows:
5.1 Sort It Now will comply, conduct itself, act and perform the Services, at all times in accordance with the local, Victoria and Australian Commonwealth legislation, by-laws, orders and notices of all government, municipal and statutory authorities relating to the Services.
5.2 Sort It Now will use best endeavors and comply with all appropriate professional standards when providing the Services to the Client.
5.3 Sort It Now agrees to comply and adhere to all applicable privacy legislation in so far as that legislation applies to this Agreement.
5.4 To maintain appropriate insurances so that Services are backed by public liability and professional indemnity insurance as deemed appropriate by Sort It Now during its business as a professional organiser.
6. LIMITATION OF LIABILITY
6.1 The Parties agree that the following limitations apply to any liability imposed upon Sort It Now:
(a) Sort It Now does not offer a “money back guarantee” for the Services, and Sort it Now is not responsible for any non achievement of results in respect of the Services to the extent that the Client is responsible for that non achievement.
(b) The entire risk as to the quality and the performance of the Services is with the Client.
(c) The Client agrees not to take any action whatsoever for any loss that the Client suffers as a result of Sort It Now ceasing or suspending the provision of any Services as a result of the Client not fulfilling any payment obligations under this Agreement.
(d) Sort It Now, its subsidiaries, affiliates, officers, agents, partners, representatives, and employees shall not be liable to the Client for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for damages to property, loss of profits or revenue, loss of data, goodwill, or any other tangible and intangible losses, even if Sort It Now has been advised of the possibility of such damages arising.
(e) The Client agrees that Sort It Now, its subsidiaries, affiliates, officers, agents, partners, representatives, and employees are not liable for any loss or damage caused by Client’s failure to carefully review or inspect any items or goods disposed of by Sort It Now, or its subsidiaries, affiliates, officers, agents, partners, representatives, and employees under this Agreement, including with respect to any loss or damage caused by negligence or fault.
(f) Sort It Now is engaged by the Client solely as an independent contractor. The Client shall not hold any third party liable for any act, matter or thing done or to be done by Sort It Now in or as a result of the provision of the Services.
(g) Sort It Now may engage or employ others, to conduct the Services, as Sort It Now sees fit from time to time, and the Client agrees to release and indemnify Sort It Now and its employees, contractors, consultants and third parties for any breach of this Agreement and the Client indemnifies Sort It Now against all actions, proceedings, liabilities, claims damages, costs and expenses arising out of or in any way relating to that employment or engagement.
(h) The Client will review all materials, items, things and property recommended by Sort It Now to be disposed of by means of recycling, shredding, donation, resale, or any other means agreed to between the Client and Sort It Now.
(i) Sort It Now is not responsible or liable in respect of any damage, disposal, loss or breakage of any property belonging to the Client unless Sort It Now agrees, acting fair and reasonably, to accept responsibility and/or liability in respect of that damage, loss or breakage.
6.2 To the full extent permissible (under all applicable laws, legislation, by laws and regulations) the Client hereby agrees to release and fully indemnify Sort it Now against all actions, claims and loss suffered (including in respect of any third parties) in regards to the following:
(a) Occupational Health & Safety and personal injury.
(b) Obstructions that result in objects causing a person to suffer loss, harm or damage.
(c) Accidental breakage or loss of Clients belongings or property.
(d) Any loss or damage suffered by a Client as a result of Sort It Now donating or giving any of the Clients property and/or belongings to a third party such as a charity organisation.
(e) Any stealing, or theft, or alleged stealing, or theft, in respect of the Clients property and/or belongings.
(f) Doing something or any failure to do something that the Client reasonably expected to be done or conducted in respect of the Services.
(g) Any failure of the Services to satisfy any particular standard and/or outcomes, goals, or timeliness.
(h) Any breach, or perceived breach of privacy, or confidential information obligations imposed on Sort It Now.
7. CLIENT WARRANTIES AND ACKNOWLEDGEMENTS
7.1 The Client provides the following warranties and acknowledgements in accordance with this Agreement:
(a) Sort It Now is excluded from any liability to the Client, of any kind, in regards to the Services howsoever arising, whether or not connected with this Agreement.
(b) The Client expressly warrants to Sort It Now, to the full extent permitted by law, that all information provided by the Client is accurate and not misleading.
(c) The Client holds Sort It Now harmless and indemnifies Sort It Now against any loss, cost or expense resulting from the use and implementation of the Services provided by Sort It Now.
(d) The Client is not entitled to a refund of any or all of the Payment Amount if the Client decides that the Client does not want the Service.
(e) The Client warrants and hereby agrees that the Client is hereby liable and wholly responsible for any damage to the reputation of Sort It Now caused by any action or inaction done by the Client, including but not limited to any damage caused to Sort It Now’s reputation caused by the use or implementation of social media, or internet resources.
7.2 The Client acknowledges that the Client must provide its own storage items and filing equipment, as required in respect of the Services, as and when the Client is requested to do so. Any such items recommended by Sort It Now are at client’s cost. If client requests specific items to be sourced and purchased for a project, both the time taken and cost of items are chargeable to client. Items are then the client’s property and any faults or change of mind refunds must be directed to the supplier
7.3 The Client agrees to comply and adhere to all applicable privacy legislation in so far as that legislation applies to this Agreement, Sort It Now, or any third parties.
7.4 The Client hereby acknowledges and agrees that Sort it Now has the full legal right, power and entitlement to cancel any appointment and make any amendments reasonably required, to those particulars stated in the Schedule and in accordance with principles of law.
7.5 The Client hereby agrees and acknowledges that if Sort It Now donates any one or more things, goods or items to a charity organisation then the Client waives all legal rights in respect of those things, goods or items and the Client does not have any legal right or otherwise to request for those any one or more things, goods or items to be returned.
7.6 The Client hereby acknowledges and agrees to release and indemnify Sort It Now in respect of any loss or claim, including any loss suffered or claim made by third parties, including (but not limited to) a refusal by Sort It Now to provide the Services in respect of any one or more things, any claim for payment or compensation made by a third party, or any goods or items if Sort it Now considers that those goods or items are hazardous or dangerous.
7.7 The Client acknowledges that Sort It Now may, at its absolute discretion, accept personal donations of any things, goods or items if offered by the Client.
7.8 The Client agrees to formally execute this Agreement on or before the second appointment for Sort It Now to attend the Designated Premises unless Sort It Now reasonably requests for this Agreement to be formally executed at some other time and in which case the Client must execute this Agreement when requested to do so.
7.9 The Client agrees that the terms and conditions of this Agreement come into full force and effect at the time that this Agreement is first emailed to the Client and irrespective as to whether or not the Parties have formally executed this Agreement. In such circumstances Sort It Now shall solely determine the specifications, addresses and amounts that apply for the purpose of the first page of this Agreement provided that Sort It Now exercises such discretion fairly, reasonably and in consideration of the interests and circumstances of both of the Parties.
7.10 The Client hereby warrants that any third party engaged in connection with the services is engaged directly by the Client and therefore the Client remains full legal liability to all things related to that third party.
7.11 The Client hereby acknowledges that Sort It Now may use a Client Photograph including for marketing and other purposes.
7.12 The Client hereby acknowledges that Sort It Now owns all intellectual property rights in the material, ideas, concepts, or techniques that will be shared with you in delivery of services and that the Client will not use (other than for the Client’s own personal and private use), copy, reproduce or disclose Sort It Now’s material, ideas, concepts or techniques, without Sort It Now’s prior approval in writing.
8.1 The Client holds Sort It Now harmless and indemnifies Sort It Now (and its subsidiaries, affiliates, officers, related parties, employees, contractors, agents, co branders or other partners) from and against any claims (including third party claims), actions, liabilities, damages, costs, charges or expenses (including but not limited to legal fees) Sort It Now incurs or becomes liable to pay in respect of the subject matter of this Agreement, the Services, Confidential Information including any action taken by third parties against either of the Parties in respect of the subject matter of this Agreement.
8.2 The Client hereby agrees to release and indemnify Sort It Now in respect of any outstanding payments to any third party provided that any such payment is owed and incurred in connection with the Services.
9.1 Service of any Notice under or relating to this Agreement shall be sufficiently served:
(a) If delivered personally to the Client.
(b) If left at or sent by pre-paid registered post to the address of the Client as set out in the Client’s description in the first page of this Agreement, and in the case of posting, such Notice shall be deemed to have been duly served on the second day after such Notice has been posted.
(c) If emailed to the last known email address of the Client and, in the case of emailing, shall be deemed to have been duly served at the time such email transmission is sent.
9.2 A Notice must be served upon Sort It Now by pre-paid registered post to the following address:
Address: PO Box 4046, McKinnon, Victoria 3204
Attention: Ms Nicola Kay Evans trading as Sort It Now ABN 51 523 571 364
9.3 A Notice served upon Sort it Now shall be deemed to have been duly served on the second day after such Notice has been posted.
10.1 Either the Client or Sort It Now can bring this Agreement to an immediate end if any of the following events occur:
(a) A receiver or manager, controller, administrator, liquidator, provisional liquidator, trustee, official manager or similar person under the laws of any jurisdiction is appointed to or exists in relation to either Sort it Now or the Client.
(b) Any action is taken by a competent authority with a view to striking the Client’s name off any register of companies or businesses as the case may be.
(c) Either the Client or Sort It Now breaches a term of this Agreement and fails to remedy such breach within thirty (30) days of receiving written Notice from the other party requiring it to do so.
(d) The Client, or any of its directors, become bankrupt or otherwise make application to become bankrupt.
Suspension and termination By Sort It Now
10.2 Sort It Now may terminate or suspend this Agreement immediately upon providing written Notice to the Client if:
(a) The Client does, or fails to do as the case may be, anything that in the opinion of Sort It Now may affect Sort It Now’s ability to perform its obligations, or exercise any rights, under this Agreement.
(b) If a Force Majeure Event occurs and continues beyond one (1) month from the date of occurrence of such event.
(c) The Client cancels more than three (3) scheduled appointment dates and/or times in which the Services were to be performed.
(d) The Client fails to perform or observe any of the terms of this Agreement and the Client fails to remedy such breach within 5 Business Days from receipt of a Notice from Sort It Now to remedy that breach.
(e) Any cheque drawn or endorsed by the Client fails for the purposes of this Agreement has been dishonored and the Client fails to honor such cheque within 5 Business Days from Sort It Now requesting for that defect to be remedied.
(f) If the Client fails to provide Requested Information to Sort It Now, as soon as possible after requested to do so by Sort It Now, to enable Sort It Now to commence or complete the Services.
(g) The Client does not pay the Payment Amount in accordance with this Agreement, in which case Sort It Now has the sole discretion to either cease or suspend providing the Services until Payment is received, or terminate this Agreement.
Termination By The Client
10.3 The Client is entitled to terminate this Agreement prior to the End Date in the case that Sort It Now does not perform its obligations under this Agreement, the Client has given Sort It Now Notice of the failure, and Sort It Now has been afforded at least 21 days form the Notice to rectify the failure to perform the obligations under this Agreement.
Consequences of termination Or Suspension
10.4 If this Agreement is validly terminated by Sort It Now prior to the End Date then the Client must immediately pay Sort It Now the balance (if any) of the Payment Amount together with any other Payment Amount owed by the Client to Sort It Now under this Agreement (if any).
10.5 Upon termination of this Agreement Sort It Now shall immediately cease to be liable to the Client in respect of any outstanding obligations regarding the Services.
The Client shall not assign its interests under this Agreement without the consent in writing of Sort It Now.
In the event of any clause or part of a clause of this Agreement being invalid, illegal, unlawful or otherwise being incapable of enforcement, that clause or part of that clause shall be deemed to be severed from this Agreement and of no force and effect but all other clauses and parts of clauses of this Agreement shall nevertheless prevail and remain in full force and effect and be valid and fully enforceable and no clause or part of a clause of this Agreement shall be construed to be dependent upon any other clause or part of a clause unless so expressed herein.
The failure by either party at any time to enforce any of the provisions of this Agreement or any rights or to exercise any election in respect of this Agreement shall not be a waiver of such provisions rights or elections or affect the validity of this Agreement.
14. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between Sort It Now and the Client as to the subject matter and renders all previous communications and representations with respect to this Agreement invalid.
15. FURTHER ASSURANCE
Each party to this Agreement shall do, sign and execute all acts, deeds, documents and things as may be reasonably required by the other party to effectively carry out and give effect to the terms of this Agreement.
16. PROPER LAW
This Agreement shall be governed by and construed pursuant to the laws of Victoria and the parties agree to submit to the non-exclusive jurisdiction of the Courts of Victoria in connection with any dispute or other matter relating to this Agreement.