(a) These Client Terms will apply to all the Client’s dealings with WillMove, including being incorporated in all agreements, quotations or orders under which WillMove 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).
(b) 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 WillMove after receiving or becoming aware of this Agreement or these Client Terms.
(c) 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.
(a) In consideration for the payment of the fees set out in the Client Form (Fees), WillMove will provide the Client with services set out in a Client Form (Services).
(b) Unless otherwise agreed, WillMove may, in its discretion:
(i) not commence work on any Services until the Client has paid any Fees or deposit payable in respect of such Services; and
(ii) withhold delivery of Services until the Client has paid an invoice in respect of such Services.
3.1 PROVIDE INFORMATION AND LIAISON
(a) The Client must provide WillMove with all documentation, information and assistance reasonably required for WillMove to perform the Services.
(b) The Client agrees to liaise with WillMove as it reasonably requests for the purpose of enabling WillMove to provide the Services.
4.1 FEES
The Client must pay to WillMove fees in the amounts and at the times set out in the Client Form or as otherwise agreed in writing.
4.2 INVOICES
Unless otherwise agreed in the Client Form:
(a) if WillMove issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and
(b) in all other circumstances, the Client must pay for all goods and services within 2 weeks of receiving an invoice for amounts payable.
4.3 PAYMENT METHOD
The Client must pay Fees using the fee payment method specified in the Client Form.
4.4 EXPENSES
Unless otherwise agreed in writingany third party costs incurred by WillMovein the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Client Form.
4.5 GST
Unless otherwise indicated, amounts stated in a Client Form do not include GST. In relation to any GST payable for a taxable supply by WillMove, the Client must pay the GST subject to WillMove providing a tax invoice.
4.6 CARD SURCHARGES
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).
(a) The Client warrants that:
(i) the Client is the owner of any Goods or is the authorised agent of the owner of the Goods; and
(ii) the Client is the owner or has obtain necessary permissions from the owners of the properties located at the Pick-up Address and/or Delivery Address (Premises) for the Services to be performed at the Premises, if the Premises are private property.
(b) WillMove may require the Client to produce evidence of this prior to commencing any Installation.
On the Services Date, the Client, or the Client’s authorised representative must:
(a) be present at the Premises and, if reasonably requested by WillMove, remain there while the Services being carried out;
(b) provide access to all personnel, equipment and vehicles reasonably required to carry out the Services;
(c) ensure that the Premises are safe for the Services to be performed; and
(d) where in the reasonable opinion of WillMove it is unsafe to perform the Services at the Premises or if the Client is not at the Premises on the Services Date, WillMove will be entitled to cancel the Services without providing a refund to the Client and/or store the Goods at the warehouse, in which case the Client will have to bear the costs of such storage.
(a) 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).
(b) Unless otherwise agreed in writing, WillMove may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
The Client warrants that:
(a) The Client will provide timely and accurate instructions and assistance to WillMove to enable it to perform the Services (otherwise, WillMove may terminate this Agreement without refunding the Client);
(b) Unless otherwise agreed in writing, the Goods do not include any firearms or any items that are dangerous, corrosive, highly combustible, explosive, noxious or likely to attract pests;
(c) The Client will provide WillMove with written notice of any Goods that are fragile, including goods comprising of jewellery, artworks, previous objects, money or other brittle equipment with a value exceeding $1000.00 per item;
(d) Any information the Client provides to WillMove is true, correct and complete;
(e) During the performance of the Service the Client or an authorised agent of the Client will be present at all times to supervise the performance of the Services, except in during Services that are provided immediately prior to or after storage;
(f) The Client will, at its cost, obtain any consents, licences and permissions necessary for the Services to be provided prior to the provision of the Services;
(g) If applicable, the Client has and will provide WillMove with a valid ABN; and
(h) If applicable, the Client is registered for GST purposes.
(a) While WillMove takes great care when providing its Services, removal services can and often do occasion damage to goods being transported and other property. Such damage is inherent in moving goods that were not designed to be moved and is often unavoidable. Where damage to the Client’s Goods and/or Premises occurs, WillMove will not be liable for such damage, except for where it was negligent in performing the Services.
(b) For the avoidance of doubt, where the Client incurs costs repairing any damage to the Goods occasioned during the provision of the Services, whether by employing third parties to conduct repairs or otherwise, WillMove will not be liable for such costs.
(a) WillMove holds public liability and vehicle insurance (Insurances). The Client acknowledges that the Insurances may not cover the Client’s Goods and/or Premises and WillMove will have no obligation to insure the Client’s Goods and/or Premises under this agreement.
(b) The Client is strongly encouraged to take out adequate insurance to cover all potential damage that could arise from their receipt of the Services.
(c) For Goods valued at over $1,000, the Client must take out their own transit insurance.
(d) The Client must not do or permit anything to be done which may make WillMove’s Insurances invalid or able to be cancelled or which may increase WillMove’s insurance premiums.
(a) If WillMove 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’).
(b) Provided that WillMove 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 WillMove acquires as part of providing the goods or services and WillMove will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(c) The Client has the right to reject any Third Party Terms. If the Client rejects the Third Party Terms, WillMove cannot provide the Services to the Client and clause 15 will apply.
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) 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.
To the maximum extent permitted by law, 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 WillMove under the most recent Key Details.
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 WillMove, except:
(a) In relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
(b) To the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).
The Service Provider may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.
15.1 TERMINATION FOR CONVENIENCE
(a) Either party may end this agreement for no reason, by providing notice to the other party.
(b) This agreement will end 10 Business Days after the day the notice is sent (the End Date).
(c) On the End Date, WillMove will provide an invoice to the Client for:
(i) any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);
(ii) any pre-approved third party costs WillMovehas incurred on the Client’s behalf up to the End Date; and
(iii) if terminated by the Client, WillMove’spre-estimated genuine losses as a result of the Client ending this agreement,
(together, the Outstanding Amounts)
(d) The Client will pay the Outstanding Amounts to WillMoveon the End Dateunless otherwise agreed in a written payment plan between the parties.
(e) Once the Outstanding Amounts have been paid, WillMovewill hand over any completed deliverables.
(f) If WillMoveterminates this agreement pursuant to this clause,WillMovewill make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.
15.2 Termination for breach
(a) 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.
(b) 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.
(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
(d) After the Rectification Period, the Notifying Party will:
(i) if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
(ii) if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
(f) Any disputes regarding termination under this clause must be dealt with in accordance with clause 16. The indemnities, warranties and liability caps in clause 13will apply to any disputes and resulting claims. Any pre-estimated losses in clause 15.1will not limit or otherwise effect WillMove’srights under this agreement, at law or otherwise in equity; WillMove’slosses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.
15.3 Other consequences for termination
If this agreement ends, in addition to the specific consequences set out in clause 15.1or 15.2(as applicable), the parties will:
(a) return all property to the other party; and
(b) comply with all obligations that are by their nature intended to survive the end of this agreement, including without limitation.
(a) 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.
(b) 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).
(c) 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.
(d) If mediation does not resolve the issue, the parties must:
(i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
(ii) 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.
(e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).
(f) 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.
(g) The process in this clause does not apply where a party requires an urgent injunction.
(a) 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 headingmust refer to the name and date of this agreement.
(b) 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.
(c) 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.
(a) 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:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strike or other industrial action;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) 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.
(b) 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:
(i) reasonable details of the Force Majeure Event; and
(ii) 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.
(c) Subject to compliance with clause 18(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.
(d) 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.
19.1 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law applying in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australiaand 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.
19.2 AMENDMENTS
This Agreement may only be amended in accordance with a written agreement between the parties.
19.3 WAIVER
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.
19.4 SEVERANCE
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.
19.5 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
19.6 ASSIGNMENT
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.
19.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one Agreement.
19.8 COSTS
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.
19.9 ENTIRE AGREEMENT
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.
19.10 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (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;
(e) (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;
(f) (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;
(g) (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;
(h) (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (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.