In these terms and conditions:
Agreement means the agreement entered into between the parties in accordance with these terms and conditions.
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);
Confidential Information includes any information marked as confidential and any information received by either party during the term of the Agreement, and includes any personal information or Intellectual Property of that party.
Customer means the Customer stated in the schedule
Fee(s) means any amount or rates set out in these terms and conditions or the schedule to these terms and conditions, or which may otherwise be agreed between the parties in writing;
Intellectual Property includes trade marks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former;
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever;
Schedule means the schedule to these terms and conditions, as set out on the Supplier’s website.
Services means a range of domestic, administrative and childminding tasks, including, but not limited to, running errands, cleaning, minding school aged children, washing clothes, folding clothes, sorting and organising cupboards, filing, dusting, meal preparation, supervising trades, helping to organise family events, sourcing gifts, grocery shopping, meal planning, paying bills, sourcing quotes, taking care of pets, watering plants, organising the family calendar, assisting with extra circular activities, assisting with homework, school lunches, ironing, picking up dry cleaning, getting the car cleaned, changing bed linen and related tasks.
Supplier means Your Magic Helper Pty Ltd (ABN 42 602 264 924) of 239a Murray Road, Preston, Victoria 3072
Supplier’s Personnel means any person(s) that the Consultant designates to perform the Services on the Supplier’s behalf;
Termination Date means the earlier of:
(a) the date of termination of the Agreement by either party ; and
(b) the date of expiry of the Agreement.
2. Provision of Services and Cost
The parties agree to the supply and the fee for the services specified in the schedule in accordance with the terms of the Agreement.
The customer may engage the services in one of two ways:
(a) Pay As You Go (PAYG) Membership: Payment of a $90 plus GST non-refundable fee to access the booking system. This system will display time slots available, up to 3 months in advance. A minimum 48 hours notice is required to make or cancel a booking. These services are billed at a higher rate with a minimum 2 hour booking. Minimum fee is $100 plus GST per booking.
(b) Set and Forget Membership: There are two options, both of which are billed in 3 monthly cycles, payable in advance.
- Option A: Set and Forget Membership A: 2 hours a week (1 visit). Fee is $80 plus GST per week, invoiced in three monthly cycles at $960 plus GST per cycle.
- Option B: Set and Forget Membership B: 3 hours a week (2 visits of 1.5 hours each). Fee is $110 plus GST per week, invoiced in three monthly cycles at $1320 plus GST per cycle.
- Option C: Set and Forget Membership C: 6 hours a week (2 visits of 3 hours each). Fee is $220 plus GST per week, invoiced in three monthly cycles at $2640 plus GST per cycle.
- The customer is able to view the available times and dates and secure a regular time slot/s for three months. At the end of the cycle the customer may change the time slots, or the existing time slots will automatically continue.
3. Management of Payments
(a) All services are paid for via www.yourmagichelper.com.au.
(b) The supplier uses Stripe to manage payments. When services are purchased online the customer agrees to provide Stripe with a valid credit card (for example Visa or MasterCard). The supplier uses Stripe because they are a world leader in processing credit cards over the web. Stripe has been audited by an independent PCI Qualified Security Assessor (QSA) and is certified as a PCI Level 1 Service Provider. This is the most stringent level of certification available in the payments industry. To view Stripes Terms of Service click here: https://stripe.com/au/legal
(c) The use of the customer’s credit card is governed by their card issuer and customers should refer to their card issuers agreement to determine a clear understanding of their rights when using a card to make online purchases.
(d) By providing Stripe with their credit card details (via the Your Magic Helper website) the customer is authorising the supplier to invoice the customer’s account immediately. The customer also needs to be aware of the following:
- If the customer’s credit card details change, or their address changes, the customer must inform the supplier immediately, by emailing firstname.lastname@example.org
- The customer is responsible for all charges to the customer’s account including services, processing fees and any other charges, which may occur as a result of engaging the supplier’s services.
- The supplier will be unable to provide the services if the customer’s account has insufficient funds. If a payment fails, the customer will be notified by email, phone call or SMS.
(e) The supplier will contact the customer if there appear to be insufficient funds on the customer’s account. However, the supplier accepts no responsibility for any fees or charges for overdrawn accounts, so please check with your financial institution.
The supplier will provide the services at the location set out in the schedule, or as agreed by the parties from time to time.
The term of a Pay As you Go membership commences on the date of payment of the fee to access the booking system and ends one year from that date. The term of a Set and Forget membership commences on the date the membership is purchased by the customer and end three months from that date (for example, if the packages was bought on 5 March of a year, then the term would end on 4 June of that year). A term will automatically be renewed for the same period, unless the customer cancels the Agreement in writing within the last week of a specific term.
The supplier is an independent contractor not an employee, partner, joint venture partner or agent of the customer.
7. No Exclusivity
Neither the customer nor the supplier are required to deal with each other on an exclusive basis in relation to the services which are the subject of the Agreement.
8. Warranties, Liability, Indemnities and Feedback
(a) If the customer is not satisfied with any services, the supplier will work with the customer to train the supplier’s helper on the relevant task, or provide the customer with another helper. The supplier offers up to 2 helper replacements within a 12 month period, alternatively, at the end of the three month period the customer will have the option not to renew the agreement. The customer should email email@example.com, within seven days of the shift in question in relation to any complaints or further training requirements.
(b) The supplier warrants that it will use reasonable care and skill in performing the services.
(c) If the supplier performs the services negligently or in breach of this agreement then, if requested by the customer, the supplier will reperform the relevant part of the services.
(d) Except in the case of death or personal injury caused by the supplier’s negligence and furthermore subject to the provisions of clause 11 of the agreement, the liability of the supplier under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the Fee(s) paid by the customer to the supplier under this agreement.
(e) Neither party shall be liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature, including any economic loss or other loss of turnover, profits, business or goodwill.
(f) Customers are encouraged to provide feedback, as the supplier strives to ensure that the services are provided as required by the customer.
(a) The supplier has effected and will maintain the following insurances, to indemnify the customer against any and all sums that may become payable due to the actions of the supplier, its employees and any subcontractors during the currency of this agreement:
(i) A public liability insurance policy in the amount of $20 million.;
(ii) Workers compensation insurance for its employees;
(b) The supplier will provide to the customer a copy of a certificate of currency in relation to each insurance policy on request by the customer.
(c) Notwithstanding clause 9 (a), the customer acknowledges that the supplier is unable to obtain public liability insurance in relation to the provision of services by third party service providers. Accordingly, the customer acknowledges and accepts the terms of clause 11 in relation to the voluntary assumption of risk associated with providing the services, particularly in relation to the drop-off and pickup of the customer’s children or children under their control.
The customer acknowledges that the supplier will use third-party service providers in relation to the provision of the services, examples including but not limited to, the use of various forms of transport as indicated in clause 11 below for school drop off and pick up, dry cleaners (drop-off and pickup), ironing service providers (drop-off and pickup), parcels (drop-off and pickup), couriers and other third-party providers such as gardening services, carpet cleaning and similar services.
11. Warning and Assumption of Risk - Important
The customer acknowledges that there is an element of risk involved in the supplier using third-party service providers, in particular in relation to the use of Uber drivers, public transport, private vehicles and any other form of transport (including walking) for school drop off and pick up. The customer accordingly voluntarily agrees to assume the risk to the customer’s child/ren or child/ren under their control in relation to the use of such third-party service providers and agrees that customer will have no claim against the supplier or its employees, howsoever arising, in relation to the use of third party suppliers, unless it can be proven that the supplier or its employees were negligent in providing the services.
12. Invoicing and Payment
The customer will pay the supplier’s fees in advance on their due date.
The supplier will create and maintain proper records relating to the services provided to the customer under this agreement and provide copies the customer on request.
14. Compliance and Safety in relation to Service
(a) In providing the services set out in the schedule, the supplier will ensure that its personnel are trained, hold the appropriate licenses, comply with all laws, regulations and observe health and safety standards. Any personnel involved in the provision of child-minding services will have the necessary Working with Children checks and clearances.
(b) The customer undertakes to ensure that a safe and healthy workplace and safe systems for work is provided for all personnel of the supplier.
(a) The supplier will ensure that its personnel have the appropriate qualifications training and experience to perform their tasks competently and in a businesslike manner and that they will conduct themselves diligently with due skill and care.
(b) The customer may on reasonable grounds notify the supplier in writing that a member of its team is unacceptable whereupon the supplier will replace that person.
(c) The supplier is solely responsible for all pay, entitlements and other benefits for its employees.
(d) The supplier indemnifies the customer from and against any liability or claim arising out of a failure by the supplier to observe the supplier’s obligations to its employees.
(a) The customer will not, during the course of the agreement and for one year after termination of the agreement :
- solicit, canvass, induce or encourage any person or entity who is an employee or agent of the supplier to leave the employment or service of the supplier, or
- interfere or seek to interfere, directly or indirectly, with the relationship between the Company and its customers, employees or suppliers in the conduct of the Company’s business.
(b) The customer acknowledges that the restraint obligations imposed by clause 16(a) are fair and reasonable in their extent having regard to the interests of the supplier and extend no further than is reasonably necessary and is solely to protect the interests and goodwill of the supplier.
(c) The parties agree that for any breach of these restraints damages alone may be an inadequate remedy and that the supplier may obtain injunctions and require specific performance in order to protect its rights in terms of this clause 16, in addition to any other remedies available at law and equity.
17. Use of Equipment
The customer will ensure that any of the customers equipment which to be used by the supplier in the performance of its obligations in terms of this agreement is safe, fit for the work required and is properly maintained during its operation under this agreement.
18. Incident Reporting
As soon as becoming aware of an accident or serious incident arising out of the services each party shall inform the other and take such action as is necessary to deal with the situation. The party responsible will provide a written report setting out the cause of the event and all other relevant information as soon as practicable after remedial action has been taken.
(a) This agreement expires and comes to an end on completion of the services under this agreement.
(b) In the event that the agreement is on a PAYG basis, then without cause either party may terminate this agreement on 30 days written notice provided that work in progress is completed before the termination date. In the event that the agreement is on a three month Set and Forget basis, then the subscription may only be terminated within the last week of any three-month subscription period.
(c) If either party is in breach of this agreement, the other party may provide written notice to the party in breach, specifying the breach and requiring that party to remedy the breach within seven days, failing which the party which is not in breach may immediately terminate this agreement by notice in writing.
20. Events Following Termination
The expiry or termination of this agreement for any reason will not affect any liability or amount due in terms of this agreement prior to the date of termination.
Neither party may assign any rights or benefits under this agreement at any time, without the other party’s written consent.
(a) The parties must treat any confidential information provided in accordance with this agreement as confidential. They must not, and must ensure that any person who receives any confidential information does not, disclose any of the information in any form to anyone else or use any of the information except to perform its obligations under this agreement. This obligation survives the termination of this agreement. In particular, the supplier acknowledges and agrees that any confidential information arising out of access to the customer’s home will be confidential and that any employee of the supplier who breaches the terms of this confidentiality clause, may be subject to disciplinary action by the supplier.
(b) Confidential information does not include information which is generally available publicly, otherwise than as a result of a breach of this agreement, which was known by a party prior to its disclosure to that party, or which that party is required to disclose in terms of any law.
23. Entire agreement
This agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this agreement, and supersedes any prior understanding, arrangement, representation or agreements between the parties as to the subject matter contained in this agreement.
An amendment or variation to this agreement is not effective unless it is in writing and signed by the parties.
25. Dispute Resolution
If a dispute arises between the parties, the complainant must not commence any court or arbitration proceedings, except where that party seeks urgent interlocutory relief, unless it has first complied with this clause:
The complainant must inform the respondent in writing of the following:
(i) The nature of the dispute;
(ii) The outcome the complainant desires, and
(iii) The action the complainant believes will settle the dispute.
(b) Endeavour to resolve dispute
On receipt of the complaint by the respondent, both parties will make every effort to resolve the dispute by mutual negotiation within 14 business days.
Any unresolved dispute or difference whatsoever arising out of or in connection with this agreement shall be submitted to mediation under the Mediation Rules of the Resolution Institute.
(d) Survival of this clause
This clause survives termination of this agreement.
26. Events beyond control
Neither party shall be liable to the other party for any loss caused by any failure to observe the terms and conditions of this agreement, where such failure is occasioned by causes beyond its reasonable control including but not limited to by fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authorities.
If anything in this agreement is unenforceable, illegal or void, it is severed and the rest of the agreement remains in force.
A notice or other communication to a party must be in writing and delivered to that party at the address set out in this agreement, in one of the following ways:
(a) Delivered personally; or
(b) Posted to their address when it will be treated as having been received on the third business day after posting; or
(c) Faxed to their facsimile number when it will be treated as received when it is transmitted; or
(d) Sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.